Editor's notes. - Ga. L. 1978, p. 309, et seq., enacted a recodification of the revenue laws for the state. Section 1 of the Act provides that the intent of the General Assembly was to provide for a general recodification of revenue laws, to omit obsolete and duplicative provisions, to make uniform administrative provisions where uniformity was possible without major substantive change, and to use simple understandable English in the revenue laws. The section further provides that it was not the intent of the General Assembly to make any substantive change in the revenue laws of this state as the laws existed prior to January 1, 1980, except as expressly provided in the reenactment.

Law reviews. - For article surveying taxpayers' remedies in Georgia, see 1 Ga. B. J. 19 (1939). For article discussing application of the principle that he who would have equity must do equity to taxpayer's suits, see 7 Ga. St. B. J. 305 (1971). For article discussing taxation of foreign businesses in Georgia, see 27 Mercer L. Rev. 629 (1976). For article surveying provisions of the Public Revenue Code, former Code 1933, T. 92 (see this title), see 14 Ga. St. B. J. 156 (1978). For article, "A Practical Guide to State Tax Practice," see 15 Ga. St. B. J. 74 (1978). For article surveying judicial decisions affecting Georgia's state and local taxation laws, decided under the prior Public Revenue Code, Code 1933, Title 92 (see this title), see 31 Mercer L. Rev. 217 (1979). For article discussing ad valorem taxation and interest in real property in Georgia, prior to the enactment of the Georgia Public Revenue Code, T. 48, see 31 Mercer L. Rev. 293 (1979). For article, "Reflections on the Revenue Act of 1978 and Future Tax Policy," see 13 Ga. L. Rev. 687 (1979). For annual survey on state and local taxation, see 36 Mercer L. Rev. 307 (1984). For article surveying state and local tax law, see 37 Mercer L. Rev. 361 (1985). For annual survey of state and local taxation, see 40 Mercer L. Rev. 357 (1988). For annual survey of state and local taxation, see 42 Mercer L. Rev. 421 (1990). For article, "Revenue and Taxation: Sales and Use Taxes," see 29 Ga. St. U. L. Rev. 112 (2012). For article, "Simplexity: Plain Language and the Tax Law," see 66 Emory L.J. 189 (2017). For article, "The Offshore Tax Enforcement Dragnet," see 67 Emory L.J. 655 (2018). For article, "America's (D)evolving Childcare Tax Laws," see 53 Ga. L. Rev. 1093 (2019). For article, "Taxation of Settlement Payments," see 25 Ga. St. B.J. 19 (Oct. 2019).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1929, p. 58 and former Code 1933, T. 92, which was subsequently repealed but was succeeded by provisions in this title, are included in the annotations for this title.

Revenue laws to be construed in favor of taxpayer. - Revenue laws are neither remedial statutes nor laws founded upon any permanent public policy, and are not, therefore, to be liberally construed. Hence, whenever there is a just doubt, that doubt should absolve the taxpayer from the burden. Mystyle Hosiery Shops, Inc. v. Harrison, 171 Ga. 430 , 155 S.E. 765 (1930) (decided under Ga. L. 1929, p. 58).

Effect upon local laws. - The 1978 Georgia Public Revenue Code, Ga. L. 1978, p. 309, did not repeal by implication a local Act authorizing a city and county to contract for a consolidated board of tax assessors, and a later statute repealing the local Act was not void. Chatham County v. Hussey, 267 Ga. 895 , 485 S.E.2d 753 (1997).

Revenue laws require strict construction. - Statutes which impose restrictions upon trade or common occupations, and which levy an excise or tax upon those trades or occupations, must be construed strictly. Mystyle Hosiery Shops, Inc. v. Harrison, 171 Ga. 430 , 155 S.E. 765 (1930) (decided under Ga. L. 1929, p. 58).

Revenue laws are not to be extended by implication. - Statutes levying duties or taxes upon subjects or citizens are to be construed most strongly against the government, and in favor of their subjects or citizens, and their provisions are not to be extended, by implication, beyond the clear import of the language used. Mystyle Hosiery Shops, Inc. v. Harrison, 171 Ga. 430 , 155 S.E. 765 (1930) (decided under Ga. L. 1929, p. 58).

When taxpayer's remedies do not expressly include action at law, such action does not lie. - When the General Assembly authorizes a tax for governmental purposes and provides an adequate remedy for the tax's collection by administrative officers, the necessary intent is that the collection of the tax is exclusively confined to that administrative department of the government, and when the statute undertakes to provide remedies for the collection of taxes, and those given do not embrace an action at law, a common-law action for the recovery of taxes as a debt will not lie. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935) (decided under former Code 1933, T. 92).

Court of equity has no power to foreclose lien and order sale. - Power to levy and collect taxes is exclusively a legislative function, and unless authorized by statute, a court of equity is without power to foreclose a lien for taxes and order a sale of the property. No such power having been conferred by statute on a court of equity in this state, a court errs in decreeing that land be sold by the sheriff for the payment of state and county taxes. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935) (decided under former Code 1933, T. 92).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, T. 92, which was subsequently repealed but was succeeded by provisions in this title, are included in the annotations for this title.

Transaction must have object other than tax evasion. - While ordinarily motive is not controlling in a transaction planned for tax avoidance purposes, the rule is subject to an exception. There must be some authentic object other than the defeat of a tax. 1962 Op. Att'y Gen. p. 558 (decided under former Code 1933, T. 92).

RESEARCH REFERENCES

ALR. - Validity of statutory classifications based on population - tax statutes, 98 A.L.R.3d 1083.

CHAPTER 1 GENERAL PROVISIONS

Sec.

Cross references. - Power of state to tax, Ga. Const. 1983, Art. VII, Sec. I.

Levy by counties and municipalities of excise tax on sale of distilled spirits by the drink, § 3-4-130 et seq.

Excise taxes relating to sale of malt beverages, § 3-5-60 et seq.

Excise taxation relating to sale of wine, § 3-6-50 et seq.

Excise taxation of sale of distilled spirits in private clubs, § 3-7-60 .

Taxation of gross direct premiums received by insurance companies doing business in state, § 33-8-4 .

Power of Governor to suspend collection of taxes due state until meeting of next General Assembly, § 45-12-22 .

RESEARCH REFERENCES

ALR. - Liability to refund local taxes as within coverage of liability insurance, 21 A.L.R.4th 895.

48-1-1. Short title.

This title shall be known and may be cited as the "Georgia Public Revenue Code."

(Code 1933, § 91A-101, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Cited in City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

48-1-2. Definitions.

As used in this title, the term:

  1. "Agency" means any department, commission, institution, office, or officer of this state.
  2. "Aircraft" means any contrivance used or designed for navigation or flight through the air.
  3. "Airline company" means any person who undertakes, directly or indirectly, to engage in the scheduled transportation by aircraft of persons or property for hire in intrastate, interstate, or international transportation.
  4. "Commissioner" means the state revenue commissioner.
  5. "Contraband article" means:
    1. Any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking, prima facie evidencing the payment of any tax imposed by the revenue laws of this state;
    2. Any article, plate, die, stamp, machine, apparatus, paraphernalia, or other device or material designed for use, intended to be used, or used in the making of any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking described in subparagraph (A) of this paragraph; or
    3. Any article or property to which any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking prima facie evidencing the payment of any tax imposed by the revenue laws of this state is attached or affixed.
  6. "Department" means the Department of Revenue.
  7. "Deputy commissioner" means the deputy revenue commissioner.
  8. "Domestic," when applied to any corporation or association (including, but not limited to, a partnership), means created, organized, or domiciled in this state.
  9. "Fiduciary" means a guardian, trustee, executor, administrator, receiver, conservator, or any person, whether individual or corporate, acting in any fiduciary capacity for any person.
  10. Reserved.
  11. "Foreign," when applied to any corporation or association (including, but not limited to, a partnership), means created or organized outside this state.
  12. "Individual" means a natural person.
  13. "Intangible personal property" means the capital stock of all corporations; money, notes, bonds, accounts, or other credits, secured or unsecured; patent rights, copyrights, franchises, and any other classes and kinds of property defined by law as intangible personal property.
  14. "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning on or after January 1, 2019, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before March 27, 2020, except that Section 108(i), Section 163(e)(5)(F), Section 168(b)(3)(I), Section 168(e)(3)(B)(vii), Section 168(e)(3)(E)(ix), Section 168(e)(8), Section 168(k), Section 168(m), Section 168(n), Section 179(d)(1)(B)(ii), Section 179(f), Section 199, Section 381(c)(20), Section 382(d)(3), Section 810(b)(4), Section 1400L, Section 1400N(d)(1), Section 1400N(f), Section 1400N(j), Section 1400N(k), and Section 1400N(o) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that Section 168(e)(7), Section 172(b)(1)(F), and Section 172(i)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2008 enactment of federal Public Law 110-343, and except that Section 163(i)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as it was in effect before the 2009 enactment of federal Public Law 111-5, and except that Section 13(e)(4) of 2009 federal Public Law 111-92 shall be treated as if it was not in effect, and except that Section 118, Section 163(j), and Section 382(k)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2017 enactment of federal Public Law 115-97, and except that all provisions in federal Public Law 116-136 (CARES Act) that change or affect in any manner Section 172 and Section 461(l) shall be treated as if they were not in effect, and except that the limitations provided in Section 179(b)(1) shall be $250,000.00 for tax years beginning in 2010, shall be $250,000.00 for tax years beginning in 2011, shall be $250,000.00 for tax years beginning in 2012, shall be $250,000.00 for tax years beginning in 2013, and shall be $500,000.00 for tax years beginning in 2014, and except that the limitations provided in Section 179(b)(2) shall be $800,000.00 for tax years beginning in 2010, shall be $800,000.00 for tax years beginning in 2011, shall be $800,000.00 for tax years beginning in 2012, shall be $800,000.00 for tax years beginning in 2013, and shall be $2 million for tax years beginning in 2014, and provided that Section 1106 of federal Public Law 112-95 as amended by federal Public Law 113-243 shall be treated as if it is in effect, except the phrase "Code Section 48-2-35 (or, if later, November 15, 2015)" shall be substituted for the phrase "section 6511(a) of such Code (or, if later, April 15, 2015)," and notwithstanding any other provision in this title, no interest shall be refunded with respect to any claim for refund filed pursuant to Section 1106 of federal Public Law 112-95, and provided that subsection (b) of Section 3 of federal Public Law 114-292 shall be treated as if it is in effect, except the phrase "Code Section 48-2-35" shall be substituted for the phrase "section 6511(a) of the Internal Revenue Code of 1986" and the phrase "such section" shall be substituted for the phrase "such subsection." In the event a reference is made in this title to the Internal Revenue Code or the Internal Revenue Code of 1954 as it existed on a specific date prior to March 27, 2020, the term means the provisions of the Internal Revenue Code or the Internal Revenue Code of 1954 as it existed on the prior date. Unless otherwise provided in this title, any term used in this title shall have the same meaning as when used in a comparable provision or context in the Internal Revenue Code of 1986, as amended. For taxable years beginning on or after January 1, 2019, provisions of the Internal Revenue Code of 1986, as amended, which were as of March 27, 2020, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

    (14.1) "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning after December 31, 2005, but before January 1, 2007, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January 1, 2006, except that Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 199, Section 1400L, Section 1400N(d)(1), Section 1400N(j), and Section 1400N(k) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that the following provisions shall be as amended by the federal Tax Relief and Health Care Act of 2006 (Pub. L. No. 109-432) as such federal act existed on December 20, 2006, and effective for purposes of Georgia taxation on the same dates upon which they became effective for federal tax purposes pursuant to said federal act: Sections 38, 41, 45A, 45N, 51, 51A, 61, 62, 106, 121, 143, 164, 168 (except 168(k) but not excepting 168(k)(2)(A)(i), 168 (k)(2)(D)(i), and 168(k)(2)(E)), 170, 179E, 198, 220, 222, 223, 263, 280C, 312, 355, 613A, 954, 1043, 1221, 1245, 1355, 1397E, 1400A, 1400B, 7623, and 7872. For such taxable years, provisions of the Internal Revenue Code of 1986, as amended, which were as of January 1, 2006, enacted into law but not yet effective shall be effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes. The provisions of this paragraph shall supersede and control over any provision of paragraph (14) of this Code section to the contrary.

    (14.2) "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning after December 31, 2006, but before January 1, 2008, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January 1, 2008, except that Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 199, Section 1400L, Section 1400N(d)(1), Section 1400N(j), and Section 1400N(k) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect. For such taxable years, provisions of the Internal Revenue Code of 1986, as amended, which were as of January 1, 2008, enacted into law but not yet effective shall be effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes. The provisions of this paragraph shall supersede and control over any provision of paragraph (14) of this Code section to the contrary.

    (14.3) "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning after December 31, 2007, but before January 1, 2009, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January 1, 2009, except that Section 168(b)(3)(I), Section 168(e)(3)(B)(vii), Section 168(e)(3)(E)(ix), Section 168(e)(8), Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 168(m), Section 168(n), Section 172(b)(1)(F), Section 172(b)(1)(J), Section 172(j), Section 199, Section 1400L, Section 1400N(d)(1), Section 1400N(f), Section 1400N(j), Section 1400N(k), and Section 1400N(o) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that Section 168(e)(7), Section 172(i)(1), and Section 1221 of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2008 enactment of federal Public Law 110-343. For such taxable years, provisions of the Internal Revenue Code of 1986, as amended, which were as of January 1, 2009, enacted into law but not yet effective shall be effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes. The provisions of this paragraph shall supersede and control over any provision of paragraph (14) of this Code section to the contrary.

  15. "Internal Revenue Service" or "IRS" means the Internal Revenue Service of the United States Department of the Treasury.
  16. "Member of the armed forces" means commissioned officers and personnel below the grade of commissioned officers in all regular and reserve components of the uniformed services subject to the jurisdiction of the United States Department of Defense. The term also includes the Coast Guard, but it does not include civilian employees of the armed forces.
  17. "Municipality" means an incorporated municipality in this state.
  18. "Person" means any individual, firm, partnership, cooperative, nonprofit membership corporation, joint venture, association, company, corporation, agency, syndicate, estate, trust, business trust, receiver, fiduciary, or other group or combination acting as a unit, body politic, or political subdivision, whether public, private, or quasi-public.
  19. "Personal property" means all tangible personal property and all intangible personal property, as the terms are defined in this Code section.
  20. "Personal representative" means the duly qualified and acting personal representative of the estate of a decedent or, if there is no duly qualified and acting representative, the person in possession of any property of the decedent.
  21. "Public utility" means all railroad companies, street and suburban railroads, or sleeping car companies; persons or companies operating railroads, street railroads, suburban railroads, or sleeping cars in this state; all express companies including railroad companies doing express, telephone, or telegraph business (except small telephone companies or persons operating a telephone business, the value of whose capital stock or property is less than $5,000.00); all gas, electric light, electric power, hydroelectric power, steam heat, refrigerated air, dockage or cranage, canal, toll road, toll bridge, railroad equipment, and navigation companies; and any person or persons operating a gas, electric light, electric power, hydroelectric power, steam heat, refrigerated air, dockage or cranage, canal, toll road, toll bridge, railroad equipment, or navigation business, through their president, general manager, owner, or agent having control of the company's offices in this state.
  22. "Tangible personal property" means personal property which may be seen, weighed, measured, felt, or touched or which is in any other manner perceptible to the senses. The term "tangible personal property" shall not include intangible personal property. This paragraph shall not apply to Chapter 8 of this title relating to sales and use taxation.
  23. "Tax collector" means a county tax collector.
  24. "Tax commissioner" means a county tax commissioner.
  25. "Taxpayer" means any person required by law to file a return or to pay taxes.
  26. "Tax receiver" means a county tax receiver.

    (Code 1933, § 91A-102, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 2; Ga. L. 1981, p. 1857, § 2; Ga. L. 1981, p. 1903, § 1; Ga. L. 1982, p. 3, § 48; Ga. L. 1984, p. 1323, § 1; Ga. L. 1987, p. 191, § 1; Ga. L. 1988, p. 475, § 1; Ga. L. 1989, p. 1402, § 1; Ga. L. 1990, p. 1350, § 1; Ga. L. 1991, p. 367, § 1; Ga. L. 1992, p. 1441, § 1; Ga. L. 1993, p. 728, § 1; Ga. L. 1993, p. 1402, § 16; Ga. L. 1994, p. 797, § 1; Ga. L. 1995, p. 324, § 1; Ga. L. 1996, p. 117, § 1; Ga. L. 1996, p. 130, § 1; Ga. L. 1996, p. 308, § 1; Ga. L. 1997, p. 396, § 1; Ga. L. 1998, p. 1224, § 1; Ga. L. 1999, p. 483, § 1; Ga. L. 2000, p. 1296, § 1; Ga. L. 2001, p. 1224, § 1; Ga. L. 2002, p. 439, § 1; Ga. L. 2003, p. 665, § 2; Ga. L. 2004, p. 410, § 2; Ga. L. 2005, p. 159, § 2/HB 488; Ga. L. 2006, p. 200, § 1/HB 1310; Ga. L. 2007, p. 2, §§ 1, 2/HB 357; Ga. L. 2008, p. 10, §§ 1, 2/HB 926; Ga. L. 2008, p. 324, § 48/SB 455; Ga. L. 2009, p. 6, §§ 1, 2/HB 74; Ga. L. 2010, p. 895, § 1/HB 1138; Ga. L. 2011, p. 38, § 1/HB 168; Ga. L. 2012, p. 694, § 1/HB 729; Ga. L. 2013, p. 7, § 1/HB 266; Ga. L. 2014, p. 231, § 1/HB 918; Ga. L. 2015, p. 2, § 1/HB 292; Ga. L. 2016, p. 1, § 1/HB 742; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 4, § 1/HB 283; Ga. L. 2018, p. 8, § 1-1/HB 918; Ga. L. 2019, p. 817, § 1/HB 419; Ga. L. 2020, p. 184, § 1-1/HB 846.)

The 2015 amendment, effective March 6, 2015, in paragraph (14), substituted "January 1, 2014" for "January 1, 2013" twice, substituted January 1, 2015" for "January 1, 2014" three times, substituted "November 15, 2015" for "November 15, 2013" and "April 15, 2015" for "April 15, 2013" once each, deleted "and" following "for tax years beginning in 2012," twice, inserted "and shall be $500,000.00 for tax years beginning in 2014,", inserted "and shall be $2 million for tax years beginning in 2014,", and inserted "as amended by federal Public Law 113-243". See Editor's notes for applicability.

The 2016 amendments. The first 2016 amendment, effective February 23, 2016, in paragraph (14), substituted "January 1, 2015" for "January 1, 2014" twice, substituted "January 1, 2016" for "January 1, 2015" three times, and substituted "Section 168(k)(2)(E))" for "Section 168(k)(2)(E)". See Editor's notes for applicability. The second 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (14).

The 2017 amendment, effective March 21, 2017, in paragraph (14), substituted "2016" for "2015" twice, substituted "2017" for "2016" three times, and added ", and provided that subsection (b) of Section 3 of federal Public Law 114-292 shall be treated as if it is in effect, except the phrase 'Code Section 48-2-35' shall be substituted for the phrase 'section 6511(a) of the Internal Revenue Code of 1986' and the phrase 'such section' shall be substituted for the phrase 'such subsection'" at the end of the second sentence. See Editor's note for applicability.

The 2018 amendment, effective March 2, 2018, in paragraph (14), substituted "2017" for "2016" twice; substituted "February 9, 2018" for "January 1, 2017" three times; and in the first sentence, deleted "Section 85(c)," following "except that", deleted "Section 164(a)(6), Section 164(b)(6)," following "Section 163(e)(5)(F),", deleted "(but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E))" preceding ", Section 168(m)", substituted "Section 179(d)(1)(B)(ii)" for "Section 172(b)(1)(H), Section 172(b)(1)(J), Section 172(j)", inserted "Section 381(c)(20), Section 382(d)(3)," following "Section 199,", inserted "and" following "Section 172(b)(1)(F),", deleted ", and Section 1221" following "Section 172(i)(1)", and inserted "and except that Section 118, Section 163(j), and Section 382(k)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2017 enactment of federal Public Law 115-97,". See Editor's notes for applicability.

The 2019 amendment, effective May 7, 2019, in paragraph (14), substituted "January 1, 2018" for "January 1, 2017" twice; and substituted "January 1, 2019" for "February 9, 2018" three times. See Editor's notes for applicability.

The 2020 amendment, effective June 30, 2020, in paragraph (14), substituted "January 1, 2019" for "January 1, 2018" twice, substituted "March 27, 2020" for "January 1, 2019" three times, and inserted "and except that all provisions in federal Public Law 116-136 (CARES Act) that change or affect in any manner Section 172 and Section 461(l) shall be treated as if they were not in effect," in the first sentence. See Editor's notes for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2007, quotes were deleted surrounding ", as amended," in paragraphs (14) and (14.1); and "supersede" was substituted for "supercede" in paragraph (14.1).

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that the Act applied to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply; and also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act; and also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1988, p. 475, § 3, not codified by the General Assembly, provided that the Act applies to taxable years beginning on or after January 1, 1988; and also provided that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1988, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1989, p. 1402, § 2, not codified by the General Assembly, provides that the amendments to this Act shall apply to taxable years beginning on or after January 1, 1989, and that provisions of the Internal Revenue Code of 1986, which were as of January 1, 1989, enacted into law but not yet effective, shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1990, p. 1350, § 2, not codified by the General Assembly, provided that the Act applies to taxable years beginning on or after January 1, 1990, and that provisions of the Internal Revenue Code of 1986, which were as of January 1, 1990, enacted into law but not yet effective, shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1991, p. 367, § 2, not codified by the General Assembly, provided that this Act became effective April 4, 1991, and applies to taxable years beginning on or after January 1, 1991. Provisions of the Internal Revenue Code of 1986, which were as of January 1, 1991, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1992, p. 1441, § 2, not codified by the General Assembly, provided that the Act shall apply to taxable years beginning on or after January 1, 1992, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1992, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1993, p. 728, § 2, not codified by the General Assembly, provided that the Act shall become effective April 9, 1993, and shall apply to taxable years beginning on or after January 1, 1993, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1993, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they became effective for federal tax purposes.

Ga. L. 1994, p. 797, § 2, not codified by the General Assembly, provides that the Act shall apply to taxable years beginning on or after January 1, 1994, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1994, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1995, p. 324, § 2, not codified by the General Assembly, provides that the Act shall apply to taxable years beginning on or after January 1, 1995, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1995, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1996, p. 117, § 9, not codified by the General Assembly, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides that the 1996 amendment enacted by that Act becomes effective on January 1, 1997, and shall be applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November 1996, general election; if such resolution is not ratified, the amendment shall not become effective and shall stand repealed on January 1, 1997. House Resolution 734 was ratified in 1996; and provided that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

Ga. L. 1996, p. 308, § 2, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to taxable years beginning on or after January 1, 1996. Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1996, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes." [Ga. L. 1996, p. 308 was approved and became effective April 1, 1996.]

Ga. L. 1997, p. 396, § 2, not codified by the General Assembly, makes that Act applicable "to taxable years beginning on or after January 1, 1997. Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1997, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 1998, p. 1224, § 8(b), not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 1998, and provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1998, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 1999, p. 483, § 3, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 1999, and provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1999, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2000, p. 1296, § 2, not codified by the General Assembly, provides that the amendment to this Code section is applicable to taxable years beginning on or after January 1, 2000.

Ga. L. 2001, p. 1224, § 2, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 2001, and that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2001, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2002, p. 439, § 2, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 2002, and that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2002, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(b), not codified by the General Assembly, provides that paragraph (14) of this Code section is applicable to all taxable years beginning on or after January 1, 2003.

Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004."'

Ga. L. 2004, p. 410, § 10(b), not codified by the General Assembly, provides that the amendment by that Act shall be applicable to all taxable years beginning on or after January 1, 2004, and further provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2004, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27/HB 488, not codified by the General Assembly, provides that the 2005 amendment applies to all taxable years beginning on or after January 1, 2005, and further provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2005, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2006, p. 200, § 6/HB 1310, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 2006, and further provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2006, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2007, p. 2, § 3(a)/HB 357, not codified by the General Assembly, provides that paragraph (14.1) shall be applicable to all taxable years beginning after December 31, 2005, but before January 1, 2007.

Ga. L. 2007, p. 2, § 3(b)/HB 357, not codified by the General Assembly, provides that paragraph (14) shall be applicable to all taxable years beginning on or after January 1, 2007.

Ga. L. 2008, p. 10, § 3/HB 926, not codified by the General Assembly, provides in § 3(a) that the amendment to paragraph (14) is applicable to all taxable years beginning on or after January 1, 2008, and provides in § 3(b) that the addition of paragraph (14.2) is applicable to all taxable years beginning after December 31, 2006, but before January 1, 2008.

Ga. L. 2009, p. 6, § 3/HB 74, not codified by the General Assembly, provides in part that the amendment to paragraph (14) shall be applicable to all taxable years beginning on or after January 1, 2009, and the addition of paragraph (14.3) shall be applicable to all taxable years beginning after December 31, 2007, but before January 1, 2009.

Ga. L. 2010, p. 895, § 4(b)/HB 1138, not codified by the General Assembly, provides that the 2010 amendment shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2011, p. 38, § 10/HB 168, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2010.

Ga. L. 2012, p. 694, § 5(b)/HB 729, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2011.

Ga. L. 2013, p. 7, § 7(a)/HB 266, not codified by the General Assembly, provides, in part, that the 2013 amendment shall be applicable to all taxable years beginning on or after January 1, 2012, except the provisions in Section 1 relating to Section 1106 of federal Public Law 112-95 shall also apply to taxable years beginning before January 1, 2012.

Ga. L. 2014, p. 231, § 3/HB 918, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and Section 1 shall be applicable to all taxable years beginning on or after January 1, 2013." This Act became effective April 15, 2014.

Ga. L. 2015, p. 2, § 1/HB 292, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2014." This Act became effective March 6, 2015.

Ga. L. 2016, p. 1, § 8/HB 742, not codified by the General Assembly, provides, in part, that: "Section 1 of this Act shall be applicable to all taxable years beginning on or after January 1, 2015."

Ga. L. 2017, p. 4, § 2/HB 283, not codified by the General Assembly, provides that the amendment of paragraph (14) shall be applicable to all taxable years beginning on or after January 1, 2016.

Ga. L. 2018, p. 8, § 3-1(a)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall be applicable to all taxable years beginning on or after January 1, 2017."

Ga. L. 2019, p. 817, § 3/HB 419, not codified by the General Assembly, provides, in part, that this Act "shall be applicable to all taxable years beginning on or after January 1, 2018."

Ga. L. 2020, p. 184, § 4-1(a)/HB 846, not codified by the General Assembly, provides that the amendment of paragraph (14) "shall be applicable to all taxable years beginning on or after January 1, 2019."

U.S. Code. - The Internal Revenue Code, referred to throughout this Code section, is codified at Title 26 of the United States Code.

Administrative Rules and Regulations. - Meaning of terms used, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-6-.02.

Law reviews. - For article, "Issues and Opportunities Under Georgia's Updated Income Tax Provisions," see 25 Ga. St. B. J. 144 (1989). For article, "A Taxing Exception: Southern LNG, Inc. v. MacGinnitie's Narrow Interpretation of the Mandamus Exception," see 66 Mercer L. Rev. 855 (2015). For annual survey on state and local taxation: a two-year survey, see 71 Mercer L. Rev. 279 (2019). For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 233 (2003).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 92-102, 92-113, and 92-5902 are included in the annotations for this Code section.

A foreign corporation is not synonymous and cannot be equated with a nonresident corporation. Therefore, simply because a contractor may be considered a foreign corporation because it was incorporated in Texas does not preclude a finding that it is a resident contractor. Lenox Hotel Co. v. Charter Bldrs., Inc., 717 F. Supp. 1558 (N.D. Ga. 1989).

Ordinarily, bills receivable and accounts receivable are personal property and subject to be taxed. Davis v. Smith, 197 Ga. 95 , 28 S.E.2d 148 (1943), aff'd, 323 U.S. 111, 65 S. Ct. 157 , 89 L. Ed. 107 (1944) (decided under former Code 1933, § 92-102).

Customers' notes used as collateral for loans are intangible personal property. - Owner of customers' notes used as collateral for demand loans is legally obligated to pay the required intangibles tax. Yancey Bros. Co. v. United States, 319 F. Supp. 441 (N.D. Ga. 1970) (decided under former Code 1933, § 92-113).

Taxability of personal property which agent of nonresident does not have "on hand." - Former Code 1933, §§ 92-101, 92-102 and 92-105 (see now O.C.G.A. §§ 48-1-2 and 48-5-3 ) declare in effect that the kinds of property mentioned in former Code 1933, § 92-6208 (see now O.C.G.A. § 48-5-16 ) shall be taxed in Georgia if within its jurisdiction, and manifestly the latter section was not intended to create an exception to taxability or to exempt property of any kind that is otherwise taxable, merely because, if belonging to a nonresident, an agent does not have it "on hand" in this state. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84 , 38 S.E.2d 786 (1946) (decided under former Code 1933, § 92-102).

When corporate purpose clause of taxpayer's charter authorizes taxpayer to engage in a gas business, the taxpayer is therefore a "gas company" within the meaning of this section although not doing a gas business. Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 , 152 S.E.2d 768 (1966) (decided under former Code 1933, § 92-5902).

Liquid petroleum products are not gas within the meaning of this section. Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 , 152 S.E.2d 768 (1966) (decided under former Code 1933, § 92-5902).

Public utility. - In a gas company's suit against the state revenue commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and 48-5-511(a) , remand was proper to determine if the company had an acceptable alternative remedy in its pending county tax appeals under O.C.G.A. § 48-5-311 , if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

Mandamus improperly granted to a company. - Judgment of the trial court granting a company mandamus relief was reversed because the judgment did not show that the State Revenue Commissioner, in refusing to accept the company's ad valorem tax returns as a gas company, violated a clear legal duty, failed to act, or engaged in arbitrary, capricious, and unreasonable actions because the company was not authorized to engage in the business of a gas company under O.C.G.A. § 46-1-1(5) nor be a natural-gas company as defined in 15 U.S.C. § 717a(6). Riley v. Southern LNG, Inc., 300 Ga. 689 , 797 S.E.2d 878 (2017).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-102 and Ga. L. 1951, p. 360, § 3 are included in the annotations for this Code section.

Georgia Seed Development Commission is included within the definition of "person." 1971 Op. Att'y Gen. No. 71-72 (rendered under Ga. L. 1951, p. 360, § 3).

Area vocational-technical schools as persons. - Area vocational-technical schools, operated by local units of school administration, engaged in selling books and other miscellaneous materials to their students on a nonprofit basis, must collect and remit sales taxes on sales made by them; upon failure to make such collections and remittances the local units are liable themselves for the tax. 1973 Op. Att'y Gen. No. 73-83 (rendered under Ga. L. 1951, p. 360, § 3); overruled to some extent by Op. Att'y Gen. 86-18).

Personal property owned by persons in military service. - Resident of Georgia is required to pay ad valorem taxes upon motor vehicles owned by the resident during the time that the taxpayer is in active military service and does not physically reside in Georgia. 1952-53 Op. Att'y Gen. p. 425 (rendered under former Code 1933, § 92-102).

Personal property of a citizen of Georgia in the military service is subject to taxation, whether such property is located within the state or outside the state because of such service. 1954-56 Op. Att'y Gen. p. 671 (rendered under former Code 1933, § 92-102).

Legal resident of this state is liable for Georgia ad valorem taxes on personal property owned by the resident on January first, irrespective of the fact that such person is in the military service and irrespective of the fact that both the property and the owner are absent from the state on January first, or the entire year; this would be so even if no Georgia license plate were purchased. 1962 Op. Att'y Gen. p. 476 (rendered under former Code 1933, § 92-102).

Boats owned and operated by military personnel on duty in this state, if properly registered in state of owner's residence, are not taxable in this state. 1962 Op. Att'y Gen. p. 484 (rendered under former Code 1933, § 92-102).

What constitutes personal property. - Vessels and other watercraft are personal property and are taxable like all other such property within the jurisdiction of a municipality where their situs for taxation is located. 1958-59 Op. Att'y Gen. p. 350 (rendered under former Code 1933, § 92-102).

Shrimp boats are personal property and are subject to taxation in the same manner as other personal property is taxed. 1958-59 Op. Att'y Gen. p. 350 (rendered under former Code 1933, § 92-102).

Motor vehicles of interstate motor carriers which are residents of or are domiciled in state, when not returned for ad valorem taxes, should be placed on tax digest by the county tax commissioner. 1962 Op. Att'y Gen. p. 491 (rendered under former Code 1933, § 92-102).

When a power company's property is located in this state and is a part of its reservoir used for producing electricity distributed to its customers, none of whom are Georgia residents, the company is a power company or a hydroelectric power company as that term is used in this section. 1968 Op. Att'y Gen. No. 68-155 (rendered under former Code 1933, § 92-5902; see O.C.G.A. § 48-1-2 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Property, §§ 8, 9, 19. 64 Am. Jur. 2d, Public Utilities, § 1 et seq. 71 Am. Jur. 2d, State and Local Taxation, § 122 et seq.

C.J.S. - 47A C.J.S., Internal Revenue, § 1 et seq. 62 C.J.S., Municipal Corporations, § 1 et seq. 73B C.J.S., Public Utilities, § 1 et seq. 81A C.J.S., States, § 269 et seq. 82 C.J.S., Statutes, §§ 389 et seq., 402, 410 et seq., 436 et seq.

ALR. - Situs for taxation of membership in exchange or board of trade, 17 A.L.R. 89 .

Gains from unlawful business or transactions as subject of income tax, 43 A.L.R. 799 ; 51 A.L.R. 1026 ; 166 A.L.R. 891 .

Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378 ; 65 A.L.R. 677 .

Oil and gas royalty as real or personal property, 131 A.L.R. 1371 .

Meaning of association or joint stock company within statutes taxing associations or joint stock companies as corporations ("Massachusetts" or business trusts), 144 A.L.R. 1050 ; 166 A.L.R. 1461 .

What passes under term "personal estate" in will, 53 A.L.R.2d 1059.

Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.

48-1-3. Forms and filings prior to January 1, 1980.

Every form of tax document or other tax related filing lawfully in use immediately prior to January 1, 1980, may continue to be so used and to be effective until the commissioner otherwise prescribes in accordance with this title.

(Code 1933, § 91A-104, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in this Code section.

48-1-4. Unlawful exercise by unauthorized person of duties or functions of representative of commissioner or department; penalty.

  1. It shall be unlawful for any unauthorized person to exercise, attempt to exercise, or hold himself out to anyone as exercising the duties or functions of an auditor, agent, or other representative of the commissioner, the department, or any official, unit, or division of the department in any manner or for any purpose.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1961, p. 452, § 1; Code 1933, § 91A-9901, enacted by Ga. L. 1978, p. 309, § 2.)

48-1-5. Unlawful conversion of funds collected for benefit of state; penalty.

  1. It shall be unlawful for any person knowingly and willfully to convert funds collected for the benefit of the state pursuant to this title to his own use or to any other person's use with the intention of depriving the state of the funds.
  2. Any person who violates subsection (a) of this Code section shall be guilty of theft by conversion and shall be punished as provided for in Code Section 16-8-12.

    (Code 1933, § 91A-9901.1, enacted by Ga. L. 1980, p. 834, § 1.)

Cross references. - Theft by conversion generally, § 16-8-4 .

JUDICIAL DECISIONS

Dismissal not error. - Trial court did not err by granting the defendant's motion for a plea in bar dismissing the charges of conversion of sales and use taxes, theft by taking, and false swearing against the defendant because the charges were not brought within four years of the dates on which the crimes were allegedly committed as required by O.C.G.A. § 17-3-1 . State v. Crowder, 338 Ga. App. 642 , 791 S.E.2d 423 (2016).

48-1-6. Unlawful filing of false documents; omissions; tax evasion; penalty.

  1. It shall be unlawful for any person, willfully and with intent to defraud the state, to:
    1. File any return, report, protest, or claim for refund containing any false or fraudulent statement known by the person to be false;
    2. Omit knowingly and intentionally any fact, circumstance, condition, or thing in any written document, the omission of which constitutes a material misstatement or misrepresentation of fact; or
    3. By any trick, device, scheme, or plan, evade or attempt to evade any tax, license, penalty, interest, or other amount due the state.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 43; Code 1933, § 91A-9902, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Legitimately minimizing taxes permitted. - Legitimate arrangement of one's affairs so as to minimize or avoid taxes differs from sham transactions designed to camouflage the actual situation; the former are permissible, but the latter are disapproved and may result in penalty or criminal prosecution. Whitley v. Whitley, 220 Ga. 471 , 139 S.E.2d 381 (1964), later appeal, 221 Ga. 140 , 143 S.E.2d 634 (1965).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 512, 513, 514.

C.J.S. - 37 C.J.S., Fraud, §§ 2 et seq., 161, 162, 184 et seq. 84 C.J.S., Taxation, §§ 542, 547. 85 C.J.S., Taxation, §§ 1715, 1723 et seq., 1742, 1785.

ALR. - Right of grantor or transferor or his privies to attack conveyance or transfer made for purpose of evading taxation, 118 A.L.R. 1184 .

Misrepresentation as to tax law as within rule that party to contract or other instrument may not rely upon misrepresentation as to matters of law, 153 A.L.R. 538 .

Test of "wilfulness" in prosecution for wilful failure to pay tax, file tax return, etc., under § 7203 of the Internal Revenue Code of 1954 (26 USC § 7203), 22 A.L.R.3d 1173.

Construction and application of 26 USCA § 6015(b)(1)(C) requiring that spouse not know of understatement of tax arising from erroneous deduction, credit, or basis to obtain innocent spouse exemption from liability for tax, 154 A.L.R. Fed. 233, 161 A.L.R. Fed. 373.

Construction and application of 26 U.S.C.A. § 6015(b)(1)(C), requiring that spouse not know of omission of gross income from joint tax return to obtain innocent spouse exemption from liability for tax, 161 A.L.R. Fed. 373.

48-1-7. Fraudulent use of exemption certificate to evade taxes; penalty.

  1. It shall be unlawful for any person to attempt to evade the taxes imposed by this title by virtue of a certificate of exemption obtained through fraud or by using a certificate of exemption to which he is not entitled.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1935, p. 11, § 22; Code 1933, § 91A-9903, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 512, 513, 514.

C.J.S. - 37 C.J.S., Fraud, §§ 12 et seq., 20, 25, 115, 123, 124. 84 C.J.S., Taxation, §§ 542, 547. 85 C.J.S., Taxation, §§ 1715, 1723 et seq., 1742, 1785.

48-1-8. Computer software.

  1. As used in this Code section, the term "computer software" means any program or routine, or any set of one or more programs or routines, which are used or intended for use to cause one or more computers or pieces of computer related peripheral equipment, or any combination thereof, to perform a task or set of tasks. Without limiting the generality of the foregoing, the term "computer software" shall include operating and application programs and all related documentation.
  2. Except as otherwise provided in subsection (c) of this Code section, for the purposes of Chapters 5 and 6 of this title, computer software shall constitute personal property only to the extent of the value of the unmounted or uninstalled medium on or in which it is stored or transmitted.
  3. Nothing herein shall be deemed to affect the taxation under Chapter 5 or 8 of this title of copies of computer software held as inventory in a tangible medium ready for sale at retail by one who is a dealer with respect to such property and the sale of which is subject to sales and use taxation. (Code 1981, § 48-1-8 , enacted by Ga. L. 1993, p. 1647, § 1; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "under Chapter 5 or 8" for "under Chapter 5 or Chapter 8" in subsection (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, Code Section 48-1-8, enacted by Ga. L. 1993, p. 294, § 1, was redesignated as Code Section 48-1-9, since Ga. L. 1993, p. 1647, § 1, also enacted a Code Section 48-1-8.

Law reviews. - For note on the 1993 enactment of this Code section, see 10 Ga. St. U. L. Rev. 215 (1993). For note on the 1993 enactment of this Code section, see 10 Ga. St. U. L. Rev. 218 (1993).

48-1-9. Taxpayer Bill of Rights.

  1. This Code section shall be known and may be cited as the "Taxpayer Bill of Rights."
  2. The commissioner shall, as soon as practicable, but not later than January 1, 1994, prepare a statement which sets forth in simple and nontechnical terms:
    1. The rights of a taxpayer and the obligations of the commissioner during any tax audit or examination;
    2. The procedure by which a taxpayer may appeal any adverse decision of the commissioner, including administrative and judicial appeals;
    3. The procedures for prosecuting refund claims and for filing of taxpayer complaints; and
    4. The procedures which the commissioner may use in enforcing the state's revenue laws, including the filing and enforcement of liens.
  3. The statement shall also inform the taxpayer that the taxpayer shall receive:
    1. Fair and courteous treatment in all dealings with the department;
    2. Prompt and accurate responses to all questions and requests for tax assistance; and
    3. A fair and timely hearing on a dispute of any tax liability as provided for by law.
  4. The statement prepared in accordance with this Code section shall be distributed by the commissioner to a taxpayer:
    1. Upon request by the taxpayer;
    2. When a proposed assessment of any state tax is made against the taxpayer or when the taxpayer is contacted by the department for an examination of the taxpayer's records, whichever is earlier; or
    3. When the commissioner deems it appropriate.
  5. The commissioner shall take such action as deemed necessary to ensure that distribution to a taxpayer does not result in multiple statements being sent to any one taxpayer. (Code 1981, § 48-1-9 , enacted by Ga. L. 1993, p. 294, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, Code Section 48-1-8, enacted by Ga. L. 1993, p. 294, § 1, was redesignated as Code Section 48-1-9, since Ga. L. 1993, p. 1647, § 1, also enacted a Code Section 48-1-8.

48-1-10. Economic incentives to users of raw forest products.

  1. As used in this Code section, the term:
    1. "Economic incentive" means any direct price subsidy made available by the state directly to support the purchase of raw forestry products. Such term shall not mean any such benefit available under statutorily provided programs.
    2. "Raw forest product" means any raw material harvested or recovered from forest wood or wood waste at its initial conversion.
  2. It is the intent of the General Assembly that any economic incentive granted on or after July 1, 2010, to any person, company, partnership, or other entity engaged in the commercial use of raw forest products shall be extended equitably to all users of raw forest products in this state so as to establish and maintain parity within that segment of the economy. (Code 1981, § 48-1-10 , enacted by Ga. L. 2010, p. 203, § 2/SB 409.)

Editor's notes. - This Code section formerly pertained to the tax exemption of articles, equipment, and materials at the XXVI Summer Olympiad and the 1996 Atlanta Paralympic games. This Code section was based on Code 1981, § 48-1-10 , enacted by Ga. L. 1995, p. 465, § 1 and was repealed by Ga. L. 1995, p. 465, § 1, effective December 31, 1996.

Ga. L. 2010, p. 203, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Forest Product Fairness Act.' "

CHAPTER 2 STATE ADMINISTRATIVE ORGANIZATION, ADMINISTRATION, AND ENFORCEMENT

State Administrative Organization.

Administration.

Enforcement.

Facilitating Business Rapid Response to State Declared Disasters.

Refunds for Eligible Recipients.

Administrative Rules and Regulations. - Organization, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Administrative Unit, Chapter 560-1-1.

Substantive regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fiscal Operations Division, Chapter 560-3-2.

Substantive regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Chapter 560-7-3.

Returns and collections, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Chapter 560-7-8.

Substantive regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-2.

Taxation of standing timber, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-5.

Conservation use property, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-6.

Appraisal procedures manual, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-10.

Forms applicable to sales and use taxes, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Chapter 560-12-3.

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, §§ 164, 165, 260, 261.

ALR. - Power to allow discount or rebate for prompt payment of taxes, 51 A.L.R. 286 ; 102 A.L.R. 433 .

Use of initial instead of first or middle name in publication of notice in tax proceeding, 53 A.L.R. 903 .

Wilfulness or intent as an element of offenses denounced by Federal Income Tax Law, 90 A.L.R. 1280 .

Uncollected taxes for previous years as deductible in determining amount to be appropriated or amount of taxes to be assessed for current year, 98 A.L.R. 500 .

Right of one who pays taxes for which another is bound, to subrogation to the right of the taxing power, 106 A.L.R. 1212 .

Enforceability, against undivided tract, of tax or special assessment levied against part of it at one rate and part at another, 112 A.L.R. 73 .

Injunction, rather than quo warranto, as available to restrain enforcement of tax against real property upon ground involving attack upon legal existence of municipality, or upon inclusion of property within its boundaries, 129 A.L.R. 255 .

Mandamus as taxpayer's remedy in respect of valuation of property for taxation, 131 A.L.R. 360 .

Constitutionality of statute which provides for summary entry of judgment upon certificate or finding by taxing body or officer, 149 A.L.R. 312 .

Liability of mortgagor or his grantee to mortgagee for loss or depreciation in value of mortgage security as result of failure to pay taxes, 154 A.L.R. 614 .

Right of property taxpayer to recover back taxes voluntarily but mistakenly paid a second or successive time, 84 A.L.R.2d 1133.

ARTICLE 1 STATE ADMINISTRATIVE ORGANIZATION

48-2-1. Department of Revenue.

The Department of Revenue is created and shall be under the direction of the state revenue commissioner. Except as otherwise expressly provided for by law, the department shall administer and enforce the revenue laws of this state and such other laws as may be specifically assigned by law to the department or to the commissioner. The official and legal office of the department and of the commissioner shall be in Fulton County.

(Ga. L. 1923, Ex. Sess., p. 13, §§ 1, 7; Ga. L. 1931, p. 7, §§ 78, 83; Ga. L. 1931, Ex. Sess., p. 24, § 42; Code 1933, §§ 92-4501, 92-4503; Ga. L. 1937-38, Ex. Sess., p. 77, § 2; Ga. L. 1943, p. 204, § 1; Ga. L. 1951, p. 614, § 1; Ga. L. 1960, p. 1185, § 1; Ga. L. 1962, p. 123, § 1; Ga. L. 1968, p. 118, § 1; Code 1933, § 91A-201, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 4.)

JUDICIAL DECISIONS

Immunity from federal suit. - Georgia Department of Revenue is a state entity, entitled to Eleventh Amendment immunity from suit in federal court. Miles v. Georgia Dep't of Revenue, 797 F. Supp. 987 (S.D. Ga. 1992).

Cited in Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 95, 98.

48-2-2. Office of state revenue commissioner.

  1. The office of state revenue commissioner is created.
  2. The commissioner shall be appointed by the Governor with the consent of the Senate and shall serve at the pleasure of the Governor.
  3. Beginning July 1, 1999, the commissioner shall receive an annual salary to be set by the Governor, payable monthly or semimonthly, which shall be his or her total compensation for services as commissioner. The commissioner shall not be entitled to receive a contingent expense allowance, except that the commissioner shall be reimbursed for all actual and necessary expenses incurred by him or her in carrying out his or her official duties.
  4. The commissioner shall be required to take and subscribe before the Governor an oath to discharge faithfully and impartially the duties of such office, which oath shall be in addition to the oath required of all civil officers.
  5. The commissioner shall be personally liable to the state for any losses occasioned to it by his or her own intentional acts of misconduct. To indemnify the state for any such losses, the commissioner, upon beginning his or her duties, shall execute and file with the Governor an official surety bond approved as to form and sufficiency by the Attorney General in the amount of $100,000.00. The premium on the commissioner's bond shall be paid as an expense of the department.

    (Ga. L. 1923, Ex. Sess., p. 16, §§ 1, 8, 45; Ga. L. 1931, p. 7, §§ 78, 83, 85; Code 1933, § 92-4501; Ga. L. 1937-38, Ex. Sess., p. 77, § 2; Ga. L. 1943, p. 204, § 1; Ga. L. 1951, p. 614, § 1; Ga. L. 1960, p. 1185, § 1; Ga. L. 1962, p. 123, § 1; Ga. L. 1968, p. 118, § 1; Code 1933, § 91A-202, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1999, p. 910, § 5; Ga. L. 1999, p. 1213, § 8.)

Cross references. - Powers and duties of commissioner with regard to regulation of alcoholic beverages generally, T. 3, C. 2.

Official bonds generally, T. 45, C. 4.

Amount of salary for commissioner, § 45-7-4 .

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 8, 9, 21, 22, 46 et seq. 81A C.J.S., States, §§ 164 et seq., 260, 261.

48-2-3. Eligibility for office of commissioner.

Reserved. Repealed by Ga. L. 1983, p. 526, § 1, effective March 15, 1983.

Editor's notes. - This Code section, repealed by Ga. L. 1983, p. 526, § 1, effective March 15, 1983, was based on Ga. L. 1937-38, Ex. Sess., p. 77, § 3a; Ga. L. 1949, p. 22, §§ 1, 2; Ga. L. 1959, p. 4, § 2; Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 3.

48-2-4. Eligibility for elective office.

  1. No person serving as commissioner shall be eligible during his term of service and for a period of 12 months after the expiration or termination of his term of service to be a candidate in any primary, special, or general election for any state or federal elective office or to hold any such office.
  2. Subsection (a) of this Code section shall not be construed to prevent any commissioner or former commissioner from being appointed to any elective office, to disqualify him from being a candidate in any election to succeed himself in any such office to which he has been appointed, or to disqualify him from holding any such office in the event he is elected to and otherwise qualifies for the office.

    (Ga. L. 1949, p. 22, §§ 1, 2; Ga. L. 1955, p. 656, §§ 1, 2; Code 1933, § 91A-204, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 29 C.J.S., Elections, § 33 et seq. 67 C.J.S., Officers and Public Employees, § 43.

48-2-5. Office of deputy state revenue commissioner.

  1. There is created the office of deputy state revenue commissioner, who shall exercise the authority of the commissioner in matters specified by law and in any other such matters as the commissioner may delegate to him or her in writing. The actions of the deputy commissioner, within the scope of his or her authority, shall have the same force and effect as the actions of the commissioner.
  2. The deputy commissioner shall be appointed by the commissioner. He or she shall hold office at the pleasure of the commissioner and shall not be subject to the state system of personnel administration provided by Chapter 20 of Title 45. The deputy commissioner shall take the oath of office of the commissioner as provided in subsection (d) of Code Section 48-2-2.
  3. The deputy commissioner shall receive a salary as determined by the commissioner, subject to the approval of the Office of Planning and Budget and paid from funds appropriated by the department. The deputy commissioner's salary shall in no event exceed the salary of the commissioner.
  4. The deputy commissioner shall execute and file an official surety bond approved as to form and sufficiency by the Attorney General in the same amount as required for the commissioner by subsection (e) of Code Section 48-2-2. The premium on the bond shall be paid as an expense of the department.
  5. The deputy commissioner shall have the authority of the commissioner to:
    1. Issue licenses;
    2. Make proposed and final assessments;
    3. Deny protests and claims for refund;
    4. Issue summons of garnishment;
    5. Enter into agreements extending statutory periods of limitation;
    6. Issue, amend, and cancel tax executions; and
    7. Execute all documents and papers necessary for the performance of his or her or the commissioner's duties or for the exercise of his or her authority or the authority of the commissioner which has been delegated to him or her in writing.

      (Ga. L. 1951, p. 614, § 2; Ga. L. 1963, p. 133, § 1; Ga. L. 1970, p. 108, § 1; Code 1933, § 91A-205, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 5; Ga. L. 1983, p. 526, § 2; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-88/HB 642.)

Cross references. - Official bonds generally, T. 45, C. 4.

Editor's notes. - Ga. L. 2009, p. 745, § 1/SB 97, was treated as replacing "State Merit System" with "State Personnel Administration".

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

JUDICIAL DECISIONS

Deputy director not authorized to execute instrument closing question of tax liability. - Plea in bar based upon an instrument signed by the petitioner and by one described as the deputy director, Department of Revenue, Income Tax Unit, whereby the revenue commissioner and the petitioner were obligated not to reopen the question of liability for taxes sought to be recovered, the instrument not being executed by anyone authorized by law to execute it on behalf of the state is binding upon neither, and the plea based thereon was properly dismissed on demurrer (now motion to dismiss). Redwine v. Schenley Indus., Inc., 210 Ga. 769 , 83 S.E.2d 16 (1954).

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 174.

ALR. - Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

48-2-6. Departmental organization; employees; compensation; collection of delinquent taxes by contractors; mandatory fingerprinting.

  1. The commissioner shall establish by executive order such units within the department as he or she deems proper for its administration and shall designate persons to be directors and assistant directors of such units to exercise such authority as he or she may delegate to them in writing.
  2. The commissioner shall have the authority to employ as many persons as he or she deems necessary for the administration of the department and for the discharge of the duties of his or her office. He or she shall issue all necessary directions, instructions, orders, and rules applicable to such persons. He or she shall have authority, as he or she deems proper, to employ, assign, compensate, and discharge employees of the department within the limitations of the department's appropriation, the requirements of the state system of personnel administration, including the rules and regulations of the State Personnel Board, and the restrictions set forth by law.
  3. All employees of the department shall be compensated upon a fixed salary basis and no person shall be compensated for services to the department on a commission or contingent fee basis.
  4. Neither the commissioner nor any officer or employee of the department shall be given or receive any fee, compensation, loan, gift, or other thing of value in addition to the compensation and expense allowance provided by law for any service or pretended service either rendered or to be rendered as commissioner or as an officer or employee of the department.
  5. The commissioner is authorized to provide for the collection of delinquent taxes, including penalties and interest, by contractors. Any such contractors must be approved by the commissioner. No employee of the department shall be approved as a contractor under this subsection. Such contractors shall be compensated only on a commission or contingent fee basis.
  6. The following persons shall be subject to the mandatory fingerprinting and criminal record checks described in subsection (g) of this Code section:
    1. All prospective employees of the department, as a condition of employment;
    2. All personnel employed by the department after January 1, 2019, who have not had a criminal record check within the prior ten years, as a condition of continuing employment, with a requirement for subsequent criminal record checks not less frequently than once every ten years;
    3. Employees of prospective contractors of the department, and any subcontractors thereof, who may have access to confidential information as provided in Code Section 48-2-15 or 48-7-60 or who may have access to returns or return information as defined in 26 U.S.C. Section 6103 prior to any access to any of the foregoing information; and
    4. All personnel employed by contractors of the department, and any subcontractors thereof, after January 1, 2019, who have not had a criminal record check within the prior ten years, with a requirement for subsequent criminal record checks not less frequently than once every ten years.
    1. The department's Office of Special Investigations shall have the authority and responsibility to order criminal record checks pursuant to this Code section through the Georgia Crime Information Center and the Federal Bureau of Investigation and shall have the authority to receive the results of such criminal record checks.
    2. Fingerprints shall be in such form and of such quality as shall be acceptable for submission to the Georgia Crime Information Center and the Federal Bureau of Investigation. It shall be the duty of each law enforcement agency in this state to fingerprint those persons required to be fingerprinted by this Code section. At the discretion of the department, such fingerprinting may be performed by the department's Office of Special Investigations.
    3. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit one set of fingerprints to the Federal Bureau of Investigation for a search of the bureau records, retain another set of fingerprints, and conduct a search of its own records and records to which it has access. The Georgia Crime Information Center shall notify the department in writing of any findings or if there are no such findings. All conviction data received by the department shall not be public record, shall be privileged, and shall not be disclosed to any other person or agency except to any person or agency which otherwise has a legal right to inspect the employment file. All such information shall be maintained by the department in conformity with the requirements of the Georgia Crime Information Center and the Federal Bureau of Investigation. As used in this subsection, the term "conviction data" means a record of a finding or verdict of guilty, a plea of guilty, or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.
    4. At the discretion of the department, fees required for a criminal record check by the Georgia Crime Information Center or the Federal Bureau of Investigation shall be paid by the department or by the individual seeking employment or making application to the department. Contractors and subcontractors shall pay such fees for their employees and prospective employees.
    5. The department may use the information obtained from fingerprinting and a person's criminal record check only for the purpose of verifying the identification of such person and in the official determination of the fitness of such person's qualification for initial or continuing employment, or in the case of employees of contractors and subcontractors, for the purpose of allowing or denying access to legally protected information.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 11; Ga. L. 1951, p. 360, § 22; Ga. L. 1960, p. 944, § 1; Ga. L. 1967, p. 788, § 7; Code 1933, § 91A-206, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1995, p. 781, § 3; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-89/HB 642; Ga. L. 2018, p. 233, § 1/HB 816.)

The 2018 amendment, effective May 3, 2018, added subsections (f) and (g).

Editor's notes. - Ga. L. 2009, p. 745, § 1, was treated as replacing "State Merit System" with "State Personnel Administration".

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Ga. St. U. L. Rev. 217 (2011).

JUDICIAL DECISIONS

Directors of departmental units not state officials for purposes of § 45-15-11 . - Although under the authority delegated to the commissioner, the commissioner may, for any reason satisfactory to the commissioner, designate a person as director of some tax unit, such designation cannot create an office or official, and the person so designated is not a state official or public official within the terms and provisions of Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11 ). Jones v. Mills, 216 Ga. 616 , 118 S.E.2d 484 (1961).

Authority of commissioner as to employees within merit system. - Inclusion of Department of Revenue in the state merit system changed the authority of the commissioner to employ, discharge, and fix salaries of departmental employees, but the commissioner retains authority to pay all salaries and expenses of the office and to call for necessary appropriations to do so. Undercofler v. Scott, 220 Ga. 406 , 139 S.E.2d 299 (1964).

Exemption interpreted as to foreign public authorities. - Legislature intended to exempt only the public authorities of Georgia and the U.S. Government and did not intend to include public authorities of other states when it amended the exemption statute, O.C.G.A. § 48-6-2(a)(3), to include public corporations and authorities. Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545 , 594 S.E.2d 745 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-8 are included in the annotations for this Code section.

Construed with § 48-6-5 . - General Assembly did not contemplate the creation of an employer-employee relationship between the department and clerks of the superior courts in Ga. L. 1967, p. 788, § 4 (see now O.C.G.A. § 48-6-5 ). 1969 Op. Att'y Gen. No. 69-168 (decided under former Code 1933, Ch. 92-8).

Clerks of superior courts and staffs do not come under Employees' Retirement System of Georgia by virtue of their tax collection duties set forth in former Code 1933, Ch. 92-8 (see now O.C.G.A. Art. 1, Ch. 2, T. 48). 1969 Op. Att'y Gen. No. 69-168 (decided under former Code 1933, Ch. 92-8).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 195, 98.

48-2-6.1. Disclosure of return information; purpose; confidentiality.

  1. As used in this Code section, the term "return information" means any information secured by the commissioner incident to the administration of any tax.
  2. Notwithstanding any other provision of law, the commissioner shall be permitted to disclose any return information to such other persons as may be authorized by law to collect delinquent tax liabilities on behalf of the state to the extent such information is reasonably needed to effect such collections. Such information shall retain its privileged and confidential nature in the hands of such other persons to the same extent and under the same conditions as that information is privileged and confidential in the hands of the commissioner. Any such other person shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department. (Code 1981, § 48-2-6.1 , enacted by Ga. L. 1996, p. 780, § 1.)

48-2-7. Duties and powers of commissioner.

  1. The commissioner shall:
    1. Direct the affairs of the department in the administration and enforcement of all laws enacted for the purpose of raising revenues for this state by taxation or otherwise;
    2. Supervise all tax administration throughout the state, subject to the sovereign rights of the counties to regulate their own affairs;
    3. Assist local tax officials in every feasible manner when so requested by the local tax officials;
    4. Make studies of taxation in this state and elsewhere with a view to improvement of administration and legislation affecting the people of this state. In this connection, he may assemble and publish in print or electronically such statistics and reports as he may deem advisable within the limitations of his appropriation; and
    5. Submit to the Governor and to each regular session of the General Assembly an annual report of the conduct of his or her office. The commissioner shall not be required to distribute copies of the annual report to the members of the General Assembly but shall notify the members of the availability of the annual report in the manner which he or she deems to be most effective and efficient. As the chief revenue official of the state, he or she shall advise the Governor and the General Assembly on all matters relating to revenue.
  2. The commissioner shall annually prepare and publish in print or electronically statistics reasonably available with respect to the operations of Chapter 7 of this title, including classification of taxpayers and of income; the amounts allowed as deductions, exemptions, and credits; and any other facts deemed pertinent and valuable.
  3. The provisions of this Code section enumerating the duties of the commissioner shall not be construed to exclude other duties assigned to the commissioner by law.
  4. No provision of this chapter shall be construed to give the commissioner any power to:
    1. Make assessments for ad valorem taxation or to collect such assessments from any taxpayer, except as specifically provided by law; or
    2. Examine the books, records, inventories, or business of any taxpayer for any purpose other than determining liability for taxes collected directly by the commissioner, except as otherwise specifically provided by law.

      (Ga. L. 1937-38, Ex. Sess., p. 77, §§ 5, 46; Ga. L. 1967, p. 764, § 1; Ga. L. 1970, p. 298, § 1; Ga. L. 1972, p. 1125, § 7; Code 1933, § 91A-207, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 6, 6A; Ga. L. 2005, p. 1036, § 37/SB 49; Ga. L. 2010, p. 838, § 10/SB 388.)

Cross references. - Powers and duties of state revenue commissioner relative to administration and enforcement of Georgia Alcoholic Beverage Code, T. 3.

Powers and duties of commissioner with regard to certificates of title, security interests, and liens relating to motor vehicles, § 40-3-3 .

Powers and duties of commissioner with regard to unclaimed or abandoned property, § 44-12-190 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937-38, Ex. Sess., p. 156 are included in the annotations for this Code section.

Audits conducted solely to uncover criminal activity prohibited. - When the plaintiffs could show that Department of Revenue employees, acting for the commissioner, were engaged in a series of audits conducted solely to uncover criminal activity unrelated to tax improprieties on the part of the person audited, such conduct would be illegal and would constitute grounds for the issuance of an injunction against such employees. Willis v. Department of Revenue, 255 Ga. 649 , 340 S.E.2d 591 (1986).

When appeals from assessment within jurisdiction of Court of Appeals. - Appeals from a local governing authority's assessment of ad valorem taxation which do not raise the constitutionality of a statute or ordinance nor involve equitable remedies shall be in the jurisdiction of the Court of Appeals and not transferred to the Supreme Court. DeKalb County Bd. of Tax Assessors v. W.C. Harris & Co., 248 Ga. 277 , 282 S.E.2d 880 (1981).

Good faith of taxing officials and the validity of their actions are presumed, and when assailed the burden of proof is upon the complaining party. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84 , 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490 , 91 L. Ed. 685 (1947) (decided under Ga. L. 1937-38, Ex. Sess., p. 156).

What constitutes discrimination in administration of tax laws. - Whether there was administrative discrimination would depend not on what the taxing authorities thought of a statute which was not then effective, but on whether they intentionally and systematically discriminated against the plaintiff and in favor of others in the actual administration of the existing tax laws. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84 , 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490 , 91 L. Ed. 685 (1947) (decided under Ga. L. 1937-38, Ex. Sess., p. 156).

Proof of discrimination in administration of tax laws. - To establish unlawful discrimination, it is not enough to show that the tax officials have merely made a mistake, or have not been diligent in seeking out those subject to tax, but there must be a clear and affirmative showing that the difference is an intentional discrimination and one adopted as a practice. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84 , 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490 , 91 L. Ed. 685 (1947) (decided under Ga. L. 1937-38, Ex. Sess., p. 156).

Immunity from federal suit. - Georgia Department of Revenue is a state entity entitled to Eleventh Amendment immunity from suit in federal court. Miles v. Georgia Dep't of Revenue, 797 F. Supp. 987 (S.D. Ga. 1992).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 98.

C.J.S. - 81A C.J.S., States, §§ 260, 261. 84 C.J.S., Taxation, §§ 14, 731 et seq.

48-2-8. Judicial and investigative powers of commissioner.

  1. In the performance of his duties and in relation to any investigation or inquiry which the commissioner is authorized to conduct, the commissioner or any agent designated by him in writing may:
    1. Administer oaths and take affidavits;
    2. Conduct hearings;
    3. Examine witnesses under oath; and
    4. Subpoena the attendance of witnesses and require the production of books, papers, records, and documents and, subject to the rights of the taxpayer as to rights of privacy guaranteed to the taxpayer by the Constitution and laws of this state, may examine such items and the books, records, inventories, or business of any taxpayer or of any fiduciary, bailee, or other person having knowledge of the tax liability of any taxpayer or knowledge pertinent to the investigation or inquiry. The subpoena may be served by the commissioner or the commissioner's authorized representative to such person at the person's last known address by registered or certified mail or statutory overnight delivery, return receipt requested. If such person refuses to accept service of a subpoena by registered or certified mail or statutory overnight delivery, the subpoena shall be served by the commissioner or the commissioner's authorized representative under any other method of lawful service, and the person shall be personally liable to the commissioner for a sum equal to the actual costs incurred to serve the subpoena. 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.
  2. The powers conferred pursuant to subsection (a) of this Code section shall be exercised with due regard to the rights of the citizen and, when invoked, subject to the approval of the superior courts of this state.
  3. The commissioner, pursuant to his duties in relation to the collection of state ad valorem taxes, shall investigate settlements by tax collectors or tax commissioners and take appropriate action to collect any revenue due the state which has not been collected or, having been collected, has not been paid to the commissioner. No official or person may employ or commission any person to collect any of such taxes on a commission basis.

    (Ga. L. 1931, p. 7, §§ 79, 80, 83-85; Ga. L. 1931, Ex. Sess., p. 24, §§ 45, 46; Code 1933, §§ 92-3213, 92-3214, 92-4511; Ga. L. 1937-38, Ex. Sess., p. 77, § 6; Ga. L. 1937-38, Ex. Sess., p. 156, § 9; Ga. L. 1951, p. 360, § 21; Ga. L. 1976, p. 341, § 1; Code 1933, § 91A-211, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 7; Ga. L. 2009, p. 816, § 2/HB 485.)

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

Editor's Notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1951, p. 360, § 17 are included in the annotations for this Code section.

Limits on right to examine records. - Right to examine records was not limited by the three-year period set forth in former Code 1933, § 92-3303 (see now O.C.G.A. § 48-7-82 ) for deficiency assessments, which period applied only to the assessment and collection of taxes. Redwine v. Arvaniti, 83 Ga. App. 203 , 63 S.E.2d 222 (1951).

Declaratory judgment as to taxability under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Ch. 8, T. 48) will not relieve a taxpayer from audit of the taxpayer's books under Ga. L. 1951, p. 360, §§ 17, 18, and 21 (see now O.C.G.A. §§ 48-2-8 , 48-8-52 , and 48-8-55 ). Undercofler v. Eastern Air Lines, 221 Ga. 824 , 147 S.E.2d 436 (1966) (decided under Ga. L. 1951, p. 360, § 17).

OPINIONS OF THE ATTORNEY GENERAL

Duty to keep tax records. - Former Code 1933, §§ 91A-4525 and 91A-4526 (see now O.C.G.A. §§ 48-8-52 and 48-8-53 ) require that certain tax records be kept for a period of three years and pertains only to sales tax information. 1969 Op. Att'y Gen. No. 69-288.

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Oaths and Affirmations, §§ 5, 6. 81A C.J.S., States, §§ 260, 261.

48-2-9. Powers of commissioner in tax proceedings; assistance by Attorney General.

The commissioner is authorized and empowered, subject to the law provided in such cases, to act in the name and in behalf of the state to institute any action or judicial proceeding to collect delinquent state taxes, to cause property not listed to be assessed, to cause by mandamus the performance of any act required by law pursuant to the administration of any state revenue, or to collect any claim or obligation of any person, including any public official, which may be due the state. The commissioner is authorized to act as relator in any and all such actions or judicial proceedings. The Attorney General shall provide legal advice and assistance as may be necessary to enable the commissioner to perform the duties required by this Code section.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 8; Ga. L. 1975, p. 722, § 1; Code 1933, § 91A-216, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language and punctuation in this Code section.

JUDICIAL DECISIONS

Effect of judgment rendered against named commissioner after commissioner has left office. - Since cases arising in the administration of state revenue laws appear in the name of its successive agents, designated commissioners, as provided by this section, a verdict and judgment against a named commissioner in the commissioner's representative capacity, rendered after the commissioner is no longer in office, is not binding on the state. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956) .

When appeal was taken to superior court by taxpayer against commissioner, and judgment is rendered approximately nine months after that commissioner had been succeeded in office by another person, nothing having been done prior to the rendition of the judgment to substitute the name of the latter as agent of the state in lieu of the former, such judgment is a nullity, and no further proceedings can be had in the cause until parties have been made, when case must be tried de novo. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956).

Immunity from federal suit. - Georgia Department of Revenue is a state entity, entitled to Eleventh Amendment immunity from suit in federal court. Miles v. Georgia Dep't of Revenue, 797 F. Supp. 987 (S.D. Ga. 1992).

Notice as to actions under Ch. 8 of this title. - An action to recover a sum alleged to be due as a tax imposed by former Code 1933, Ch. 92-34A (see now O.C.G.A. Ch. 8, T. 48) may be maintained under that chapter without giving notice thereof under Ga. L. 1937-38, Ex. Sess., p. 77, § 8 (see now O.C.G.A. § 48-2-9 ). Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 , 73 S.E.2d 749 (1952).

RESEARCH REFERENCES

C.J.S. - 7A C.J.S., Attorney General, § 28 et seq. 55 C.J.S., Mandamus, § 231 et seq. 85 C.J.S., Taxation, § 960 et seq.

ALR. - Judgment in favor of defendant or respondent in an action or proceeding involving a matter of public right or interest as a bar to a subsequent action or proceeding by a different plaintiff or relator, 20 A.L.R. 1133 ; 64 A.L.R. 1262 .

Construction and application of statutes denying remedy by injunction against assessment or collection of tax, 108 A.L.R. 184 .

48-2-10. Collection of certain local taxes by commissioner.

The commissioner is authorized to negotiate and contract with the governing authority of any county or municipality for the purpose of arranging for the collection by the commissioner of any tax levied by the county or municipality when the tax is also levied and collected by the commissioner for the state. The agreement shall include a fee to be paid by the county or municipality to the commissioner in an amount which covers fully the cost of collection of the local portion of the tax by the commissioner. The commissioner shall transmit to the county or municipality all taxes so collected on behalf of the county or municipality on or before the date specified in the agreement, less the collection fee agreed upon.

(Ga. L. 1969, p. 743, § 1; Code 1933, § 91A-259, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 732.

C.J.S. - 85 C.J.S., Taxation, § 1109 et seq.

48-2-11. Delegation of certain duties.

  1. When license fees are incidentally collected in connection with regulatory activities of some agency or department of the state government other than the Department of Revenue and such fees could be collected more economically by the regulatory agency or department than by the Department of Revenue, the commissioner may delegate by executive order approved by the Governor the collection of the license fees to the state official responsible for administering the regulatory activities.
  2. No delegation pursuant to subsection (a) of this Code section shall extend beyond the term of office of the commissioner or of the officer to whom the collection of fees is delegated by the commissioner.
  3. Except as otherwise expressly provided by law, no other department of the state government may employ any person or persons to collect any fees, licenses, or taxes or to inspect for the purpose of collecting such fees, licenses, or taxes, except when the authority to collect the licenses, fees, or taxes has been expressly delegated to the other department by the commissioner under the terms of this Code section.
  4. In any case in which the collection of any tax or license fee is delegated as provided in this Code section, the commissioner is charged with the duty of retaining supervisory authority over such activity. In any case in which the commissioner finds that a delegation should be revoked, modified, or transferred to another department or other departments, the commissioner, by executive order approved by the Governor, may make the revocation, modification, or transfer.
  5. This chapter shall not in any way affect the collection and administration activities of those regulatory, professional, or vocational bodies or boards operated under the division director of the professional licensing boards division appointed by the Secretary of State under Code Section 43-1-2 as provided by law or of those other regulatory bodies where a major portion of the license fees is collected by mail.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 10; Code 1933, § 91A-209, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1706, § 25.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 95, 98.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 330. 81A C.J.S., States, §§ 174, 235 et seq.

ALR. - Authority of county to employ tax ferret, 32 A.L.R. 88 .

48-2-12. Rules and regulations; forms.

  1. The commissioner shall have the power to make and publish in print or electronically reasonable rules and regulations not inconsistent with this title or other laws or with the Constitution of this state or of the United States for the enforcement of this title and the collection of revenues under this title.
  2. The commissioner shall prescribe the forms he deems necessary for the administration and enforcement of this title or any law which it is his duty to administer.
  3. The authority granted to the commissioner pursuant to this Code section shall be exercised at all times in conformity with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  4. This Code section shall apply to all rules and regulations promulgated by the commissioner pursuant to this title or pursuant to any revenue law of this state which is not a part of this title.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 7; Code 1933, § 91A-215, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted "with respect" following "shall apply" in subsection (d).

Administrative Rules and Regulations. - Meaning of terms used, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Elections and Divisions, § 560-7-6-.02.

Law reviews. - For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005). For annual survey on administrative law, see 70 Mercer L. Rev. 1 (2018).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937-38, Ex. Sess., p. 77, § 25 are included in the annotations for this Code section.

Construction and effect of rules and regulations. - Ga. L. 1972, p. 1104, § 1 et seq. (see now O.C.G.A. Pt. 1, Art. 5, Ch. 5, T. 48) does not establish detailed procedures for the employment and termination of the appraisal staff. The commissioner may make necessary rules and regulations not inconsistent with that Act, and such rules and regulations shall have the full force and effect of law. Spell v. Blalock, 243 Ga. 459 , 254 S.E.2d 842 (1979).

Commissioner's determination entitled to deference. - Florida public authority's action under O.C.G.A. § 48-6-7(b) , protesting the denial by the Revenue Commissioner of the State of Georgia of its request for a refund of real estate transfer tax, paid pursuant to O.C.G.A. § 48-6-1 , was denied since it was found that the exemption provided in O.C.G.A. § 48-6-2(a)(3) did not apply to the out-of-state public authority; the Commissioner's determination that the exemption did not apply to such an entity was entitled to deference pursuant to the principles of O.C.G.A. § 48-2-12 . Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545 , 594 S.E.2d 745 (2004).

Trial court erred in declaring invalid a regulation used to interpret a research tax credit codified in a state statute on the ground that the regulation exceeded the scope of the authority upon which it was predicated; the state revenue commissioner had explicit authority to promulgate regulations for the enforcement of the Public Revenue Code and the collection of revenues under it, the regulation itself was authorized by statute, and the regulation reasonably required that a recipient have a positive Georgia taxable net income for each of the preceding three years in order to receive the tax credit. Ga. Dep't of Revenue v. Ga. Chemistry Council, Inc., 270 Ga. App. 615 , 607 S.E.2d 207 (2004).

Refund denied for failure to comply with regulations. - Grant of the Georgia Department of Revenue's motion to dismiss the appellants' complaint seeking a refund under O.C.G.A. § 48-2-35 of state sales tax paid was affirmed because the appellants failed to comply with a regulation that, before seeking a refund on behalf of their customers under § 48-2-35 , the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded to their customers, which the appellants admittedly had not done.

Cited in Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 , 629 S.E.2d 501 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under Ga. L. 1937-38, Ex. Sess., p. 77, § 25 are included in the annotations for this Code section.

Reasonability of stop payment rules and regulations. - Rules and regulations providing for stop payments to be issued after 180 days and the return of funds to the general treasury are deemed reasonable in the absence of statutory authority to the contrary. 1973 Op. Att'y Gen. No. 73-103 (decided under Ga. L. 1937-38, Ex. Sess., p. 77, § 25).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 98.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 326 et seq. 81A C.J.S., States, §§ 260, 261.

48-2-13. Oaths and certifications.

The commissioner and every officer or employee of the department designated by the commissioner for that purpose may administer such oaths or affirmations to any person and may certify such papers, reports, or returns of any person, as may be required or authorized under the revenue and license laws or regulations of this state.

(Ga. L. 1931, p. 7, § 80; Ga. L. 1931, Ex. Sess., p. 24, § 53; Code 1933, § 92-3004; Code 1933, § 91A-208, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Oaths and Affirmations, § 3.

48-2-14. Official seal.

The commissioner shall have an official seal of such device as he or she shall select, subject to the approval of the Governor.

(Ga. L. 1931, p. 7, § 81; Code 1933, § 92-4504; Code 1933, § 91A-210, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2011, p. 99, § 91/HB 24.)

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

RESEARCH REFERENCES

C.J.S. - 31A C.J.S., Evidence, § 61. 32A C.J.S., Evidence, § 1107 et seq.

48-2-15. Confidential and privileged information.

  1. Except as otherwise provided in this Code section, information secured by the commissioner incident to the administration of any tax shall be confidential and privileged. Neither the commissioner nor any officer or employee of the department shall divulge or disclose any such confidential information obtained from the department's records or from an examination of the business of any taxpayer to any person other than the commissioner, an officer or employee of the department, an officer of the state or local government entitled in his or her official capacity to have access to such information, or the taxpayer.
  2. This Code section shall not:
    1. Be construed to prevent the use of confidential information as evidence before any state or federal court in the event of litigation involving tax liability of any taxpayer;
    2. Be deemed to prevent the print or electronic publication of statistics so arranged as not to reveal information respecting an individual taxpayer;
    3. Apply in any way whatsoever to any official finding of the commissioner with respect to any assessment or any information properly entered upon an assessment roll or other public record;
    4. Affect any information which in the regular course of business is by law made the subject matter of a public document in any federal or state office or in any local office in this state;
    5. Apply to information, records, and reports required and obtained under Article 1 of Chapter 9 of this title, which requires distributors of motor fuels to make reports of the amounts of motor fuels sold and used in each county by the distributor, or under Article 2 of Chapter 9 of this title, relating to road tax on motor carriers;
    6. Be construed to prevent the disclosure of information, so arranged as not to reveal information respecting an individual taxpayer, requested by the House Committee on Ways and Means or the Senate Finance Committee regarding the department's administration of any tax; or
    7. Apply to information, records, and reports required and obtained under Title 38 or Title 46 as each pertains to collection and remittance of prepaid and postpaid 9-1-1 fees or charges. The application of the exemption provided for under this paragraph to Code Section 38-3-190 shall apply exclusively to the Georgia Emergency Communications Authority and Department of Revenue in the handling of such information.
  3. The provisions of this Code section shall not apply with respect to Chapter 7 of this title, relating to income taxation.
  4. Reserved.

    (d.1) (1) Notwithstanding this Code section, the commissioner, upon request by resolution of the governing authority of any county, consolidated government, or municipality of this state, shall furnish to the designated finance officer or taxing official of the county, consolidated government, or municipality information included on the vendor's sales tax certificate for all vendors that have filed a report for the designated period, to be used by such designated officer or official in the discharge of his or her official duties.

    (2) (A) Such designated officer or official shall not be authorized to contact in any manner any taxpayer identified in such confidential information.

    (B) Such designated officer or official to whom such confidential information is provided under this subsection may request the commissioner to validate the political subdivision to which a taxpayer with a business location within the political subdivision has remitted sales and use taxes for the designated period. Upon inquiry by such designated officer or official, the commissioner shall, within 30 days, respond to the inquiry and validate that the sales tax being collected from a taxpayer is being remitted to the proper political subdivision and take other appropriate action as provided by law.

    (C) Any information furnished under this subsection to such designated officer or official shall retain its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner.

    (3) Any such information furnished under this subsection shall constitute confidential tax information for purposes of paragraph (2) of Code Section 50-14-2 and paragraph (43) of subsection (a) of Code Section 50-18-72 and shall not be discussed or disclosed except as specifically authorized under this subsection.

    (4) Such information may be discussed with or disclosed to the members of the governing authority of such county or municipality levying a tax pursuant to the provisions of Article 4 of Chapter 8 of this title, but only when the members of such governing authority are in executive session as defined in paragraph (2) of subsection (a) of Code Section 50-14-1. In the event of such discussion with or disclosure to the members of such governing authority, any such information so discussed or disclosed shall retain its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner, and any further disclosure by the members of such governing authority is prohibited. Prior to such discussion with or disclosure to the members of such governing authority, any member of the governing authority who has a conflict of interest shall be required to recuse himself or herself from the executive session. For purposes of such recusal, a conflict of interest shall include, but not be limited to, engaging in similar business to those which are identified in the confidential information or having a financial or other personal interest, direct or indirect, in such matter which is incompatible with the impartial and proper discharge of that person's official duties, which would tend to impair the independence of that person's judgment or actions, or which would make such person privy to information that would provide a competitive business advantage.

    (5) It shall be unlawful for any person to divulge confidential tax information in violation of this subsection. Any person who violates this paragraph shall, upon conviction thereof, be subject to the same penalties that would apply to an employee of the department convicted of divulging confidential tax information.

    (6) The commissioner may make a nominal charge for any information so furnished, not to exceed the actual cost of furnishing the information; provided, however, that any such charge shall be in addition to the 1 percent administrative fee otherwise allowed to the commissioner for defraying the cost of collecting a local sales and use tax.

    (7) Nothing contained in this subsection shall prevent or be construed to prevent:

    1. The use of the information as evidence in any state or federal court in the event of litigation involving any municipal or county tax liability of a taxpayer; or
    2. The release of the information pursuant to a subpoena or court order.
    1. This Code section shall not be construed to prohibit persons or groups of persons other than employees of the department from having access to tax information when necessary to:

      (A) Conduct research commissioned by the department or where necessary in connection with the processing, storage, transmission, and reproduction of such tax information; the programming, maintenance, repair, testing, and procurement of equipment; and the providing of other services for purposes of tax administration; or

      (B) (i) Contract with an entity licensed to do business in this state for data analytics services that assist the department in the identification of taxpayers that are noncompliant with Chapter 8 of this title; provided, however, that:

      1. Any access allowed by this subsection shall be pursuant to a written agreement with the department providing for the handling, permitted uses, and destruction of such tax information, requiring security clearance checks for such persons or groups of persons similar to those required of employees of the department, and including such other terms and conditions as the department may require to protect the confidentiality of the tax information to be disclosed.
      2. A contracting entity granted access, as provided in subparagraph (B) of paragraph (1) of this subsection, shall not utilize or retain such taxpayer information, whether anonymized or not, in any manner that is not specifically authorized in the written agreement with the department, which shall expressly prohibit any action not specifically set out in such agreement, including but not limited to the aggregation, study, transmission, retention, or dissemination of taxpayer information.
      3. Any person who divulges or makes known any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department.
  5. This Code section shall not be construed to prohibit disclosure as required in subsection (h) of Code Section 48-2-35.
  1. No such contract shall be for a period of more than three years; and
  2. Any services to be performed as provided in this subparagraph shall be by specific North American Industry Classification System (NAICS) sectors, as designated by the commissioner; and when such sectors have been so designated by the commissioner, such services shall encompass the entirety of taxpayers within such sectors.

    (ii) Compensation for such data analytics services may be based on collections that may be attributable thereto.

    (iii) Any contact with a taxpayer resulting from the data analytics services provided pursuant to this subparagraph, including correspondence, billings, assessments, and audits, shall only be made by the department.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 12; Ga. L. 1945, p. 160, § 1; Ga. L. 1969, p. 1137, § 1; Code 1933, § 91A-212, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 8, 9; Ga. L. 1981, p. 1857, § 4; Ga. L. 1991, p. 303, § 1; Ga. L. 2006, p. 200, § 2/HB 1310; Ga. L. 2010, p. 838, § 11/SB 388; Ga. L. 2011, p. 297, § 1/HB 346; Ga. L. 2016, p. 574, § 1/HB 960; Ga. L. 2018, p. 312, § 1/HB 811; Ga. L. 2018, p. 689, § 3-4/HB 751; Ga. L. 2018, p. 720, § 1/SB 371; Ga. L. 2019, p. 1056, § 48/SB 52.)

The 2016 amendment, effective July 1, 2016, in subsection (b), deleted "or" at the end of paragraph (b)(4), substituted "; or" for a period at the end of paragraph (b)(5), and added paragraph (b)(6); and added subsection (f).

The 2018 amendments. The first 2018 amendment, effective May 3, 2018, substituted the present provisions of subsection (e) for the former provisions, which read: "This Code section shall not be construed to prohibit persons or groups of persons other than employees of the department from having access to tax information when necessary to conduct research commissioned by the department or where necessary in connection with the processing, storage, transmission, and reproduction of such tax information; the programming, maintenance, repair, testing, and procurement of equipment; and the providing of other services for purposes of tax administration. Any such access shall be pursuant to a written agreement with the department providing for the handling, permitted uses, and destruction of such tax information, requiring security clearance checks for such persons or groups of persons similar to those required of employees of the department, and including such other terms and conditions as the department may require to protect the confidentiality of the tax information to be disclosed. Any person who divulges or makes known any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department." The second 2018 amendment, effective January 1, 2019, inserted "or her" near the end of subsection (a); deleted "or" at the end of paragraph (b)(5); substituted "; or" for a period at the end of paragraph (b)(6); and added paragraph (b)(7). The third 2018 amendment, effective July 1, 2018, repealed and reserved former subsection (d), which read: "Notwithstanding this Code section, the commissioner, upon request by resolution of the governing authority of any municipality of this state having a population of 350,000 or more according to the United States decennial census of 1970 or any future such census, shall furnish to the finance officer or taxing official of the municipality any pertinent tax information from state tax returns to be used by those officials in the discharge of their official duties. Any information so furnished shall retain, in the hands of the local officials, its privileged and confidential nature to the same extent and under the same conditions as that information is privileged and confidential in the hands of the commissioner. The commissioner may make a nominal charge for any information so furnished, not to exceed the actual cost of furnishing the information. Nothing contained in this subsection shall be construed to prevent the use of the information as evidence in any state or federal court in the event of litigation involving any municipal or county tax liability of a taxpayer."; and added subsection (d.1). See Editor's notes for applicability of the second amendment.

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, revised punctuation in division (e)(1)(B)(iii).

Editor's notes. - Ga. L. 2018, p. 689, § 4-1(b)/HB 751, not codified by the General Assembly, provides that: "The provisions of this Act shall not in any manner diminish, extinguish, reduce, or affect any cause of action for audits, services, or the recovery of funds from service providers which may have existed prior to January 1, 2019. Any such cause of action is expressly preserved."

Law reviews. - For comment, "Confidentiality and Dissemination of Personal Information: An Examination of State Laws Governing Data Protection," see 41 Emory L.J. 1185 (1992).

JUDICIAL DECISIONS

Purpose of exceptions to confidentiality of tax information. - It was clear from the exceptions to former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) and Ga. L. 1969, p. 1137, § 1 (see now O.C.G.A. § 48-2-15 ) that the confidentiality of tax returns is not absolute and that the social policy underlying the law providing for confidentiality of tax returns inures to the benefit of the state by encouraging the citizenry in voluntary reporting and assessment of income. Thus, the decision to produce the returns or appeal an order demanding the returns for use in a criminal prosecution lies with the Attorney General. Garrett v. State, 147 Ga. App. 666 , 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322 , 253 S.E.2d 741 (1979).

Use of tax information in litigation. - While a court will afford the utmost deference to a claim of privacy raised by the Attorney General with respect to income tax returns, the Attorney General cannot defeat the need for evidence in pending criminal proceedings based upon a generalized interest in confidentiality. In extraordinary cases, when the interest in criminal prosecution is as important as the release of privileged information to other governmental units for the purpose of collection of taxes, there exists a specific exception to the confidentiality of income tax returns. Garrett v. State, 147 Ga. App. 666 , 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322 , 253 S.E.2d 741 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Legislative purpose. - Purpose of Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15 ) and former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) is to encourage taxpayers to fully disclose their income and to protect any confidential information with reference to their business which it is essential to divulge in an income tax return; it is also the intent of the General Assembly to relieve the department from furnishing information concerning a taxpayer's income tax return. 1960-61 Op. Att'y Gen. p. 538.

Former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) and Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15 ) must be construed together. 1954-56 Op. Att'y Gen. p. 767.

Permissible grounds for release of tax information. - Release of tax information for use is authorized only in cases involving the integrity of the tax return itself as the main issue, and not merely as a collateral issue. 1971 Op. Att'y Gen. No. 71-184.

Disclosure of information which is neither secret nor confidential. - This section would not prohibit disclosure of information as to whether a taxpayer filed a tax return for a particular year. 1957 Op. Att'y Gen. p. 317.

When Ga. L. 1945, p. 160, § 1 and Ga. L. 1959, p. 88, § 1 (see now O.C.G.A. §§ 48-2-15 and 50-18-70 ) are considered together, it was readily apparent, there being no prohibition by court order or by law against public inspection of public utilities tax information at the county level, that information incident to assessment of ad valorem taxes on public utilities furnished by the commissioner to the counties was not covered by the secrecy provision of Ga. L. 1945, p. 160, § 1, and that release of information to the public by the commissioner would not violate Ga. L. 1945, p. 160, § 1. However, any information obtained by the commissioner which in the regular course of business is not furnished to the county in the process of assessing the tax would not be the subject matter of a public document in the county office and, therefore, would remain covered by the secrecy provision of Ga. L. 1945, p. 160, § 1. 1963-65 Op. Att'y Gen. p. 277.

An application for a liquor permit is a public record and is not confidential or secret. 1963-65 Op. Att'y Gen. p. 171.

Release of tax information to public officers and agencies. - Records of the income tax unit of the department constitute confidential information and should not be divulged to local taxing authorities of this state. 1952-53 Op. Att'y Gen. p. 471.

In order to assist county tax assessors in the discharge of their duties as prescribed by law, the commissioner has authority to furnish tax information to county boards of tax assessors upon official request. 1954-56 Op. Att'y Gen. p. 767.

This section limits the commissioner to furnishing the appropriate tax official of a local government with information to which the local official is entitled by law to have access. The commissioner may only furnish other tax information to the tax or legal officer of another state, territory, country, or to the United States government. 1954-56 Op. Att'y Gen. p. 828.

Neither former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) nor Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15 ) makes income tax returns privileged or confidential as to the commissioner, the commissioner's agents, or other persons who properly have access to them for use in the administration and the enforcement of any tax. 1965-66 Op. Att'y Gen. No. 66-225.

County boards of tax assessors in the discharge of their official duties are entitled to have access to the files of the commissioner, including the income tax files; any files furnished to county boards of tax assessors retain their privileged or confidential character in the hands of those officials. 1965-66 Op. Att'y Gen. No. 66-225.

Information contained in state income tax returns may not be furnished to city or municipal tax assessors. 1965-66 Op. Att'y Gen. No. 66-225.

Release of tax information to private firms and other groups. - It is not a violation of law for the department to deliver income tax returns to a private company for processing the information onto punch cards, if certain restrictions are followed. 1960-61 Op. Att'y Gen. p. 538.

Disclosure to National Alcohol Beverage Control Association of prices posted in department by various distilleries is not prohibited. 1962 Op. Att'y Gen. p. 300.

Fingerprinting not required. - Offenses arising from a violation of O.C.G.A. § 43-17-8.1 do not, at this time, appear to be offenses for which fingerprinting is required. 2018 Op. Att'y Gen. No. 18-3.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 675.

ALR. - Recovery of damages under § 7431(c)(1)(B) of Internal Revenue Code (26 USCA § 7431(c)(1)(B)) based on improper release of confidential tax return information, 154 A.L.R. Fed. 537.

48-2-15.1. Disclosure of confidential taxpayer information or records.

Notwithstanding any other provision of law to the contrary, confidential taxpayer information or records with respect to which the taxpayer has granted express written authorization to the commissioner or an officer or employee of the department may be disclosed to or discussed with another party.

(Code 1981, § 48-2-15.1 , enacted by Ga. L. 2004, p. 429, § 1.)

48-2-15.2. "Ruling" defined; regulations prescribing guidelines; precedential value of ruling.

  1. As used in this Code section, the term "ruling" means a written determination that is issued to a person by the commissioner pursuant to regulations promulgated for that purpose, in response to such person's written inquiry about his or her status for tax purposes or the tax effects of acts or transactions, and is based on applying the tax statutes, regulations, or other legal authority to such person's specific set of facts. Such term thus does not include, for example, notices of proposed or final assessment or decisions thereon, decisions on claims for refund, decisions to accept or reject offers in compromise, voluntary disclosure or closing agreements, and responses to petitions or applications under Code sections permitting the commissioner to waive penalty or interest.
  2. The commissioner is authorized to promulgate regulations prescribing guidelines and procedures for the submission of rulings, issuance or denial of issuance of rulings, and the redaction and disclosure of rulings to the public. The commissioner may not disclose a ruling to the public without first deleting the name, address, and other identifying details of the person to whom the ruling was issued.
  3. A ruling shall have no precedential value except to the person to whom the ruling was issued and then only for the specific transaction addressed in the ruling. (Code 1981, § 48-2-15.2 , enacted by Ga. L. 2012, p. 735, § 1/HB 846.)

Editor's notes. - Ga. L. 2012, p. 735, § 4(b)/HB 846, not codified by the General Assembly, provides that this Code section "shall only be applied to rulings requested after the effective date of this Act." This Act became effective May 1, 2012.

48-2-16. Exchange of tax information.

  1. The commissioner and each tax receiver, tax collector, and tax commissioner of this state, at his discretion, may furnish to the tax officials of any other state, political subdivision of any other state, political subdivision of this state, the District of Columbia, or the United States and its territories any information contained in tax returns, reports, and related schedules and documents filed pursuant to the tax laws of this state or contained in the report of an audit or investigation made with respect to any such return, report, schedule, or document if the jurisdiction to which the information is furnished grants similar privileges to this state and if the information is to be used only for tax purposes.
  2. The commissioner and each tax receiver, tax collector, and tax commissioner of this state may enter into agreements with tax officials described in subsection (a) of this Code section to provide for the exchange of tax information as authorized by this Code section.
  3. Furnishing information as permitted by this Code section shall not be deemed to change the confidential character of the information furnished.

    (Ga. L. 1967, p. 537, §§ 1, 2; Code 1933, § 91A-213, enacted by Ga. L. 1978, p. 309, § 2.)

48-2-17. Payment to Office of the State Treasurer.

Except as otherwise provided by law, all taxes, penalties, interest, and other moneys collected or received by the commissioner, the department, or any unit, officer, or employee of the department pursuant to this title or any other revenue or licensing law shall be paid to the Office of the State Treasurer and deposited within 45 days of such collection or receipt.

(Ga. L. 1931, p. 7, § 85; Ga. L. 1931, Ex. Sess., p. 24, § 60; Code 1933, §§ 92-3009, 92-3502; Ga. L. 1951, p. 360, § 23; Ga. L. 1955, p. 268, § 26; Ga. L. 1960, p. 7, § 27; Ga. L. 1968, p. 360, § 16; Code 1933, § 91A-214, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2002, p. 1315, § 1; Ga. L. 2010, p. 863, § 2/SB 296.)

Cross references. - Revenue to be paid into general fund, Ga. Const. 1983, Art. VII, Sec. III, Para. II.

Keeping taxes raised for school purposes separate, § 20-2-411 .

Duties of Office of the State Treasurer generally, § 50-5A-7 .

OPINIONS OF THE ATTORNEY GENERAL

What fees paid to Office of the State Treasurer. - Fees charged by the State Board of Barbers must be forwarded to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected pursuant to establishment of the State Board of Cosmetology must be remitted to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected pursuant to establishment of Composite State Board of Medical Examiners (now Georgia Composite Medical Board) must be forwarded by the joint secretary to the fiscal division (now Office of the State Treasurer) and may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected pursuant to establishment of the Georgia Real Estate Commission must be transmitted by the joint secretary of the state examining boards to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected for the Georgia Board of Nursing must be forwarded to the fiscal division (now Office of the State Treasurer) and may not be retained by the Office of Secretary of State as reimbursements of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected by the Secretary of State as commissioner of securities must be paid to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursements for expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1109 et seq., 1786 et seq.

48-2-18. State Board of Equalization; duties.

  1. There is established a board composed of the commissioner, the state auditor, and the executive director of the State Properties Commission.
  2. The board created by this Code section shall be designated the State Board of Equalization. The chairman and administrative officer of the board shall be the commissioner. Each year, when the digest of assessments proposed by the commissioner is complete, the commissioner shall submit the digest to the State Board of Equalization which shall carefully examine the proposed assessments of each class of taxpayers or property and the digest of proposed assessments as a whole to determine that they are reasonably apportioned among the several tax jurisdictions and reasonably uniform with the values set on other classes of property throughout the state. If the board determines that the proposed assessed values of any one or more of the classes of taxpayers or property or the digest as a whole does not reasonably conform to the values set for other property throughout the state, it shall inquire as to the reason for the lack of conformity and shall adjust and equalize the same by either adding or subtracting a fixed percentage to the class of taxpayer, to the class of property, or to the digest as a whole, as the case may be.
  3. As chairperson and chief administrative officer of the board, the commissioner shall furnish to the board all necessary records and files and in this capacity may compel the attendance of witnesses and the production of books and records or other documents as the commissioner is empowered to do in the administration of the tax laws. After final approval by the State Board of Equalization of the digest of proposed assessments made by the commissioner and after any adjustments by the board as authorized by this Code section are made, the commissioner shall notify within 30 days each taxpayer in writing of the proposed assessment of its property. At the same time, the commissioner shall notify in writing the board of tax assessors of such county, as outlined in Code Section 48-5-511, of the total proposed assessment of the property located within the county of taxpayers who are required to return their property to the commissioner. If any such taxpayer notifies the commissioner and the board of tax assessors in any such county of its intent to dispute a portion of the proposed assessment within 20 days after receipt of the notice, the county board of tax assessors shall include in the county digest only the undisputed amount of the assessment, and the taxpayer may challenge the commissioner's proposed assessment in an appeal filed in the Superior Court of Fulton County or with the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 within 30 days of receipt of the notice. In any such appeal to the superior court, the taxpayer shall have the right of discovery as provided in Chapter 11 of Title 9, the "Georgia Civil Practice Act." In any such appeal to the Georgia Tax Tribunal, discovery shall be as provided in Chapter 13A of Title 50, the "Georgia Tax Tribunal Act of 2012." Upon conclusion of the appeal, the taxpayer shall remit to the appropriate counties any additional taxes owed, with interest at the rate provided by law for judgments. Such interest shall accrue from the date the taxes would have been due absent the appeal to the date the additional taxes are remitted.
  4. Within 30 days after receipt of the proposed digest of assessments, the county board of tax assessors shall make the final assessment of the property in question and provide notice to the taxpayer. Such notice and any appeal therefrom shall be accomplished as is provided by Code Sections 48-5-306 and 48-5-311. In the event of an appeal, the department shall, upon request of the local board of tax assessors and without any charge or cost therefor, provide the local board of tax assessors with any and all technical assistance available from the resources of the department, including without limitation expert testimony by the employees of the department.
  5. Assessments made in accordance with subsection (d) of this Code section shall be added to the regular county digest at the time the digest is transmitted to the commissioner or at such time as the digest is otherwise required to be compiled. In the event that the commissioner has not provided to the board of tax assessors by August 1 of a tax year the notice of proposed assessments set forth in subsection (c) of this Code section for taxpayers who are required to return their property to the commissioner pursuant to Code Section 48-5-511, the tax commissioner or tax receiver of the county where such property is located may issue an interim tax bill to such taxpayers, owning property in the county in an amount equal to 85 percent of such taxpayer's property tax bill for the immediately preceding tax year or, in the event that such tax year is under appeal, the tax bill for the most recent tax year in which the taxes for such property were finally assessed. At such time as the county board of tax assessors adds the assessments for the tax year made in accordance with subsection (d) of this Code section to the regular county digest, the tax commissioner or tax receiver shall issue a corrected tax bill to each taxpayer who received an interim tax bill, such corrected tax bill to be in an amount based upon the assessed value of such taxpayer's property shown on the regular county digest and such taxpayer shall remit any additional taxes due or, in the event of overpayment, shall be entitled to a tax refund, in either case, without interest or penalty. Nothing in this subsection is intended to alter a taxpayer's right to appeal from either the commissioner's notice of proposed assessment or the county board of assessors' final assessment under the procedures set forth in subsections (c) and (d) of this Code section. The billing pursuant to this Code section shall not subject the tax commissioner or tax receiver of the county to the forfeiture provisions of Code Section 48-5-135.
  6. The notice and appeal procedures provided for in this Code section shall not apply to any decision of the board relating to the assessed value of motor vehicle property.

    (Ga. L. 1953, Jan.-Feb. Sess., p. 185, § 1; Ga. L. 1972, p. 1015, § 1702; Ga. L. 1972, p. 1120, § 1; Code 1933, § 91A-217, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 1; Ga. L. 1984, p. 352, § 1; Ga. L. 1985, p. 149, § 48; Ga. L. 1987, p. 485, § 1; Ga. L. 1988, p. 13, § 48; Ga. L. 1988, p. 1568, § 1; Ga. L. 1988, p. 1763, § 2; Ga. L. 1992, p. 1346, § 1; Ga. L. 2010, p. 1104, § 8-1/SB 346; Ga. L. 2012, p. 318, § 1/HB 100; Ga. L. 2013, p. 141, § 48/HB 79.)

Cross references. - Appeals to superior court from decisions of commissioner, § 48-2-59 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, "in Code Section 48-5-511" was substituted for "in Georgia Code Annotated 48-5-511" in the third sentence of subsection (c), and "in Chapter 11 of Title 9, the 'Georgia Civil Practice Act'" was substituted for "in the Georgia Civil Practice Act" at the end of the next-to-last sentence in subsection (c).

Pursuant to Code Section 28-9-5, in 2010, in subsection (e), in the second sentence, "the" was deleted preceding "such property" near the middle and a period was deleted following "preceding tax year" near the end; "the" was deleted preceding "subsections (c) and (d)" in the next to the last sentence; and "be" was deleted preceding "subject the" in the last sentence.

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

JUDICIAL DECISIONS

Utility whose returns are not accepted by the commissioner. - In a gas company's suit against the state revenue commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and 48-5-511(a) , remand was proper to determine if the company had an acceptable alternative remedy in its pending county tax appeals under O.C.G.A. § 48-5-311 , if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

Procedure pending appeal. - When utility companies sought to enjoin counties from collecting more than the undisputed amount of the tax during the pendency of a Fulton County appeal, the court properly concluded that no injunction was necessary; subsection (c) of O.C.G.A. § 48-2-18 states plainly that during the pendency of an appeal, the county board of tax assessors may include in the county digest only the undisputed amount of the assessment. It is not necessary to enjoin the counties to carry out the clear legislative mandate. Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

If, under O.C.G.A. § 48-2-18 , a utility had both subsection (c) and subsection (d) appeals proceeding simultaneously, and a local appeal was still pending when the subsection (c) appeal was concluded, the provisions for the payment of taxes during the pendency of an appeal would apply. Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

Improper joinder of appeals. - O.C.G.A. § 48-2-18 contemplates an appeal taken from the proposed assessment made by the State Board of Equalization, as well as individual appeals in each county where a utility owns property, from actual final assessments made by the local tax assessors; thus, appeals pursuant to subsection (d) of § 48-2-18 were improperly joined in an appeal pursuant to subsection (c). Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

Board exceeded authority. - In an action filed by a utility seeking equitable relief from the rejection of the State Commissioner's fair market valuation by the county board of tax assessors, the trial court erred in granting summary judgment to a county board of tax assessors; the board exceeded the board's authority when, in the course of making a final assessment of a utility's property, it not only substituted the board's own assessment ratio, but also the board's own fair market value for those calculated by the State Commissioner, as a final assessment could not include a reappraisal of the fair market value of a taxpayer required to make a return to the state. Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007), aff'd, 283 Ga. 12 , 655 S.E.2d 817 (2008).

Court of Appeals of Georgia properly held that, although the county board of tax assessors could alter the assessment ratio proposed by the Georgia Revenue Commissioner on land owned by a utility in the course of making a final assessment of a utility's property, it could not alter the apportioned fair market value for the property used by the Commissioner in its proposed assessment. Monroe County v. Ga. Power Co., 283 Ga. 12 , 655 S.E.2d 817 (2008).

Cited in Colonial Pipeline Co. v. Collins, 921 F.2d 1237 (11th Cir. 1991); Burt, Burt & Rentz Ret. Pension Trust v. Dougherty County Tax Assessors, 256 Ga. App. 648 , 569 S.E.2d 557 (2002); Ferdinand v. City of East Point, 288 Ga. App. 152 , 653 S.E.2d 529 (2007), cert. denied, No. S08C0466, 2008 Ga. LEXIS 213 (Ga. 2008); Moosa Co. LLC v. Dep't of Revenue, 353 Ga. App. 429 , 838 S.E.2d 108 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Scope of board's authority. - Statute authorizes the board to settle and compromise tax claims falling under two categories: (1) cases involving insolvency of the taxpayer, and (2) cases involving any proposed tax assessment, any final tax assessment, or any tax fieri facias in which the questionable legal position of the state makes the collection of such taxes doubtful, and such settlement or compromise is in the best interest of the state. 1958-59 Op. Att'y Gen. p. 358.

Construing this statute as a whole, the board is not limited to situations when only a question of law is involved; it further confers power to settle if the state's legal position is questionable so as to render collection doubtful. 1958-59 Op. Att'y Gen. p. 358.

Word "compromise" covers both law and fact; any other interpretation would render this statute virtually meaningless because it is difficult to conceive of a case involving only a question of law. 1958-59 Op. Att'y Gen. p. 358.

Board must consider both questions of fact and law. - Board must of necessity find and consider both questions of fact and law which affect the state's legal position in order to determine whether the state occupies a questionable legal position which makes the collection of such taxes doubtful. If this were not true there would be no way for the board to determine the state's legal position in any case. 1958-59 Op. Att'y Gen. p. 358.

Person's legal position is ascertained and determined by applying principles and rules of law to basic facts and circumstances presented by that person's particular case, a mental process embracing both law and fact; determination of the state's legal position requires combining both functions in a single unitary process, and involves a mixed question of law and fact. 1958-59 Op. Att'y Gen. p. 358.

Contributions required by former Ga. L. 1937, p. 806 (see now O.C.G.A. Ch. 8, T. 34) were state taxes within the meaning of Ga. L. 1953, Jan.-Feb. Sess., p. 185, § 1 (see now O.C.G.A. § 48-2-18 ); the board had jurisdiction and authority to settle or compromise such tax liability. 1965-66 Op. Att'y Gen. No. 66-91.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 701, 710.

C.J.S. - 84 C.J.S., Taxation, § 700 et seq.

ALR. - Power or duty of tax review or equalization boards to act after date for adjournment or closing of books, 105 A.L.R. 624 .

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

48-2-18.1. Settlement or compromise of tax assessments; application fee.

  1. The commissioner or his or her designee shall be authorized to settle and compromise any proposed tax assessment, any final tax assessment, or any tax fi. fa., where there is doubt as to liability or there is doubt as to collectability, and the settlement or compromise is in the best interests of the state. The commissioner shall develop procedures for the acceptance and rejection of offers in compromise. The commissioner shall keep a record of all settlements and compromises made and the reasons for each settlement and compromise.
  2. Each offer in compromise shall be accompanied by a $100.00 nonrefundable application fee. If the offer is accepted by the commissioner, such application fee shall be treated as part of the offer. Such application fee shall not apply if the applicant's total monthly income is at or below levels based on the poverty guidelines established by the United States Department of Health and Human Services. If this is the case, the applicant shall certify as such with their offer. (Code 1981, § 48-2-18.1 , enacted by Ga. L. 1984, p. 352, § 2; Ga. L. 1988, p. 426, § 1; Ga. L. 1997, p. 734, § 1; Ga. L. 2005, p. 159, § 3/HB 488.)

Editor's notes. - Ga. L. 2005, p. 159, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

48-2-19. Modernization and improvement of licensing, registration, valuation, and titling functions; utilization of tag and title information in electronic form.

  1. It is the intent of the General Assembly that the state revenue commissioner shall have total responsibility for the administration of the laws of the state relating to the licensing, registration, valuation, and titling of motor vehicles and that the commissioner shall carry out a complete modernization and improvement of such functions.
  2. The state revenue commissioner shall have total responsibility for developing and implementing a comprehensive and detailed plan to accomplish the modernization and improvement of the functions specified in subsection (a) of this Code section. Such plan shall include:
    1. A detailed analysis of personnel, equipment, motor vehicles, and facilities necessary for the administration of the laws relating to the licensing, registration, valuation, and titling of motor vehicles;
    2. A detailed analysis of the funding necessary to administer such functions of the department;
    3. Detailed recommendations for the most effective methods of carrying out the functions provided for in subsection (a) of this Code section, bearing in mind that the citizens of the State of Georgia should have a right to expect prompt, courteous, and cost-efficient service with respect to such functions;
    4. Recommendations for any changes in the relevant laws needed to accomplish the goals referred to in paragraph (3) of this subsection; and
    5. A suggested timetable for the completion of such recommendations.
  3. The state revenue commissioner shall from time to time report to the presiding officers of the Senate and House of Representatives with respect to:
    1. The progress of implementation of the plan provided for in subsection (b) of this Code section;
    2. Any deficiencies or inefficiencies noted by the state revenue commissioner in the current carrying out of the functions provided for in subsection (a) of this Code section; and
    3. Any interim improvements which should be made in the carrying out of such functions pending completion of the plan provided for in subsection (b) of this Code section.
  4. The state revenue commissioner shall obtain the necessary equipment and personnel in order to utilize effectively motor vehicle registration, licensing, and title information submitted in electronic form by the tax collectors and tax commissioners of the various counties of this state.  All counties which have the technological capability of submitting such registration, licensing, and title information in an electronic form shall do so and all other counties are encouraged to develop such capabilities.  The state revenue commissioner may promulgate rules and regulations for the purpose of standardizing the format of such electronic information to be submitted by the tax collectors and tax commissioners of the various counties, provided that such rules and regulations shall provide for the use of one or more electronic formats currently utilized by local taxing officials. (Code 1981, § 48-2-19 , enacted by Ga. L. 1994, p. 514, § 3.)

ARTICLE 2 ADMINISTRATION

48-2-30. Remittances.

  1. Except with regard to ad valorem property taxes, when an application or return is filed with the commissioner under the revenue or license laws or regulations of this state and an amount is shown on the application or return to be due or to become due, the person required to make the application or return shall remit the amount with the application or return without further assessment, notice, or demand to the commissioner or department at the time and place fixed for filing of the application or return. Upon any failure in this regard, the commissioner shall have the authority to issue forthwith a fi. fa. for the collection of the amount due.
  2. The acceptance by the commissioner or the department of any payment received with respect to any tax or license fee shall not imply that the tax or license fee is thereby fully assessed, fixed, determined, or satisfied. All persons making such payments shall understand that the payments will be accepted and the proper account credited with the payment subject to a final determination of its correctness in due course, any condition expressed in such payment to the contrary notwithstanding. This subsection shall not apply to payments received pursuant to authorized compromises and settlements, which payments shall be governed by the special agreements and proceedings applicable thereto.
  3. No condition affixed to any remittance with respect to the time or manner of processing or negotiating its payment shall be given any force or effect.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 26; Ga. L. 1961, p. 445, § 1; Code 1933, § 91A-230, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1951, p. 360, § 18 are included in the annotations for this Code section.

Date and superiority of lien for sales and use taxes. - Lien and the lien's rank is provided for the state for sales and use taxes. Such lien attaches on the day on which the dealer is required to make the dealer's return and remittance to the commissioner and is declared to be superior to all other liens. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954) (decided under Ga. L. 1951, p. 360, § 18).

Effect of recording lien. - Recording of the fieri facias issued by the commissioner on the general execution docket is not a condition precedent to the attachment of a lien for sales taxes. Only effect of failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954) (decided under Ga. L. 1951, p. 360, § 18).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 712, 713.

C.J.S. - 85 C.J.S., Taxation, § 991 et seq.

ALR. - Partial payment of tax, 84 A.L.R. 774 .

Power to remit, release, or compromise tax claim, 99 A.L.R. 1062 ; 28 A.L.R.2d 1425.

48-2-31. Currency in which taxes to be paid.

Except as otherwise provided in Code Section 48-2-32, all taxes imposed by this title or any other revenue or license law shall be paid in lawful money of the United States, free from any expense to the state or any political subdivision of this state.

(Laws 1804, Cobb's 1851 Digest, p. 1051; Ga. L. 1851-52, p. 288, § 19; Code 1863, §§ 737, 762; Code 1868, §§ 804, 829; Code 1873, §§ 807, 833; Code 1882, §§ 807, 833; Civil Code 1895, §§ 773, 806; Civil Code 1910, §§ 1013, 1044; Code 1933, § 92-5706; Code 1933, § 91A-231, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Payment by check sufficient even if bank fails before collection. - If a tax collector accepted a taxpayer's check and delivered a receipt for payment of state and county taxes, the payor bank charged the amount of the check to the drawer's account and later delivered the check canceled to the drawer, having also mailed to an intermediary bank a cashier's or exchange check, which remained unpaid because before the check's collection the first bank failed and discontinued business, the taxpayer was not subject to execution issued by the tax collector for the amount of the tax so paid. Palmer v. Harrison, 165 Ga. 842 , 142 S.E. 276 (1928).

OPINIONS OF THE ATTORNEY GENERAL

What "bankable paper" includes. - Words "free of any expense to the state," found in former Code 1933, § 92-5706 (see now O.C.G.A. § 48-2-31 ), restrict the term "bankable paper," found in former Code 1933, § 68-208 (see now O.C.G.A. § 40-2-29 ), in that the former provision prohibited accepting postdated checks, checks drawn on non-par banks, and any check which was so qualified or conditioned that expense to the state would necessarily be incurred. 1963-65 Op. Att'y Gen. p. 607.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1032.

48-2-32. Forms of payment.

  1. The commissioner may receive in payment of taxes and license fees personal, company, certified, treasurer's, and cashier's checks and bank, postal, and express money orders to the extent and under the conditions which he may reasonably prescribe by regulations or instructions.
  2. A check or money order, when authorized, shall be deemed to be payment as of the time it is received by the commissioner, provided the check or money order is duly paid upon presentation to the drawee. The time of receipt as shown by the records of the department shall be prima facie correct as to the time of actual receipt.
  3. If a check or money order so received is not duly paid, the person on whose account the check or money order was tendered shall remain liable for the payment of the tax or license fee and for all legal penalties and additions to the same extent as if the check or money order had not been tendered. Delay in the presentation for payment of the check or money order shall not absolve the person of this liability.
  4. If any certified, treasurer's, or cashier's check or money order so received is not duly paid, the state, in addition to its right to exact payment from the party originally obligated therefor, shall have a lien for the amount of the check or money order upon all assets of the bank or trust company on which drawn or for the amount of the money order upon all the assets of the issuer of the money order. The amount of the check or money order shall be paid out of such assets in preference to any other claims whatsoever against the banker or issuer.
    1. On and after July 1, 2004, if any check or money order tendered to the commissioner in payment of any tax or license fee is not duly paid when presented to the drawee or issuer for payment, there shall be paid by the person who tendered the check or money order upon notice and demand of the commissioner or his delegate, in the same manner as tax, a penalty in an amount equal to 2 percent of the amount of the check or money order, unless the amount of the check or money order is less than $1,250.00, in which case the penalty under this Code section shall be $25.00. This penalty shall be in addition to any other penalties provided by law.
    2. This subsection shall not apply if the person who tendered the check or money order shows to the commissioner's reasonable satisfaction that the check or money order was tendered in good faith and with reasonable cause to believe it would be duly paid.
    1. As used in this subsection, the term "electronic funds transfer" means a method of making financial payments from one party to another through a series of instructions and messages communicated electronically, via computer, among financial institutions. Such term shall not include the electronic filing of tax returns.
    2. The commissioner may require that any person or business owing more than $10,000.00 in connection with any return, report, or other document required to be filed with the department on or after July 1, 1992, shall pay any such sales tax, use tax, withholding tax, motor fuel distributor tax, corporate estimated income tax, or individual estimated income tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment.

      (2.1) (A) The commissioner may require that any person or business owing more than $1,000.00 in connection with any return, report, or other document pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax required to be filed with the department for tax periods beginning on or after January 1, 2010, and prior to January 1, 2011, shall pay any such sales tax, use tax, withholding tax, or motor fuel distributor tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment.

      (B) The commissioner may require that any person or business owing more than $500.00 in connection with any return, report, or other document pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax required to be filed with the department for tax periods beginning on or after January 1, 2011, shall pay any such sales tax, use tax, withholding tax, or motor fuel distributor tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment.

    3. In addition to the requirements contained in paragraph (2) of this subsection, every employer whose tax withheld or required to be withheld under Code Section 48-7-103 exceeds $50,000.00 in the aggregate for the lookback period as defined in paragraph (4) of subsection (b) of Code Section 48-7-103 must pay the taxes by electronic funds transfer as follows:
      1. For paydays occurring on Wednesday, Thursday, or Friday, the taxes must be remitted on or before the following Wednesday or, in the case of a holiday, the next banking day thereafter;
      2. For paydays occurring on Saturday, Sunday, Monday, or Tuesday, the taxes must be remitted on or before the following Friday or, in the case of a holiday, the next banking day thereafter; and
      3. Notwithstanding any other provision of this paragraph to the contrary, for employers whose tax withheld or required to be withheld exceeds $100,000.00 for the payday, the taxes must be remitted by the next banking day.
    4. In addition to the requirements contained in paragraphs (2), (2.1), and (3) of this subsection, every third-party payroll provider who prepares or remits, or both, Georgia withholding tax for more than 250 employers must pay the taxes by electronic funds transfer. Also, such third-party payroll providers must submit all state withholding tax registration applications electronically in the manner specified by the department. Any state withholding tax registration applications that are not submitted electronically by such third-party payroll provider in the manner specified by the department shall not be considered by the department.

      (4.1) Each person that files or is required to file Form 1099-K with the Internal Revenue Service shall electronically file a copy of such Form 1099-K with the commissioner in the manner specified by the commissioner. Such filing shall be completed on or before the time that is required for filing such Form 1099-K with the Internal Revenue Service.

    5. The commissioner is specifically authorized to establish due dates and times for the initiation of electronic payments, establish an implementation schedule, promulgate regulations, and prescribe rules and procedures to implement this subsection.
    6. A penalty of 10 percent of the amount due shall be added to any payment which is made in other than immediately available funds which are specified by regulation of the commissioner unless the commissioner has authorized an alternate means of payment in an emergency.
    7. In addition to authority granted in Code Section 48-2-41, the commissioner is authorized to waive the collection of interest on electronic funds transfer payments, not to exceed the first two scheduled payments, whenever and to the extent that the commissioner reasonably determines that the default giving rise to the interest charge was due to reasonable cause and not due to gross or willful neglect or disregard of this subsection or regulations or instructions issued pursuant to this subsection.
    8. Notwithstanding any provision of law to the contrary, the commissioner is authorized to promulgate rules and regulations setting forth the requirements for electronically transmitting all required returns, reports, or other documents required to be filed with taxes paid by electronic funds transfer.
    9. Notwithstanding any provision of law to the contrary, the commissioner is authorized to promulgate rules and regulations setting forth the procedure for satisfying the signature requirement for returns whether by electronic signature, voice signature, or other means, so long as appropriate security measures are implemented which assure security and verification of the signature procedure.
    10. Notwithstanding any provision of law to the contrary, the commissioner is authorized to pay all tax refunds by electronic funds transfer when requested by a taxpayer who has filed his or her return electronically with the department.

      (Ga. L. 1960, p. 211, § 1; Code 1933, § 91A-232, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1991, p. 715, § 1; Ga. L. 1992, p. 1234, § 1; Ga. L. 1993, p. 91, § 48; Ga. L. 1996, p. 307, § 1; Ga. L. 1997, p. 734, § 2; Ga. L. 2003, p. 665, § 3; Ga. L. 2004, p. 410, §§ 3, 4; Ga. L. 2004, p. 631, § 48; Ga. L. 2005, p. 159, § 4/HB 488; Ga. L. 2006, p. 200, § 3/HB 1310; Ga. L. 2009, p. 648, § 1/HB 334; Ga. L. 2014, p. 231, § 2/HB 918; Ga. L. 2019, p. 902, § 1/SB 183.)

The 2019 amendment, effective May 7, 2019, added paragraph (f)(4.1).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(c), not codified by the General Assembly, provides that subsection (f) of this Code section shall be applicable to all calendar quarters beginning on or after April 1, 2004.

Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004."'

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27/HB 488, not codified by the General Assembly, provides that the 2005 amendment applies to all payments made on or after January 1, 2005.

Law reviews. - For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 233 (2003).

OPINIONS OF THE ATTORNEY GENERAL

General Assembly intended that former Code 1933, §§ 68-208 and 68-212 and Ga. L. 1960, p. 211, § 1 (see now O.C.G.A. §§ 40-2-29 and 48-2-32 ) be construed together; when so construed, the words "or other similar bankable paper" found in former Code 1933, § 68-208 (see now O.C.G.A. § 40-2-29 ) include personal and company checks. 1963-65 Op. Att'y Gen. p. 607.

Remedies available if check dishonored. - When a tax commissioner accepts a check as payment for a motor vehicle license plate, which check is not honored by the bank but returned to the tax commissioner marked "insufficient funds", the tax commissioner would not have authority to seize or cancel the license plate which the commissioner issued. The tag agent accepts checks for motor vehicle license fees at the agent's own risk; consequently, the tag agent would have a cause of action against the applicant for the amount of the license fee and the possibility of criminal action against the applicant. 1968 Op. Att'y Gen. No. 68-215.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 721 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1032.

ALR. - Payment of tax by check or draft, 44 A.L.R. 1234 ; 124 A.L.R. 1155 .

Payment of tax by check or draft; and question of subrogation in that connection, 124 A.L.R. 1155 .

48-2-33. Receipts for taxes.

  1. The commissioner and his agents and employees, upon request, shall give receipts for all sums collected by the commissioner or the department, except when the sums are in payment for stamps, tags, or license plates sold and delivered. No receipt shall be issued in lieu of a stamp representing a tax.
  2. When payment of any tax or license fee (except for stamps, tags, or license plates sold and delivered) is made in cash, it shall be the duty of the person making the payment to demand and receive, and the duty of the person receiving the payment to furnish, a written receipt for the payment in the form prescribed by the commissioner for official receipts of the department. The written receipt shall be conclusive as to the transaction and the commissioner shall not be required to give credit for a cash payment under any other circumstances. For the purposes of this subsection, a cash payment includes payment by check, money order, or other instrument payable or endorsed to bearer or to any payee or endorsee except a bearer, payee, or endorsee which is, in substance, the department.
  3. The commissioner, upon request, shall give to the person paying an estate tax duplicate receipts, either of which shall be sufficient evidence of such payment. The receipt shall entitle the legal representative of the estate to be credited and allowed the amount of the payment by any court having jurisdiction to audit or settle the legal representative's accounts.

    (Ga. L. 1931, p. 7, § 85; Ga. L. 1931, Ex. Sess., p. 24, § 57; Code 1933, § 92-3312; Ga. L. 1960, p. 211, § 2; Code 1933, § 91A-233, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 715.

C.J.S. - 85 C.J.S., Taxation, §§ 1035 et seq., 1044.

ALR. - Conclusiveness of tax receipt, 73 A.L.R. 152 .

48-2-34. Failure to give official receipt for payment of taxes or license fees; penalty.

  1. Except as otherwise specifically authorized by law, it shall be unlawful for any person to receive payment of taxes or license fees without giving an official receipt as required in subsection (b) of Code Section 48-2-33.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1960, p. 211, § 2; Code 1933, § 91A-9913, enacted by Ga. L. 1978, p. 309, § 2.)

48-2-35. Refunds.

  1. A taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from such taxpayer under the laws of this state, whether paid voluntarily or involuntarily, and shall be refunded interest, except as provided in subsection (b) of this Code section, on the amount of the taxes or fees from the date of payment of the tax or fee to the commissioner at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly. Such annual interest rate shall be determined for each calendar year based on the first weekly posting of statistical release H. 15 on or after January 1 of each calendar year. For the purposes of this Code section, any period of less than one month shall be considered to be one month. Refunds shall be drawn from the treasury on warrants of the Governor issued upon itemized requisitions showing in each instance the person to whom the refund is to be made, the amount of the refund, and the reason for the refund.
  2. No interest shall be paid if the taxes or fees were erroneously or illegally assessed and collected due to the taxpayer failing to claim any credits listed in Article 2 of Chapter 7 of this title on or before the due date for filing the applicable income tax return, including any extensions which have been granted.
      1. A claim for refund of a tax or fee erroneously or illegally assessed and collected may be made by the taxpayer at any time within three years after:
        1. The date of the payment of the tax or fee to the commissioner; or
        2. In the case of income taxes, the later of the date of the payment of the tax or fee to the commissioner or the due date for filing the applicable income tax return, including any extensions which have been granted.
      2. Each claim shall be filed in writing in the form and containing such information as the commissioner may reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies and an identification of the transactions being contested.
      3. Should any person be prevented from filing such a claim because of service of such person or such person's counsel in the armed forces during such period, the period of limitation shall date from the discharge of such person or such person's counsel from such service.
      4. A claim for refund may not be submitted by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.
    1. In the event the taxpayer desires a conference or hearing before the commissioner or the commissioner's delegate in connection with any claim for refund, he or she shall specify such desire in writing in the claim and, if the claim conforms with the requirements of this Code section, the commissioner shall grant a conference at a time he or she shall reasonably specify. A taxpayer may contest any claim for refund that is denied in whole or in part by filing with the commissioner a written protest at any time within 30 days from the date of notice of refund denial or partial payment. Such 30 day period shall be extended for such additional period as may be agreed upon in writing between the taxpayer and the commissioner during the initial 30 day period or any extension thereof. In the event the taxpayer wishes to request a conference, that request shall be included in the written protest. All protests shall be prepared in the form and contain such information as the commissioner shall reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies, an identification of the transactions being contested, and the reasons for disputing the findings of the commissioner. The commissioner shall grant a conference before the commissioner's designated officer or agent at a time specified and shall make reasonable rules governing the conduct of conferences. The discretion given in this Code section to the commissioner shall be reasonably exercised on all occasions.
    2. The commissioner or the commissioner's delegate shall consider information contained in the taxpayer's claim for refund, together with such other information as may be available, and shall approve or deny the taxpayer's claim and notify the taxpayer of the action.
    3. Any taxpayer whose claim for refund is denied by the commissioner or the commissioner's delegate or whose claim is not decided by the commissioner or the commissioner's delegate within one year from the date of filing the claim shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the superior court of the county of the residence of the taxpayer, except that:
      1. If the taxpayer is a public utility or a nonresident, the taxpayer shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the superior court of the county in which is located the taxpayer's principal place of doing business in this state or in which the taxpayer's chief or highest corporate officer or employee resident in this state maintains an office; or
      2. If the taxpayer is a nonresident individual or foreign corporation having no place of doing business and no officer or employee resident and maintaining an office in this state, the taxpayer shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the Superior Court of Fulton County or in the superior court of the county in which the commissioner in office at the time the action is filed resides.
    4. An action for a refund pursuant to paragraph (4) of this subsection shall not be brought by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.
      1. No action or proceeding for the recovery of a refund under this Code section shall be commenced before the expiration of one year from the date of filing the claim for refund unless the commissioner or the commissioner's delegate renders a decision on the claim within that time, nor shall any action or proceeding be commenced after the later of:
        1. The expiration of two years from the date the claim is denied; or
        2. If a valid protest is filed under paragraph (2) of this subsection, 30 days after the date of the department's notice of decision on such protest.
      2. The period prescribed in this paragraph for filing an action for refund shall be extended for such period as may be agreed upon in writing between the taxpayer and the commissioner prior to the expiration of such period or any extension thereof.
  3. In the event any taxpayer's claim for refund is approved by the commissioner or the commissioner's delegate and the taxpayer has not paid other state taxes which have become due, the commissioner or department may offset any existing liabilities against the refund. Once the offset authorized by this subsection occurs, the refund shall be deemed granted and the amount of the offset shall be considered for all purposes as a payment toward the particular tax liabilities at issue. Any excess refund amount after any offsets have been applied shall be refunded to the taxpayer at the same time the offset is taken.
  4. This Code section shall not apply to taxes paid for alcoholic beverages pursuant to Title 3.
  5. For purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term "taxpayer," as defined under Code Section 48-2-35.1, shall apply. Such claim for refund shall contain the total refund claimed and the allocation of the local sales and use tax by the political subdivision.
  6. Any taxpayer required to pay taxes electronically in accordance with paragraph (2.1) of subsection (f) of Code Section 48-2-32 shall also file any claims for refund electronically. The department shall make claim for refund forms consistent with this subsection electronically available.
    1. As used in this subsection, the term:

      (A) "Political subdivision designee" means the chief officer or officers designated by the political subdivision to receive information about a refund claim of local significance pursuant to this subsection. Each political subdivision shall certify to the commissioner that any such designee is so authorized on a form and in a manner prescribed by the department.

      (B) "Refund claim of local significance" means a taxpayer's claim for refund of sales and use taxes erroneously or illegally assessed and collected or the department's discovery of any overpayment of such taxes, if such claim for refund or overpayment is for an amount equal to or greater than 10 percent of the total yearly average of aggregate sales and use tax distributions to any single political subdivision based on the average of the three most recent calendar years.

      1. Within 30 business days following the department's receipt of a refund claim of local significance, the department shall notify each affected political subdivision's political subdivision designee that a refund claim of local significance to the political subdivision has been received and shall furnish the taxpayer with a copy of such notification. Such notification shall include the date the refund claim of local significance was filed, the amount in the claim for refund for which the political subdivision itself would be responsible if the request is granted, and a copy of the confidentiality provisions in Code Section 48-2-15 and this Code section.
      2. After the department has completed an audit of the claim for refund and determined a final refund amount, the department shall supplement the above notice by transmitting to the political subdivision designee the final refund amount for which the political subdivision is responsible.
        1. With respect to a final refund amount due to a taxpayer that made an overpayment of taxes pursuant to a direct pay permit issued in accordance with Code Section 48-8-49.1, in lieu of a single payment of the final refund amount to the taxpayer, an affected political subdivision may elect for the final refund amount, including applicable interest, to be repaid by the department to the taxpayer over a time period less than or equal to the total duration of the periods subject to the claim for refund. Any such election must be made by the political subdivision, in a manner prescribed by the department, within 30 days of the date the department notifies the political subdivision of the final refund amount for which the political subdivision is responsible.
        2. When an election is made pursuant to division (i) of this subparagraph, the department shall make payment of the total final refund amount, which shall include amounts for local sales and use taxes, to the taxpayer in monthly installments due on or before the fifteenth day of each calendar month during the repayment period. Interest shall accrue on the unpaid balance during such repayment period pursuant to subsection (a) of this Code section.
        3. The provisions of this subparagraph shall only apply to refund claims of local significance and resulting final refund amounts due to a taxpayer that made an overpayment of local sales and use taxes pursuant to a direct pay permit issued in accordance with Code Section 48-8-49.1.
    2. Any information supplied to a political subdivision designee pursuant to this subsection shall retain, in the hands of the local official, its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner, pursuant to Code Section 48-2-15. It shall be the responsibility of the political subdivision designee, and not the department, to protect privileged and confidential information received under this subsection. Any person who divulges any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as provided for divulgence of tax information by employees of the department. Though privileged and confidential information shall not be disclosed, the political subdivision designee may make reasonable budgetary recommendations to elected officials, city managers, and tax officials in political subdivisions based on the confidential information furnished. The department shall not be subject to any criminal or civil liability for the unauthorized divulgence of privileged and confidential information by a political subdivision designee. Notwithstanding the foregoing, in the event all or any portion of the refund claim of local significance is for a tax levied under Part 1 of Article 3 of Chapter 8 of this title, the affected county shall not be in violation of this confidential provision if it notifies all municipal political subdivision designees in the county that such notification has been received from the department.
    3. The commissioner, by rule or regulation, shall establish guidelines for identifying and producing documents to the Department of Audits and Accounts for review relating to the handling of refund claims of local significance. In the event of such review, the Department of Audits and Accounts shall assess whether the department followed proper procedures and used appropriate methodology to reach its final determination on a refund claim of local significance.
    4. Any refund claims of local significance pending with the department for two years after the claim for refund was filed shall be automatically transferred to the Georgia Tax Tribunal as a declaratory judgment of the commissioner requesting a show cause proceeding pursuant to Code Section 50-13A-19.1.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 34; Ga. L. 1945, p. 272, § 1; Ga. L. 1955, p. 455, § 1; Ga. L. 1971, p. 378, § 1; Ga. L. 1973, p. 507, § 1; Ga. L. 1975, p. 156, §§ 7, 8; Code 1933, § 91A-245, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 11; Ga. L. 1979, p. 1078, §§ 1, 2; Ga. L. 1992, p. 1458, § 4; Ga. L. 2000, p. 777, § 1; Ga. L. 2003, p. 355, §§ 1, 2; Ga. L. 2003, p. 429, § 1; Ga. L. 2005, p. 159, § 5/HB 488; Ga. L. 2006, p. 72, § 48/SB 465; Ga. L. 2009, p. 816, § 3/HB 485; Ga. L. 2012, p. 318, § 2/HB 100; Ga. L. 2016, p. 574, § 2/HB 960; Ga. L. 2020, p. 184, § 1-2/HB 846.)

The 2016 amendment, effective July 1, 2016, in subsection (a), in the first sentence, deleted "at the rate of 1 percent per month" following "taxes or fees" near the middle and added "at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly" at the end, and added the second sentence; added the second sentence in subsection (f); and added subsections (g) and (h). See Editor's notes for applicability.

The 2020 amendment, effective September 1, 2020, designated the existing provisions of paragraph (h)(2) as subparagraphs (h)(2)(A) and (h)(2)(B); and added subparagraph (h)(2)(C). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2003, p. 355, § 8(b), not codified by the General Assembly, provides that the first 2003 amendment shall apply to all claims for refunds filed or actions for refunds brought pursuant to this Code section before, on, or after May 29, 2003.

Ga. L. 2003, p. 429, § 2, not codified by the General Assembly, provides that the second 2003 amendment shall be applicable to all taxable years beginning on or after January 1, 2003.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

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.'"

Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Ga. L. 2016, p. 574, § 6(b)/HB 960, not codified by the General Assembly, provides: "The new penalty and interest rates provided in Sections 2, 3, and 4 of this Act shall apply to penalties and interest accrued on or after the effective date of this Act." This Act became effective July 1, 2016.

Ga. L. 2016, p. 574, § 6(c)/HB 960, not codified by the General Assembly, provides: "The new notification requirement and the automatic transfer to the Georgia Tax Tribunal requirement contained in Section 2 of this Act regarding a refund claim of local significance shall apply to claims for refund received by the department on or after the effective date of this Act." This Act became effective July 1, 2016.

Ga. L. 2020, p. 184, § 4-1(b)/HB 846, not codified by the General Assembly, provides, in part, that: "The revisions to paragraph (2) of subsection (h) of Code Section 48-2-35 in Section 1-2 of this Act shall apply to notices for final refund amounts received by a political subdivision on or after September 1, 2020, and the interest rate provided in Section 1-3 of this Act (Code Section 48-2-35.1) shall apply to interest accruing on or after September 1, 2020."

Law reviews. - For article discussing remedies for tax illegally assessed under the former Georgia Retailers' and Consumers' Sales and Use Tax Act (former Code 1933, Ch. 92-34 (see Ch. 8 of this title), see 9 Ga. St. B. J. 45 (1972). For article discussing and comparing the principal means by which the Georgia taxpayer may obtain judicial review of his state tax liability, with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on administrative law, see 70 Mercer L. Rev. 1 (2018). For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Nature of action. - Right given to bring an action for refund of taxes illegally assessed and collected is in the nature of an action for money had and received. Hawes v. Bigbie, 123 Ga. App. 122 , 179 S.E.2d 660 (1970).

Availability of other procedures and remedies. - Only method by which a taxpayer may present a claim for refund to the superior court is by the procedure outlined in this statute. Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

Taxpayer has at least three remedial procedures available for use in disputing the correctness of an assessment rendered against the taxpayer by the commissioner under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Ch. 8, T. 48) relating to sales and use taxes. Taxpayer may proceed: (1) by the method of appeal under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ); (2) by affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ); or (3) by paying taxes illegally exacted and suing for refund under Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35 ). Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

When the manufacturer remitted tax payments under the pre-1985 version of O.C.G.A. § 3-4-60 , even if the manufacturer was not procedurally barred from seeking a refund under O.C.G.A. § 48-2-35 , the manufacturer's failure to avail itself of the predeprivation remedies available to the manufacturer prior to payment of the disputed taxes results in denial of recovery of taxes so paid. James B. Beam Distilling Co. v. State, 263 Ga. 609 , 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662 , 130 L. Ed. 2 d 597 (1994).

O.C.G.A. § 48-2-35 , though the statute does not satisfy the criteria of the Tax Injunction Act, 28 U.S.C. § 1341, so as to bar jurisdiction of the federal court, is not the only means by which a taxpayer might challenge the constitutional validity of a state tax and win retrospective relief, as a taxpayer can bring an action in state court under 42 U.S.C. § 1983. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Predeprivation remedies. - State could not hold out what plainly appeared to be a "clear and certain" postdeprivation remedy and then declare, only after the disputed taxes had been paid, that no such remedy existed. Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547 , 130 L. Ed. 2 d 454 (1994).

Jurisdiction of federal court. - Though the holding in Reich v. Collins, 262 Ga. 625 , 422 S.E.2d 846 (1992), seems to bar most refunds under O.C.G.A. § 48-2-35 when this tax is challenged on constitutional grounds, the uncertain status of this holding makes a constitutional claim under the Georgia refund statute equally uncertain, and so does not satisfy the criteria of providing a "plain, speedy and efficient" post-taxation remedy so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

O.C.G.A. § 48-2-35 does not constitute a waiver of immunity under the Eleventh Amendment to the United States Constitution and was not enough to confer jurisdiction on federal courts in Georgia to hear a plaintiff's claims against the state for damages or prospective relief regarding the automobile "title transfer fee" statute (O.C.G.A. § 40-3-21.1 ) [repealed]. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Class action suit for tax refund may not be maintained in Georgia. State v. Private Truck Council of Am., Inc., 258 Ga. 531 , 371 S.E.2d 378 (1988).

Direct cause of action against dealer not permitted. - Since the plain language of O.C.G.A. § 48-2-35.1(d) provides that a person may seek a refund of erroneously paid sales tax from a dealer who collected and remitted the tax to the commissioner or directly from the commissioner, but does not mention a direct cause of action against the dealer, the customers were not authorized to bring a direct action for a refund of allegedly over-collected sales tax against the power company. Ga. Power Co. v. Cazier, 321 Ga. App. 576 , 740 S.E.2d 458 (2013).

Liability of Department of Revenue for refund of fees charged by another department. - Emission testing company, seeking a refund under O.C.G.A. § 48-2-35(a) , was not entitled to recover invalid fees from the state revenue commissioner since the fee was collected by the Director of the Environmental Protection Division of the Department of Natural Resources; deletion of the first "by the Commissioner" from what was now the first sentence of the statute was not intended to allow a citizen to recover from the Revenue Commissioner any fee paid to any other department or agency of Georgia government. Ga. Emission Testing Co. v. Jackson, 259 Ga. App. 250 , 576 S.E.2d 642 (2003).

Availability of defenses. - Effect of having an express statutory right to sue for a refund was to remove the defense of voluntary payment under former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13 ). Hawes v. Smith, 120 Ga. App. 158 , 169 S.E.2d 823 (1969).

Mandamus relief improperly denied. - Plaintiffs' mandamus claims were improperly denied as the plaintiffs did not have an adequate legal remedy to challenge the constitutionality of Ga. L. 2015, pp. 236, 241-264, §§ 5-8 (HB 170) by pursuing a refund action because the plaintiffs did not argue that H.B. 170 illegally assessed taxes against them, but, rather, the plaintiffs argued that it violated the state constitution by allowing revenues from taxes on motor fuels to be apportioned for purposes other than on roads and bridges; thus, the relief the plaintiffs sought was broader than the relief provided by the statute, O.C.G.A. § 48-9-3 , which was limited to a refund of the assessed taxes plus interest, and the trial court erred in concluding that the refund statute was an adequate legal remedy for the plaintiffs' claims. Ga. Motor Trucking Ass'n v. Georgia Dep't of Revenue, 301 Ga. 354 , 801 S.E.2d 9 (2017).

Cited in Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986); Barber v. Collins, 201 Ga. App. 104 , 410 S.E.2d 444 (1991); C.W. Matthews Contracting Co. v. Collins, 210 Ga. App. 1 , 435 S.E.2d 221 (1993); Moosa Co. LLC v. Dep't of Revenue, 353 Ga. App. 429 , 838 S.E.2d 108 (2020).

Standing and Consent to Bring Action Against State

Prerequisites to filing of claim for refund. - Before a claim for refund is filed with the commissioner there should be a legal determination that the tax was erroneously or illegally collected by the commissioner. Parke, Davis & Co. v. Cook, 198 Ga. 457 , 31 S.E.2d 728 (1944), appeal dismissed. 323 U.S. 681, 65 S. Ct. 436 , 89 L. Ed. 552 (1945).

Standing to claim refund. - Refunds provided for under this statute are to be made to taxpayers. A retailer, like a distributor of gasoline, is not a taxpayer in the retailer's capacity of collecting motor fuel taxes and turning the taxes over to the commissioner. Maynard v. Thrasher, 77 Ga. App. 316 , 48 S.E.2d 471 (1948).

To come within this statute, one need only qualify as a taxpayer. Under former Code 1933, Ch. 92-14 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) the consumer was the taxpayer. Hawes v. Shepherd Constr. Co., 117 Ga. App. 842 , 162 S.E.2d 231 (1968).

Only the party who actually paid the taxes is entitled to claim a refund. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169 , 198 S.E.2d 900 (1973).

Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35 ) does not preclude the owner of the facility into which waste treatment equipment is incorporated from filing a claim for refund pursuant to a regulation of the commissioner pursuant to Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3 ) which regulation provides that the application for a refund be filed by the ultimate user. Eimco BSP Servs. Co. v. Chilivis, 241 Ga. 263 , 244 S.E.2d 829 (1978).

When, under the pre-1985 version of O.C.G.A. § 3-4-60 , the manufacturer remitted a tax payment to the revenue commissioner and subsequently, in an itemized billing statement, required the wholesaler to remit payment for "state stamps" or "state tax," it was the wholesaler which was the taxpayer for purposes of O.C.G.A. § 48-2-35 and, due to the manufacturer's lack of standing, the manufacturer was procedurally barred from pursuing an action for refund. James B. Beam Distilling Co. v. State, 263 Ga. 609 , 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662 , 130 L. Ed. 2 d 597 (1994).

When it is shown that customers and not retailers paid taxes, retailers have no legal standing to obtain a refund. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Since this statute extends the state's consent to be sued only to the taxpayer who has overpaid the taxpayer's tax liability, a seller may not bring an action for a refund of sales and use taxes under this statute unless the seller establishes the seller's standing to assert that as a taxpayer the seller has overpaid the seller's tax liability. If a seller has merely remitted taxes which the seller has shifted to the seller's customers, the seller lacks standing to assert that as to those payments the seller as a taxpayer has overpaid the seller's liability. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Electrical membership corporation lacked direct standing to pursue a claim for a refund of sales tax on behalf of the corporation's members/patrons, pursuant to O.C.G.A. § 48-2-35(b)(1), as it was not a "taxpayer" within O.C.G.A. § 48-2-35(b)(4) for purposes of bringing an action for a tax refund as the corporation did not bear the burden of the tax because the tax was passed on to the corporation's members/patrons; one purpose of the EMC was to furnish electrical energy and service to the corporation's members, pursuant to O.C.G.A. § 46-3-200(1) , and the sale of electricity required a retail sales tax paid to the EMC, which was passed onto the Georgia Commissioner of Revenue, pursuant to O.C.G.A. § 48-8-30(a) . Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22 , 608 S.E.2d 611 (2005).

No standing to claim refund. - Trial court did not err in dismissing a bank's complaint alleging that the bank was entitled to a refund for sales tax paid under the General Refund Statute, O.C.G.A. § 48-2-35 , because the bank was not a taxpayer entitled to a refund under § 48-2-35 since the bank was simply a third-party lender that contracted to advance the money for the consumer, and ultimately the merchant, to meet their obligations to pay the sales tax; the bank's recourse was against the consumer who defaulted on the debt or possibly through any provisions in the credit card program contracts assigning responsibility for bad debts among the various parties. Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120 , 726 S.E.2d 617 (2012), cert. denied, No. S12C1281, 2012 Ga. LEXIS 1017 (Ga. 2012).

Statute as providing standing to attack constitutionality of other provisions. - Authority under this statute to bring an action for a refund does not provide standing to attack constitutionality of another statute when facts alleged show no injury from enforcement of such statute. Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295 , 149 S.E.2d 691 (1966).

State as real party at interest. - Action under this statute against the predecessor of the present commissioner in an official capacity as commissioner is an action against the state. Forrester v. Continental Gin Co., 67 Ga. App. 119 , 19 S.E.2d 807 (1942).

State, by this statute, has consented to be sued. Thompson v. Continental Gin Co., 73 Ga. App. 694 , 37 S.E.2d 819 (1946).

Consent to be strictly construed. - State may not be sued without the state's consent. If consent to be sued is extended by the state, the scope of consent may not be extended by implication. Therefore, this statute is to be strictly construed. Schaffer v. Oxford, 102 Ga. App. 710 , 117 S.E.2d 637 (1960).

Electrical membership corporation lacked associational standing to seek a sales tax refund on behalf of the corporation's members/patrons as the corporation was a nontaxpayer acting in a representative capacity and there was a very limited waiver of sovereign immunity provided by O.C.G.A. § 48-2-35 , which did not extend to nontaxpayers; further, the waiver of sovereign immunity by Ga. Const. 1983, Art. I, Sec. II, Para. IX(e) was to be strictly construed, and even a taxpayer was prohibited from bringing a refund action on behalf of other taxpayers similarly situated, pursuant to O.C.G.A. § 48-2-35 (b)(5). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22 , 608 S.E.2d 611 (2005).

Consent is conditioned on prior filing of refund claim. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

To whom consent granted. - Statute extends state's consent to be sued only with respect to overpayments by the taxpayer from whom such tax was collected. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Refundable Payments

Applicability of statute. - Statute is meant to apply in cases of taxes erroneously or illegally assessed or collected. Hawes v. Bigbie, 123 Ga. App. 122 , 179 S.E.2d 660 (1970).

What payments refundable. - Revenue derived through enforcement of executive order of commissioner providing for warehousing and other services with respect to distilled spirits passing through or stored in a state-operated warehouse and handled by state employees is not revenue obtained through tax or license within the purview of this statute. Schaffer v. Oxford, 102 Ga. App. 710 , 117 S.E.2d 637 (1960).

Compensation granted a dealer is not allowable for one's own tax liability. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169 , 198 S.E.2d 900 (1973).

Trial court properly dismissed the testing company's lawsuit brought pursuant to O.C.G.A. § 48-2-35 and seeking a refund of fees improperly assessed under the Motor Vehicle Emission Inspection and Maintenance Act, O.C.G.A. § 12-9-40 et seq., as the state revenue commissioner did not collect or administer the fee at issue and O.C.G.A. § 48-2-35 only applied to the illegal collection of a tax or license made by the state revenue commissioner. Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560 , 602 S.E.2d 153 (2004).

Dealer not required to prepay potentially refundable taxes prior to seeking approval of refund from Department of Revenue. - With regard to the period beginning by May 5, 2009 and ending on September 7, 2010, the court of appeals erred by affirming the dismissal of the dealer's case requesting a tax refund from the Georgia Department of Revenue because the statutes did not require a dealer to prepay potentially refundable taxes to consumers prior to seeking approval for a refund from the Department; and, although the Department's regulations required a dealer to pay any refund amount to the dealer's customers prior to the point that the dealer could acquire repayment of those funds from the Department, the statutes did not require a dealer to repay funds to the dealer's customers prior to filing a request for a refund or prior to the Department's decision of whether or not a refund was due. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 303 Ga. 468 , 813 S.E.2d 388 (2018).

Elements of Proof

Elements of proof of claim for refund. - In any case when tax was illegally collected, the plaintiff may file the plaintiff's claim for a refund, but in order to prevail upon the trial of the action the plaintiff must show that the taxing authority is not in equity and good conscience entitled to the money. Hawes v. Bigbie, 123 Ga. App. 122 , 179 S.E.2d 660 (1970).

As a prerequisite to maintenance of an action, the plaintiff must prove at trial the plaintiff's averment that the basis on which the plaintiff computed and paid taxes is that taxes were not first collected by the plaintiff from the plaintiff's customers and that the plaintiff bore the burden of taxes claimed to have been overpaid, not the plaintiff's customers. Otherwise, the plaintiff has not established a basis for asserting that the plaintiff as a retailer has overpaid the plaintiff's liability as a taxpayer. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Denial of Claim

Refund of sales tax for failure to comply with regulations. - Grant of the Georgia Department of Revenue's motion to dismiss the appellants' complaint seeking a refund under O.C.G.A. § 48-2-35 of state sales tax paid was affirmed because the appellants failed to comply with a regulation that, before seeking a refund on behalf of their customers under § 48-2-35 , the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded to their customers, which the appellants admittedly had not done.

Effect of denial of claim by commissioner. - When claim for tax refund is denied by the commissioner, the taxpayer has action against the state for refund. The money, having been paid into the state treasury, is no longer within the power or control of the commissioner. Wright v. Forrester, 192 Ga. 864 , 16 S.E.2d 873 (1941).

State is the real party at interest on question of tax refund, and the statute imposes no further duty on the commissioner if the commissioner denies the claim. Wright v. Forrester, 192 Ga. 864 , 16 S.E.2d 873 (1941).

Limitation of action. - Letter from Department of Revenue denying a claim for refund of sales and use taxes commenced the running of the two-year limitations period even though the denial was for "lack of documentation" and there was subsequent communication between the taxpayer and the Department. Collins v. Columbus Foundries, Inc., 262 Ga. 710 , 425 S.E.2d 281 (1993).

OPINIONS OF THE ATTORNEY GENERAL

What payments refundable. - Payment of retail liquor license by the owner of a store, which the owner shortly thereafter sold to another, is not recoverable if voluntarily made. 1948-49 Op. Att'y Gen. p. 593.

Language of this statute clearly limits refunds made to such taxes which may be determined to have been erroneously or illegally assessed and collected. Therefore, license fees voluntarily paid for motor vehicle license plates cannot be recovered when the owner of such vehicle later decides not to operate the vehicle within the state. 1950-51 Op. Att'y Gen. p. 190.

Statute applies only to taxes paid to the state and has no application to the recording tax imposed on long-term real estate notes. 1960-61 Op. Att'y Gen. p. 521.

Overpayment of income taxes resulting from excess withholdings may not be recovered under normal circumstances by filing a claim for refund or by obtaining credit against liability of different years, when the taxpayer does not file an income tax return until more than three years after the date of payment. 1976 Op. Att'y Gen. No. 76-54.

Election by husband and wife to change from joint return to separate returns. - Husband and wife may amend a previously filed return or returns so as to change from joint return basis to separate return basis, or vice versa, but beyond the due date of the return they no longer have such right of election. The tax resulting from such election is not erroneously or illegally assessed or collected and no refund shall be issued, even if the tax is higher than if they had not so elected. 1963-65 Op. Att'y Gen. p. 589.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 965 et seq.

ALR. - Right to interest on tax refunds, 57 A.L.R. 357 .

When may payment of tax or assessment be regarded as involuntary or made under duress, 64 A.L.R. 9 ; 84 A.L.R. 294 .

Corporation which pays tax wrongfully exacted upon shares of its stock as proper party to maintain action for its recovery, 84 A.L.R. 107 .

Action to recover back tax illegally exacted as one upon contract as regards applicability of limitation statutes, 92 A.L.R. 1360 .

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284 .

Excessive assessments as within contemplation of statute providing for refunding of taxes erroneously or illegally charged, 110 A.L.R. 670 .

Right to amend claim for refund of taxes after time for filing has expired, 113 A.L.R. 1291 .

Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542 .

Statute repealing or modifying previous statute providing for refunding of taxes illegally or erroneously assessed, collected, or paid, as applicable retroactively, 124 A.L.R. 1480 .

Assignability of claim for tax refund, and rights of assignee in respect thereof, 134 A.L.R. 1202 .

Right of payer, as against taxing authority, to refund of, or credit for, amount paid on another's income tax, 154 A.L.R. 159 .

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 154 A.L.R. 1052 ; 12 A.L.R.2d 815.

Power or duty, in absence of statute, to allow tax or license fee illegally exacted or erroneously paid as credit on valid tax or license fee, 160 A.L.R. 1423 .

Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778 .

Right to refund or recovery of back taxes paid on property not owned by taxpayer, 165 A.L.R. 879 .

When does special limitation period for filing applications for tax refund begin to run, 175 A.L.R. 1100 .

Retrospective application and effect of statutory provision for interest or changed rate of interest, 4 A.L.R.2d 932.

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 12 A.L.R.2d 815.

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

What constitutes laches barring right to relief in taxpayer's action, 71 A.L.R.2d 529.

Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Refund of state inheritance or estate tax where claims are proven against estate after tax was paid, 63 A.L.R.3d 924.

Propriety of class action in state courts to recover taxes, 10 A.L.R.4th 655.

Recovery of tax paid on exempt property, 25 A.L.R.4th 186.

Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147.

Retrospective application and effect of state statute or rule allowing interest or changing rate of interest on judgments or verdicts, 41 A.L.R.4th 694.

Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

Voluntary payment doctrine as bar to recovery of payment of generally unlawful tax, 1 A.L.R.6th 229.

Construction and operation of statutory time limit for filing claim for state tax refund, 14 A.L.R.6th 119.

Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437.

What constitutes payment for purposes of commencing limitations period under Internal Revenue Code (26 U.S.C.A. § 6511(a)) for refund of tax overpayments, 160 A.L.R. Fed. 137.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

48-2-35.1. Refund of sales and use taxes; expedited refunds.

    1. If a certificate or exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase tangible personal property or taxable services without the payment of sales and use tax has not been obtained and used prior to purchasing such tangible personal property or taxable services, a refund of sales and use taxes shall be made to such purchaser without interest.
    2. For refunds of overpayments of state and local sales and use taxes made pursuant to a direct payment permit issued in accordance with Code Section 48-8-49.1, interest shall be paid on the overpaid amount of the taxes or fees pursuant to subsection (a) of Code Section 48-2-35, and subject to the provisions of Code Section 50-13A-19.1; provided, however, that interest shall begin to accrue on the overpaid amount of taxes or fees from the date an amended return or refund claim claiming a refund is filed.
  1. Any taxpayer who wishes to expedite the payment of a sales and use tax claim for refund may apply to the commissioner for such expedited refund; and as part of such application the taxpayer shall file a bond that is satisfactory to the commissioner as security for the repayment of such refund and any applicable tax, interest, penalties, fees, or costs in the event that the commissioner determines within the applicable statute of limitations that all or a portion of such refund was paid in error. The commissioner shall issue the refund within 30 days of the date of the posting of the approved bond. Any assessment of tax, interest, penalties, fees, or costs related to the payment of such refund claim shall be made within three years after the date that such refund was paid by the commissioner.
    1. As used in this subsection, the term:
      1. "Disregard" means any careless, reckless, or intentional disregard.
      2. "Excessive amount" means that portion of the claim for refund that exceeds the amount that is eligible for refund and for which there is no reasonable basis.
      3. "Frivolously filed" means a sales and use tax claim for refund in which the amount claimed exceeds the amount eligible for refund by at least 50 percent.
      4. "Negligence" includes any failure to make a reasonable attempt to comply with the provisions of this title.
      5. "Reasonable basis" means a position that is reasonably based on one or more of the following authorities: applicable provisions of this title and other statutory provisions; proposed and adopted regulations construing such statutes; court cases; official opinions of the Attorney General; and letter rulings, policy statements, informational bulletins, and other administrative pronouncements published by the commissioner. Notwithstanding the preceding list of authorities, an authority shall not continue to be an authority to the extent it is overruled or modified, implicitly or explicitly, by a body with the power to overrule or modify the earlier authority.
    2. Any taxpayer who frivolously files a sales and use tax claim for refund shall be subject to a penalty of 20 percent of the excessive amount. No penalty shall be assessed pursuant to this subsection against any portion of an excessive amount for which a refund is claimed in good faith and the filing of which was not due to negligence or disregard of the law. The determination of whether a taxpayer acted in good faith shall be made on a case-by-case basis, taking into account all pertinent facts and circumstances. Generally, the most important factor in such determination is the extent of the taxpayer's effort to assess the taxpayer's proper tax liability. Circumstances that may indicate good faith shall include an honest misunderstanding of fact or law that is reasonable in light of all the facts and circumstances, including the experience, knowledge, and education of the taxpayer. An isolated computational or transcriptional error generally is not inconsistent with good faith.
    3. In addition to the penalty imposed under paragraph (2) of this subsection, when all or part of the excessive amount of the taxpayer's claim for refund is based on a position which is knowingly and willfully advanced in bad faith and is patently improper, such taxpayer shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $1,000.00.
  2. Except as provided for in this subsection, for the purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term "taxpayer" as used in Code Section 48-2-35 shall mean a dealer as defined in Code Section 48-8-2 that collected and remitted erroneous or illegal sales and use taxes to the commissioner. A person that has erroneously or illegally paid sales taxes to a dealer that collected and remitted such taxes to the commissioner may file a claim for refund either initially with the commissioner or, alternatively, elect to seek a refund from the dealer, by submitting a written request for refund to the dealer, and file a claim for refund with the commissioner after being unable to obtain a refund from such dealer. Such person shall also be considered a taxpayer for purposes of filing a claim for refund with the commissioner under Code Section 48-2-35 , but only if such person:
    1. When filing a refund claim initially with the commissioner, provides the department with a notarized form prescribed by the commissioner and executed by the dealer affirming that the dealer:
      1. Has not claimed or will not claim a refund of the same tax included in the person's request for refund;
      2. Will provide to the person any information or documentation in the dealer's possession needed for submission to the department to support or prove the claim for refund;
      3. Has remitted to the state the taxes being sought for refund; and
      4. Has not taken or will not take a credit for taxes being sought for refund; or
      1. When filing a refund claim with the commissioner after being unable to obtain a refund from such dealer, such person provides a letter or other information as may be requested by the commissioner that either:
        1. The dealer refused or was unable to refund the erroneously or illegally assessed and collected taxes; or
        2. The dealer did not act upon the person's written request for refund of the erroneously or illegally assessed and collected taxes within 90 days from the date of such request for refund.
      2. Upon acceptance of such letter or information by the commissioner, the dealer shall be deemed to have assigned all rights to the refund to such person. (Code 1981, § 48-2-35.1 , enacted by Ga. L. 2004, p. 630, § 1; Ga. L. 2009, p. 813, § 1/HB 441; Ga. L. 2009, p. 816, § 4/HB 485; Ga. L. 2013, p. 677, § 1/SB 137; Ga. L. 2020, p. 184, § 1-3/HB 846.)

The 2020 amendment, effective September 1, 2020, designated the existing provisions of subsection (a) as paragraph (a)(1); inserted "to such purchaser" near the end of paragraph (a)(1); and added paragraph (a)(2). See Editor's notes for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, subsection (a) as enacted by Ga. L. 2009, p. 816, § 4/HB 485 was redesignated as subsection (d). Subsection (b) as designated by Ga. L. 2009, p. 816, § 4/HB 485 was identical to subsection (a) as designated by Ga. L. 2009, p. 813, § 1/HB 441, so the subsection (a) designation by Ga. L. 2009, p. 813, § 1/HB 441, was retained.

Editor's notes. - Ga. L. 2004, p. 630, § 2, not codified by the General Assembly, provides that this Code section shall be applicable to any sales and use tax refund claim filed on or after July 1, 2004.

Ga. L. 2009, p. 816, § 1, 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.'"

Ga. L. 2020, p. 184, § 4-1(b)/HB 846, not codified by the General Assembly, provides, in part, that: "The revisions to paragraph (2) of subsection (h) of Code Section 48-2-35 in Section 1-2 of this Act shall apply to notices for final refund amounts received by a political subdivision on or after September 1, 2020, and the interest rate provided in Section 1-3 of this Act shall apply to interest accruing on or after September 1, 2020."

Law reviews. - For annual survey on administrative law, see 70 Mercer L. Rev. 1 (2018). For annual survey on state and local taxation: a two-year survey, see 71 Mercer L. Rev. 279 (2019).

JUDICIAL DECISIONS

Direct cause of action not permitted. - Since the plain language of O.C.G.A. § 48-2-35.1(d) provides that a person may seek a refund of erroneously paid sales tax from a dealer who collected and remitted the tax to the commissioner or directly from the commissioner, but does not mention a direct cause of action against the dealer, the customers were not authorized to bring a direct action for a refund of allegedly over-collected sales tax against the power company. Ga. Power Co. v. Cazier, 321 Ga. App. 576 , 740 S.E.2d 458 (2013).

Dealer not required to prepay potenially refundable taxes prior to seeking approval of refund from Department of Revenue. - With regard to the period beginning by May 5, 2009 and ending on September 7, 2010, the court of appeals erred by affirming the dismissal of the dealer's case requesting a tax refund from the Georgia Department of Revenue because the statutes did not require a dealer to prepay potentially refundable taxes to consumers prior to seeking approval for a refund from the Department; and, although the Department's regulations required a dealer to pay any refund amount to the dealer's customers prior to the point that the dealer could acquire repayment of those funds from the Department, the stautes did not require a dealer to repay funds to the dealer's customers prior to filing a request for a refund or prior to the Department's decision of whether or not a refund was due. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 303 Ga. 468 , 813 S.E.2d 388 (2018).

Amendment granting standing to dealers was procedural and operated retroactively. - Because a dealer had statutorily granted representational standing under amended O.C.G.A. § 48-2-35.1 to recover wrongfully paid sales taxes from the state on behalf of the dealer's customers, and the amendment was procedural and could be applied retroactively, the dealer had standing to file a claim for any taxes for periods before the statute was amended. New Cingular Wireless PCS, LLC v. Dep't of Revenue, 308 Ga. 729 , 843 S.E.2d 431 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting not required. - An offense arising from a violation of O.C.G.A. § 48-2-35.1 does not, at this time, appear to be an offense for which fingerprinting is required; thus, this offense is not designated as one for which those charged are to be fingerprinted. 2010 Op. Att'y Gen. No. 2010-2.

RESEARCH REFERENCES

ALR. - Construction and operation of statutory time limit for filing claim for state tax refund, 14 A.L.R.6th 119.

48-2-36. Extension of time for returns.

  1. The commissioner may grant, upon written request, a reasonable extension of time for filing returns, declarations, or other documents required under state revenue laws whenever, in the reasonable exercise of such commissioner's judgment, a good cause for the extension exists. The commissioner shall keep a record of every extension granted and the reason for the extension. No extension or extensions, except as otherwise expressly provided by law, shall aggregate more than six months, nor shall any extension of time for filing returns, except as otherwise expressly provided by law, operate to delay the payment of a tax unless a bond satisfactory to the commissioner is posted. In no event shall the commissioner extend the time of filing returns which are required to be filed with the tax receiver or tax commissioner.
  2. Notwithstanding any other provision in the laws of this state, in the case of a taxpayer determined by the commissioner to be affected by a presidentially declared disaster, as defined in Internal Revenue Code Section 1033(h)(3), or a terroristic or military action, as defined in Internal Revenue Code Section 692(c)(2), the commissioner may specify a period of up to one year that may be disregarded in determining, under the laws of this state, in respect of any tax liability, fee liability, or other liability of such taxpayer:
    1. Whether any of the actions described in subsection (c) of this Code section were performed within the time prescribed therefor, determined without regard to extension under any other provision of the laws of this state for periods after the date, as determined by the commissioner, of such disaster or action;
    2. The amount of any interest, penalty, or addition to the taxes, fees, or other liability for periods after the date, as determined by the commissioner, of such disaster or action; and
    3. The amount of any refund.
  3. Actions which may be extended:
    1. Filing any return of taxes, fees, or other liability;
    2. Payment of any taxes, fees, or other liability or any installment thereof;
    3. Filing a petition with the superior court, the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50, or the Office of State Administrative Hearings as allowed under the laws of this state;
    4. Allowance of a refund of any taxes, fees, or other liability;
    5. Filing a claim for refund of any taxes, fees, or other liability;
    6. Bringing suit upon any such claim for refund;
    7. Assessment of any taxes, fees, or other liability;
    8. Giving or making any notice, assessment, or demand for the payment of any taxes, fees, or other liability;
    9. Collection, by the commissioner, by tax execution, or otherwise, of the amount of any liability of any taxes, fees, or other liability;
    10. Bringing suit by the department, or any officer on its behalf, in respect of any liability in respect of any taxes, fees, or other liability; and
    11. Any other action required or permitted under the laws administered by the commissioner.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 27; Code 1933, § 91A-234, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 200, § 4/HB 1310; Ga. L. 2012, p. 318, § 3/HB 100; Ga. L. 2016, p. 864, § 48/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised capitalization in paragraph (c)(3).

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides, in part, that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

RESEARCH REFERENCES

ALR. - Power of officer charged with duty of extending taxes to add to amount certified to him, 110 A.L.R. 126 .

48-2-37. Preparation of delinquent returns.

In any case in which any return, report, or other information is not filed or made available to the commissioner as required by law, the commissioner may proceed at the expense of the delinquent taxpayer to ascertain such information in any way which the commissioner reasonably considers proper or appropriate; and the commissioner is authorized to prepare, execute, and file such returns. Any return so made and filed by the commissioner or his agent shall be prima facie correct and sufficient for all legal purposes.

(Ga. L. 1931, Ex. Sess., p. 24, § 48; Code 1933, § 92-3212; Ga. L. 1937, p. 109, § 16; Ga. L. 1937-38, Ex. Sess., p. 77, § 35; Code 1933, § 91A-246, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Construction with other provisions. - Construing former Code 1933, § 92-3212 (see now O.C.G.A. § 48-2-37 ) together with former Code 1933, Ch. 92-30 through 92-33C (see now O.C.G.A. Ch. 7, T. 48), the General Assembly did not intend more than that the return prepared by the commissioner should take the place of a return prepared by the taxpayer. Therefore, the commissioner has authority to make and file a return on behalf of a delinquent taxpayer when no return has been filed, and such return may be based upon the best information available to the commissioner. 1954-56 Op. Att'y Gen. p. 757.

It was the intent of the General Assembly that the procedure provided in former Code 1933, § 92-3302 (see now O.C.G.A. § 48-2-48 ) should be followed regardless of whether a return was filed by the taxpayer personally or the commissioner under former Code 1933, § 92-3212 (see now O.C.G.A. § 48-2-37 ) in the commissioner's behalf. Therefore, the commissioner or the commissioner's deputy cannot issue a fieri facias in cases when a return was made and filed under former Code 1933, § 92-3212 without making a formal assessment under the procedure provided for in former Code 1933, § 92-3302. 1954-56 Op. Att'y Gen. p. 757.

48-2-38. Due date; interest on deferred taxes.

  1. Except as otherwise expressly provided by law, all state taxes and licenses except ad valorem and income taxes shall be due and payable either with the return or within 30 days after notice, as the case may be.
  2. When the collection of any tax specified in subsection (a) of this Code section is deferred under any law and unless a higher rate of interest or penalty is fixed by law, interest at the rate specified in Code Section 48-2-40 shall be collected thereon from the due date until the date of payment.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 28; Code 1933, § 91A-235, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 724, 730, 767.

48-2-39. When date for payment or filing on holiday.

When the date prescribed by or imposed pursuant to law for the making of any return, the filing of any paper or document, or the payment of any tax or license fee pursuant to this title or any law relating to the taxation and licensing of automobiles, trucks, or trailers falls on a Saturday, Sunday, legal holiday, or day on which the Federal Reserve Bank is closed, the making of the return, the filing of the paper or document, or the payment of the tax or license fee shall be postponed by the person required to take such action until the first day following which is not a Saturday, Sunday, legal holiday, or day on which the Federal Reserve Bank is closed.

(Code 1933, § 91A-236, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 712, § 1; Ga. L. 2015, p. 888, § 1/HB 234.)

The 2015 amendment, effective May 6, 2015, substituted "Sunday, legal holiday, or day on which the Federal Reserve Bank is closed" for "Sunday, or legal holiday" in the middle and at the end of this Code section.

48-2-40. Rate of interest on past due taxes.

Except as otherwise expressly provided by law, taxes owed the state or any local taxing jurisdiction shall bear interest at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly. Such annual interest rate shall be determined for each calendar year based on the first weekly posting of statistical release H. 15 on or after January 1 of each calendar year. Interest shall begin to accrue from the date the tax is due until the date the tax is paid. For the purposes of this Code section, any period of less than one month shall be considered to be one month. This Code section shall also apply to alcoholic beverage taxes.

(Code 1933, § 91A-239.2, enacted by Ga. L. 1980, p. 10, § 4; Ga. L. 1980, p. 1759, § 1; Ga. L. 2016, p. 574, § 3/HB 960.)

The 2016 amendment, effective July 1, 2016, in the first sentence, substituted "at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly" for "at the rate of 1 percent per month", added the second sentence, and added "Interest shall begin to accrue" at the beginning of the third sentence. See Editor's notes for applicability.

Cross references. - Penalties for failure to pay taxes or license fees on alcoholic beverages, § 3-2-11 .

Editor's notes. - Ga. L. 2016, p. 574, § 6(b)/HB 960, not codified by the General Assembly, provides: "The new penalty and interest rates provided in Sections 2, 3, and 4 of this Act shall apply to penalties and interest accrued on or after the effective date of this Act." This Act became effective July 1, 2016.

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990).

JUDICIAL DECISIONS

Demand for payment of interest and fees proper. - 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).

Failure to award interest. - When a trial court found a tax commissioner improperly refused to pay a tax execution holder's executions, but did not find the commissioner had good cause for the refusal and did not award the holder 20 percent interest, pursuant to O.C.G.A. § 15-13-3(a) , the matter had to be remanded for a determination of the good cause issue and to consider the holder's entitlement to one percent interest per month, pursuant to O.C.G.A. §§ 48-2-40 and 48-3-20 . Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Reference in O.C.G.A. § 48-2-40 to a month means that period of time from any day of a month to the same (or nearest) day of the next succeeding month. 1982 Op. Att'y Gen. No. U82-19.

48-2-41. Authority to waive interest on unpaid taxes.

The commissioner may waive the collection of any interest, in whole or in part, due the state on any unpaid taxes whenever or to the extent that he reasonably determines that the delay in payment of the taxes was attributable to the action or inaction of the department.

(Ga. L. 1960, p. 990, § 2; Code 1933, § 91A-238, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48.)

OPINIONS OF THE ATTORNEY GENERAL

Authority if facts undisputed and assessment correct. - There is no provision authorizing the commissioner to compromise or settle the principal amount of tax in dispute when there is no dispute as to the facts and the commissioner finds that the assessment is correct in all respects. 1969 Op. Att'y Gen. No. 69-30.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 749, 750.

C.J.S. - 85 C.J.S., Taxation, §§ 743 et seq., 1750 et seq.

ALR. - Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

48-2-42. Nature of penalties.

All penalties imposed by law are part of the tax and are to be collected as such. The proceedings to collect the original tax, the tax constituted from penalties imposed, and the interest shall all be conducted in the same manner. Any provision of law for criminal prosecution shall not operate under the tax laws of this state to relieve any taxpayer of any tax, penalty, or interest imposed by law.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 37; Code 1933, § 91A-237, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Cited in Bannister v. Douglas County Bd. of Tax Assessors, 219 Ga. App. 68 , 464 S.E.2d 29 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Construction with other provisions. - Penalty collected under former Code 1933, § 92-6913 (see now O.C.G.A. § 48-5-299 ) should be paid into the county treasury, and remain the property of the county, notwithstanding Ga. L. 1937-38, Ex. Sess., p. 77, § 37 (see now O.C.G.A. § 48-2-42 ). 1954-56 Op. Att'y Gen. p. 577.

Penalties for failure to make timely tax returns arising under former Code 1933, § 92-6913 (see now O.C.G.A. § 48-5-299 ) were property of the county, and no division should be made for the state or the school system. Since under former Code 1933, § 92-6913, penalties must be paid into the county treasury, Ga. L. 1937-38, Ex. Sess., p. 77, § 37 (see now O.C.G.A. § 48-2-42 ) did not affect the matter, even though Ga. L. 1937-38, Ex. Sess., p. 77, § 37 stated that penalties were part of the tax. 1972 Op. Att'y Gen. No. U72-22.

Statute makes penalties and interest as much a part of the tax as the tax itself. 1963-65 Op. Att'y Gen. p. 25.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 717.

C.J.S. - 85 C.J.S., Taxation, §§ 1715, 1728 et seq., 1742, 1747 et seq.

ALR. - Constitutionality of legislation prescribing rate of interest or penalty for nonpayment of taxes, or the conditions liability in that regard, operative only in certain political subdivisions, 111 A.L.R. 1354 .

Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 147 A.L.R. 142 .

Debts arising from tax penalties as exceptions to bankruptcy discharge under § 523(a)(7)(A) and (B) of Bankruptcy Code of 1978 (11 USCA § 523(a)(7)(A) and (B)), 157 A.L.R. Fed. 313.

48-2-43. Authority to waive penalties.

The commissioner may waive, in whole or in part, the collection of any amount due the state as a penalty under any revenue law of this state whenever or to the extent that he reasonably determines that the default giving rise to the penalty was due to reasonable cause and not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law.

(Ga. L. 1960, p. 990, § 1; Code 1933, § 91A-239, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Grounds for waiving penalty. - There is no provision authorizing the commissioner to compromise or settle the principal amount of tax in dispute when there is no dispute as to the facts and the commissioner finds that the assessment is correct in all respects. 1969 Op. Att'y Gen. No. 69-30.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 749.

C.J.S. - 85 C.J.S., Taxation, §§ 1711 et seq., 1743.

ALR. - Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 147 A.L.R. 142 .

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

48-2-44. Penalty and interest on failure to file return or pay revenue held in trust for state; penalty and interest on willful failure to pay ad valorem tax; distribution of penalties and interest.

  1. In any instance in which any person willfully fails to file a report, return, or other information required by law or willfully fails to pay the commissioner any revenue held in trust for the state, such person shall pay, in the absence of a specific statutory civil penalty for the failure, a penalty of 10 percent of the amount of revenue held in trust and not paid on or before the time prescribed by law, together with interest on the principal amount at the rate specified in Code Section 48-2-40 from the date the return should have been filed or the revenue held in trust should have been remitted until it is paid.
    1. In any instance in which any person willfully fails, on or after July 1, 1981, to pay, within 120 days of the date when due, any ad valorem tax owed the state or any local government, such person shall pay, in the absence of a specific statutory civil penalty for the failure, a penalty of 5 percent of the amount of tax due and not paid at the time such penalty is assessed, together with interest as specified by law. After 120 days from the imposition of the initial penalty, an additional penalty of 5 percent of any tax amount remaining due shall be imposed, together with interest as specified by law. If any tax amount remains due after 120 days from the imposition of such additional penalty, a penalty of 5 percent shall be imposed, together with interest as specified by law. Should any tax amount remain due 120 days after such date, a penalty of 5 percent shall be imposed, together with interest as specified by law. The aggregate amount of penalties imposed pursuant to this subsection shall not exceed an amount equal to 20 percent of the principal amount of the tax originally due. These penalties shall not, however, apply in the case of:
      1. Ad valorem taxes of $500.00 or less on homestead property as defined in Part 1 of Article 2 of Chapter 5 of this title; or
      2. With respect to tax year 1986 and future tax years, ad valorem taxes of any amount on homestead property as defined in Part 1 of Article 2 of Chapter 5 of this title, if the homestead property was during the tax year acquired by a new owner who did not receive a tax bill for the tax year and who immediately before acquiring the homestead property resided outside the State of Georgia and if the taxes are paid within one year following the due date.
    2. Any city or county authorized as of April 22, 1981, by statute or constitutional amendment to receive a penalty of greater than 10 percent for failure to pay an ad valorem tax is authorized to continue to receive that amount.
    3. With respect to all penalties and interest received by the tax commissioner on or after July 1, 1998, unless otherwise specifically provided for by general law, the tax commissioner shall distribute penalties collected and interest collected or earned as follows:
      1. Penalties collected for failure to pay ad valorem taxes attributable to the Board of Education or independent school district shall be paid into the county treasury in the same manner and at the same time the tax is collected and distributed to the county, and they shall remain the property of the county;
      2. Interest earned by the tax commissioner on taxes collected but not yet disbursed shall be distributed pro rata based on each taxing jurisdiction's share of the total amount upon which the interest was computed; and
      3. Except as otherwise provided in subparagraph (A) of this paragraph, penalties collected for failure to return property for ad valorem taxation or failure to pay ad valorem taxes, and interest collected on delinquent ad valorem taxes, shall be distributed pro rata based on each taxing jurisdiction's share of the total tax on which the penalty or interest was computed.

        (Ga. L. 1937-38, Ex. Sess., p. 77, § 38; Code 1933, § 91A-239.1, enacted by Ga. L. 1979, p. 5, § 10; Ga. L. 1980, p. 10, § 3; Ga. L. 1981, p. 1857, § 5; Ga. L. 1986, p. 1322, § 1; Ga. L. 1998, p. 1120, § 1; Ga. L. 1999, p. 81, § 48; Ga. L. 2015, p. 1219, § 4/HB 202; Ga. L. 2016, p. 574, § 4/HB 960.)

The 2015 amendment, effective January 1, 2016, substituted "such person shall pay" for "he shall pay" in subsection (a) and the introductory language of paragraph (b)(1); and substituted "at the time such penalty is assessed" for "on or before the time prescribed by law" in the first sentence of the introductory language of paragraph (b)(1).

The 2016 amendment, effective July 1, 2016, substituted the present provisions of the introductory paragraph of paragraph (b)(1) for the former provisions, which read: "In any instance in which any person willfully fails, on or after July 1, 1981, to pay, within 90 days of the date when due, any ad valorem tax owed the state or any local government, such person shall pay, in the absence of a specific statutory civil penalty for the failure, a penalty of 10 percent of the amount of tax due and not paid at the time such penalty is assessed, together with interest as specified by law. This 10 percent penalty shall not, however, apply in the case of:"; substituted the present provisions of subparagraph (b)(3)(A) for the former provisions, which read: "Penalties collected for failure to return property for ad valorem taxation or for failure to pay ad valorem taxes, and interest earned by the tax commissioner on taxes collected but not yet disbursed, shall be paid into the county treasury in the same manner and at the same time the tax is collected and distributed to the county, and they shall remain the property of the county; and"; added subparagraph (b)(3)(B); redesignated former subparagraph (b)(3)(B) as present subparagraph (b)(3)(C); and substituted the present provisions of subparagraph (b)(3)(C) for the former provision, which read: "Interest collected on delinquent ad valorem taxes shall be distributed pro rata based on each taxing jurisdiction's share of the total tax on which the interest was computed." See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 574, § 6(b)/HB 960, not codified by the General Assembly, provides: "The new penalty and interest rates provided in Sections 2, 3, and 4 of this Act shall apply to penalties and interest accrued on or after the effective date of this Act." This Act became effective July 1, 2016.

JUDICIAL DECISIONS

Cited in Averett v. Troup County, 219 Ga. App. 74 , 464 S.E.2d 32 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Penalty provided in subsection (b) of O.C.G.A. § 48-2-44 is automatic and mandatory, and must be imposed whenever conditions set forth are satisfied. 1981 Op. Att'y Gen. No. 81-86.

Penalty and execution fee cumulative. - If circumstances set forth in each section are met, the penalty provided by subsection (b) of O.C.G.A. § 48-2-44 and the execution fee provided by O.C.G.A. § 48-5-161(c) are cumulative in nature. 1982 Op. Att'y Gen. No. U82-37.

Penalty provided in subsection (b) of O.C.G.A. § 48-2-44 applies to all state and local ad valorem property taxes, except when the original tax due is $500.00 or less and is on homestead property as defined in O.C.G.A. Art. 2, Ch. 5, T. 48. The penalty applies to no other taxes. 1981 Op. Att'y Gen. No. 81-86.

Applicability of penalty provisions. - Penalty and fees provided in O.C.G.A. §§ 48-2-44 and 48-5-161 would apply to unpaid ad valorem taxes which were assessed in 1981, 1982, and 1983 as follows: When the statutory prerequisites of O.C.G.A. § 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 O.C.G.A. § 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.

Local school systems are entitled to a proportionate share of funds raised through imposition of the penalty specified in subsection (b) of O.C.G.A. § 48-2-44 . 1983 Op. Att'y Gen. No. 83-20.

Subsection (b) of O.C.G.A. § 48-2-44 does not penalize nonpayment of taxes which became due more than 90 days prior to July 1, 1981, because that subsection connects failure to pay on or after July 1, 1981, with a requirement that the tax be paid within 90 days of the due date. 1981 Op. Att'y Gen. No. 81-86.

Part-payments between due date and penalty date (90 days after due date) do not affect the penalty because the penalty provided in subsection (b) of O.C.G.A. § 48-2-44 is calculated based upon the amount of tax not paid when due. 1981 Op. Att'y Gen. No. 81-86.

Protection from penalty for taxes owed on homestead. - Municipality of Thunderbolt may not collect the penalty imposed by O.C.G.A. § 48-2-44 for failure to pay taxes of $500.00 or less on homestead property. 1987 Op. Att'y Gen. No. U87-15.

Accruing interest on unpaid estate taxes. - Unpaid tax begins bearing interest from the date the return was filed or as of the last date provided for filing the return, if no return was submitted; this interest continued to accrue until settlement, unless an execution was issued pursuant to former Code 1933, § 92-3404 (see now O.C.G.A. § 48-12-6). 1970 Op. Att'y Gen. No. 70-139.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 738 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1712 et seq.

ALR. - Business situs of intangibles in state other than domicile of owner as excluding tax at domicile, 79 A.L.R. 344 .

Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 96 A.L.R. 925 ; 147 A.L.R. 142 .

Penalty for nonpayment of taxes when due as affected by lack of notice to taxpayer, 102 A.L.R. 405 .

Constitutionality of legislation prescribing rate of interest or penalty for nonpayment of taxes, or the conditions liability in that regard, operative only in certain political subdivisions, 111 A.L.R. 1354 .

Doubt as to liability for, or as to person to whom to pay, tax, as affecting liability for penalties and interest, 137 A.L.R. 306 .

48-2-44.1. Failure to follow electronic filing requirements; waivers for undue hardships; justification for failure to follow.

  1. When this title requires that any return pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax be electronically transmitted or filed, or provides that the commissioner may by rule or regulation require that any return pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax be electronically transmitted or filed, and a taxpayer fails to electronically transmit or file such return, the taxpayer shall be deemed to have failed to make the required filing; provided, however, that any such taxpayer whose electronic filing was first transmitted on or before the due date of the return, including any extensions, and was rejected shall be allowed to perfect the electronic filing under rules consistent with those applied by the Internal Revenue Service with respect to rejections of returns which are required to be electronically transmitted or filed. Such deemed failure to make the required filing shall also result in the forfeiture of the compensation of dealers for reporting and paying tax provided in Code Section 48-8-50 since such Code section provides such compensation only if such return is timely filed. The penalty imposed on the taxpayer for such failure shall be the greater of $25.00 for each such return or 5 percent of the tax due on each such return before application of any payments or credits. Such $25.00 penalty or 5 percent penalty amount shall be consistent with the penalty imposed on the failure to file a withholding tax return as provided in Code Section 48-7-126.
  2. The commissioner may grant waivers of the requirements of this Code section in cases of undue hardship.
  3. No penalties shall be assessed pursuant to this Code section upon a showing by the taxpayer or the tax return preparer that the failure was due to reasonable cause and not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law. (Code 1981, § 48-2-44.1 , enacted by Ga. L. 2009, p. 648, § 2/HB 334.)

Administrative Rules and Regulations. - Electronic funds transfer, credit card payments, and electronic filing, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fiscal Operations Division, Substantive Regulations, § 560-3-2-.26.

48-2-45. Service of notice of assessment.

    1. In all cases in which the commissioner is required by law to provide an opportunity to appeal, the assessment of a tax or license fee shall become final if no written appeal is filed by the taxpayer with the commissioner within 30 days of the date of the notice of assessment.
    2. For the purposes of this subsection, the notice shall be deemed to have been given if written notice is sent by registered or certified or first-class mail or by statutory overnight delivery and addressed to the taxpayer at his or her last known address, as shown on the records of the department.
  1. A notice of assessment by the commissioner or his or her delegate of any tax or license fee shall be sufficiently served upon the person assessed if it is sent by registered or certified or first-class mail or by statutory overnight delivery to the person at his or her address as shown on the records of the department.
  2. If no return receipt is on file or if notice is returned, the notice shall be by personal service; except that, if the notice mailed by registered, certified, or first-class mail or statutory overnight delivery, as provided in this Code section, is returned as "refused" or "unclaimed," the notice shall be sufficiently served.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 29; Ga. L. 1961, p. 435, § 1; Code 1933, § 91A-240, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 6; Ga. L. 1981, p. 1903, § 2; Ga. L. 1983, p. 1834, § 2; Ga. L. 1989, p. 1400, § 1; Ga. L. 1993, p. 961, § 1; Ga. L. 2000, p. 1589, § 13.)

Editor's notes. - Ga. L. 1989, p. 1400, § 2, not codified by the General Assembly, provides that the amendments to this Code section shall apply with respect to notices mailed after January 1, 1989.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 669 et seq.

C.J.S. - 84 C.J.S., Taxation, § 480, 610.

ALR. - Sufficiency of compliance with statute providing for service by mail of notice in tax procedure, 155 A.L.R. 1279 .

48-2-46. Procedures for protests.

Any taxpayer may contest any proposed assessment or license fee made or determined by the commissioner by filing with the commissioner a written protest at any time within 30 days from the date of notice of the proposed assessment or license fee or within such other time limit as may be specified within the notice of proposed assessment or license fee, if a different time limit is specified. All protests shall be prepared in the form and contain such information as the commissioner shall reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies and his reasons for disputing the finding of the commissioner. The filing of a written protest, a petition for redetermination of a deficiency, or a written request by the taxpayer for additional time for filing such a petition shall toll the period of limitations for making an assessment until the petition is denied by the commissioner or the request is withdrawn in writing by the taxpayer. In the event the taxpayer desires a conference or hearing, the fact of such desire must be set out in the protest. The commissioner shall grant a conference before his officers or agents as he may designate at a time he shall specify and shall make such reasonable rules governing the conduct of conferences as he may deem proper. The discretion given in this Code section to the commissioner shall be reasonably exercised on all occasions.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 30; Code 1933, § 91A-241, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 7; Ga. L. 1993, p. 961, § 2.)

Law reviews. - For article discussing general administrative procedures of the department as they relate to the assessment and collection of income taxes, see 27 Mercer L. Rev. 309 (1975).

JUDICIAL DECISIONS

Federal rights protected. - Georgia's remedies for contesting tax assessments and collection practices are sufficient to protect taxpayers' federal rights under U.S. Const., amend. 14. Ayers v. Polk County, 697 F.2d 1375 (11th Cir. 1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 681, 696.

C.J.S. - 53 C.J.S., Licenses, § 108. 84 C.J.S., Taxation, § 584 et seq.

ALR. - When may payment of tax or assessment be regarded as involuntary or made under duress, 64 A.L.R. 9 ; 84 A.L.R. 294 .

Injunction as proper remedy against tax on exempt property, 84 A.L.R. 1315 .

Grounds stated in protest against payment of property tax as a limitation of grounds upon which recovery back of tax may be claimed, 113 A.L.R. 1479 .

Right to refund or recovery back of taxes paid on property not owned by taxpayer, 165 A.L.R. 879 .

Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576.

Standing of one taxpayer to complain of underassessment or nonassessment of property of another for state and local taxation, 9 A.L.R.4th 428.

48-2-47. Final assessments and license fees.

In all cases in which a protest is lawfully filed by a taxpayer, the commissioner shall consider the information contained in the protest and information submitted by the taxpayer in conference or hearing before the commissioner or his officers or agents. The commissioner shall proceed to make a final assessment or to fix a final license fee and shall notify the taxpayer of the amount of the assessment or fee, subject to the right of appeal as provided by law.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 31; Code 1933, § 91A-242, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 843.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

Power to remit, release, or compromise tax claim, 99 A.L.R. 1062 ; 28 A.L.R.2d 1425.

Grounds stated in protest against payment of property tax as a limitation of grounds upon which recovery back of tax may be claimed, 113 A.L.R. 1479 .

48-2-48. Deficiency assessments; interest.

If the commissioner ascertains that the return of any taxpayer (or dealer pursuant to Article 1 of Chapter 8 of this title) contains mistaken, false, or fraudulent statements or that it contains statements or omissions of data which are otherwise incorrect or misleading, and that as a result thereof improper or inadequate assessments of taxes have been made, the commissioner may determine and fix the amount of the taxes due from the taxpayer or dealer and shall proceed to collect the state tax due pursuant to the determination. In any case in which property assessments are made by the commissioner under the law for purposes of local taxation, the commissioner shall certify amounts of any property omitted from previous assessments to the proper local tax authorities for taxation in the local tax districts. All taxes collected under this Code section shall bear interest at the rate specified in Code Section 48-2-40, unless otherwise provided by law, from the date the commissioner advises the taxpayer in writing of the amount of the taxes due, until paid. The interest shall be assessed and collected as a part of the tax.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 32; Code 1933, § 91A-243, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 710 et seq., 748.

C.J.S. - 84 C.J.S., Taxation, §§ 851, 852.

ALR. - Retroactive effect of statutes relating to interest on or penalties in respect of delinquent taxes, 77 A.L.R. 1034 .

Constitutionality of legislation prescribing rate of interest or penalty for nonpayment of taxes, or the conditions liability in that regard, operative only in certain political subdivisions, 111 A.L.R. 1354 .

48-2-49. Periods of limitation for assessment of taxes.

  1. Except as otherwise provided in this Code section or this title, the amount of any tax imposed by this title may be assessed at any time.
  2. Except as otherwise provided by subsection (c) of this Code section or by this title, in the case where a return or report is filed, the amount of any tax imposed by this title shall be assessed within three years after the return or report was filed. For purposes of this subsection, a return or report filed before the last day prescribed by law for the filing thereof shall be considered as filed on such last day. If an extension of time for filing a return or report is granted and the return or report is filed on or before the extended date, the return or report shall be considered as filed on the extended due date.
  3. Except as otherwise provided by this title, in the case of a false or fraudulent return or report filed with the intent to evade tax or a failure to file a return or report, the amount of any tax imposed by this title may be assessed at any time.
  4. Where, before the expiration of the time prescribed in this Code section for the assessment of any tax imposed by this title, both the commissioner and the person subject to assessment have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the agreed upon period. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the previously agreed upon period. The commissioner is authorized in any such agreement to extend similarly the period within which a claim for refund may be filed.
  5. If a claim for refund of taxes paid for any taxable period is filed within the last six months of the period during which the commissioner may assess the amount of taxes, the assessment period is extended for a period of six months beginning on the day the claim for refund is filed.
  6. No action without assessment shall be brought for the collection of any tax after the expiration of the period for assessment.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 33; Code 1933, § 91A-244, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1350, § 1.)

JUDICIAL DECISIONS

Former provision conferred authority on state, not county. - Prior to the enactment of Ga. L. 1985, p. 1350 (see now O.C.G.A. § 48-2-49 ), the law was not intended to have any applicability to reassessments which were made by the county board of tax assessors and conferred authority only upon the state revenue commissioner. Fayette County Bd. of Tax Assessors v. Georgia Utils. Co., 186 Ga. App. 723 , 368 S.E.2d 326 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 326 (1988).

Effect of 1985 amendment. - Superior court erred in construing O.C.G.A. § 48-2-49 , as rewritten in 1985, as constituting the implicit grant of authority to a county board of tax appeals to make reassessments of 1985 taxes on realty, and erred in failing to construe § 48-2-49 in pari materia with the other provisions of Ga. L. 1985, p. 1350 et seq. Fayette County Bd. of Tax Assessors v. Georgia Utils. Co., 186 Ga. App. 723 , 368 S.E.2d 326 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 326 (1988).

Statute of limitations inapplicable. - Three year statute of limitation under O.C.G.A. § 48-2-49(b) was inapplicable to bar a county tax assessment for back taxes and penalties against a company that did not report the company's tangible personal property even though the company filed tax returns in those years. It was as if no return was filed because the tax assessors discovered the property after conducting an audit, and the assessors thereby acquired full authority to tax the property at that point within the seven year limitation period of O.C.G.A. § 48-3-21 . Hormel Food Corp. v. DeKalb County Bd. of Tax Assessors, 264 Ga. App. 10 , 589 S.E.2d 836 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Time within which to make assessment after return is filed. - Former Code 1933, § 92-3303 (see now O.C.G.A. § 48-7-82 ) is a safeguard which gives the state an additional year in which to make the state's original audit and assessment. The General Assembly no doubt reasoned that if time permitted the commissioner to examine the return and make proper assessment thereon within the two-year period, the commissioner should not be given additional time to reopen the assessment and correct the commissioner's own errors. If, however, a large volume of returns filed prevents the commissioner from completing the commissioner's work within the two-year period, the commissioner is granted an additional year in which to perform the commissioner's duty. 1945-47 Op. Att'y Gen. p. 569.

When commissioner makes assessment on return which fully discloses all items relating to tax liability, the commissioner is precluded from redetermining such assessment unless the commissioner does so within two years from the last day on which the return could have been filed without becoming delinquent. 1945-47 Op. Att'y Gen. p. 569.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 501.

C.J.S. - 85 C.J.S., Taxation, § 1049 et seq.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 154 A.L.R. 1052 ; 12 A.L.R.2d 815.

Suspension of running of period of limitation under 26 U.S.C.A. § 6503 for federal tax assessment or collection, 160 A.L.R. Fed. 1

48-2-50. Review of assessments; certifications.

  1. The commissioner's assessments shall not be reviewed except by the procedure provided in this chapter or Chapter 13A of Title 50. No trial court shall have jurisdiction of proceedings to question the assessments, except as provided in this chapter or Chapter 13A of Title 50.
  2. When the commissioner is required by law to certify to any county or municipal government of this state all or any part of an assessment or tax against any taxpayer and the taxpayer disputes the correctness of the assessment or tax as determined by the commissioner, the commissioner is directed to certify to the county and municipal government the value of the property of the taxpayer or the tax admitted by him in his return to be due, or both such value and such tax due. After a final determination of the balance of the assessment or tax in dispute, the commissioner shall make a supplemental certification to the county and municipal government of the amount of the balance of the assessment or tax as finally determined. It shall be the duty of the taxpayer to pay as required by law any taxes assessed by the state, county, or municipal governments, both upon the original value as shown in his return and upon the supplemental value determined as provided in this chapter.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 44; Ga. L. 1943, p. 204, § 2; Code 1933, § 91A-254, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2012, p. 318, § 4/HB 100.)

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Law reviews. - For article discussing remedies for tax illegally assessed under the former Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. L. 1951, p. 360, § 1 et seq., see 9 Ga. St. B.J. 45 (1972). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

RESEARCH REFERENCES

ALR. - Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576; 9 A.L.R.4th 428.

48-2-51. Jeopardy assessments; collection; bond.

  1. If the commissioner reasonably finds that a taxpayer gives evidence of intention to leave the state, to remove his property from the state, to conceal himself or his property, to discontinue business, or to do any other act tending to prejudice or render wholly or partly ineffective proceedings to compute, assess, or collect any state tax, whereby it becomes advisable that such proceedings be brought without delay, the commissioner shall declare the taxable period for such taxpayer terminated forthwith and shall give notice of such finding and demand immediate payment of such tax as may be due. The commissioner may immediately make an arbitrary assessment and may proceed under the assessment to collect the tax or require the taxpayer to file with him a bond satisfactory to the commissioner as security for payment of the tax.
    1. As used in this subsection, the term "illegal drug" means marijuana as defined in paragraph (16) of Code Section 16-13-21, as amended; a controlled substance as defined in paragraph (4) of Code Section 16-13-21, as amended; or a dangerous drug as defined in Code Section 16-13-71, as amended. The term illegal drug shall not include any drug when used pursuant to a valid medical prescription or when used as otherwise authorized by state or federal law.
    2. When an assessment for taxes based upon the possession, sale, or distribution of an illegal drug is made by the commissioner, such assessment shall be considered a jeopardy assessment for collection as provided in this Code section. The commissioner shall assess such tax and applicable penalties based on personal knowledge or information available to the commissioner; mail to the taxpayer at the taxpayer's last known address or serve in person a written notice of the amount of tax and penalty; demand its immediate payment; and, if payment is not immediately made, collect the tax and penalty by any method prescribed in this chapter.
    3. The tax and penalties assessed by the commissioner are presumed to be valid and correctly determined and assessed. With respect to any administrative or civil proceedings regarding the assessment or collection under this subsection of any taxes, interest, or penalties imposed by this title, the burden shall be upon the taxpayer to show their incorrectness or invalidity.  Any statement filed by the commissioner with the court, or any other certificate by the commissioner of the amount of tax and penalties determined or assessed, shall be admissible in evidence and shall be prima-facie evidence of the facts contained in such statement or certificate.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 39; Code 1933, § 91A-248, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 2041, § 1.)

Cross references. - Attachment proceedings, T. 18, C. 3.

Attachment of property by commissioner, § 48-2-55 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "or federal" was substituted for "of federal" in the last sentence of paragraph (b)(1).

JUDICIAL DECISIONS

Cited in Moosa Co. LLC v. Dep't of Revenue, 353 Ga. App. 429 , 838 S.E.2d 108 (2020).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 530 et seq.

48-2-52. Personal liability of corporate officer or employee for tax delinquency.

  1. Any officer or employee of any corporation, any member, manager, or employee of any limited liability company, or any partner or employee of any limited liability partnership who has control or supervision of collecting from purchasers or others amounts required under this title or of collecting from employees any taxes required under this title, and of accounting for and paying over the amounts or taxes to the commissioner, and who willfully fails to collect the amounts or taxes or truthfully to account for and pay over the amounts or taxes to the commissioner, or who willfully attempts to evade or defeat any obligation imposed under this title, shall be personally liable for an amount equal to the amount evaded, not collected, not accounted for, or not paid over.
  2. The liability imposed by this Code section shall be paid upon notice and demand by the commissioner or his delegate and shall be assessed and collected in the same manner as the tax in connection with which the act or failure to act under this Code section occurs or has occurred.

    (Ga. L. 1960, p. 210, §§ 1, 2; Code 1933, § 91A-251, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 6; Ga. L. 2001, p. 984, § 1.)

Law reviews. - For article, "2014 Georgia Corporation and Business Organization Case Law Developments," see 20 Ga. St. B. J. 26 (April 2015). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 294 (2001).

JUDICIAL DECISIONS

Dealers are within scope of section. - Since an officer or employee may also be a dealer, as defined in Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3 ), it is clear that a dealer can violate Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52 ), though by definition only if the dealer is also an officer or employee in charge. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

"Willful" construed. - "Willful" as here used does not carry with it connotations of bad motives, fraud, or an intent to deprive the state of the state's tax claim. All that this statute requires is that the preference in favor of other creditors be made voluntarily with knowledge of the existence of the valid tax claim. Blackmon v. Mazo, 125 Ga. App. 193 , 186 S.E.2d 889 (1971).

Subsequent conduct relevant in determining willfulness. - While a defendant's subsequent attempts at payment of sales taxes cannot eradicate past willful failure to report and remit sales taxes, subsequent conduct may be relevant in determining whether such failure was willful in the first instance. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

When liability for sales taxes attaches. - Liability attaches upon the failure to pay the sales taxes imposed under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) at the time such taxes are due. Liability attaches upon the defendant's failure, if willful, to report or remit taxes, and not upon the defendant's receipt of notice and demand for payment. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

Right to recoup taxes forfeited. - Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant's sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13 , by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim the department had against the officer, the department forfeited any right the department had to recoup from the officer the payment the department made to the owner. Ga. Dep't of Revenue v. Moore, 317 Ga. App. 31 , 730 S.E.2d 671 (2012).

Assessment prima facie correct under Art. 2, Ch. 8. - An assessment made under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52 ) in the same manner as against the corporation is entitled to be considered or deemed to be prima facie correct as under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) in general. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Duty to state evidence or findings as to liability. - Statute merely states the conditions under which a corporate employee is liable and imposes no requirement on the commissioner to state the findings which the commissioner may have made or the evidence on which any findings are based, except as may be incorporated by reference by the language empowering the commissioner to assess and collect the tax under this statute. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Finding as to whether second responsible party was necessary in refund action was required. - In an assessment action under O.C.G.A. § 48-2-52 , the Georgia Court of Appeals erred by concluding that because the Georgia Department of Revenue voluntarily refunded a tax payment made by a majority owner of a restaurant, the department could not seek payment from a second responsible party as the voluntary payment doctrine applied to contracts, not tax indebtedness; it was necessary to remand the case to see if the second responsible party was a necessary party to the majority owner's refund action. Ga. Dep't of Revenue v. Moore, 294 Ga. 20 , 751 S.E.2d 57 (2013).

Assessment prima facie correct on appeal. - When a party assessed under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52 ) has invoked the appeal procedure under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ) to contest the validity of the assessment in the superior court, thereby opening the door to a de novo judicial investigation, the assessment is one which must be regarded as prima facie correct. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Burden of proof on appeal from assessment. - An assessment pursuant to this statute is deemed to be "prima facie correct," and when the assessed party invokes the appeal procedure to the superior court to contest the validity of the assessment, which is a de novo proceeding, the party comes into court in the status of a plaintiff who has the burden of proof, while the commissioner occupies the status of a defendant, who by transmitting the record showing the fact of the assessment, has provided sufficient answer to entitle the defendant to the defendant's day in court on the merits to rebut whatever proof the other party may offer to support the plaintiff's contention that the plaintiff is not liable for the tax deficiency. Blackmon v. Ross, 123 Ga. App. 89 , 179 S.E.2d 548 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 771.

48-2-53. Compelled production of evidence.

If any person required by law to make any return, supply any information, or exhibit any books or records, whether with reference to his own returns or not, refuses to do so upon written request of the commissioner or his designated agent, the superior court for the county in which the person resides shall have jurisdiction by appropriate process to compel the person to testify and to cause the proper person to produce the books, papers, or other data. All of the laws of this state regarding the taking of depositions and interrogatories of both nonresidents and residents of this state shall be available to the commissioner.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 36; Ga. L. 1937-38, Ex. Sess., p. 156, § 9; Code 1933, § 91A-247, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Discovery of documents and other written material, § 9-11-34 .

48-2-54. Action by commissioner to collect unpaid tax.

In the event any taxpayer fails to pay any tax due, the commissioner shall notify the taxpayer and his surety or sureties by mailing a letter to their post office addresses last known to the commissioner. If, after 30 days of mailing the notice, the amount due remains unpaid, the commissioner shall bring an action to collect the amount due including, but not limited to, penalties, interest, and costs. It shall not be necessary to make the defaulting taxpayer a party to any action that may be brought against his surety or sureties.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 40; Code 1933, § 91A-249, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 712, 713, 755.

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 .

48-2-54.1. Authorization to charge taxpayer's account.

The commissioner is authorized to charge to the taxpayer's account any costs or fees which are charged to the commissioner by the United States Treasury Financial Management System for offsetting federal refund claims against any tax liability which is owed by a taxpayer to the state and for which the commissioner has the responsibility for collection.

(Code 1981, § 48-2-54.1 , enacted by Ga. L. 2003, p. 442, § 2.)

48-2-55. Attachment and garnishment; levy.

  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.
    2. 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.
  2. 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 and 48-3-9 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 and 48-5-10 , 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 .

48-2-56. Liens for taxes; priority.

  1. Except as otherwise provided in this Code section, liens for all taxes due the state or any county or municipality in the state shall arise as of the time the taxes become due and unpaid and all tax liens shall cover all property in which the taxpayer has any interest from the date the lien arises until such taxes are paid.
  2. Except as otherwise provided in this Code section, liens for taxes are superior to all other liens and shall be paid before any other debt, lien, or claim of any kind. Liens for taxes shall rank among themselves as follows:
    1. Taxes due the state;
    2. Taxes due counties of the state;
    3. Taxes due school and other special tax districts of the state; and
    4. Taxes due municipal corporations of the state.
  3. The lien for taxes imposed by Article 1 of Chapter 9 of this title, relating to motor fuel taxes, shall not have priority as against:
    1. Any bona fide mortgagee, holder, or transferee of a deed to secure debt; or
    2. Any pledgee, judgment creditor, or purchaser of or from persons liable for the tax imposed by Article 1 of Chapter 9 of this title

      where the rights of such mortgagee, holder, or transferee of a deed to secure debt, pledgee, judgment creditor, or purchaser have attached prior to the time the lien has been filed by the commissioner in the office of the clerk of superior court of the county in which the principal place of business is located.

    1. Liens for any ad valorem taxes shall cover the property of taxpayers liable to tax from the time fixed by law for valuation of the property in each year until such taxes are paid and shall cover the property of tax collectors or tax commissioners and their sureties from the time of giving bond until all the taxes for which they are responsible are paid.
    2. The lien for any ad valorem tax shall not be superior to the title and operation of a security deed when the tax represents an assessment upon property of the taxpayer other than property specifically covered by the title and operation of the security deed.
    3. When real property located within this state is transferred between the date on which any ad valorem tax lien on the property vests and the date on which the tax evidenced by the tax lien becomes due and payable, the ad valorem tax lien on the transferred property shall not extend to cover any other real property of the transferor.
  4. The lien for taxes imposed by the provisions of Article 2 of Chapter 7 of this title, relating to certain income taxes, shall:
    1. Arise and attach to all property of the taxpayer as of the time a tax execution for these taxes is filed with the clerk of superior court of the county of the last known address of the taxpayer appearing on the records of the department at the time the state tax execution is filed; and
    2. Not be superior to the lien of a prior recorded instrument securing a bona fide debt.

      Before the lien provided for in this subsection shall attach to real property, an execution shall be filed with the clerk of superior court in the county where the real property is located.

  5. The lien for taxes imposed by the provisions of Article 5 of Chapter 7 of this title, relating to withholding taxes, shall:
    1. Arise and attach to all property of the defaulting employer or other person required to deduct and withhold on the date of the assessment of the taxes by operation of law or by action of the commissioner;
    2. Not be superior to the lien of a prior recorded instrument securing a bona fide debt; and
    3. Not attach to the interest of a subsequent bona fide purchaser nor be superior to the lien of a lender for value recorded prior to the time the execution for the tax has been filed in the office of the clerk of superior court of the county of the last known address of the taxpayer appearing on the records of the department at the time the state tax execution is filed.

      Before the lien provided for in this subsection shall attach to real property, an execution shall be filed with the clerk of superior court in the county where the real property is located.

    1. The lien of a specific or occupation tax shall not be superior to the title and operation of a security deed recorded prior to the time the execution for the tax has been filed in the office of the clerk of superior court of the county of the last known address of the taxpayer appearing on the records of the department at the time the state tax execution is filed.
    2. As used in this subsection, the term "specific or occupation tax" means all state, county, and municipal taxes and all state licenses and fees except:
      1. The taxes imposed by Article 1 of Chapter 9 of this title;
      2. Ad valorem taxes;
      3. The taxes imposed by Article 2 of Chapter 7 of this title; and
      4. The taxes imposed by Article 5 of Chapter 7 of this title.

        The term includes, but is not limited to, sales and use taxes, corporate net worth taxes, estate taxes, real estate transfer taxes, taxes on financial institutions, alcohol and tobacco taxes, road taxes on motor carriers, excise taxes, license fees, tax liabilities of corporate officers and business successors, and tax collections of a person who is a dealer under Chapter 8 of this title relating to sales and use taxation.

  6. Liens for taxes existing prior to July 1, 1983, shall not be changed by this Code section. On and after July 1, 1983, this Code section shall govern the time of creation of all tax liens and the priority of all tax liens.
  7. All executions, liens, releases, cancellations, or other related documents issued by the department to be filed with a superior court clerk shall be presented and filed electronically pursuant to Code Section 48-3-42 and the appropriate filing fees shall be paid by the department as provided in subsection (f) of Code Section 15-6-77.

    (Ga. L. 1873, p. 42, § 2; Code 1873, § 1973; Code 1882, § 1973; Civil Code 1895, § 2791; Civil Code 1910, § 3333; Code 1933, § 92-5708; Ga. L. 1937-38, Ex. Sess., p. 77, § 42; Ga. L. 1937-38, Ex. Sess., p. 156, § 10; Ga. L. 1953, Nov.-Dec. Sess., p. 168, §§ 2, 3; Ga. L. 1968, p. 360, § 15; Ga. L. 1978, p. 1778, § 1; Code 1933, § 91A-252, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 13; Ga. L. 1983, p. 1834, § 4; Ga. L. 1984, p. 22, § 48; Ga. L. 1988, p. 13, § 48; Ga. L. 1993, p. 768, § 1; Ga. L. 2017, p. 723, § 2/HB 337; Ga. L. 2018, p. 1, § 1/HB 661.)

The 2017 amendment, effective January 1, 2018, in the ending undesignated paragraph of subsection (c), in the middle, deleted "notice of" preceding "the lien has been filed", inserted "clerk of", and deleted "or in the county where property of the person liable for payment of the motor fuel tax is located" following "is located" at the end; rewrote subsections (e), (f), and (g); and added subsection (i).

The 2018 amendment, effective February 20, 2018, deleted "within the state" following "property of the taxpayer" in paragraph (e)(1); substituted the present provisions of paragraph (e)(2) for the former provisions, which read: "Not attach to the interest of a prior bona fide purchaser where a certificate of clearance is required and has been obtained or where a certificate of clearance is not required pursuant to Code Section 44-1-18, nor be superior to the lien of a prior recorded instrument securing a bona fide debt."; added the undesignated paragraph in subsection (e); deleted "attach to the interest of a prior bona fide purchaser where a certificate of clearance is required and has been obtained or where a certificate of clearance is not required pursuant to Code Section 44-1-18, nor" following "Not" in paragraph (f)(2); in paragraph (f)(3), deleted "where a certificate of clearance is required and has been obtained or where a certificate of clearance is not required pursuant to Code Section 44-1-18," following "bona fide purchaser" in the first sentence; and added the undesignated paragraph in subsection (f).

Cross references. - Registration of federal tax liens, § 44-14-570 et seq.

Priority of claims against decedents' estates, § 53-7-40 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, a semicolon was deleted following "title" in paragraph (c)(2) and a comma was inserted following "subsection" in paragraph (g)(2).

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For annual survey of state and local tax law, see 35 Mercer L. Rev. 281 (1983). For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For annual survey on bankruptcy law, see 69 Mercer L. Rev. 1033 (2018). For note on the 1993 amendment of this Code section, see 10 Ga. St. U. L. Rev. 218 (1993). For comment on Brown v. Nash, 216 Ga. 303 , 116 S.E.2d 227 (1960), see 12 Mercer L. Rev. 425 (1961).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Construed with Ch. 9 of Title 48. - Holding in In re Tuggle, 22 Bankr. 439 (Bankr. N.D. Ga. 1982) "that when liens for taxes other than ad valorem taxes attach to the property of the taxpayer, they are superior to all other liens filed thereafter but not those recorded prior in time," applies only to liens for taxes imposed under the provisions of O.C.G.A. § 48-9-1 et seq., which chapter is concerned with motor fuel taxes. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Tax liability as personal debt. - Taxes due a county or municipality come within the generally accepted meaning of "personal debts," the collection of which is enforceable by appropriate judicial action. Woodall v. First Nat'l Bank, 118 Ga. App. 440 , 164 S.E.2d 361 (1968).

Conditions of tax commissioner's bond. - Official bond of a tax commissioner covers the commissioner's official duties and obligations as tax commissioner and no other obligations. Sanders v. Georgia Farm Bureau Mut. Ins. Co., 109 Ga. App. 772 , 137 S.E.2d 389 (1964).

Cited in Roberts v. Ford Motor Credit Co., 160 Ga. App. 827 , 288 S.E.2d 238 (1982); In re Alliance Transp., Inc., 47 Bankr. 743 (Bankr. N.D. Ga. 1985); Ellenberg v. J.M. Tull Metal (In re McTyre Grading & Pipe, Inc.), 180 Bankr. 308 (Bankr. N.D. Ga. 1995); DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

When Lien Attaches

Lien for sales and use taxes. - Lien for sales and use taxes attaches on the day on which the dealer is required to make the dealer's return and remittance to the commissioner. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

Lien for property taxes. - Lien for state and county taxes attaches to property at the time fixed by law for valuation of the property in each year. Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931).

Effect of failure to record lien. - Recording a fieri facias issued by the commissioner on the general execution docket is not a condition precedent to attachment of a lien for sales taxes. The only effect of failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

When a lender takes notes and bills of sale to secure a debt, but security instruments are not recorded until after the tax liens have been entered on the execution docket, the property covered under the security instruments was property of the debtor at the time the debtor became liable for the tax and the fact that the lender foreclosed on the property and purchased the property at the foreclosure sale does not divest the tax lien, and it is proper for the state to levy the execution upon the foreclosed property then in the possession of the lender. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Taxes Covered by Lien

What taxes covered by lien. - Words "liens for taxes," as employed in former Civil Code 1910, §§ 1140, 3329, and 3333 (see now O.C.G.A. §§ 44-4-320, 48-2-56 , and 48-5-28 ), were broad and sufficient to include taxes provided for by the subsequent statute for support of the state and counties and municipal corporations located in the state, although such tax may not be ad valorem or based on property. Atlanta Trust Co. v. Atlanta Realty Corp., 177 Ga. 581 , 170 S.E. 791 (1933).

Applicability of section to sales taxes. - Provisions of former Code 1933, §§ 92-5707 and 92-5708 (see now O.C.G.A. §§ 48-5-28 and 48-2-56 ) deal with situations where the lien for taxes represents an assessment upon property of such owner other than that property specifically covered by the security instrument, and since sales tax is not a property tax and is not assessed against the property of the owner, these provisions are not applicable to sales taxes. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Property Subject to Lien

Taxes due state are not only against owner but also against property, regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind. Bibb Nat'l Bank v. Colson, 162 Ga. 471 , 134 S.E. 85 (1926); Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931).

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).

Property not returned or assessed for taxation is nevertheless subject to levy and sale for taxes accruing upon other property which was returned or assessed for such purpose. The fact that unreturned property may be required to pay its own taxes at some time in the future is not a defense against enforcement of a valid lien against the property for taxes due upon other property. Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505 , 170 S.E. 504 (1933).

Sale under common-law execution does not divest municipality's lien for its due and unpaid taxes. LaGrange Grocery Co. v. City of LaGrange, 31 Ga. App. 97 , 119 S.E. 536 (1923).

Farm products which are themselves exempt from taxation may nevertheless be levied on and sold for taxes due upon other property of the same owner. Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505 , 170 S.E. 504 (1933).

Property possessed and used by obligee under bond for title. - Lien for all taxes is binding upon all property in a municipality of a surviving obligee in the bond for title and the estate of the deceased obligee, represented by the surviving obligee as administrator, such obligees being holders of the bond for title and possessing and using the property at the time of accrual of the tax. Graves v. Walker, 182 Ga. 644 , 186 S.E. 820 (1936).

Effect on lien of subsequent transfer or incumbrance. - Sale of land by the sheriff in November of a year under a general fi. fa. does not divest the lien of the state and county for the year's taxes of the defendant in fi. fa. Wilson v. Boyd, 84 Ga. 34 , 10 S.E. 499 (1889).

When an owner of land conveys the land by warranty deed as security for debt, and in the succeeding year fails to return the land at the time the owner returns the owner's other property for state and county taxation for that year, and after default in payment execution is issued against the owner for state and county taxes on the basis of the owner's return of other property, the lien for such taxes will attach not only to the property included in the return but also to the land which the owner has conveyed as security for the debt. Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931).

Ownership of property at the time of the tax sale is entirely immaterial since a tax lien attaches to property subject to taxation from the time fixed by law for valuation of such property. Furthermore, taxes due the state are not only against the owner but against the property also, regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Tax commissioner, who was an ex-officio sheriff, under O.C.G.A. § 48-5-137 , could be subject to a money rule petition filed by the holder of county tax executions for refusing to pay those executions from the excess proceeds of tax sales of property; the holder could collect on the holder's execution from any property in which the taxpayer had an interest, which included the excess proceeds from the tax sale, before any payments to the taxpayer, under O.C.G.A. § 48-2-56(a) and (b), so it was error for the commissioner to refuse to pay the holder's claims. Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

Levy on proceeds of mortgage foreclosure divests lien on foreclosed property. - Rule that the sale of property under a mortgage fi. fa. does not divest the lien for taxes is not applicable if the tax fi. fas. are placed in the hands of the levying officer for the purpose of claiming the proceeds of such sale. Patton v. Camp, 120 Ga. 936 , 48 S.E. 361 (1904).

Lien transferred to proceeds of sale by administrator. - When under order of court an administrator sells lands subject to tax liens the lien is thereby divested and transferred to the proceeds of the sale. Herrington v. Tolbert, 110 Ga. 528 , 35 S.E. 687 (1900).

Parties cannot by contract defeat the government's right to collect taxes for which property would otherwise be liable. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Mortgagees have no right to prorate lien amongst debtor's properties. - If different parties hold mortgages on different pieces of a debtor's property, neither can claim a right to have a tax execution prorated between the tracts. The lien covers both but may be enforced against either. Patton v. Camp, 120 Ga. 936 , 48 S.E. 361 (1904).

Failure to exercise right to redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Rank and Priority of Liens

Federal tax liens have priority over later assessed state tax liens, but federal liens are subordinate to prior filed liens of judgment creditors. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

State lien attaching and becoming choate has priority over subsequent federal lien. - Because Georgia's lien for tax withholding penalties attached and became choate prior in time to any Internal Revenue Service lien, the Georgia lien had priority; because the subject of the lien was not real property, the last sentence of subsection (f) of O.C.G.A. § 48-2-56 did not apply. Ellenberg v. J.M. Tull Metals (In re McIntyre Grading & Pipe, Inc.), 193 Bankr. 983 (Bankr. N.D. Ga. 1996).

Intrastate tax lien priorities. - Ad valorem taxes did not become choate until the county's tax digest was approved by the State Revenue Commission pursuant to O.C.G.A. § 48-5-342 ; however, intrastate tax lien priorities do not depend on choateness, but are determined by state statute, specifically subsection (b) of O.C.G.A. § 48-2-56 , which delineates the priority of tax liens and makes state tax liens superior to county tax liens regardless of date. Ellenberg v. J.M. Tull Metals (In re McIntyre Grading & Pipe, Inc.), 193 Bankr. 983 (Bankr. N.D. Ga. 1996).

Priority of tax liens not dependent on filing. - Priority of liens for taxes, other than real property ad valorem taxes, does not depend on when or if those liens are filed since tax liens are superior to all other liens against property. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Priority based on status of taxing entity. - In passing O.C.G.A. § 48-2-56 , the Georgia General Assembly provided specific directions on how tax liens shall be ranked, and by adopting the statute, the legislature intended to assign priority to tax liens based upon the status of the taxing entity, regardless of the date the lien was created. Vesta Holdings I, LLC v. Tax Comm'r, 259 Ga. App. 717 , 578 S.E.2d 293 (2003).

No right to excess funds generated by tax sale. - In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Circular priorities involving tax and judgment liens and security deeds under Georgia law shall be established according to the following rules: (1) liens for taxes shall be paid prior to all other liens against property; (2) security deeds shall be paid prior to liens for state taxes if the tax liens are not for ad valorem taxes against the property which is the subject of the security deeds at issue; and (3) judgment lien holders shall be subordinated to the preceding claims. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Tax lien relegated to lower position upon landowner's death. - Statutory first or superior lien on real estate for taxes as provided by O.C.G.A. § 48-2-56 is relegated to a lower position by former O.C.G.A. § 53-7-91 (see now O.C.G.A. § 53-7-40 ) when death of the landowner intervenes. State Revenue Comm'r v. Fleming, 172 Ga. App. 887 , 324 S.E.2d 821 (1984).

Liens of judgment creditors. - Lien for municipal taxes which a city has upon property of a taxpayer is superior to the lien of a judgment creditor. This is especially true if execution has been issued against a defaulting taxpayer and entered upon proper execution docket before the creditor's judgment was obtained. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383 , 73 S.E.2d 205 (1952).

State's lien upon property of a distributor under former Code 1933, Ch. 92-14 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) for excise taxes collected by the distributor on sale or use of motor fuel and kerosene did not have priority over lien of judgment creditor, when rights of such creditor attached prior to filing of notice of state's lien in the office of the superior court; and if a surety upon such distributor's bond to state became subrogated to rights of state by payment of such taxes to state, the surety took the position of the state and acquired no greater rights with respect thereto than the state had at the time the surety became subrogated. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383 , 73 S.E.2d 205 (1952).

Lien of a special assessment is equal to that of general municipal taxes, and sale to enforce the latter leaves the other standing against the property. Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 (1940).

Lien against property owners for the proportionate costs of paving streets has the rank of a tax lien and its dignity takes rank, and consequently takes priority over a prior mortgage. City of Brunswick v. Gordon Realty Co., 163 Ga. 636 , 136 S.E. 898 (1927).

Rights of prior mortgagee. - Lien may be enforced even as against a mortgage holder whose mortgage is prior to the assessment. Verdery v. Dotterer, 69 Ga. 194 (1882).

Bona fide purchasers. - Liens for state, county, and municipal taxes are superior to all other liens and such liens follow property into hands of bona fide purchasers. Freeman v. Mayor of Atlanta, 66 Ga. 617 (1881); Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934).

Debtor's action, which alleged that the Tax Commissioner violated the automatic stay by filing writs of fieri facias post-petition on taxes assessed prepetition against the debtor's real property, was dismissed because there was no stay violation as filing each fieri facias did not create, perfect, or enforce any lien on the property. The city's lien for ad valorem taxes was perfected and superior to all other liens before the fieri facias was recorded. Steed v. GSRAN-Z, LLC (In re Steed), Bankr. (Bankr. N.D. Ga. Mar. 31, 2020).

Bona fide purchaser may avoid unrecorded tax liens. - In Georgia, a bona fide purchaser may avoid tax liens on property which attached prior to the purchaser's purchase of that property but were recorded subsequent thereto. Abney v. Cox Enters., Inc. (In re Fulton Air Serv., Inc.), 37 Bankr. 358 (Bankr. N.D. Ga. 1984).

Depositors in dissolved financial institution. - Priorities of payment established in Ga. L. 1927, p. 195, § 5 (see now O.C.G.A. § 7-1-202 ), which allow payment to depositors before payments of state tax, supersede the provisions of former Code 1910, §§ 1140, 1141, and 3333 (see now O.C.G.A. §§ 48-2-56 and 48-5-28 ), which gave taxes priority over other debts. Felton v. McArthur, 173 Ga. 465 , 160 S.E. 419 (1931).

Priority of lien on property of tax collector. - When, in an equitable proceeding between parties with claims to proceeds of performance bonds deposited with the state by a surety for a county tax collector, no claimant having obtained any judgment prior to the equitable proceeding, and when the county intervened in such equitable proceeding with the county's claim for loss sustained by default of the county's tax collector prior to the equitable proceeding, the county was entitled in equity, by virtue of superior lien given the county by the General Assembly, to priority in payment from bond proceeds. Lamar County Advisory Bd. v. McCalley, 181 Ga. 329 , 182 S.E. 6 (1935).

OPINIONS OF THE ATTORNEY GENERAL

What taxes covered by lien. - Words "liens . . . taxes" used in this statute have been broadly construed by the Supreme Court to include taxes, provided for by subsequent statute, for support of the state and counties and municipal corporations located in the state. This includes taxes that are not ad valorem or based on property, and sales and use taxes. 1960-61 Op. Att'y Gen. p. 529.

Effect on lien of subsequent conveyance. - Since lien attaches as of the valuation date, liability of property for taxes for the year for which the lien attached would not be affected by conveyance of the property during such year to a municipality. 1963-65 Op. Att'y Gen. p. 652.

RESEARCH REFERENCES

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

C.J.S. - 85 C.J.S., Taxation, § 976 et seq.

ALR. - Effect of receiver's failure to discharge tax liens, 39 A.L.R. 1415 .

Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378 ; 65 A.L.R. 677 .

Priority as between lien of taxes and lien of special assessments, 65 A.L.R. 1379 .

Priority as between lien for inheritance or succession or income tax and lien for general taxes, 119 A.L.R. 1330 .

Constitutionality of statute giving to lien for alteration of property pursuant to public requirement, mechanics' lien or similar lien, preference over pre-existing mortgage or other lien, 121 A.L.R. 616 ; 141 A.L.R. 66 .

Constitutionality of statute impairing or postponing lien for taxes, 136 A.L.R. 328 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Priority between tax or assessment lien and mortgage or other nontax lien held by state or municipality, 159 A.L.R. 832 .

State's prerogative right of preference at common law, 167 A.L.R. 640 .

Superiority of special or local assessment lien over earlier private lien or mortgage, where statute creating such special lien is silent as to superiority, 75 A.L.R.2d 1121.

Validity, construction, and effect of statutory provision for tax lien on property not belonging to taxpayer but used in his business, 84 A.L.R.2d 1090.

48-2-57. Effect of judicial sale on state tax lien.

A sale of property under legal process shall not divest the state of its tax liens.

(Civil Code 1895, § 884; Civil Code 1910, § 1141; Code 1933, § 92-5709; Code 1933, § 91A-260, enacted by Ga. L. 1978, p. 309, § 2.)

History of section. - This Code section is derived from the decision in Atlanta & R. Air-Line R.R. v. State, 63 Ga. 483 (1879).

JUDICIAL DECISIONS

Effect of bona fide purchase on unrecorded state tax lien. - There is no statutory protection afforded the state's unrecorded liens for withholding taxes and sales and use taxes when the bona fide purchaser takes the property in a sale not under legal process. In re Fulton Air Serv., 254 Ga. 649 , 333 S.E.2d 581 (1985).

Purchaser at sheriff's sale may not avoid the state's unrecorded tax liens. In re Fulton Air Serv., 254 Ga. 649 , 333 S.E.2d 581 (1985).

Ownership of property at time of tax sale is immaterial since the lien for state and county taxes attaches to property subject to taxation from the time fixed by law for valuation of such property. Furthermore, taxes due the state are not only against the owner but against the property also, regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Lien for municipal taxes not divested. - By analogy to the rule of this statute, sale under common-law execution does not divest the lien of a municipality for taxes. LaGrange Grocery Co. v. City of LaGrange, 31 Ga. App. 97 , 119 S.E. 536 (1923).

Lien for county taxes not divested. - Sale of property under execution issued from a court of competent jurisdiction does not divest the liens of the state or county for taxes. Phoenix Mut. Life Ins. Co. v. Appling County, 164 Ga. 861 , 139 S.E. 674 (1927).

Payment of taxes on property sold at receiver's sale. - Although a sale of property under legal process will not divest the state of the state's lien for taxes nor a municipality of the municipality's lien for taxes, it is the duty of a court of equity to direct the court's receiver to pay the taxes accruing on the property of an insolvent corporation while in the hands of the receiver, upon a timely application for that purpose made by the purchaser of such property at the receiver's sale. Empire Cotton Oil Co. v. Park, 147 Ga. 618 , 95 S.E. 216 (1918).

When perishable property or property too expensive to keep was sold pursuant to former Civil Code 1910, §§ 6068 and 6069 (see now O.C.G.A. §§ 9-13-163 and 9-13-164 ), the short order sale divested liens on the property and they attach to proceeds of such sale. This rule will not affect property covered by a tax lien of the state since, under former Civil Code 1910, § 1140 (see now O.C.G.A. § 48-5-28 ), such property was always subject to such lien and since a sale of such property under legal process did not divest the state of the state's tax liens. State Revenue Comm'n v. Rich, 49 Ga. App. 271 , 175 S.E. 394 (1934).

Lien on property sold by estate administrator transferred to proceeds of sale. - When taxes have accrued upon lands belonging to the estate of an intestate while in the hands of the intestate's administrator to be administered, and by proper order of the probate court one sells the lands, the tax lien thereon is divested and transferred to the fund realized from the sale. This fund should be distributed according to the priorities established by law. Herrington v. Tolbert, 110 Ga. 528 , 35 S.E. 687 (1900).

Cited in State Revenue Comm'r v. Fleming, 172 Ga. App. 887 , 324 S.E.2d 821 (1984).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 788.

C.J.S. - 85 C.J.S., Taxation, § 968 et seq.

48-2-58. Release of property subject to state tax lien.

  1. The commissioner, upon the taxpayer's providing security sufficient to protect the state's interest and with the consent of the Attorney General, may release some or all of the property of a taxpayer which is subject to a state tax lien when the legality of the assessment which is the basis of the lien is being litigated.
  2. The commissioner may release or subordinate all or any portion of the property subject to a state tax lien if the commissioner determines that the tax, interest, and penalties are sufficiently secured by a lien on other property or through other security or that the release, partial release, or subordination of such lien will not endanger or jeopardize the collection of amounts due.

    (Ga. L. 1975, p. 423, § 1; Code 1933, § 91A-253, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1993, p. 961, § 5.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 971 et seq.

48-2-59. Appeals; payment of taxes admittedly owed; bond; costs.

  1. Except with respect to claims for refunds, either party may appeal from any order, ruling, or finding of the commissioner to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the superior court of the county of the residence of the taxpayer, except that:
    1. If the taxpayer is a public utility or nonresident, the appeal of either party shall be to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the superior court of the county in which is located the taxpayer's principal place of doing business or in which the taxpayer's chief or highest corporate officer residing in this state maintains such officer's office; or
    2. If the taxpayer is a nonresident individual or a foreign corporation having no place of doing business and no officer or employee residing and maintaining such officer's office in this state, the taxpayer shall have the right to appeal to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the Superior Court of Fulton County or to the superior court of the county in which the commissioner in office at the time the action is filed resides.
  2. The taxpayer shall commence an appeal by filing a petition with the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the superior court within 30 days from the date of decision by the commissioner or at any time after the department records a state tax execution pursuant to Code Section 48-3-42.
  3. Before the superior court shall have jurisdiction to entertain an appeal filed by any aggrieved taxpayer, the taxpayer shall file with the clerk of the superior court a written statement whereby the taxpayer agrees to pay on the date or dates the taxes become due all taxes for which the taxpayer has admitted liability. Additionally, the taxpayer shall file with the clerk of the superior court within 30 days from the date of decision by the commissioner, except when the value of the appellant's title or interest in real property owned in this state is in excess of the amount of the tax in dispute, a surety bond or other security in an amount satisfactory to the clerk, conditioned to pay any tax over and above that for which the taxpayer has admitted liability and which is found to be due by a final judgment of the court, together with interest and costs. It shall be ground for dismissal of the appeal if the taxpayer fails to pay all taxes admittedly owed upon the due date or dates as provided by law. This subsection shall not apply to appeals filed with the Georgia Tax Tribunal as provided in Chapter 13A of Title 50.
    1. If the final judgment of the court places upon the taxpayer any tax liability which has not already been paid and if the tax or any part of the tax has:
      1. Not become due on the date of the final judgment of the court, then the taxpayer shall pay the amount of the unpaid tax liability on the due date or dates as provided by law; or
      2. Already become due at the time of final judgment of the court, the taxpayer shall immediately pay the tax or as much of the tax as has already become due, with interest.
    2. In the event the final judgment of the court is adverse to the taxpayer, the taxpayer shall pay the court costs regardless of whether the tax or any part of the tax has or has not become due at the time of the final judgment of the court.
    3. This subsection shall not apply to appeals filed with the Georgia Tax Tribunal as provided in Chapter 13A of Title 50.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 45; Ga. L. 1943, p. 204, § 3; Code 1933, § 91A-255, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 15; Ga. L. 1991, p. 716, § 1; Ga. L. 2012, p. 318, § 5/HB 100; Ga. L. 2017, p. 723, § 3/HB 337.)

The 2017 amendment, effective January 1, 2018, added "or at any time after the department records a state tax execution pursuant to Code Section 48-3-42" at the end of subsection (b).

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Law reviews. - For article discussing remedies for tax illegally assessed under the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. L. 1951, p. 360, § 1 et seq., see 9 Ga. St. B. J. 45 (1972). For article discussing and comparing principal means by which a Georgia taxpayer may obtain judicial review of his state tax liability with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

JUDICIAL DECISIONS

Bond requirement of this statute is constitutional. Lee v. Chilivis, 234 Ga. 255 , 215 S.E.2d 256 (1975).

Applicability. - Ga. L. 1943, p. 204, § 3 (see now O.C.G.A. § 48-2-59 ) relates to individual assessments and tax digest revisions made by the commissioner pursuant to Ga. L. 1937-38, Ex. Sess., p. 77, § 1 et seq. (see now O.C.G.A. Ch. 2, T. 48). It is not applicable to the commissioner's denial of liquor license pursuant to Ga. L. 1937-38, Ex. Sess., p. 103, § 8 (see now O.C.G.A. § 3-2-3 ). Blackmon v. Alexander, 233 Ga. 832 , 213 S.E.2d 842 (1975).

State could not hold out what plainly appeared to be a "clear and certain" postdeprivation remedy and then declare, only after the disputed taxes had been paid, that no such remedy existed. Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547 , 130 L. Ed. 2 d 454 (1994).

Extending time for appeal. - Assessment by the commissioner pursuant to Ga. L. 1937-38, Ex. Sess., p. 77, § 39 (see now O.C.G.A. § 48-2-51 ) may not be cancelled or abated and a new assessment issued after the time for appeal has expired solely for the purpose of extending the time for appeal. Undercofler v. VFW Post 4625, 110 Ga. App. 711 , 139 S.E.2d 776 (1964), later appeal, 112 Ga. App. 27 , 143 S.E.2d 684 (1965).

Appeal procedure. - Trial court properly dismissed a tobacco retailer's appeal of a decision of the Georgia Tax Tribunal that the retailer owed unpaid taxes as the general intention behind the creation of the Tribunal did not permit the court to ignore the plain language of O.C.G.A. § 48-11-18 concerning the designated appellate forum available to tobacco tax payers. Moosa Co. LLC v. Dep't of Revenue, 353 Ga. App. 429 , 838 S.E.2d 108 (2020).

Modification of commissioner's original order. - When the commissioner modifies original executive order in a material manner so as to be tantamount to a new determination, the modification has the effect of superseding or vacating an earlier judgment with respect to computation of time allowable for appeal under this statute. Nikas v. Oxford, 103 Ga. App. 721 , 120 S.E.2d 677 (1961).

When commissioner fails to certify record to superior court within 30 days after appeal, the taxpayer should not be penalized because of the commissioner's neglect, and the taxpayer's appeal should not be dismissed. State Bd. of Equalization v. Pineland Tel. Coop., 135 Ga. App. 796 , 219 S.E.2d 1 (1975).

Burden of proof on appeal. - An assessment pursuant to Ga. L. 1960, p. 210, §§ 1, 2 (see now O.C.G.A. § 48-2-52 ) is deemed to be prima facie correct, and when an assessed party appeals to the superior court in order to contest the validity of the assessment, which is a de novo proceeding, one comes into court as a plaintiff and has the burden of proof, while the commissioner occupies the status of the defendant, who by transmitting the record showing the fact of assessment, has provided sufficient answer to entitle the defendant to rebut offers of proof by the plaintiff. Blackmon v. Ross, 123 Ga. App. 89 , 179 S.E.2d 548 (1970).

Presumption on appeal as to validity of assessment. - When party assessed under Ga. L. 1960, p. 210, §§ 1, 2 (see now O.C.G.A. § 48-2-52 ) has appealed under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ) to contest the validity of the assessment, thereby opening the door to a de novo judicial investigation, the assessment must be regarded as prima facie correct. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Effect of judgment rendered against named commissioner after leaving office. - Since cases arising in the administration of state revenue laws appear in the name of its successive agents, designated as commissioners, as provided by Ga. L. 1937-38, Ex. Sess., p. 77, § 8 (see now O.C.G.A. § 48-2-9 ), a verdict and judgment against a named commissioner in the commissioner's representative capacity, rendered after the commissioner is no longer in office, is not binding on the state. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956).

When an appeal was taken to the superior court by the taxpayer against the commissioner, and judgment is rendered approximately nine months after that commissioner had been succeeded in office by another person, nothing having been done prior to the rendition of the judgment to substitute the name of the latter as agent of the state in lieu of the former, such judgment is a nullity, and no further proceedings can be had in the cause until the parties have been made, when the case must be tried de novo. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956).

Res judicata on appeal or other review. - Taxpayer has available at least three remedial procedures for use in disputing the correctness of an assessment rendered against the taxpayer by the commissioner. The taxpayer may proceed by: (1) appeal under Ga. L. 1937-38. Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ); (2) contesting the assessment and collection after issuance and levy of execution by filing affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ); or (3) paying taxes illegally exacted and bringing an action for refund. By following any of these procedures through adjudication on the merits, the question becomes res judicata. Undercofler v. Ernhardt, 111 Ga. App. 598 , 142 S.E.2d 317 (1965); Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

Right of appeal as complete and adequate remedy at law. - Since the right of appeal provided for in this statute is a full, complete, and adequate remedy provided by law, the trial court properly dismissed the action seeking to enjoin the commissioner from holding a hearing on the revocation of a liquor license. Rozier v. Redwine, 211 Ga. 208 , 85 S.E.2d 34 (1954).

Taxpayer's right to proceed in equity when no appeal taken. - When taxpayer fails to complain of valuations or uniformity, as prescribed by law for settling such matters, and tax digest conforming with the commissioner's direction has been approved by the commissioner, and no appeal therefrom has been taken under this statute, it is not permissible for either the taxpayer or the county to attack in a court of equity either the individual assessment or the commissioner's order approving the tax digest. Grafton v. Turner, 227 Ga. 809 , 183 S.E.2d 458 (1971).

Jurisdiction of federal court. - O.C.G.A. §§ 9-4-1 , 9-5-1 , 40-2-8 , 40-3-6 , 40-3-21 , and 48-2-60 provided the plaintiff challenging the automobile "title transfer fee" (O.C.G.A. § 40-3-21.1 ) [repealed] with "plain, speedy and efficient" pre-tax and post-tax remedies by which a taxpayer might challenge the constitutional validity of a state tax, and so satisfied the criteria of the Tax Injunction Act, 18 U.S.C. § 1341, so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Cited in Strickland v. W.E. Ross & Sons, 251 Ga. 324 , 304 S.E.2d 719 (1983); Kariuki v. DeKalb County, 253 Ga. 713 , 324 S.E.2d 450 (1985); Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Appeal costs. - Taxpayers appealing from decisions of the state revenue commissioner pursuant to O.C.G.A. § 48-2-59 need only comply with the specific requirements of that section with regard to court costs; taxpayers need not pay the advance court cost deposit set forth in O.C.G.A. §§ 9-15-4 and 15-6-77 . 1985 Op. Att'y Gen. No. U85-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 405 et seq. 72 Am. Jur. 2d, State and Local Taxation, §§ 617, 673, 674, 701, 702, 707.

C.J.S. - 84 C.J.S., Taxation, § 859 et seq.

ALR. - Right of public officer or board to appeal from a judicial decision affecting his or its order or decision, 117 A.L.R. 216 .

Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576; 9 A.L.R.4th 428.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

48-2-60. Compromise settlements; penalty refunds.

  1. No action or other judicial proceeding for the enforcement of this chapter or for the collection of state taxes shall be settled except by agreement, compromise, or judgment in open court.
  2. No compromise or agreed judgment shall be entered in any such action or other judicial proceeding until there has been filed with the commissioner a verified statement setting forth the facts and showing the reasons why a compromise or agreed judgment should be entered and certifying that no agreement or settlement other than the one stated in the proposed judgment has been directly or indirectly entered into by the commissioner or by anyone for the commissioner and that the proposed judgment is, in the opinion of the Attorney General, for the best interest of the state.
  3. When any penalty is paid without the commencement of an action to recover on the penalty and the commissioner, within three years after the date of the payment, determines that the circumstances giving rise to the penalty were reasonably beyond the control of the taxpayer, the commissioner may authorize a refund of all or any part of the penalty so paid and any interest paid on the penalty.

    (Ga. L. 1931, p. 7, § 85; Ga. L. 1931, Ex. Sess., p. 24, § 58; Code 1933, § 92-3007; Ga. L. 1937-38, Ex. Sess., p. 77, § 9; Ga. L. 1978, p. 1469, § 1; Code 1933, § 91A-256, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 16.)

Law reviews. - For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

JUDICIAL DECISIONS

State is not bound by any unauthorized settlement, and if the taxpayer is party to an unlawful conspiracy to settle, the taxpayer remains liable for the full debt less the amount paid on good faith. Oxford v. Jessup, 101 Ga. App. 612 , 115 S.E.2d 434 (1960).

OPINIONS OF THE ATTORNEY GENERAL

Refund of penalties paid prior to January 1, 1980 not authorized. - Subsection (c) of this statute does not authorize the state revenue commissioner to refund penalties paid prior to January 1, 1980. 1980 Op. Att'y Gen. No. 80-48.

Construction with penalty provisions. - Former Code 1933, § 92-3211 (see now O.C.G.A. § 48-7-57 ), which imposed a penalty for failure to file a return, was not by necessary implication or otherwise inconsistent with or repugnant to former Code 1933, § 92-3007 (see now O.C.G.A. § 48-2-60 ), and penalties fixed under former Code 1933, § 92-3211 may be compromised under former Code 1933, § 92-3007. 1954-56 Op. Att'y Gen. p. 764.

Word "compromise" in former Code 1933, § 92-3007 (see now O.C.G.A. § 48-2-60 ) meant that when the penalty had been fixed in accordance with former Code 1933, § 92-3211 (see now O.C.G.A. § 48-7-57 ) and added to the tax, it may be collected in whole or in part or not at all according to the circumstances of the particular case. When, in the judgment of the commissioner, after the penalty had been duly and legally assessed, concessions from the taxpayer of value to the state can be secured by waiving the penalty, then a compromise within the meaning of former Code 1933, § 92-3007 had been effected. 1954-56 Op. Att'y Gen. p. 764.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 734 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 1046 et seq., 1073 et seq.

ALR. - Constitutionality and construction of statute providing for or authorizing waiver or reduction of penalty or interest in respect of taxes in default, 68 A.L.R. 431 ; 79 A.L.R. 999 .

Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 96 A.L.R. 925 ; 147 A.L.R. 142 .

Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Voluntary payment doctrine as bar to recovery of payment of generally unlawful tax, 1 A.L.R.6th 229.

48-2-61. Effect of actions taken to avoid payment of taxes; liability.

  1. All deeds of gift, mortgages, sales, transfers of titles to motor vehicles, and assignments of property of any kind made to avoid payment of taxes and all judgments procured for the purpose of avoiding payment of taxes shall be null and void.
  2. The person holding such property or the person to whom such conveyance has been made and the property also, wherever found and no matter in whose possession it may be, shall be liable for taxes.

    (Laws 1804, Cobb's 1851 Digest, p. 1050; Code 1863, §§ 743, 744; Code 1868, §§ 810, 811; Code 1873, §§ 813, 814; Code 1882, §§ 813, 814; Civil Code 1895, §§ 885, 886; Civil Code 1910, §§ 1142, 1143; Code 1933, §§ 92-5710, 92-5711; Code 1933, § 91A-261, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1997, p. 419, § 33.)

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 215 (1997).

JUDICIAL DECISIONS

Effect as between parties to contract voided hereunder. - Statute condemns transactions of the character mentioned, which transactions are made to avoid payment of taxes and are asserted to prevent collection of taxes, but does not void such contracts as between individual parties thereto. Smith v. Johnson, 187 Ga. 584 , 1 S.E.2d 650 (1939).

Execution valid against land even if issued against one who is no longer owner. - An execution issued by the tax collector for the unpaid taxes against the land, which has not been returned by any one, describing it as the property of the persons who last returned it, is valid against the land, although such persons may no longer be the owners of the land, and may not have owned the land at the time the law fixes the liability for taxes. Stokes v. State, 46 Ga. 412 , 12 Am. R. 588 (1872).

OPINIONS OF THE ATTORNEY GENERAL

Effect on tax lien of transfer to bona fide purchaser for value. - Ad valorem tax lien attaches to property, and a mobile home is no exception; the lien follows the property even into the hands of a bona fide purchaser for value. Attempted transfer of a mobile home to evade the tax is void. 1970 Op. Att'y Gen. No. U70-208.

Mere fact that property is transferred to another who resides beyond tax jurisdiction on tax day will not be effective when the transfer is made to defeat collection of taxes. 1967 Op. Att'y Gen. No. 67-24.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 6.

ALR. - Taking mortgage in name of, or assigning it to, third person to evade taxation, as affecting its validity and enforceability, 21 A.L.R. 396 .

Constitutionality, construction, application and effect of specific provisions of state corporate income tax law in respect to tax evasion, 92 A.L.R. 1073 .

Assignment of right to future earnings, commissions, or benefits as affecting income tax of assignor, 131 A.L.R. 661 ; 151 A.L.R. 1401 .

Validity, construction, and effect of a provision of a trust instrument or will which attempts to withdraw property or interest otherwise passing thereunder, in event that it be held subject to tax, 154 A.L.R. 1222 .

Construction, application, and effect, with respect to withholding, social security, and unemployment compensation taxes, of statutes imposing penalties for tax evasion or default, 22 A.L.R.3d 8.

48-2-62. Penalties for tax return preparers; prohibition on continuing to prepare returns; refunds.

  1. As used in this Code section, the term:
    1. "Tax return preparer" means any person who prepares for compensation, or who employs one or more persons to prepare for compensation, any return of tax imposed under Chapter 7, 7A, or 8 of this title or any claim for refund of such tax. The preparation of a substantial portion of a return or claim for refund shall be treated as if it were the preparation of such return or claim for refund. A person shall not be considered a tax return preparer merely because the person does any of the following:
      1. Furnishes typing, reproducing, or other mechanical assistance;
      2. Prepares a return or claim for refund of the employer, or an officer or employee of the employer, by whom the person is regularly and continuously employed;
      3. Prepares as a fiduciary a return or claim for refund for any person; or
      4. Prepares a claim for refund for a taxpayer in response to a notice of proposed assessment issued to the taxpayer.
    2. "Understatement of liability" means an understatement of the net amount payable for a tax imposed under Chapter 7, 7A, or 8 of this title or an overstatement of the net amount creditable or refundable from such tax. For purposes of this paragraph, the amount determined as an underpayment of estimated income tax under the relevant provisions of this chapter is not considered an understatement of liability.
    1. Any tax return preparer who prepares any return or claim for refund for which any part of an understatement of liability is due because of a position described in paragraph (2) of this subsection shall pay a penalty not to exceed $500.00 for each such return or claim for refund.
    2. A position is described in this subsection if:
      1. The tax return preparer knew or reasonably should have known of the position;
      2. There was not a reasonable basis for the position; and
      3. The position was frivolous or not adequately disclosed in the return or claim for refund or in a statement attached to the return or claim for refund.
    3. No penalty shall be imposed under this subsection if it is shown that there is reasonable cause for the understatement of liability and the tax return preparer acted in good faith.
  2. Any tax return preparer who prepares any return or claim for refund for which any part of an understatement of liability is due because of conduct described in this subsection shall pay a penalty for each such return or claim for refund in an amount equal to the greater of $5,000.00 or 50 percent of the income derived, or to be derived, by the tax return preparer for the return or claim for refund. Conduct described in this subsection is conduct by the tax return preparer which is:
    1. A willful attempt in any manner to understate the liability for tax on the return or claim for refund; and
    2. A reckless or intentional disregard of the law.
  3. If at any time there is a final administrative determination or a final judicial decision that there was no understatement of liability in the case of the taxpayer's underlying return or claim for refund for which a penalty under subsection (b) or (c) of this Code section has been assessed against the tax return preparer, such assessment shall be canceled; and if any portion of such penalty has been paid, the amount so paid shall be refunded to the tax return preparer as an overpayment of tax without regard to any period of limitations which, but for this subsection, would apply to the making of such refund.
  4. Other assessable penalties on the preparation for other persons of returns of tax imposed under Chapter 7, 7A, or 8 of this title shall be as follows:
    1. Any tax return preparer who prepares any return or claim for refund and is required by regulations prescribed by the commissioner to sign such return or claim for refund but who fails to sign such return shall pay a penalty of $50.00 for such failure, unless it is shown that such failure is due to reasonable cause and not due to willful neglect or that the practice conformed to accepted industry standards. The maximum penalty imposed under this paragraph on any tax return preparer during any calendar year shall not exceed $25,000.00;
      1. Any tax return preparer who prepares any return or claim for refund and fails to furnish the preparer's identifying number on such return or claim for refund shall pay a penalty of $50.00 for such failure, unless it is shown that such failure:
        1. Is due to reasonable cause and not due to willful neglect; or
        2. Failed to conform to accepted industry standards.
      2. The maximum penalty imposed under this paragraph on any tax return preparer during any calendar year shall not exceed $25,000.00; and
    2. Any tax return preparer who fraudulently endorses or otherwise negotiates directly or through an agent any check made for the taxes imposed under Chapter 7, 7A, or 8 of this title which is issued to a taxpayer other than the tax return preparer shall pay a penalty of $500.00 for each such check. This paragraph shall not apply to the deposit by a bank, within the meaning of Section 581 of the Internal Revenue Code of 1986, of the full amount of the check in the taxpayer's account in such bank for the benefit of the taxpayer.
    1. A civil action in the name of the State of Georgia may be commenced at the request of the commissioner to enjoin any tax return preparer, or employer having knowledge of an employee tax return preparer, who is doing business in this state and engaging in conduct described in this subsection from further engaging in preparing tax returns. This action may be brought by the department in the superior court of the county of the tax return preparer's residence or principal place of business or in which the taxpayer for whose tax return the action is brought resides. The court may exercise its jurisdiction over the action separate and apart from any other action brought by the State of Georgia against the tax return preparer or any taxpayer.
    2. In an action under this subsection, the court may issue an injunction prohibiting a person from acting as a tax return preparer if the court finds that the individual has:
      1. Engaged in any pattern of conduct subject to civil penalty under subsection (b), (c), or (e) of this Code section; or
      2. Guaranteed the payment of any tax refund or the allowance of any tax credit.
  5. Any claim for refund of any penalty paid under this Code section shall be filed in accordance with rules and regulations promulgated by the commissioner. Any penalty under subsection (b) or (e) of this Code section shall be assessed within three years after the return or claim for refund was filed, and no proceeding in court without assessment for the collection of such tax shall begin after the expiration of such period. In the case of any penalty under subsection (c) of this Code section, the penalty may be assessed, or a proceeding in court for the collection of the penalty may be begun without assessment, at any time. Except as provided in subsection (d) of this Code section, any claim for refund of an overpayment of any penalty assessed under subsection (b), (c), or (e) of this Code section shall be filed within three years from the time the penalty was paid.
  6. Except as otherwise provided by this Code section, proceedings to assess, collect, or seek a refund of any penalty imposed under this Code section shall be conducted in the same manner and subject to the same rights of appeal as assessments, collections, and claims for refund of the related taxes under Chapter 7, 7A, or 8 of this title, as the case may be. (Code 1981, § 48-2-62 , enacted by Ga. L. 2009, p. 671, § 1/HB 444.)

ARTICLE 3 ENFORCEMENT

RESEARCH REFERENCES

ALR. - What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

48-2-80. Judicial enforcement of taxes imposed by other states.

The courts of this state shall recognize and enforce liabilities for taxes lawfully imposed by other states which extend like comity to this state.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 47; Code 1933, § 91A-262, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, §§ 60, 61, 62.

ALR. - Reciprocity as affecting comity, 87 A.L.R. 973 .

48-2-81. Duties of law enforcement officers and tax officials as to collecting taxes and prosecuting violators; payment of portion of fines to informants.

It shall be the duty of all sheriffs, deputies, and constables to enforce the collection of all taxes that may be due the state under any law. It shall be the duty of all tax collectors, tax commissioners, sheriffs, and constables to make sure that all persons violating any of the tax laws of this state are prosecuted for all such violations. One-fourth of the fines imposed upon persons convicted of violating any tax law of this state upon the information of any citizen of this state shall be paid to the informant by order of the court.

(Ga. L. 1927, p. 56, § 14; Code 1933, § 92-2103; Ga. L. 1935, p. 11, § 14; Code 1933, § 91A-6010, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 70.

ALR. - Right, in absence of express statute, of one governmental unit, or officers thereof, to compensation for collecting or disbursing special taxes or assessments levied by or owed to another governmental unit, 114 A.L.R. 1098 .

48-2-82. Contraband articles - Seizure; disposition; exceptions.

    1. Any contraband article and any vessel, vehicle, aircraft, or other conveyance which has been or is being used in violation of any provision of this title or of the revenue laws of this state, and any vessel, vehicle, aircraft, or other conveyance in, upon, or by means of which any violation has taken or is taking place shall be seized by any law enforcement officer or revenue officer of this state without a warrant and shall be delivered forthwith to the commissioner.
    2. After any such delivery, the commissioner shall post a notice of the seizure for a period of ten days in a prominent place in the courthouse of the county in which the seizure occurred. The notice shall state that a decision as to seizure and forfeiture will be made by the commissioner at the expiration of the ten-day period; and the notice shall act as a bar against any person subsequently asserting a claim of any interest existing in the article at the time of seizure.
    3. Upon determining that an article is contraband and that the seizure and forfeiture of the article is in accordance with this Code section, the commissioner shall direct the disposition or destruction of the article as he may reasonably deem appropriate. Any sale of such articles shall be to the highest bidder for cash and the proceeds of the sale shall be delivered to the Office of the State Treasurer.
  1. No vessel, vehicle, aircraft, or other conveyance used in the transaction of business as a common carrier shall be forfeited under this Code section unless it shall appear that, in the case of a railway car or engine, the owner or, in the case of any other such vessel, vehicle, aircraft, or other conveyance, the owner or the master of such vessel or the owner or conductor, driver, pilot, or other person in charge of such vehicle, aircraft, or other conveyance was at the time of the alleged illegal act a consenting party or privy thereto.
  2. No vessel, vehicle, aircraft, or other conveyance shall be forfeited under this Code section by reason of any act or omission shown by the owner of the conveyance to have been committed or omitted by any person other than the owner while the vessel, vehicle, aircraft, or other conveyance was unlawfully in the possession of a person who acquired possession of the conveyance in violation of the criminal laws applicable to the location of acquisition, whether of the United States or of any state of the United States.

    (Ga. L. 1956, p. 786, § 2; Code 1933, § 91A-257, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

RESEARCH REFERENCES

C.J.S. - 79 C.J.S., Searches and Seizures, § 217 et seq.

48-2-83. Contraband articles - Affidavit to test legality of forfeiture.

The owner of any property subject to forfeiture under this title may test the legality of the forfeiture by filing in the superior court of the county in which the property was seized within ten days after the seizure an affidavit of illegality against the commissioner in the manner and form prescribed by law for testing the legality of tax fi. fas.

(Ga. L. 1956, p. 786, § 9; Code 1933, § 91A-258, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 79 C.J.S., Searches and Seizures, §§ 250 et seq., 276 et seq. 84 C.J.S., Taxation, §§ 783, 826 et seq.

48-2-84. Unlawful activities as to revenue stamps; possession or transportation of contraband; penalty.

  1. It shall be unlawful for any person to:
    1. With intent to defraud and without authorization, make, falsify, forge, alter, or counterfeit any revenue stamp or marking prima facie evidencing the payment of any tax imposed by the revenue laws of this state;
    2. With knowledge, pass, publish, utter, or give currency to any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking prima facie evidencing the payment of any tax imposed by the revenue laws of this state;
    3. Make, possess, or have custody or control of any contraband article;
    4. Transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, aircraft, or other conveyance;
    5. Conceal or possess any contraband article in or upon any vessel, vehicle, aircraft, or other conveyance or upon the person of anyone in or upon any vessel, vehicle, aircraft, or other conveyance; or
    6. Use any vessel, vehicle, aircraft, or other conveyance for the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
  2. Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not less than one year nor more than three years, or both.

    (Ga. L. 1956, p. 786, §§ 3-8; Code 1933, §§ 91A-9904, 91A-9905, enacted by Ga. L. 1978, p. 309, § 2.)

ARTICLE 4 FACILITATING BUSINESS RAPID RESPONSE TO STATE DECLARED DISASTERS

Editor's notes. - The former article, consisting of Code Sections 48-2-100 through 48-2-108, relating to "The Federal Retiree Refund Act of 1995," was based on Ga. L. 1995, p. 1, § 1; Ga. L. 1999, p. 81, § 48, and was repealed by Ga. L. 1995, p. 1, § 1, effective December 31, 1999.

48-2-100. Short title; definitions; legislative findings; certain exemptions for out-of-state businesses and employees conducting operations related to declared state of emergency; post-emergency application of state laws and requirements.

  1. This Code section shall be known and may be cited as the "Facilitating Business Rapid Response to State Declared Disasters Act of 2014."
  2. For purposes of this Code section, the term:
    1. "Affected state" means a state where a declared state of disaster or emergency exists.
    2. "'Declared state of disaster or emergency" means a disaster or emergency event for which the Governor's state of emergency declaration has been issued or for which a presidential declaration of a federal major disaster or emergency has been issued.
    3. "Disaster or emergency period" means a period that begins ten days prior to the first day of the Governor's declaration or the president's declaration, whichever occurs first, and extends for a period of 60 calendar days after the end of the declared disaster or emergency period.
    4. "Infrastructure" means property and equipment owned or used by communications networks; cable, video, or broadband networks; gas and electric distribution systems; water pipelines; railways; public roads and bridges; and related support facilities that service multiple customers, including but not limited to real and personal property such as buildings, offices, lines, poles, pipes, structures, and equipment.
    5. "Out-of-state business" means a business entity that has no presence in this state and conducts no business in this state whose services are requested by a registered business in this state or by the state or a local government in this state for purposes of performing disaster or emergency related work in this state. This shall also include a business entity that is affiliated with a registered business in this state solely through common ownership if the affiliate has no registrations or required registrations or tax filings or required tax filings or nexus in this state prior to the declared state of disaster or emergency.
    6. "Out-of-state employee" means an employee who does not work in this state that is temporarily working in this state during the disaster or emergency period to perform disaster or emergency related work in this state to repair, renovate, install, build, or render services or other business activities that relate to infrastructure that has been damaged or destroyed during a declared state of disaster or emergency.
    7. "Registered business" means a business entity that owns or operates infrastructure in this state and is currently registered or is required to be registered to do business in this state prior to the declared state of disaster or emergency.
  3. The General Assembly finds that:
    1. When storms, floods, fires, earthquakes, hurricanes, or other natural disasters or emergencies occur, many businesses assign resources and personnel to the affected state from other states throughout the United States on a temporary basis to expedite the enormous and overwhelming task of cleaning, restoring, and repairing damaged equipment, property, and infrastructure.
    2. Most often this disaster or emergency relief effort involves the need for out-of-state businesses, including out-of-state affiliates of businesses registered in the affected state, to bring in resources, property, and personnel to perform disaster related activity in the affected state. In some instances, personnel may be located in the affected state for extended periods of time to perform such activities.
    3. During such time of operating in the affected state on a temporary basis solely for purposes of helping the affected state recover from the disaster or emergency, these businesses and employees should not be burdened by any requirements for certain tax liabilities incurred as a result of such activities in the affected state for a temporary period.
    4. The affected state's nexus and residency thresholds for tax liability are intended for businesses and individuals in such state conducting business operations or who intend to reside in the state and should not be applied to businesses and individuals coming into the state on a temporary basis to provide help and assistance in response to a declared state of disaster or emergency.
    5. To ensure that businesses and individuals focus on quick response to the needs of this state and its citizens during a declared state of disaster or emergency, it is appropriate for the General Assembly to deem that such disaster or emergency relief activity for a reasonable period of time during and after the disaster or emergency period shall not establish any liability for purposes of certain state and local taxes, licensing, and regulatory requirements imposed in this state.
    1. An out-of-state business whose presence is solely that of conducting operations within this state for purposes of performing work or services on infrastructure related to a declared state of disaster or emergency during the disaster or emergency period shall not be considered to have established a level of presence that would require that business to register, file, and remit certain state or local taxes or that would require that business to be subject to any licensing or registration requirements in this state. This exemption includes any state or local business licensing or registration requirements, any state or local employer income tax withholding, unemployment insurance, any state or local occupational licensing fees, public service commission or secretary of state licensing and regulatory requirements, and any state or local tax on or measured by, in whole or in part, net or gross income or receipts or net worth, including the filing required for a combined group of which the out-of-state business may be a part. For the apportionment of income pursuant to Chapter 7 of this title, the performance by an out-of-state business of any work in accordance with this Code section shall not increase the amount of income apportioned to this state.
    2. Any out-of-state employee shall not be considered to have established residency or a presence in this state that would require that employee to file and pay income taxes, to be subjected to income tax withholdings, or to be subject to any licensing or registration requirements in this state.
  4. Out-of-state businesses and out-of-state employees shall be required to pay transaction taxes and fees including but not limited to fuel taxes or sales and use taxes on materials or services subject to sales and use taxes in this state, hotel taxes, and car rental taxes or fees that the out-of-state business or out-of-state employee purchases for use or consumption in the affected state during the disaster or emergency period, unless such taxes are otherwise exempted pursuant to Chapter 8 of this title.
  5. Any out-of-state business or out-of-state employee that remains in this state after the disaster or emergency period shall become subject to the state's normal requirements for establishing presence, residency, or doing business and shall comply with all state and local registration, licensing, and filing requirements.
    1. Any out-of-state business that enters this state to perform qualified work during a disaster or emergency period shall provide to the department and to the Georgia Emergency Management and Homeland Security Agency a statement that it is in this state for purposes of responding to the disaster or emergency, which statement shall include the business's name, state of domicile, principal business address, federal tax identification number, date of entry, and contact information.
    2. A registered business in this state shall provide the information required in paragraph (1) of this subsection to the department and to the Georgia Emergency Management and Homeland Security Agency for any affiliate that enters this state that is an out-of-state business. The notification shall also include contact information for the registered business in this state.
  6. The Georgia Emergency Management and Homeland Security Agency and the department shall promulgate regulations as necessary to comply with the requirements of this Code section. (Code 1981, § 48-2-100 , enacted by Ga. L. 2014, p. 201, § 1/HB 782; Ga. L. 2016, p. 91, § 20/SB 416; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in paragraphs (g)(1) and (g)(2) and subsection (h).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (g)(1).

ARTICLE 5 REFUNDS FOR ELIGIBLE RECIPIENTS

Editor's notes. - Code Section 48-2-115 provided that this article was repealed on December 31, 2000.

48-2-110 through 48-2-115.

Repealed by Ga. L. 1995, p. 902, § 1, effective December 31, 2000.

Editor's notes. - This article, consisting of Code Sections 48-2-110 through 48-2-115, relating to refunds for eligible recipients, was based on Ga. L. 1995, p. 902, § 1.

CHAPTER 3 TAX EXECUTIONS

General Provisions.

Uniform System for Filing State Tax Executions.

Cross references. - Executions generally, § 9-13-1 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-74 and 92-76 are included in the annotations for this chapter.

Execution not against person or in rem against an estate is void. - Tax execution issued merely against the estate of a named person, not being an execution in rem and being against no person as a defendant in fieri facias, is void. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

When defendant life tenant dies and execution never levied, fieri facias not a cloud on remainderman's title. - When property is held by a life tenant, and taxes are assessed against the life tenant and executions issued in personam only, a sale under the levy of such execution would pass only the life estate. The executions not having been levied, and the life tenant having died, and the remainderman having succeeded to the fee in the property, the fieri facias in question did not constitute clouds upon the title. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

RESEARCH REFERENCES

ALR. - Constitutionality and construction of statute providing for or authorizing waiver or reduction of penalty or interest in respect of taxes in default, 79 A.L.R. 999 .

Right of one who pays taxes for which another is bound, to subrogation to the right of the taxing power, 106 A.L.R. 1212 .

Constitutionality of statute which provides for summary entry of judgment upon certificate or finding by taxing body or officer, 149 A.L.R. 312 .

ARTICLE 1 GENERAL PROVISIONS

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Ga. L. 2017, p. 723, § 9/HB 337, effective January 1, 2018, designated the existing provisions of this chapter as Article 1 and enacted Article 2 thereof.

48-3-1. Execution for collection of money due the state; affidavit of illegality.

Reserved. Repealed by Ga. L. 2017, p. 723, § 4/HB 337, effective January 1, 2018.

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Ga. L. 2017, p. 723, § 4/HB 337 provides for the repeal and reservation of this Code section, effective January 1, 2018.

This Code section was based on Ga. L. 1889, p. 29, § 7; Civil Code 1895, § 789; Civil Code 1910, § 1041; Ga. L. 1916, p. 34, § 1; Ga. L. 1927, p. 136, § 1; Ga. L. 1931, p. 7, § 80; Ga. L. 1931, Ex. Sess., p. 24, § 39; Code 1933, §§ 92-2706, 92-3306, 92-7301; Ga. L. 1937, p. 109, § 19; Ga. L. 1951, p. 360, § 19; Ga. L. 1952, p. 334, § 2; Code 1933, § 91A-301, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 5; Ga. L. 1997, p. 734, § 3; Ga. L. 2012, p. 318, § 6/HB 100.

Law reviews. - For article discussing and comparing the principal means by which the Georgia taxpayer may obtain judicial review of his state tax liability with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975).

JUDICIAL DECISIONS

Procedure affords due process of law. - Inasmuch as this statute provides for affidavit of illegality to challenge tax execution and hearing thereon, it does not violate Ga. Const. 1877, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I) or the due process clause of U.S. Const., amend. 14. Hicks v. Stewart Oil Co., 182 Ga. 654 , 186 S.E. 802 (1936).

Right to jury trial on affidavit of illegality. - Statute does not violate Ga. Const. 1877, Art. VI, Sec. XVIII, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI) or U.S. Const., amend. 14 as regards the right to trial by jury. Hicks v. Stewart Oil Co., 182 Ga. 654 , 186 S.E. 802 (1936).

There is no right to a jury trial in the proceedings held in superior court on the affidavit of illegality. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Right to jury trial in tax collection proceedings. - As a general rule there is no right under general constitutional provisions to a jury trial in statutory or summary proceedings for collection of taxes. Hicks v. Stewart Oil Co., 182 Ga. 654 , 186 S.E. 802 (1936).

Affidavit of illegality is the "petition" of taxpayer seeking redress from what it considers an illegal tax assessment sought to be collected by the department. Dalton Carpet Indus., Inc. v. Chilivis, 137 Ga. App. 266 , 223 S.E.2d 460 (1976).

Alternatives to filing affidavit of illegality. - Right of taxpayer to test legality of tax which is allegedly due by filing an affidavit of illegality is one of four available procedures under which the taxpayer can contest the taxpayer's liability for state taxes. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Res judicata effect of adjudication on merits. - Taxpayer had available at least three remedial procedures for use in disputing correctness of assessment rendered against the taxpayer by the commissioner. The taxpayer may proceed by: (1) appeal under Ga. L. 1943, p. 204, § 3 (see now O.C.G.A. § 48-2-59 ); (2) contesting assessment and collection after issuance and levy of execution by filing an affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ); or (3) paying taxes illegally exacted and bringing an action for refund. By following any of these procedures through adjudication on the merits, the question became res judicata. Undercofler v. Ernhardt, 111 Ga. App. 598 , 142 S.E.2d 317 (1965); Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

Availability of injunctive relief. - Injunction will lie, at the instance of any taxpayer who has not estopped oneself, to enjoin sale of the taxpayer's property for collection of an unauthorized tax, since an affidavit of illegality is not a proper remedy to contest the illegality of an execution in the nature of a tax execution, unless authorized by statute; but if one complains of illegality of taxing statute or collection procedure thereunder on an attempted levy of execution issued by the commissioner, foregoing rules and decisions are inapplicable, since under this statute the taxpayer has an adequate remedy at law by affidavit of illegality. Carreker v. Green & Milam, Inc., 183 Ga. 864 , 189 S.E. 836 (1937).

Procedure when taxpayer admittedly owes part of tax complained of. - One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that one owes part of tax covered by such executions, must pay or offer to pay amounts admitted to be due in order to obtain relief sought. This rule also applies to those seeking relief from excessive levies by municipal authorities. Lowe v. City of Atlanta, 191 Ga. 76 , 11 S.E.2d 891 (1940), later appeal, 194 Ga. 317 , 21 S.E.2d 171 (1942).

Presumption is that necessary bond was filed unless record affirmatively shows that such bond was not filed. Williams v. Boykin, 94 Ga. App. 246 , 94 S.E.2d 148 (1956).

When affidavit of illegality is filed with clerk rather than with levying officer, and it does not appear that such procedure harmed the plaintiff in fieri facias, this mere irregularity will not void an affidavit of illegality. Williams v. Boykin, 94 Ga. App. 246 , 94 S.E.2d 148 (1956).

Notice to plaintiff in fieri facias of affidavit of illegality. - There is no provision in the law requiring the sheriff to notify the plaintiff in fieri facias that an affidavit of illegality has been filed to a levy, nor does failure of the defendant in fieri facias to serve the plaintiff in fieri facias void an affidavit of illegality. Williams v. Boykin, 94 Ga. App. 246 , 94 S.E.2d 148 (1956).

Cited in Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Duty to issue executions against public utilities. - Although the language of former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ) did not describe a mandatory or compelling duty and merely empowered the commissioner to issue execution, a fieri facias against a public utility other than a railroad should also be issued; this strict concept of mandatory duty in the case of all other utilities was strengthened in light of former Code 1933, §§ 92-2305, 92-2306, 92-2307, and 92-2308 (see now O.C.G.A. § 48-5-424 ). 1963-65 Op. Att'y Gen. p. 348.

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 35 et seq., 182 et seq., 526.

C.J.S. - 85 C.J.S., Taxation, § 1284 et seq.

ALR. - Character of action or proceeding in which purchaser at invalid sale for taxes or local improvement assessment may secure reimbursement from owner; and provisions of decree or judgment to relief, 86 A.L.R. 1208 .

Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Persons in possession of real property as affected by decree foreclosing tax lien, upon service by publication, or in a proceeding against unknown owners, 128 A.L.R. 114 .

Enforcement against tax-exempt property of tax on nonexempt property or on owner of tax-exempt property, 159 A.L.R. 461 .

48-3-2. Executions against foreign corporations.

An execution against an agent of a foreign corporation or other foreign company shall be against the chief agent or his successor and shall authorize the executing officer to levy on all property of the agency and to seize its money, notes, and other effects.

(Orig. Code 1863, § 807; Code 1868, § 886; Code 1873, § 883; Code 1882, § 883; Civil Code 1895, § 881; Civil Code 1910, § 1138; Code 1933, § 92-7307; Code 1933, § 91A-305, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 94.

C.J.S. - 84 C.J.S., Taxation, § 218 et seq.

48-3-3. Executions by tax collectors and commissioners.

  1. As used in this Code section, the term:
    1. "New owner" means the most recent subsequent owner who has purchased such property during the year after January 1, but on or before the due date of that tax bill year and whose deed has been duly recorded in the records of the clerk of the superior court for that county.
    2. "Owner of record" means the owner whose name appears in the deed record as the owner as of January 1 of that tax bill year.
  2. The tax collector or tax commissioner shall issue executions for nonpayment of taxes collectable by the tax collector or tax commissioner at any time after 30 days have elapsed since giving notice as provided in subsection (c) of this Code section. The executions shall be directed to all and singular sheriffs and constables of this state.
  3. As soon as the last day for the payment of taxes has arrived, the tax collector or tax commissioner shall notify in writing the taxpayer of the fact that the taxes have not been paid and that, unless paid, an execution shall be issued; provided, however, that notice shall not be required for taxes due on personal property and executions may be issued on the day next following the day when taxes are due.
  4. No execution shall be issued against any person who is not the owner of record of the property on the day that the taxes become delinquent if, within 90 days from the due date, such person has provided satisfactory proof to the tax collector or tax commissioner that the property has been transferred by recorded deed and the liability for the payment of ad valorem taxes has been assigned to the vested transferee by written agreement or contract. In such cases, the execution shall be issued against the person who is the new owner of the property on the date that the taxes became delinquent only after such new owner has been sent a notice of the delinquent tax bill, and such notice shall state that the tax collector or tax commissioner intends to issue a tax execution in the new owner's name against such delinquent property if the bill and all applicable interest and other charges are not paid within 30 days of the date of the notice. Such notice shall be mailed by first-class mail to the address of record as shown on the real estate transfer tax declaration form in the records of the clerk of the superior court and to the address shown on the closing documents if presented or to the property location if the address differs from that shown on the real estate transfer tax declaration form. If an execution has already been issued against the owner of record, such execution shall be affirmatively cleared and vacated of record by the tax collector or tax commissioner upon receiving satisfactory proof as provided in this subsection.
      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 tax assessors. The bills or notices shall be mailed to the address of record as found in the county board of tax assessors' records.
        1. In the discretion of the tax commissioner, a taxpayer shall have the option of receiving tax bills or subsequent delinquent notices via electronic transmission in lieu of, or in addition to, receiving a paper bill via first-class mail. The tax bill shall be transmitted to the taxpayer via e-mail, with delivery or read receipt requested, in portable document format using all e-mail addresses provided by the taxpayer, and the date shown on such transmission shall serve as a postmark. In any instance where such transmission proves undeliverable, the tax commissioner shall mail such tax bill or subsequent delinquent notice to the address of record as found in the county board of tax assessors' records.
        2. The commissioner shall develop and make available to tax commissioners a suitable form for use by taxpayers in exercising the option to receive tax bills or subsequent delinquent notices via electronic transmission.
    1. A new owner 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 owner 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.
  5. The real estate transfer tax declaration form shall provide for and indicate the correct tax map parcel identification number before being accepted by the clerk of the superior court for recordation.

    (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 and 48-3-9 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) , and 48-4-1 , was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and 48-5-137 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.

48-3-3.1. Immediate payment or bond where person or property may leave jurisdiction or property's value may be prejudiced.

If the tax collector or tax commissioner reasonably finds that a taxpayer gives evidence of intention to leave the state, to remove his or her property from the state, to conceal himself or herself or his or her property, to discontinue business, or to do any other act tending to prejudice or render wholly or partly ineffective proceedings to compute, assess, or collect any ad valorem tax, whereby it becomes advisable that such proceedings be brought without delay, the tax collector or tax commissioner shall give notice of such finding and demand immediate payment of such tax as may be due. The tax collector or tax commissioner may immediately make an assessment based on the most recently accepted assessment or on a tax assessor's assisted assessment and may proceed under the assessment to collect the tax or require the taxpayer to file with him or her a bond satisfactory to the tax collector or tax commissioner as security for payment of the tax. Taxes assessed under this Code section for any tax year for which millage rates applicable to the property have not been established at the time of the assessment shall be based upon the millage rates in effect for the immediately preceding year.

(Code 1981, § 48-3-3.1 , enacted by Ga. L. 1994, p. 561, § 1.)

48-3-4. Selection of property to be levied.

A defendant against whom an execution has been issued by a tax collector or tax commissioner may select the property upon which the fi. fa. shall be levied. It shall be within the discretion and power of the tax collector or tax commissioner, however, to have the proper officer levy the execution on any other property the tax collector or tax commissioner may select whenever he deems it necessary to secure the prompt collection of the tax fi. fa.

(Ga. L. 1876, p. 128, § 1; Code 1882, § 891; Civil Code 1895, § 898; Civil Code 1910, § 1158; Code 1933, § 92-7404; Code 1933, § 91A-308, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Selection of property constitutes waiver of defects in execution and levy. - When a defendant in fieri facias for taxes selects to the levying officer the property to be levied on, this will constitute a waiver of defects in the return, and the levy. Byars v. Curry, 75 Ga. 515 (1885); National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887); Lumpkin v. Cureton, 119 Ga. 64 , 45 S.E. 729 (1903).

Former Civil Code 1910, § 6028 (see now O.C.G.A. § 9-13-50 ) did not apply to cases when tax executions were levied upon the property of the defendant in fieri facias. Former Civil Code 1910, § 1158 (see now O.C.G.A. § 48-3-4 ) applied in such cases. Davis v. Moore, 154 Ga. 152 , 113 S.E. 174 (1922).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 98.

C.J.S. - 33 C.J.S., Executions, § 139 et seq.

ALR. - Enforcement against tax-exempt property of tax on nonexempt property or on owner of tax-exempt property, 159 A.L.R. 461 .

48-3-5. Geographical scope of tax executions.

If there is not sufficient property in the county in which the taxpayer resides to satisfy the tax execution, property of the taxpayer situated in any other county shall be subject to levy and sale.

(Laws 1804, Cobb's 1851 Digest, p. 1050; Code 1863, § 822; Code 1868, § 901; Code 1873, § 899; Code 1882, § 899; Civil Code 1895, § 911; Civil Code 1910, § 1174; Code 1933, § 92-7405; Code 1933, § 91A-309, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 94, 102.

48-3-6. Leviers of executions; aggregating multiple executions.

  1. Executions may be levied by the officers to whom such executions are directed or by other officers who are authorized by law to act in their place.
  2. Any levying officer to whom there have been directed two or more executions against a defendant or to whom there have been directed two or more in rem executions against the same unreturned property may aggregate such executions and may make a levy for the total amount due as in the case of single execution.

    (Orig. Code 1863, § 811; Code 1868, § 891; Code 1873, § 888; Ga. L. 1876, p. 30, § 1; Code 1882, § 888; Civil Code 1895, § 905; Civil Code 1910, § 1165; Code 1933, § 92-7406; Code 1933, § 91A-310, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1243, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, commas were deleted preceding and following the phrase "or to whom . . . unreturned property" in subsection (b).

JUDICIAL DECISIONS

Tax fieri facias should indicate levying officer. - Tax fieri facias which has been levied should show by whom it was levied in order to be used in evidence to support a sheriff's deed thereunder. Jones v. Easley, 53 Ga. 454 (1873).

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).

Effect of misdirection of execution. - When the executions are improperly directed "to any lawful officer to execute and return," 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).

Officer may levy on land without return of "no personalty." - In order for a constable to make a legal levy upon land under a fieri facias issued for state and county taxes, it is not necessary that the constable should make an entry or return of no personal property to be found. Watson v. Swann, 83 Ga. 198 , 9 S.E. 612 (1889).

Sale of land previously sold under fieri facias. - It is not a fraud for the sheriff to sell for taxes, upon due levy and return to the sheriff by a constable, the same land which the constable had previously sold under a general fieri facias against the same defendant; nor is it a fraud for anyone to purchase at the tax sale though having full notice of the prior sale. Wilson v. Boyd, 84 Ga. 34 , 10 S.E. 499 (1889).

Purchaser not affected by fraud of selling officer. - Purchaser at a tax sale duly made under a legal levy, who is neither implicated in nor aware of any fraud contemplated by the selling officer, is not affected thereby. Boyd v. Wilson, 86 Ga. 379 , 12 S.E. 744 (1890).

OPINIONS OF THE ATTORNEY GENERAL

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.

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 184.

C.J.S. - 33 C.J.S., Executions, § 135.

48-3-7. Issuance of alias tax execution to replace lost original; conversion of executions into electronic form.

  1. Except as provided in subsection (b) of this Code section, when a properly issued tax execution is lost or destroyed, an alias tax execution may be issued upon the filing by the party having the right to control the original execution of a statement under oath of the loss or destruction of such original execution with the judge of the probate court of the county in which the original execution was issued. The judge shall endorse the word "alias" on the alias tax execution. The alias tax execution shall have all the legal force and effect of the lost or destroyed original tax execution.
  2. When a tax execution which was regularly issued by an officer of the state as authorized by law is lost or destroyed, the state officer or the successor to the state officer by whom the same was issued may at any time issue an alias tax execution in lieu of the lost original tax execution. The alias tax execution shall be dated the same date as the original tax execution and the officer shall endorse the word "alias" on the alias tax execution. The alias tax execution shall have all the legal force and effect of the lost or destroyed original tax execution.
  3. The commissioner or his or her duly appointed representative shall be authorized to convert regularly issued original or alias tax executions into electronic form for indexing, storage, archival, retrieval, or transmittal purposes, and any tax execution so converted, whether or not subsequently reduced to paper or other tangible medium, shall be treated as a regularly issued original for all purposes, and the commissioner shall not thereafter be required to maintain an original of such tax execution. Tax executions so converted, when reduced to paper or other tangible medium, shall fully reflect any and all entries or notations made on such tax executions.

    (Laws 1804, Cobb's 1851 Digest, p. 1059; Ga. L. 1857, p. 104, §§ 47, 48; Code 1863, §§ 3892, 3895; Code 1868, §§ 3912, 3915; Code 1873, §§ 3988, 3991; Code 1882, §§ 3988, 3991; Ga. L. 1882-83, p. 108, §§ 1, 2; Civil Code 1895, §§ 892, 893; Ga. L. 1904, p. 55, § 1; Civil Code 1910, §§ 1149, 1150; Code 1933, § 92-7407; Code 1933, § 91A-311, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1243, § 3; Ga. L. 2012, p. 735, § 3/HB 846.)

JUDICIAL DECISIONS

Permissible use of alias execution. - Statute provides for the issuing of an alias tax fi. fa., in place of the lost or destroyed original, for the purpose of enforcement by levy and sale, at the instance of the party entitled to control the original, and not for the purposes of being used in evidence as an established copy of the original under which a sale has been made. Carr v. Georgia Loan & Trust Co., 108 Ga. 757 , 33 S.E. 190 (1899).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 89 et seq.

C.J.S. - 33 C.J.S., Executions, § 116.

48-3-8. Interest on executions.

All executions issued for taxes due the state or any county or municipality of the state, whether issued on assessments for permanent improvements of streets or sewers of a municipality or otherwise, shall bear interest at the rate specified in Code Section 48-2-40 from the time fixed by law for issuing the execution.

(Ga. L. 1889, p. 31, § 1; Ga. L. 1890-91, p. 50, § 1; Civil Code 1895, §§ 731, 887; Civil Code 1910, §§ 878, 1144; Code 1933, § 92-7601; Ga. L. 1975, p. 811, § 1; Code 1933, § 91A-323, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 7; Ga. L. 1982, p. 847, §§ 1, 2.)

JUDICIAL DECISIONS

Interest under this statute is not in the nature of a penalty. Sparks v. Lowndes County, 98 Ga. 284 , 25 S.E. 426 (1896). See also, Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Executions bear interest, taxes do not. - Statute, properly construed, does not declare that taxes shall bear interest, but that only an execution for taxes shall bear interest. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907); McWilliams v. Jacobs, 128 Ga. 375 , 57 S.E. 509 (1907).

Statute is applicable to executions issued on assessments by municipal corporations for improvements. Bacon v. Mayor of Savannah, 105 Ga. 62 , 31 S.E. 127 (1898).

Statute imposes interest on executions for both taxes and assessments, and does not discriminate between them. Steele v. City of Waycross, 187 Ga. 382 , 200 S.E. 704 (1938).

Effect of tender of taxes due before execution issued. - If a taxpayer tenders the amount of taxes due from the taxpayer before an execution is actually issued, no interest on the tax can be lawfully required of the taxpayer. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Effect of injunction sought by taxpayer. - If a taxpayer causes an injunction to issue to prevent the collection of a tax and, under the final decree, liability for the tax is established, the taxpayer is not relieved from interest on the tax execution pending the proceedings in which the taxpayer obtained the injunction. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Taxpayer not excused from interest when the taxpayer acquiesces in injunction obtained by another against taxation. - When a taxpayer is enjoined from returning given property for taxation and from paying taxes on the same, and the tax officer is also enjoined from levying and collecting any taxes upon such property, at the instance of a third party, the taxpayer is not relieved from the payment of interest on the tax execution subsequently issued, when it appears that the taxpayer was a mere complacent defendant, interposing no obstacle to the injunction, in no way seeking to obtain permission of the court to pay any amount as admitted to be due as taxes and, so far as the record discloses, acquiescing in the contention of the plaintiff that no tax is due thereon. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

One seeking to enjoin enforcement of execution, on ground that usury has been computed thereon, must first offer to pay an amount admitted or shown to be due, before the court of equity would intervene in one's behalf. Sharpe v. City of Waycross, 185 Ga. 208 , 194 S.E. 522 (1937).

Special law which differed from this statute by imposing interest directly on an assessment when not paid within 30 days was a practical provision for making local improvement that did not permit escape from interest by voluntary payment of principal after delinquency but before issue of execution. Steele v. City of Waycross, 187 Ga. 382 , 200 S.E. 704 (1938).

Executions against railroad companies bear interest, even as to taxes accruing while in receivership. Sparks v. Lowndes County, 98 Ga. 284 , 25 S.E. 426 (1896).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 72.

C.J.S. - 85 C.J.S., Taxation, § 1198 et seq.

ALR. - Forfeiture or sale of land to state or political subdivision for nonpayment of taxes as suspending right to enforce special assessment or improvement lien or running of limitation in that regard, 113 A.L.R. 920 .

48-3-9. Notice of levy to owner of security deed or mortgage; lists; fees.

  1. Whenever any real estate is levied upon by the sheriff for taxes, it shall be the sheriff's duty before proceeding to advertise the property for sale as provided by law to give 20 days' written notice of the levy to the record owner of the property and the record owner of each security deed and mortgage affecting such property as provided in subsection (b) of this Code section. The period of 20 days shall begin to run from the time the notice is personally delivered or, when delivered by registered or certified mail or statutory overnight delivery as provided in this Code section, from the date of its mailing. The notice shall contain a description of the land levied upon, the name of the owner of the land, the year or years for which the taxes were assessed, and a statement of the amount of the taxes due, together with the accrued cost. The notice shall be delivered to the owner and any secured parties entitled to notice either in person or by registered or certified mail or statutory overnight delivery, with return receipt requested, at the address given on the list. The sheriff shall keep a copy of the notice on which he or she shall enter the date the notice was delivered and how, where, and to whom the notice was delivered.
  2. In order to entitle any owner of a security deed or mortgage to notice as provided in subsection (a) of this Code section, the name and address of such owner must be stated: (1) on the face of a properly recorded security deed or mortgage from the owner of the property; or (2) on the face of a properly recorded transfer of such a security deed or mortgage.

    (Ga. L. 1925, p. 252, § 1; Code 1933, § 92-7408; Code 1933, § 91A-312, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 1184, § 1; Ga. L. 1997, p. 727, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2010, p. 878, § 48/HB 1387.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to subsection (a) is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Constitutionality. - Notice to persons outside the county under subsection (b) of O.C.G.A. §§ 48-3-9 and § 48-4-46(b) and (c) is not in accord with the requirements of due process because an owner of a security deed or mortgage who lives outside the county in which the land is located will only receive published notice of the foreclosure of the right to redeem. Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988).

To whom notice given. - Law provides that notice shall be given to holder of security deed conveying wealth of sale of property under tax fi. fa., but there is no provision as to vendee of bill of sale of personalty to secure debt. Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934).

Notice 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. § 48-3-9 nor O.C.G.A. §§ 48-2-55 and 48-3-3 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).

Notice of levy no substitute for valid writ of execution. - When no valid levy occurs because of a defect in the writ of execution, the actual notice provided by the notice of levy issued pursuant to O.C.G.A. § 48-3-9 cannot serve as a seizure of the property so as to cure the defect in the writ of execution. Powers v. CDSaxton Props., LLC, 285 Ga. 303 , 676 S.E.2d 186 (2009).

Constructive levy. - Property tax sale was not void because the evidence established that the sheriff had effectuated a levy on the property, pursuant to O.C.G.A. § 9-13-12 , prior to issuing the required notices, advertisements, and sale of the property; a constructive levy of the property was made by tacking the Notice of Execution and Tax Levy issued by the sheriff onto the property itself and the tacked notice also was issued to the tenant in possession and to the owner at the address of record. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901 , 625 S.E.2d 46 (2005).

Tax sale invalid. - As a county tax commissioner's fieri facias on a parcel of property was defective because no entry of levy was made thereon as required by O.C.G.A. § 9-13-12 , and the notice of levy issued under O.C.G.A. § 48-3-9 was not a substitute for a properly-executed fieri facias, the commissioner's subsequent tax sale of the property was invalid. Powers v. CDSaxton Props., LLC, 285 Ga. 303 , 676 S.E.2d 186 (2009).

Tax execution sale proper. - Trial court properly granted summary judgment to the purchaser of real estate in a quiet title action that involved the taxpayer's home and the taxpayer's failure to pay the property taxes on the property as the property was properly levied upon and no question of fact remained that the sheriff officially seized the property. Further, the affidavits of the civil process coordinator at the time of the tax sale, and the coordinator's successor, were properly admitted into evidence as such affidavits fell within the business records exception to the rule against hearsay. Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008).

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 it 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).

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) , and 48-4-1 was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and 48-5-137 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).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 195.

C.J.S. - 33 C.J.S., Executions, §§ 131 et seq., 143, 144, 209 et seq. 85 C.J.S., Taxation, § 1175.

ALR. - Failure of advertisement in judicial proceeding for sale of land for delinquent taxes or foreclosure of tax lien, to describe lands affected, as contrary to due process of law or other constitutional objection, 107 A.L.R. 285 .

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

One in adverse possession as within class of persons entitled to redeem from tax sale, 164 A.L.R. 1285 .

Who are entitled to notice, or are necessary parties, in order to perfect tax title, 169 A.L.R. 686 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-3-10. Form of notice.

The form of the notice required by Code Section 48-3-9 to be given by the sheriff to the record owner of the property and the owner of each security deed or mortgage complying with Code Section 48-3-9 shall be in substance as follows: DELINQUENT TAXES Sheriff's Notice to Owner of Warranty Deed, Security Deed, or Mortgage Notice is hereby given to _____________ as the owner of a certain _____________, recorded in the office of the clerk of the superior court in book ________ at page ________ of the County of ________, State of Georgia, that there are now due and unpaid taxes for the year ________ amounting to $________ with accrued cost of $________ for which a tax execution has been issued and levy has been made upon the following described land owned by ________ and embraced within ________ and that the property will be advertised for sale unless the taxes are paid within 20 days from the delivery of this notice as provided by law. (Description of land levied upon.) ________________ Sheriff ________________ Address ________________ Date

(Ga. L. 1925, p. 252, § 2; Code 1933, § 92-7409; Code 1933, § 91A-313, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 1184, § 2.)

JUDICIAL DECISIONS

Cited in Anderson v. Ford, 261 Ga. App. 34 , 581 S.E.2d 623 (2003).

RESEARCH REFERENCES

ALR. - Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

48-3-11. Form of list of security deeds and mortgages.

Reserved. Repealed by Ga. L. 1997, p. 727, § 2, effective April 14, 1997.

Editor's notes. - This Code section was based on Ga. L. 1925, p. 252, § 2; Code 1933, § 92-7410; Code 1933, § 91A-314, enacted by Ga. L. 1978, p. 309, § 2.

48-3-12. Issuance of garnishments by tax collectors and tax commissioners; proceedings.

  1. When any tax collector or tax commissioner can find no property belonging to a defendant on which to levy any tax execution in his hands, he shall make an entry to that effect on the execution. The tax collector or tax commissioner then may issue summons of garnishment against any person whom he believes to be indebted to the defendant or who has property, money, or effects in his hands belonging to the defendant. The summons of garnishment shall be served by the tax collector, tax commissioner, the sheriff, the sheriff's deputy, or any constable of the county in which the garnishee resides. The summons 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 tax collector or tax commissioner holds office.
  2. The tax collector or tax commissioner 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.

    (Ga. L. 1855-56, p. 137, §§ 1, 2; Code 1863, §§ 5112, 5113; Code 1868, §§ 3499, 3500; Code 1873, §§ 3557, 3558; Code 1882, §§ 3557, 3558; Civil Code 1895, §§ 895, 896; Civil Code 1910, §§ 1154, 1155; Code 1933, §§ 92-7501, 92-7502; Code 1933, § 91A-315, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 6; Ga. L. 1984, p. 948, § 1.)

JUDICIAL DECISIONS

Entry of nulla bona as jurisdictional requirement. - Issuance of summons of garnishment is conditional upon entry of nulla bona upon tax execution. If affidavits in garnishment and attached copies of executions fail to show this jurisdictional fact, then the trial court is without jurisdiction of the subject matter of the litigation. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Summons of garnishment can issue in but three classes of cases: (1) when there is an action pending in circumstances delimited by statute; (2) when judgment has been rendered by court having jurisdiction; and (3) when tax collector has issued execution, has it in the collector's hands, and, being unable to find any property of the defendant, makes entry of nulla bona thereon. To entitle the plaintiff to benefit the plaintiff claims, the plaintiff must show that the plaintiff's case is one clearly contemplated by statute. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Garnishment proceedings are purely statutory and cannot be extended to cases not enumerated in statutes. Courts have no power to enlarge the remedy or hold under it property not made subject to the summons. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Summons of garnishment issued upon any ground not authorized by statute is without authority of law, and judgment based upon it is binding upon no one. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Effect of garnishment on persons or property out of state. - Garnishment issued under statute has no effect on persons or property out of the jurisdiction of the state at the time of issuance. Western R.R. v. Thornton & Acee, 60 Ga. 300 (1878).

Garnishment cannot be based on transferred execution. - When a tax execution has been transferred to a private person, such transferee cannot base upon it a garnishment proceeding against a debtor of the defendant in execution. Davis v. Millen, 111 Ga. 451 , 36 S.E. 803 (1900).

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.

Role of justice of the peace. - 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.

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, § 35.

C.J.S. - 38 C.J.S., Garnishment, § 173 et seq. 85 C.J.S., Taxation, §§ 1161, 1162.

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 .

48-3-13. Petition to reduce execution to judgment - Procedures.

  1. When an execution for state taxes remains unsatisfied and an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period and the commissioner has reason to believe that the defendant in fi. fa. may have or may come into ownership of assets outside this state, the commissioner may petition the superior court of the county in which the defendant in fi. fa. maintains in this state a known residence, place of business, or agent to receive service for a rule to show cause why the unsatisfied tax execution should not be reduced to a final judgment of the superior court.
  2. The petition shall name the defendant in fi. fa. as respondent in the action, shall set forth the jurisdiction of the superior court, and shall allege that an execution for state taxes has been duly issued by the commissioner or his deputy on behalf of this state, that an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period, and that the commissioner has reason to believe that the respondent may have or may come into ownership of assets outside this state. The petition shall demand that process issue to cause the respondent to appear and answer why the tax execution should not be reduced to a final judgment of the court; that the tax execution including, but stated separately, interest and penalties be reduced to a final judgment of the court; and, in the event that the final judgment is entered, that costs of the action be assessed against the respondent. A true copy of the tax execution shall be attached as an exhibit to the petition and the petition shall be verified under oath by the commissioner to the best of his knowledge and belief.
  3. When an execution for local taxes remains unsatisfied and an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period and the tax collector or tax commissioner has reason to believe that the defendant in fi. fa. may have or may come into ownership of assets outside this state, the commissioner may petition the superior court of the county in which the defendant in fi. fa. maintains in this state a known residence, place of business, or agent to receive service for a rule to show cause why the unsatisfied tax execution should not be reduced to a final judgment of the superior court.
  4. The petition shall name the defendant in fi. fa. as respondent in the action, shall set forth the jurisdiction of the superior court, and shall allege that an execution for local taxes has been duly issued by the tax collector or tax commissioner on behalf of the named county, that an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period, and that the tax collector or tax commissioner has reason to believe that the respondent may have or may come into ownership of assets outside this state. The petition shall demand that process issue to cause the respondent to appear and answer why the tax execution should not be reduced to a final judgment of the court; that the tax execution including, but stated separately, interest and penalties be reduced to a final judgment of the court; and, in the event that the final judgment is entered, that costs of the action be assessed against the respondent. A true copy of the tax execution shall be attached as an exhibit to the petition and the petition shall be verified under oath by the tax collector or tax commissioner to the best of his knowledge and belief.

    (Ga. L. 1957, p. 619, §§ 1, 2; Code 1933, § 91A-316, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 665, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, a comma was inserted following "named county" in the first sentence of subsection (d).

Pursuant to Code Section 28-9-5, in 1988, "that" was substituted for "than" preceding "an execution for" near the beginning of subsection (b).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1174, 1175.

ALR. - Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576; 9 A.L.R.4th 428.

48-3-14. Petition to reduce execution to judgment - Procedures for nonresident.

  1. When a defendant in fi. fa. under Code Section 48-3-13 maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the sworn petition shall so allege and, in addition to the allegations prescribed in subsection (b) of Code Section 48-3-13, it shall further allege facts sufficient to show that the respondent personally or by employees or agents engaged in an act or activity within this state giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued and that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law. The action shall be brought in the superior court of the county in which the respondent formerly maintained a known residence, place of business, or agent to receive service at the time the liability or obligation arose, if such was the case, or, otherwise, in the superior court of any county in which the act or activity giving rise to the tax liability or obligation took place. The petition shall demand service of process by publication as provided in subsection (b) of this Code section.
  2. When it appears from the sworn petition that the respondent engaged personally or by employees or agents in an act or activity within this state giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued, that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law, and that the respondent maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the superior court in which the action is pending shall order service to be perfected by publication in the paper in which sheriff's advertisements are printed. The notice shall be published once each calendar week for four consecutive weeks and shall be substantially as follows:
  3. If the residence or place of business of the respondent in another state is known, the commissioner shall send by registered or certified mail or statutory overnight delivery to the respondent at the known address a copy of the petition and order of service by publication and a copy of the newspaper in which each of the four notices is published with the notice plainly marked. When the Secretary of State of this state is appointed agent by law to receive service for a nonresident, a copy of the petition, of the order of service by publication, and of the newspaper in which each of the four notices is published with the notice plainly marked shall also be sent by the commissioner by registered or certified mail or statutory overnight delivery to the Secretary of State. The copy of the petition and order of service by publication shall be mailed within ten days after the issuance of the order. Each copy of the newspaper shall be mailed within ten days after its publication. Thereupon, the commissioner shall file with the clerk of the superior court in which the action is pending a certificate of compliance with this subsection, which certificate shall be a part of the record of service in the case.
  4. When a defendant in fi. fa. under Code Section 48-3-13 maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the sworn petition shall so allege and, in addition to the allegations prescribed in subsection (c) of Code Section 48-3-13, it shall further allege facts sufficient to show that the respondent personally or by employees or agents engaged in an act or activity within the named county giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued and that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law. The action shall be brought in the superior court of the county in which the respondent formerly maintained a known residence, place of business, or agent to receive service at the time the liability or obligation arose, if such was the case, or, otherwise, in the superior court of the county in which the act or activity giving rise to the tax liability or obligation took place. The petition shall demand service of process by publication as provided in subsection (e) of this Code section.
  5. When it appears from the sworn petition that the respondent engaged personally or by employees or agents in an act or activity within the named county giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued, that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law, and that the respondent maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the superior court in which the action is pending shall order service to be perfected by publication in the paper in which sheriff 's advertisements are printed. The notice shall be published once each calendar week for four consecutive weeks and shall be substantially as follows:
  6. If the residence or place of business of the respondent in another state is known, the tax collector or tax commissioner shall send by registered or certified mail or statutory overnight delivery to the respondent at the known address a copy of the petition and order of service by publication and a copy of the newspaper in which each of the four notices is published with the notice plainly marked. When the Secretary of State of this state is appointed agent by law to receive service for a nonresident, a copy of the petition, of the order of service by publication, and of the newspaper in which each of the four notices is published with the notice plainly marked shall also be sent by the commissioner by registered or certified mail or statutory overnight delivery to the Secretary of State. The copy of the petition and order of service by publication shall be mailed within ten days after the issuance of the order. Each copy of the newspaper shall be mailed within ten days after its publication. Thereupon, the tax collector or tax commissioner shall file with the clerk of the superior court in which the action is pending a certificate of compliance with this subsection, which certificate shall be a part of the record of service in the case.

    (Ga. L. 1957, p. 619, §§ 3-5; Code 1933, § 91A-317, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 665, § 2; Ga. L. 1999, p. 81, § 48; Ga. L. 2000, p. 1589, § 3.)

IN THE SUPERIOR COURT OF __________ COUNTY

STATE OF GEORGIA

The State of Georgia ) ex rel. __________, ) commissioner of revenue, ) Action for judgment Petitioner ) on state tax ) fi. fa. v. ) No. ________ ) A.B., ) Respondent )

NOTICE BY PUBLICATION

TO: A.B., Respondent Foreign address (if known) This court, under date of __________, has found that service by publication upon you in the above case is necessary because of your nonresidence and has ordered this service by publication. Accordingly, you are ordered to be and appear in this court within 60 days from the above date to show cause why tax fi. fa. no. __________, in favor of the State of Georgia, recorded in book __________, page __________ of the execution docket of __________ County, Georgia, should not be reduced to a judgment of this court. Witness the Hon. __________, judge of this court. This __________ day of __________, ________. _____________ Clerk

IN THE SUPERIOR COURT OF __________ COUNTY

STATE OF GEORGIA

Tax collector or tax ) commissioner of ) __________ County, ) Action for judgment Petitioner ) on local tax ) fi. fa. v. ) No. ________ ) A.B., ) Respondent )

NOTICE BY PUBLICATION

TO: A.B., Respondent Foreign address (if known) This court, under date of __________, has found that service by publication upon you in the above case is necessary because of your nonresidence and has ordered this service by publication. Accordingly, you are ordered to be and appear in this court within 60 days from the above date to show cause why tax fi. fa. no. __________, in favor of __________ County, Georgia, recorded in book ______, page ______ of the execution docket of __________ County, Georgia, should not be reduced to a judgment of this court. Witness the Hon. __________, judge of this court. This ______ day of __________, ________. _____________ Clerk

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 145 et seq., 218 et seq. 85 C.J.S., Taxation, §§ 1251, 1282.

ALR. - Persons in possession of real property as affected by decree foreclosing tax lien, upon service by publication, or in a proceeding against unknown owners, 128 A.L.R. 114 .

Effect of misnomer of landowner or delinquent taxpayer in notice, advertisement, etc., of tax foreclosure or sale, 43 A.L.R.2d 967.

Validity of notice of tax sale or of tax sale proceeding which fails to state tax year or kind or type of taxes covered by tax assessments, 43 A.L.R.2d 988.

48-3-15. Petition to reduce execution to judgment - Demand for jury trial; issues.

Upon the trial of the action provided for in Code Section 48-3-13 or 48-3-14, which shall be without a jury unless a written demand for jury trial is filed in the case by either party, the respondent may take issue with the sufficiency in law, in fact, or both, of the petition including, but not limited to, jurisdiction over the person of the respondent. The respondent also may attack the tax execution involved in the petition in the manner of an affidavit of illegality and bond as provided by law.

(Ga. L. 1957, p. 619, § 6; Code 1933, § 91A-318, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 3.

C.J.S. - 85 C.J.S., Taxation, §§ 1269, 1270.

48-3-16. Petition to reduce execution to judgment - Procedures when respondent fails to appear.

If the respondent in an action provided for in Code Section 48-3-13 or 48-3-14 does not appear in answer to the rule, the superior court shall ascertain for itself that service of the rule has been perfected in accordance with Code Section 48-3-13 or 48-3-14 and shall enter a finding to that effect. The superior court shall further order that the tax execution described in the petition, with the tax, penalties, and interest being stated separately, be reduced to a judgment of the court and that all costs of the action, including, but not limited to, advertising costs as per the sworn statement of the costs submitted by the commissioner, be added to the judgment and charged against the respondent. A copy of the finding and order shall be sent by registered or certified mail or statutory overnight delivery by the clerk of the court to the respondent at the foreign address shown in the published notice and to the Secretary of State of this state when he is appointed as agent of the nonresident to receive service. The clerk of the court shall enter this action on the original order of the court.

(Ga. L. 1957, p. 619, § 7; Code 1933, § 91A-319, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1276 et seq.

48-3-17. Petition to reduce execution to judgment - Grace period before final judgment; effect of respondent's appearance or failure to appear.

The order provided for in Code Section 48-3-16 shall not become final until the expiration of 30 days after its entry, during which time the respondent may appear and assert the defenses he could have asserted prior to the entry of the order; and the court shall so state in its order. If the respondent does not take advantage of this additional period within which to make a defense, the clerk of the superior court shall so note on the original order and the judgment shall be final. If the respondent does appear, the original order shall be vacated and the action shall proceed as if the order had never been entered.

(Ga. L. 1957, p. 619, § 8; Code 1933, § 91A-320, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 51.

C.J.S. - 85 C.J.S., Taxation, § 1221 et seq.

ALR. - Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

48-3-18. Deputies acting for named officers; Secretary of State relieved from mailing papers to respondent.

When action is required to be taken by the commissioner, it shall be sufficient compliance with this chapter if the action is done by his deputy or his attorney. When action is required of the clerk of the superior court, it shall be sufficient compliance with this chapter if the action is done by his deputy. When the various papers and processes required to be mailed to the Secretary of State are received by him and it appears to him that a copy of the paper or process has been mailed by the commissioner to a known address of the respondent, a second mailing shall not be required of the Secretary of State to the same address; but he shall keep the copy received by him on file as a source of information for any inquiry from the respondent, for whom the Secretary of State is attorney in fact, concerning the respondent's tax liabilities and obligations incident to his taxable acts or activities within this state. When action is required of the Secretary of State, it shall be sufficient compliance with this chapter if the action is done by his deputy.

(Ga. L. 1957, p. 619, § 9; Code 1933, § 91A-321, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 399.

48-3-19. Transfer of executions.

  1. As used in this Code section, the term:
    1. "Delinquent taxpayer" means the person or persons against whom an execution has been issued or the successor in title to the property for which the execution has been issued.
    2. "Due diligence" means the performance of a diligent search to ascertain the actual location of the record owner of the property. The following actions shall satisfy the diligent search requirements of this Code section: sending notice by first-class mail, certified mail, or statutory overnight delivery, as required by law. If the notice is returned undelivered, the following actions shall satisfy the diligent search requirements of this Code section: checking telephone directories for the county wherein the property is located; checking the records of the tax commissioner of the county wherein the property is located; or checking the real estate records of the clerk of the superior court of the county wherein the property is located.
    3. "Execution" means an execution issued for the collection of any ad valorem taxes, special assessments, fees, penalties, interest, or collection costs due the state or any political subdivision thereof.
    4. "Transferee" means a person to whom an execution is transferred.
    5. "Transferor" means the official holding the tax executions and authorized to collect or transfer such tax executions.
    1. Whenever any person other than the person against whom an execution has been issued pays an execution issued for state, county, or municipal taxes or special assessments, the officer whose duty is to enforce the execution may transfer the execution to the party so paying the full value of the execution. No officer whose duty it is to enforce an execution issued for state, county, or municipal taxes or special assessments shall be required to make any transfer or transfers of such execution or executions. The transferee shall have the same rights as to enforcing the execution and priority of payment as might have been exercised or claimed by the tax official. The person to whom the execution is transferred shall, within 30 days of the transfer, cause the execution to be entered on the general execution docket of the superior court of the county in which the execution was issued. In default of the required entry or entries, the execution shall lose its lien upon any property which has been transferred in good faith and for a valuable consideration before the entry and without notice of the existence of the execution.
      1. It shall be unlawful for any tax official covered by this subsection to pay a tax execution in order to obtain a transfer of the execution under this Code section. It shall be unlawful for any employee of a tax official covered by this subsection to pay a tax execution in order to obtain a transfer of the execution under this Code section. The tax officials covered by this subsection are:
        1. County tax receivers, tax collectors, and tax commissioners;
        2. Members of county boards of tax assessors;
        3. Members of county boards of equalization; and
        4. County tax appraisers.
      2. Any execution transferred in violation of subparagraph (A) of this paragraph shall be void and unenforceable by the person obtaining the execution and such person's successors in interest.
      3. Any tax official or employee of a tax official violating subparagraph (A) of this paragraph shall be guilty of a misdemeanor.
    1. Within 60 days following the transfer, the transferee shall notify the delinquent taxpayer of the transfer of the tax execution by first-class mail. The notice shall include:

      (A) The name, mailing address, and telephone number for the transferee's business office;

      (B) The amount necessary to satisfy such execution; and

      (C) Other information as deemed appropriate by the transferee.

    2. In the event that any such notice by first-class mail is returned undelivered, the transferee shall be required to perform due diligence in an effort to obtain the delinquent taxpayer's correct address or any new owner's correct address and resend the notice by first-class mail.
  2. An execution which has been transferred shall bear interest as specified in Code Section 48-3-20 on the amount paid for such execution from the date of the transfer. In addition, the transferee may charge and collect recording fees actually expended in recording the transferred execution on the general execution docket of any county in which the transfer is recorded and such other penalties as are provided for in this title.
    1. Whenever an execution has been transferred to any transferee, the transferee shall not be authorized to submit the execution to the appropriate levying officer until 12 months after the date of such transfer or 24 months after the tax giving rise to the execution was originally due, whichever is earlier. A transferee shall not have the right to advertise and sell property under a tax execution. Such right shall remain solely with the appropriate levying official, such as the sheriff or marshal.
    2. A transferee with multiple outstanding executions against the same property shall not be subject to the time period requirements of paragraph (1) of this subsection with respect to all such executions if at least one of the executions meets such requirements of paragraph (1) of this subsection.
  3. Until the execution is paid in full or satisfied, on or before November 15 of each year after the calendar year in which the transfer occurred, the transferee shall send notice by regular mail to the delinquent taxpayer and the record owner of the property advising that the tax execution is still outstanding. The notice must provide the transferee's most updated contact information, including mailing address and telephone number.
  4. Any transferee that pays the tax official more than $2 million in any calendar year for the transfer of executions shall maintain a reasonably accessible office within 50 miles of the courthouse wherein the superior court of the county wherein the transferred executions were issued is located. Said office shall be open to the public for at least eight hours per day for five days a week, official state holidays excepted. (Code 1981, § 48-3-19 , enacted by Ga. L. 2006, p. 770, § 3/SB 585; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, in the last sentence of paragraph (a)(2), revised punctuation and deleted "due diligence shall include" preceding "checking telephone directories".

Editor's notes. - Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

Law reviews. - For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006). For comment, "Making Debt Pay: Examining the Use of Property Tax Delinquency as a Revenue Source," see 62 Emory L.J. 217 (2012).

JUDICIAL DECISIONS

Demand for payment of interest and fees proper. - 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).

48-3-20. Interest on transferred executions.

All tax executions, when recorded as prescribed by law and which have been transferred to third persons, shall bear interest at the rate specified in Code Section 48-2-40 from the date of transfer.

(Ga. L. 1887, p. 21, § 1; Civil Code 1895, § 889; Civil Code 1910, § 1146; Code 1933, § 92-7603; Code 1933, § 91A-325, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 8.)

JUDICIAL DECISIONS

Former Civil Code 1910, § 1146 (see now O.C.G.A. § 48-3-20 ) must be construed with former Civil Code 1910, § 1144 (see now O.C.G.A. § 48-3-8 ). Palmer v. Phinizy, 151 Ga. 589 , 107 S.E. 852 (1921).

Failure to award interest. - When a trial court found a tax commissioner improperly refused to pay a tax execution holder's executions, but did not find that the commissioner had good cause for the refusal and did not award the holder 20 percent interest, pursuant to O.C.G.A. § 15-13-3(a) , the matter had to be remanded for a determination of the good cause issue and to consider the holder's entitlement to one percent interest per month, pursuant to O.C.G.A. §§ 48-3-20 and 48-2-40 . Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

Demand for payment of interest and fees proper. - 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).

48-3-21. Statute of limitations for tax executions.

Except for executions issued by the commissioner, all county, municipal, or other tax executions, before or after legal transfer and record, shall be enforced within seven years from:

  1. The date of issue; or
  2. The time of the last entry upon the tax execution by the officer authorized to execute and return the execution if the execution and entry are properly entered or reentered upon the execution docket or books in which executions issued on judgments and entries on executions issued on judgments are required to be entered or reentered.

    (Ga. L. 1887, p. 23, § 1; Civil Code 1895, § 890; Civil Code 1910, § 1147; Code 1933, § 92-7701; Ga. L. 1965, p. 316, § 1; Code 1933, § 91A-326, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 7; Ga. L. 2017, p. 723, § 5/HB 337; Ga. L. 2018, p. 1, § 2/HB 661.)

The 2017 amendment, effective January 1, 2018, deleted "state," preceding "county" near the beginning of the introductory paragraph.

The 2018 amendment, effective February 20, 2018, substituted "Except for executions issued by the commissioner, all" for "All" at the beginning of this Code section.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

JUDICIAL DECISIONS

Failure to timely issue execution results in bar. - Former Civil Code 1910, §§ 1147 and 1148 (see now O.C.G.A. §§ 48-3-21 and 48-3-22 ), when construed together, provide a statute of limitation against the right of the state and the state's subordinate public corporations to enforce a lien for taxes. Such a lien is barred not only by a failure to have the proper entries made on the tax execution and recorded, but also by a failure to issue the tax execution within seven years from the date that such execution may be lawfully issued. Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Construction with other provisions. - Construing together former Code 1933, § 92-7701 (see now O.C.G.A. § 48-3-21 ) and former Code 1933, §§ 92-7702 and 110-1001 (see now O.C.G.A. §§ 48-3-22 and 9-12-60 , respectively), it was the intention of the General Assembly to provide in effect that the mere entry of a tax execution itself on general execution docket within the seven-year period would prevent dormancy. Darby v. De Loach, 190 Ga. 499 , 9 S.E.2d 626 (1940).

Former Code 1933, §§ 67-2501 and 67-2503 (see now O.C.G.A. § 44-2-2 ), which declared effective from date of filing "deeds, mortgages, and liens of all kinds," as against third persons acting in good faith and without notice, had no application to claims for taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Use of the word "shall" makes enforcement of tax fi. fas. within the period therein specified mandatory, rather than merely permissive. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Requirement as to actual entry of execution on docket. - Merely depositing execution in office of the clerk and having entry of filing made thereon is ineffective, unless the execution is actually entered on the docket. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Date from which period of limitation is measured. - Claims for taxes should be enforced within seven years from the date due and date 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).

Effect of running of period of limitation. - When execution for collection of taxes is barred by this statute, the taxpayer is no longer bound for taxes, and the taxpayer can maintain an action to enjoin enforcement of execution and for its cancellation. The taxpayer is not estopped from doing so because the taxpayer owned the property for the entire year for which taxes involved were due, failed to make a return of the property for such year, and had not paid nor offered to pay taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Right to revive dormant judgments inapplicable to tax executions. - Provisions of former Code 1933, Ch. 110-10 (see now O.C.G.A. Art. 3, Ch. 12, T. 9), relating to dormant judgments and providing a procedure for their revival, have no application to an action purportedly attempting to revive a dormant tax execution under former Code 1933, §§ 92-7701 and 92-7702 (see now O.C.G.A. §§ 48-3-21 and 48-3-22 ), which might properly be called the Dormant Tax Judgment Act. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Seven-year statute of limitations applied. - Seven-year statute of limitation under O.C.G.A. § 48-3-21 was applicable to a county tax assessment for back taxes and penalties against a company that did not report the company's tangible personal property even though the company filed tax returns in those years. The tax assessors discovered the property after conducting an audit, so the assessors acquired full authority to tax the property at that point under the seven-year limitation period in O.C.G.A. § 48-3-21 , and not under the three-year limitation period in O.C.G.A. § 48-3-49(b). Hormel Food Corp. v. DeKalb County Bd. of Tax Assessors, 264 Ga. App. 10 , 589 S.E.2d 836 (2003).

Running of seven-year period causes execution to be dead, not merely dormant. - Unless there is a bona fide effort to enforce a tax fi. fa. by a levy or an attempted levy with entry thereon, and unless the fi. fa., together with such entry or entries, is recorded on the general execution docket of the county of the residence of the defendant in fi. fa. within seven years from the date of the assessment, and unless thereafter there be a new levy or attempted levy with proper entries and recordation within seven years thereof, and subsequently within each seven-year period, such fi. fa. is not merely dormant but is dead, and nothing more can be done to enforce it by the taxing authority. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Statute does not run when proceedings stayed by injunction of federal court. - Statute of limitations does not run against the state during the time that the comptroller general (now commissioner) is enjoined by a federal court from issuing any executions for taxes on the stock in dispute. Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Period of limitation unaffected by contractual lien setting different period. - In cases of tax fi. fa. there is no contractual lien, fixing a period of limitation different from that provided by this statute, to fall back on, so as to prevent the bar of the execution. Lewis v. Moultrie Banking Co., 36 Ga. App. 347 , 136 S.E. 554 , cert. denied, 36 Ga. App. 825 , S.E. (1927) (see O.C.G.A. § 48-3-21 ).

One subrogated to state's rights may enforce lien despite bar to action for money had and received. - An action brought to enforce the lien of the state and county for taxes, to which one becomes subrogated is not barred by this statute, although it would be barred as an action for money had and received. Thomas v. Lester, 166 Ga. 274 , 142 S.E. 870 (1928).

Cited in Collins v. Tranakos, 222 Ga. App. 485 , 474 S.E.2d 622 (1996).

OPINIONS OF THE ATTORNEY GENERAL

Construction with other provisions. - Ga. L. 1937-38, Ex. Sess., p. 156, § 8 (see O.C.G.A. § 48-6-22(6)) (now repealed) was not in conflict with nor repugnant to former Code 1933, § 92-7201 (see now O.C.G.A. § 48-3-21 ). 1952-53 Op. Att'y Gen. p. 198.

Date from which period of limitation is measured. - Statute of limitations on taxes imposed under former Code 1933, § 92-2301 (see now O.C.G.A. Art. 9, Ch. 5, T. 48) was seven years from the date that execution thereon issued, or could have been issued. If returns were not made, state had no way of knowing that the taxes were due, and for this reason the statute of limitations did not commence running until execution issued. 1952-53 Op. Att'y Gen. p. 198.

Actions to recover insurance taxes under Ga. L. 1960, p. 289, § 1 (see now O.C.G.A. Ch. 8, T. 33) must be brought within seven years from the date that the execution may be lawfully issued. 1969 Op. Att'y Gen. No. 69-396.

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, §§ 69, 85 et seq. 85 C.J.S., Taxation, § 1109 et seq.

ALR. - Forfeiture or sale of land to state or political subdivision for nonpayment of taxes as suspending right to enforce special assessment or improvement lien or running of limitation in that regard, 113 A.L.R. 920 .

When statute of limitation commences to run against action to recover tax, 131 A.L.R. 822 .

48-3-21.1. Statute of limitations for enforcement of executions for ad valorem taxes of less than $5.00; execution; restriction on adding together taxes to exceed limit.

  1. This Code section shall apply only to real property ad valorem taxes which are due in an amount of less than $5.00.
  2. Any execution for ad valorem taxes in an amount of less than $5.00 shall be enforced within one year after the execution is issued or the taxes become due, whichever is earlier.
  3. A tax execution which has become barred under this Code section shall not be subject to revival; and the taxpayer shall not be personally liable for such taxes after the execution becomes barred.
  4. Amounts of taxes due on more than one piece of real property or for more than one tax year shall not be added together so as to exceed the $5.00 limit if each of these amounts is individually less than $5.00.

    (Code 1933, § 91A-326.1, enacted by Ga. L. 1981, p. 791, § 1; Ga. L. 1998, p. 575, § 1.)

Editor's notes. - Ga. L. 1998, p. 575, § 2, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all executions for ad valorem taxes issued on or after July 1, 1998.

48-3-22. Statutory limitations applicable to tax executions.

All laws in reference to a period of limitation as to ordinary executions for any purpose or to the length of time or circumstances under which ordinary executions lose their lien in whole or in part are applicable to tax executions.

(Ga. L. 1887, p. 23, § 2; Civil Code 1895, § 891; Civil Code 1910, § 1148; Code 1933, § 92-7702; Code 1933, § 91A-327, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Construction with other provisions. - Construing together former Code 1933, § 92-7702 (see now O.C.G.A. § 48-3-22 ) and former Code 1933, §§ 92-7701 and 110-1001 (see now O.C.G.A. §§ 48-3-21 and 9-12-60 , respectively), it was the intention of the General Assembly to provide in effect that the mere entry of a tax execution itself on the general execution docket within the seven-year period would prevent dormancy. Darby v. De Loach, 190 Ga. 499 , 9 S.E.2d 626 (1940).

Former Code 1933, §§ 67-2501 and 67-2503 (see now O.C.G.A. § 44-2-2 ), which declare 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).

Requirement as to actual entry of execution on docket. - Merely depositing the execution in the office of the clerk and having an entry of filing made thereon is ineffective, unless the execution is actually entered on the docket. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Date from which period of limitation is measured. - Claims for taxes should be enforced within seven years from the date due and date 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).

Effect of running of period of limitation. - When execution for collection of taxes is barred by former Code 1933, § 92-7701 (see now O.C.G.A. § 48-3-21 ), the taxpayer is no longer bound for the taxes, and the taxpayer can maintain an action to enjoin enforcement of the execution and for its cancellation. The taxpayer is 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 nor offered to pay the taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Right to revive dormant judgments inapplicable to tax executions. - Provisions of former Code 1933, Ch. 110-10 (see now O.C.G.A. Art. 3, Ch. 12, T. 9) relating to dormant judgments and providing a procedure for their revival have no application to an action purportedly attempting to revive a dormant tax execution under former Code 1933, §§ 92-7701 and 92-7702 (see now O.C.G.A. §§ 48-3-21 and 48-3-22 ), which might properly be called the Dormant Tax Judgment Act. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Running of seven-year period causes execution to be dead, not merely dormant. - Unless there is a bona fide effort to enforce a tax fi. fa. by a levy or an attempted levy with entry thereon, and unless the fi. fa., together with such entry or entries, is recorded on the general execution docket of the county of the residence of the defendant in fi. fa. within seven years from the date of the assessment, and unless thereafter there be a new levy or attempted levy with proper entries and recordation within seven years thereof, and subsequently within each seven-year period, such fi. fa. is not merely dormant but is dead, and nothing more can be done to enforce it by the taxing authority. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Loss of lien for failure to intervene in equity. - Former Code 1933, § 37-410 (see now O.C.G.A. § 23-2-97 ), relating to intervention in equity by claimants of assets, provides for circumstances under which all creditors may by inaction lose their rights, including creditors holding executions. It is therefore applicable to tax executions. Suttles v. J.B. Withers Cigar Co., 194 Ga. 617 , 22 S.E.2d 129 (1942), overruled on other grounds, Johnson v. Mayor of City of Carrollton, 249 Ga. 173 , 288 S.E.2d 565 (1982) (holding service by publication on known claimants whose whereabouts are known unconstitutional).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, §§ 69, 85 et seq.

48-3-23. Nulla bona; tolling of statute of limitations.

Reserved. Repealed by Ga. L. 2017, p. 723, § 6/HB 337, effective January 1, 2018.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

This Code section was based on Ga. L. 1957, p. 619, § 10; Code 1933, § 91A-322, enacted by Ga. L. 1978, p. 309, § 2.

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 484.

C.J.S. - 33 C.J.S., Executions, § 88.

ALR. - Applicability of general statute of limitations to real-estate tax lien foreclosure action, 59 A.L.R.2d 1144.

48-3-23.1. Authorization for commissioner to develop standards which will provide a mechanism to discharge debts or obligations barred by the statute of limitations.

In order to preserve public funds and to limit efforts to collect debts or obligations barred by the statute of limitations, the commissioner is authorized to develop appropriate standards that comply with the policies prescribed by the state accounting officer which will provide a mechanism to administratively discharge any debt or obligation in favor of the department when the collection of any obligation or charge, regardless of amount, is barred by the applicable statute of limitations. Certificates identifying such uncollectable accounts shall be forwarded to the state accounting officer in a manner and at such times as are reflected in the standards developed by the state accounting officer and the department.

(Code 1981, § 48-3-23.1 , enacted by Ga. L. 1997, p. 734, § 4; Ga. L. 2005, p. 694, § 40/HB 293.)

48-3-24. Interposition of claims; oath; bond; trial.

When any execution is issued against a tax collector, tax commissioner, or taxpayer for taxes due the state or a county of the state and the sheriff or other officer levies the execution on property claimed by a person not a party to the execution, the claimant shall make the same oath as required in other claim cases and give bond and security for the amounts claimed in the execution plus costs. The same proceedings shall be had on the claim as are provided for the trial of the right of property, except that the trial shall be held in the county in which the levy was made. If the property is found to be subject to the execution, the liability of the claimant and his sureties shall be in all respects the same as the liability on an appeal bond.

(Laws 1810, Cobb's 1851 Digest, p. 1056; Laws 1840, Cobb's 1851 Digest, p. 1072; Code 1863, §§ 818, 3657; Code 1868, §§ 898, 3682; Code 1873, §§ 896, 3732; Code 1882, §§ 896, 3732; Civil Code 1895, §§ 899, 900; Civil Code 1910, §§ 1159, 1160; Code 1933, § 92-7801; Code 1933, § 91A-328, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

For discussion of distinction between claims under ordinary judgments and under tax fi. fa., see Lingo v. Harris, 73 Ga. 28 (1884).

What claimant may contest. - Claimant may set up invalidity of the fi. fa. on the trial of the claim case. Claimant may also contest the validity of a levy on the contention that it is an arbitrary and unreasonable division. Harris Orchard Co. v. Tharpe, 177 Ga. 547 , 170 S.E. 811 (1933).

Filing claims to property levied on under city tax execution. - No provision for filing a claim to property levied on under a city tax execution is contained in this statute, and before such a claim can be recognized, provision therefor must have been made in the charter of the municipality concerned. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

Claim under this statute is not available when the property is subject to the fi. fa. levied thereon. Jordan v. Baggett, 37 Ga. App. 537 , 140 S.E. 902 (1927).

Right of claimant to proceed in equity. - When the petitioner has an adequate and complete remedy at law by filing of a claim in the event of an attempted sale of the property, the petitioner is not entitled to an injunction. Racine Iron Co. v. McCommons, 111 Ga. 536 , 36 S.E. 866 , 51 L.R.A. 134 (1900); Herrington v. Ashford, 157 Ga. 810 , 122 S.E. 197 (1924); Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

Statute makes no provision for filing of a claim in a case of a levy of a city tax execution; it refers exclusively to state and county taxes. Therefore, in a suit to enjoin enforcement of a tax execution issued by a city and levied upon property in which the plaintiff, not the defendant in fi. fa., alleged an interest, the plaintiff did not have an adequate remedy at law, and the petition stated a cause of action. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

When the petition alleges that the petitioner did not know of the tax sale until several months thereafter, and had been repeatedly advised by the defendant in execution that the taxes had been paid, there is sufficient reason for failure of the petitioner to pursue its remedy at law under this statute. Therefore, the petitioner can seek relief in equity. Bibb County v. Elkan, 184 Ga. 520 , 192 S.E. 7 (1937).

No claims in forma pauperis. - Claim cannot be interposed in forma pauperis to property levied on under a tax execution issued by a municipal corporation. Such claims must be made under the provisions of former Civil Code 1882, § 896 (see now O.C.G.A § 48-3-24 ), and did not fall within former Code 1882, § 3733 (see now O.C.G.A. § 9-13-92 ). Lingo v. Harris, 73 Ga. 28 (1884).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, §§ 60, 328 et seq. 85 C.J.S., Taxation, §§ 1144, 1145, 1164.

48-3-25. Remittance of money collected on process.

When an officer collects money on process issued pursuant to this chapter or on any other process issued by the commissioner, the officer shall immediately remit the money to the commissioner by some safe and speedy method. Upon failure to do so, the officer shall be liable as he would be to other plaintiffs in execution.

(Orig. Code 1863, § 808; Code 1868, § 887; Code 1873, § 884; Code 1882, § 884; Civil Code 1895, § 882; Civil Code 1910, § 1139; Code 1933, § 92-7308; Code 1933, § 91A-306, enacted by Ga. L. 1978, p. 309, § 2.)

48-3-26. Judicial interference in tax levies.

No action seeking replevin shall lie nor shall any judicial interference be had in any levy or execution for taxes under this title. The injured party, however, shall be left to his proper remedy in any court having jurisdiction.

(Laws 1804, Cobb's 1851 Digest, p. 1051; Code 1863, § 5115; Code 1868, § 3618; Code 1873, § 3668; Code 1882, § 3668; Civil Code 1895, § 903; Civil Code 1910, § 1163; Code 1933, § 92-7901; Code 1933, § 91A-329, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Statute states the general rule, to which there are some exceptions: (a) an unconstitutional exaction, because what is then called a tax is no tax; (b) when the law does not impose the tax or authorize the execution, for the same reason; (c) when the defendants do not occupy the official positions alleged in the executions; and (d) when execution issued for taxes which had been properly returned and taxes paid. There are doubtless other exceptions. Mayo v. Renfroe, 66 Ga. 408 (1881); Harris Orchard Co. v. Tharpe, 177 Ga. 547 , 170 S.E. 811 (1933).

While the rule enunciated in this statute is subject to a number of exceptions in equity, these exceptions are exceptions only to the rule stated, and are not exceptions to general equitable principles and maxims. Whiddon v. State Revenue Comm'n, 184 Ga. 453 , 191 S.E. 438 (1937).

Prohibition applies only to taxes properly laid, and not to taxes laid without authority of law. Vanover v. Davis, 27 Ga. 354 (1859).

Duty of courts to stop unconstitutional tax collection proceedings. - When any ministerial officer of the state is attempting to collect money out of a person, natural or artificial, under the forms of law, but without any constitutional law to authorize the process the officer uses and calls an execution for taxes, it is the duty of the courts, on a proper case made, to arrest the proceeding in some of the modes known to the law, and to afford relief to the party complaining. Wright v. Southwestern R.R., 64 Ga. 783 (1880).

Rule not applied in favor of tax collector seeking reimbursement from taxpayers. - Tax collector who has settled the collector's tax digest with the state and county may use the executions the collector has issued against delinquent taxpayers to reimburse the collector by collecting from the taxpayers their unpaid taxes, but the collector is not entitled to the immunity from judicial interference which the law provides for the state, and the collector can only collect such tax as is legally due. State ex rel. Gilbert, 51 Ga. 252 (1874).

Fact that tax proceeds are appropriated to a specific object or purpose does not authorize judicial interference. Yancey v. New Manchester Mfg. Co., 33 Ga. 622 (1863).

No interference on account of informalities or irregularities in collection. - When there is a valid law imposing tax for the state there will be no judicial interference in the collection on account of informalities or irregularities in the return or assessment. Decker v. McGowan, 59 Ga. 805 (1877); Georgia Mut. Loan Ass'n v. McGowan, 59 Ga. 811 (1877); Burke v. Speer, 59 Ga. 353 (1877).

Execution issued by the tax collector in due form cannot be properly resisted by interposing an affidavit of illegality. Georgia Trading Co. v. Marion County, 114 Ga. 397 , 40 S.E. 250 (1901).

Writ of prohibition does not lie against a tax collector who is alleged to be proceeding to levy an illegal tax. The parties complaining must pay the tax, and then pursue their remedy against the tax collector as an individual. J.A. & W.H. Cody v. Lennard, 45 Ga. 85 (1872).

Mandamus will not lie as a remedy to compel a sheriff to accept an affidavit of illegality filed to an execution issued by the comptroller general (now commissioner) against a tax collector in default and the collector's bondsmen for the reason that the sheriff must make the sheriff's return to court under this statute and the comptroller-general (now commissioner) is not a court. Webb v. Newsom, 138 Ga. 342 , 75 S.E. 106 (1912).

Availability of injunctive relief. - General rule is that no injunction will lie to interfere with collection of taxes. Before enjoining taxation, the law and the facts must be such as to clearly require such action. Candler v. Gilbert, 180 Ga. 679 , 180 S.E. 723 (1935); Kent v. Murphey, 207 Ga. 707 , 64 S.E.2d 49 (1951).

In a suit to enjoin enforcement of a tax execution issued by a city and levied upon property in which the plaintiff, not the defendant in fi. fa., alleged an interest, the plaintiff did not have an adequate remedy at law, and the petition stated a cause of action. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

General rule is that no injunction will lie to interfere with the collection of taxes. Derrick v. Campbell, 219 Ga. 795 , 136 S.E.2d 381 (1964).

Injunction against excessive levy. - Injunction, when properly invoked, is an available remedy to restrain the collection of an unlawful exaction in the form of a tax based upon an excessive levy, and one need not await the levy of a tax execution before seeking such relief, and need not pay or tender any part of a tax under a levy wholly void. Williams v. Hutchins, 212 Ga. 594 , 94 S.E.2d 412 (1956).

Powers of court of equity as to tax collection. - Statute means that court of equity will not interfere with tax officials leaving injured party to the party's statutory remedies, such as claim and illegality. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

Power to levy and collect taxes is exclusively a legislative function, and unless authorized by statute, a court of equity is without the power to foreclose a lien for taxes and order a sale of the property. No such power having been conferred by statute on a court of equity in this state, the court erred in decreeing that land be sold by the sheriff for the payment of state and county taxes. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

Injunction against tax sale. - When the petitioner has an adequate and complete remedy at law by the filing of a claim in the event of an attempted sale of the property, the petitioner is not entitled to an injunction. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

When purported tax fi. fa. is of an origin unauthorized by law, the taxpayer is entitled to an injunction to prevent sale of property. Vincent v. Poole, 181 Ga. 718 , 184 S.E. 269 (1936).

Statute does not apply to municipal taxes. Elder v. Atlanta-Southern Dental College, 183 Ga. 634 , 189 S.E. 254 (1936).

Judicial interference with collection of taxes. - While judicial interference with collection of state taxes is prohibited, there is no prohibition against judicial interference with collection of municipal taxes. Dodson Printers' Supply Co. v. Upham, 179 Ga. 353 , 175 S.E. 920 (1934).

When purposes for which taxes are levied seem lawful, and the general system of taxation and the amount of money to be raised thereby appear proper in view of the city's obligations, the courts should be slow to stop the wheels of municipal government, and throw the municipality's affairs into anarchy. Kent v. Murphey, 207 Ga. 707 , 64 S.E.2d 49 (1951).

Payment of taxes as prerequisite to granting judicial relief. - One seeking relief from excessive tax levies, but admitting either expressly or by necessary implication that one owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought. Derrick v. Campbell, 219 Ga. 795 , 136 S.E.2d 381 (1964).

Defense against execution issued for taxes collected but not accounted for. - An execution issued by the comptroller general (now commissioner) against a tax collector and the collector's sureties, for money alleged in the execution to have been collected by the tax collector and not accounted for, cannot be arrested by an affidavit of illegality. Perkins v. State, 101 Ga. 291 , 28 S.E. 840 (1897).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1204 et seq.

48-3-27. Obstructing levying officers; penalty.

  1. It is unlawful for any person knowingly and willfully to obstruct or hinder:
    1. The commissioner or his or her authorized representatives in the levy of a state tax execution; or
    2. Any sheriff, ex officio sheriff, tax commissioner, or municipal levy officer in the levy of a state, county, or municipal tax execution.
  2. Any person who violates this Code section shall be guilty of a misdemeanor.

    (Code 1933, § 91A-9905.1, enacted by Ga. L. 1981, p. 1857, § 45; Ga. L. 2015, p. 1219, § 6/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of subsection (a) for the former provisions, which read: "It is unlawful for any person knowingly and willfully to obstruct or hinder the commissioner or his authorized representatives in the levy of a state tax execution."

48-3-28. Release of state tax execution upon full satisfaction.

The department shall file a release of any state tax execution as soon as reasonably possible after a tax execution has been fully satisfied. All such releases shall be filed in all offices of the clerks of superior court where the executions were originally filed.

(Code 1981, § 48-3-28 , enacted by Ga. L. 1983, p. 1834, § 8; Ga. L. 2017, p. 723, § 7/HB 337; Ga. L. 2018, p. 1, § 3/HB 661.)

The 2017 amendment, effective January 1, 2018, in this Code section, substituted "lien docket in the office of the clerk of superior court" for "execution docket" near the beginning, and added ", except as otherwise provided in this chapter" at the end.

The 2018 amendment, effective February 20, 2018, substituted the present provisions of this Code section for the former provisions, which read: "An entry of satisfaction shall be made on the lien docket in the office of the clerk of superior court as soon as reasonably possible after a tax execution has been fully satisfied, except as otherwise provided in this chapter."

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

48-3-29. Publication of information regarding executions; withdrawal.

Repealed by Ga. L. 2017, p. 723, § 8/HB 337, effective January 1, 2018.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

This Code section was based on Ga. L. 2003, p. 442, § 1.

Ga. L. 2018, p. 1112, § 48(1)/SB 365, part of an Act to revise, modernize, and correct the Code, repealed the reservation of this Code section, effective May 8, 2018.

ARTICLE 2 UNIFORM SYSTEM FOR FILING STATE TAX EXECUTIONS

Effective date. - This article became effective January 1, 2018.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Ga. L. 2017, p. 723, § 9/HB 337, which amended this chapter, purported to amend this title but actually amended the chapter.

48-3-40. Purpose; application; definitions.

  1. The purpose of this article is to provide a uniform state-wide system for filing notices of state tax executions issued by the commissioner that are in favor of or enforced by the department.
  2. This article shall only be applicable to state tax executions and to the liens of state tax executions as against real and personal property which arise pursuant to Code Section 48-2-56 for tax liabilities administered by the department.
  3. As used in this article, the term:
    1. "Authority" means the Georgia Superior Court Clerks' Cooperative Authority.
    2. "Delinquent taxpayer" means a person owing an unpaid tax liability for which an execution has been filed by the department, unless such execution is released, withdrawn, or expired.
    3. "Execution" means either a state tax execution or a renewed state tax execution, as applicable.
    4. "Last known address of the delinquent taxpayer" means the address of the delinquent taxpayer appearing on the records of the department at the time the state tax execution is filed with the superior court clerk.
    5. "Renewed state tax execution" means any tax execution properly filed by the department prior to January 1, 2018, that is refiled upon implementation of this article.
    6. "State tax execution" means any execution issued by the department for the collection of any tax, fee, license, penalty, interest, or collection costs due the state. (Code 1981, § 48-3-40 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, substituted "means" for "shall mean" in paragraphs (c)(1) and (c)(3); deleted former paragraph (c)(2), which read: " 'Certificate of clearance' shall mean a document issued by the department affirming that a proper search has been conducted by the department and has yielded no active liens associated with an individual or entity."; redesignated former paragraph (c)(3) as present paragraph (c)(2); substituted the present provisions of paragraph (c)(2) for the former provisions, which read: " 'Delinquent taxpayer' means a person owing an unpaid tax liability that is collectable by the department."; redesignated former paragraphs (c)(4) through (c)(7) as present paragraphs (c)(3) through (c)(6), respectively; deleted former paragraph (c)(8), which read: " 'URPERA' shall mean the Uniform Real Property Electronic Recording Act found at Code Section 44-2-35, et seq."; and deleted former paragraph (c)(9), which read: " 'URPERA rules' shall mean the rules adopted by the Georgia Superior Court Clerks' Cooperative Authority pursuant to the Uniform Real Property Electronic Recording Act."

48-3-41. When executions issue.

The department may issue an execution for the collection of any tax, fee, license, penalty, interest, or collection costs due the state once a lien has arisen pursuant to Code Section 48-2-56.

(Code 1981, § 48-3-41 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, deleted the former second sentence, which read: "An execution shall be a lien in favor of the department upon all property and right to property, whether real or personal, within the State of Georgia, belonging to the delinquent taxpayer named on the execution."

48-3-42. Filing; effective dates; electronic filings; continuing effectiveness.

  1. On or after January 1, 2018, the execution shall be effective as provided by law when such execution is filed by the department with the appropriate superior court clerk.
  2. All executions or writs of fieri facias issued by the department filed or recorded on the general execution docket or lien docket of any county shall be invalid as of December 31, 2017. Any such execution or writs of fieri facias which the department does not show as satisfied, issued in error, or otherwise withdrawn and which was last recorded or rerecorded on the general execution docket within seven years before January 1, 2018, may be renewed for a period of ten years upon the department's filing a renewed state tax execution with the clerk of superior court between January 1, 2018, and February 20, 2018. For priority purposes, a filed renewed state tax execution shall retain its original date of filing. All renewed state tax execution documents shall reflect the original date of filing.
  3. On or after January 1, 2018, any execution and any related releases, cancellations, or other documents submitted by the department for filing with the clerk of superior court shall be submitted for filing electronically.
  4. An execution filed or renewed after January 1, 2018, pursuant to this Code section shall be a lien against and attach to all existing and after-acquired property of the delinquent taxpayer, both real and personal, tangible and intangible, with the same force and effect as any recorded judgment on the lien docket of the superior court clerk.
  5. An execution electronically transmitted to the authority pursuant to this Code section shall be deemed filed and perfected upon its receipt by the authority for transmission to the applicable clerk of superior court. The authority shall provide to the department confirmation of receipt of an execution. Absent evidence of such confirmation there shall be no presumption of filing. Executions filed shall have priority as provided by law.
  6. The lien of an execution filed pursuant to this Code section shall continue in effect until released or withdrawn by the department or until the execution has expired.
  7. The department shall file an execution within five years of the date of a final assessment. An execution filed or renewed after January 1, 2018, shall expire ten years from the date of filing and shall not be subject to renewal by nulla bona or otherwise. The periods of limitation set forth in this subsection shall be tolled and suspended for:
    1. The duration of an installment agreement between the taxpayer and the commissioner for any tax liabilities contained within an execution plus an additional 90 days;
    2. If a timely proceeding in court for the imposition or collection of a tax is commenced, the duration of the period until the liability for the tax or a judgment against the taxpayer arising from such liability is satisfied or becomes unenforceable;
    3. The duration of any enforcement action to collect the liability contained within an execution initiated prior to the expiration of the period of limitations and released after such period of limitations;
    4. In a case under Title 11 of the United States Code, the running of the period of limitations provided in this Code section shall be suspended and tolled for the period during which the commissioner is prohibited from collecting any tax liability and six months thereafter; or
    5. The period during which a taxpayer's offer-in-compromise is under consideration by the commissioner.
  8. All executions filed by the department on or after February 20, 2018, shall only attach to real property in the county in which the execution has been filed. After February 20, 2018, no execution previously filed by the department shall be considered to have state-wide attachment to all real property within the state and shall only attach to real property in the county in which the execution has been filed. (Code 1981, § 48-3-42 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, in subsection (b), substituted "between" for "on or after" and added ", and the effective date of this Act" in the second sentence and deleted "on the general execution docket or lien docket" at the end of the third sentence; inserted "or renewed" in subsection (d) and in the second sentence of subsection (g); deleted "located in any county and in all counties within the State of Georgia," following "tangible and intangible," in subsection (d); inserted "or withdrawn" in subsection (f); in the introductory paragraph of subsection (g), added the first sentence, added "by nulla bona or otherwise" at the end of the second sentence, and substituted "The periods of limitation set forth in this subsection" for "Said expiration period" at the beginning of the third sentence; and added subsection (h).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2018, "February 20, 2018" was substituted for "the effective date of this Act" at the end of the second sentence in subsection (b) and near the beginning of the second sentence of subsection (h) and "February 20, 2018," was substituted for "the effective date of this Act" in the middle of the first sentence of subsection (h).

48-3-43. Availability of information via electronic means; public records; unlawful use of data; regulatory authority.

  1. The department shall maintain information on executions in its information management system in a form that permits information related to executions to be readily accessible in an electronic form via the Internet and available to the public. The following shall be available within such system at no charge to the public:
    1. Search by delinquent taxpayer name, execution number, last four digits of the taxpayer's social security number, or, when applicable, federal employee identification number;
    2. Search by identification number assigned to the execution by the department;
    3. The basis for an execution, including, but not limited to, the amount of the taxes, penalties, interest, and fees owed, and the tax periods and relevant assessment dates of the taxes owed;
    4. The place, date, and time of the filing of the execution;
    5. The status of the execution as defined in subsection (b) of this Code section;
    6. The present balance of the execution;
    7. Provision of official electronic copies of an execution; and
    8. Notwithstanding Code Sections 48-2-15 and 48-7-60, provision and issuance of official payoff information as to any execution.
  2. An execution shall hold one of the following official statuses on the department information system and such status shall be available, except as provided below, and on the electronic printable forms of state tax executions:
    1. Active - The execution is perfected and enforceable;
    2. Withdrawn - The execution was issued in error and is not enforceable. Within two business days from the date the department discovers an error in the filing of an execution, it shall change the status of the execution to withdrawn. Such execution shall be treated as though it was never filed;
    3. Released - The execution has been released and is no longer enforceable. Within 15 business days from the department's receipt of payment in full of an execution, the department shall change the status of the execution to released. The department may release an unpaid execution that the department determines is not legally or practically collectable;
    4. Refiled - If an execution is released in error, the department may file a new execution for any outstanding, finally determined tax liability to bear an active status as of the date of the new recording; and
    5. Expired - The execution has expired pursuant to Code Section 48-3-42 and is unenforceable.
  3. The department shall provide to the authority such electronic linking data elements as may be required by the authority to link filed executions found in the authority's state-wide uniform automated information system for real and personal property records to the matching data related to the execution in the department's information management system.
  4. The department's information management system as provided for in this Code section shall constitute a public record and the department shall redact information in accordance with Code Section 9-11-7.1.
  5. The department's information management system as provided for in this Code section shall not be used for survey, marketing, or solicitation purposes. Survey, marketing, or solicitation purposes shall not include any action by the department or its authorized agents to collect a debt on an execution. The Attorney General is hereby authorized to bring an action at law or in equity to address the unlawful use of such information for a survey, marketing, or solicitation purpose and to recover the costs of such action, including reasonable attorney's fees.
  6. The commissioner may adopt reasonable rules and regulations providing for the maintenance, reliability, accessibility, and use of the department's information management system. Such rules and regulations may address, among other matters, the authenticity of the electronic printable executions and issues related to periods during which the information system may be unavailable for use due to routine maintenance or other activities. (Code 1981, § 48-3-43 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, added "and" at the end of paragraph (a)(7); deleted former paragraph (a)(8), which read: "Provision and issuance of official statements of lien pursuant to Code Section 44-1-18;"; deleted former paragraph (a)(9), which read: "Provision and issuance of official certificates of clearance pursuant to Code Section 44-1-18;"; deleted former paragraph (a)(10), which read: "Search by identification number assigned to certificates of clearance; and"; redesignated former paragraph (a)(11) as present paragraph (a)(8) and rewrote present paragraph (a)(8); and deleted "or canceled" following "released" in the first sentence of paragraph (b)(3).

Cross references. - Revision of automated information system for state tax execution data, § 15-6-97.3 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, a semicolon was substituted for a period at the end of paragraph (a)(9).

48-3-44. "Released" executions.

An execution bearing a "Released" status on the department's information management system shall constitute a complete release of the execution by the department and the department shall also timely file the release of the lien in the office of the clerk of superior court where the execution was filed as required by Code Section 48-3-28.

(Code 1981, § 48-3-44 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, deleted the subsection (a) designation, deleted "of" following "department and", inserted "department shall also timely file the release of the", added "as required by Code Section 48-3-28" at the end, and deleted former subsection (b), which read: "A certificate of clearance issued by the department shall be deemed an effective release of an execution. The department shall provide to the delinquent taxpayer, within 30 days of the date of payment, a notice of the release of the execution and shall cause a release of the execution to be filed with the applicable superior court clerk."

CHAPTER 4 TAX SALES

Sales under Tax Executions.

Purchase by Counties.

Redemption of Property Sold for Taxes.

Land Bank Authorities.

Ad Valorem Tax Foreclosures.

Land Banks.

JUDICIAL DECISIONS

Sale under execution in personam against one not true owner is void. - As a general rule, property may not be sold under a tax execution issued in personam against one who has neither title nor possession, and no right to represent the owner; such a sale is void as to the true owner, and does not operate to divest the owner's title. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Effect of void execution sale. - When a municipal assessment execution sale is void, the purchaser obtains no title as against the true owner. Williams v. Aycock, 52 Ga. App. 386 , 183 S.E. 628 (1936), cert. dismissed, 183 Ga. 800 , 189 S.E. 841 (1937).

Owner of property which is subject to void sale has right to maintain action for trespass. - One whose property is sold at a marshal's sale, which is void because based on an excessive levy, holds the legal title to the premises, and can maintain an action for trespass against one committing a trespass against one's title and right to possession. Williams v. Aycock, 52 Ga. App. 386 , 183 S.E. 628 (1936), cert. dismissed, 183 Ga. 800 , 189 S.E. 841 (1937).

Execution in personam against decedent long after death does not divest true owner of title. - When tax execution under which one claims title is not in rem against specific property, but is in personam against deceased former owner, to enforce collection of taxes assessed long after death, the sale does not divest the title of the true owners. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Land may be advertised in names of heirs even if returned in name of decedent's executor. - When land is returned for taxes in the individual name of the person who is the executor, and the executions were issued against the person as an individual, when the returns are in fact made by such person as the agent of the heirs and devisees of the decedent who owned the land, it is not illegal for the property to be advertised for sale as belonging to the heirs of the decedent, and for the deed so to recite. Quarterman v. Perry, 190 Ga. 275 , 9 S.E.2d 61 (1940).

Levy on transferee void if original owner's remaining property sufficient to satisfy execution. - If one purchases about two-thirds of certain land, subject to paving assessment, and execution is levied on the entire lot, including the purchaser's property, the levy being grossly excessive, since the property remaining in the original owner was more than sufficient to satisfy the execution, the marshal's sale of premises so levied on is void and passes no title to the purchaser. Williams v. Aycock, 52 Ga. App. 386 , 183 S.E. 628 (1936), cert. dismissed, 183 Ga. 800 , 189 S.E. 841 (1937).

High bidder not entitled to mandamus to compel execution of deed if bid not accepted. - Party who makes a bid at a marshal's sale of property advertised for sale under a tax fieri facias is not entitled to mandamus to compel the execution of a deed to the plaintiff, when it does not appear that the bid was accepted, even though there was no higher bid made at the sale as a bid is a mere offer until accepted, and until the property is knocked down to the bidder there is no completed contract. Elder v. Bonded Mtg. Corp., 180 Ga. 607 , 180 S.E. 134 (1935).

RESEARCH REFERENCES

ALR. - Tax title as affected by fact that tax had been paid before sale, 26 A.L.R. 622 .

Tax deed and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 30 A.L.R. 8 ; 88 A.L.R. 264 .

Holder of invalid tax title as within occupying claimant's act, 44 A.L.R. 479 .

Assessment for local improvements as taxes within statute providing for payment of taxes out of proceeds of judicial sale, 73 A.L.R. 1227 .

Quantum of estate acquired by purchaser at tax sale of property which is subject to successive estates or different interests, 75 A.L.R. 416 .

Right of holder of tax title or certificate of sale to reimbursement by taxing authorities where sale proves invalid, 77 A.L.R. 824 ; 116 A.L.R. 1408 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs as affecting its validity, 97 A.L.R. 842 ; 147 A.L.R. 1141 .

Rights and remedies of purchaser at tax sale as affected by delay in payment of bid, 104 A.L.R. 823 .

Statutory enactment or repeal subsequent to tax sale or issuance of tax certificates as affecting rights of holders of tax certificates or purchasers at tax sale, 111 A.L.R. 237 .

What informalities, irregularities, or defects in respect to the execution of a tax deed prevent the running of the statute of limitations or period of adverse possession, 113 A.L.R. 1343 .

Right of holder of tax title or certificate of sale to reimbursement by taxing authorities where tax sale proves invalid, 116 A.L.R. 1408 .

Effect of failure to make report, return, or record of tax sale within time prescribed by statute, 117 A.L.R. 726 .

Right of holder of bond or other instrument representing or based upon assessment for benefits or improvement, to purchase at tax sale, or acquire tax title and hold same in his own right as against owner of land, 123 A.L.R. 398 .

Constitutionality, construction, and application of statute giving former owner right to purchase tax-acquired property while in public ownership, 126 A.L.R. 649 .

Measure of recovery for improvements made by purchaser of invalid tax title, 129 A.L.R. 1354 .

Lien for tax imposed by one taxing unit as affected by lien or sale for tax imposed by another taxing unit of same state, 135 A.L.R. 1464 .

Right of mortgagee or other lienor to acquire and hold tax title in his own right as against persons owning other interests in or liens upon property, 140 A.L.R. 294 .

Personal liability of tax official or his bond to purchaser at tax sale, 149 A.L.R. 220 .

Discretion of court to refuse confirmation of, or to set aside, tax sale, where all proceedings are in compliance with statutory requirements, 152 A.L.R. 887 .

Acquisition by state or other governmental body of title to land, otherwise than at tax sale, as affecting prior tax lien on land, or validity of sale for such taxes, 158 A.L.R. 563 .

Respective rights and estates of persons claiming real property through sales from different agencies to enforce taxes or assessments, as between which there is parity of lien, 167 A.L.R. 1001 .

Easement or servitude or restrictive covenant as affected by sale for taxes, 168 A.L.R. 529 .

Who are entitled to notice, or are necessary parties, in order to perfect tax title, 169 A.L.R. 686 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Tax sale as freeing property from possibility of further assessments for benefits to land, 11 A.L.R.2d 1133.

Effect of misnomer of landowner or delinquent taxpayer in notice, advertisement, etc., of tax foreclosure or sale, 43 A.L.R.2d 967.

Validity of notice of tax sale or of tax sale proceeding which fails to state tax year or kind or type of taxes covered by tax assessments, 43 A.L.R.2d 988.

Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R.2d 600.

Property owner's liability for unpaid taxes following acquisition of property by another at tax sale, 100 A.L.R.3d 593.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

Doctrine of marshaling assets or sale in inverse order of alienation as applicable to tax sale, 131 A.L.R.4th 79.

Easement, servitude, or covenant as affected by sale for taxes, 7 A.L.R.5th 187.

ARTICLE 1 SALES UNDER TAX EXECUTIONS

48-4-1. Procedures for sales under tax levies and executions.

    1. Except as otherwise provided in this title, when a levy is made upon real or personal property, the property shall be advertised and sold in the same manner as provided for executions and judicial sales. Except as otherwise provided in this title, the sale of real or personal property under a tax execution shall be made in the same manner as provided for judicial sales; provided, however, that in addition to such other notice as may be required by law, in any sale under a tax execution made pursuant to this chapter, the defendant shall be given ten days' written notice of such sale by registered or certified mail or statutory overnight delivery. The notice required by this Code section shall be sent:
      1. In cases of executions issued by a county officer for ad valorem taxes, to the defendant's last known address as listed in the records of the tax commissioner of the county that issued the tax execution;
      2. In cases of executions issued by a municipal officer for ad valorem taxes, to the defendant's last known address as listed in the records of the municipal officer of the municipality that issued the tax execution; or
      3. In cases of executions issued by a state officer, to the defendant's last known address as listed in the records of the department headed by the issuing officer.
    2. A copy of the notice provided for in paragraph (1) of this subsection shall also be sent by the same tax officer sending the notice to the defendant to the appropriate tax official of the state, county, or municipality which also has issued an execution with respect to such property.
    3. A sale for taxes due may be conducted by the tax commissioner or tax collector or his or her duly authorized officer and may be held in the office of the tax commissioner or tax collector or at such other location as may be identified in the notice required by this Code section. Such notice shall also be posted in a conspicuous location in the appropriate courthouse.
  1. If two or more executions have been levied against a defendant, or if two or more in rem executions have been levied against the same unreturned property, such executions may be aggregated and a single sale may be conducted for the total amount due as in the case of a single execution, and the 12 month period of redemption provided by Code Section 48-4-40 shall commence as to all such executions on the date of such sale, provided that at least one of the executions meets the provisions of this Code section.
  2. In advertisements for sales under tax executions, the property being sold may alternatively be described by tax parcel identification number and current street address, if any, together with a reference to the recording information for any deed conveying title to such property, without the necessity of using a full and complete description of the property.

    (Orig. Code 1863, §§ 811, 813; Code 1868, §§ 891, 893; Code 1873, §§ 888, 890; Ga. L. 1876, p. 30, § 1; Code 1882, §§ 888, 890; Civil Code 1895, §§ 905, 907; Civil Code 1910, §§ 1165, 1167; Code 1933, §§ 92-8101, 92-8102; Code 1933, § 91A-401, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 884, § 3-34; Ga. L. 1985, p. 1243, § 4; Ga. L. 1988, p. 1957, § 1; Ga. L. 1990, p. 1875, § 2; Ga. L. 2000, p. 1408, § 2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 1481, § 2; Ga. L. 2006, p. 770, § 4/SB 585; Ga. L. 2019, p. 271, § 1/SB 216; Ga. L. 2020, p. 493, § 48/SB 429.)

The 2019 amendment, effective July 1, 2019, added paragraph (a)(3).

The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, deleted "or" following "his or her" in the first sentence of paragraph (a)(3).

Cross references. - Judicial sales generally, § 9-13-140 et seq.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

Law reviews. - For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016).

JUDICIAL DECISIONS

Sales to which section applicable. - Statute applies as well to sales made under execution issued by the comptroller general (now commissioner) as to sales made under execution issued by the tax collector of any county. Bedgood & Royal v. McLain, 89 Ga. 793 , 15 S.E. 670 (1892).

Statute does not apply to sales by the marshal of a town or city. Ansley v. Wilson, 50 Ga. 418 (1873).

Sales under executions for municipal taxes must strictly comply with requirements. - Prior to the adoption of the Code, the utmost particularity was required in respect to sales under executions for taxes, and the law had to be complied with in every respect. Such still is the case as to sales under executions for municipal taxes. Byars v. Curry, 75 Ga. 515 (1885).

Standing to attack tax sale. - Holder of title to property who had been given notice of the tax sale and the opportunity to pay the tax and avoid the tax sale could not attack the sale on the ground of lack of notice to another party. GE Capital Mtg. Servs. Inc. v. Clack, 271 Ga. 82 , 515 S.E.2d 619 (1999).

Sales of realty under tax fieri facias and judgment may not be combined. - Real estate when sold under a tax fieri facias being redeemable, and when sold under a judgment being irredeemable, there is such incompatibility in these incidents that they cannot combine and both follow from a single sale made by one and the same act, though sufficient authority for making a sale of either class be in the officer's hands. Clower v. Fleming, 81 Ga. 247 , 7 S.E. 278 (1888).

Effect of combined sale of real estate under fieri facias and judgment. - Sale made under such circumstances will not be void, but will assume the characteristics of a tax sale. Clower v. Fleming, 81 Ga. 247 , 7 S.E. 278 (1888).

Officer conducting judicial sale must keep sale open until competent bid is received or until the officer is satisfied that such a bid will not be offered. Upon failure of the purchaser to comply with a high bid, the sheriff does not have the authority to convey the property to the next highest bidder, but may resell the property within legal hours on the same day without readvertisement. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416 , 246 S.E.2d 183 (1978).

Property sold under tax execution should be knocked off to highest bidder; on failure of the highest bidder to comply with the bid, the sheriff has no authority to convey the property to the next highest bidder. Citizens Bank v. Lamar County, 187 Ga. 123 , 200 S.E. 257 (1938).

Effect of "waiver" by highest bidder in favor of next highest bidder. - When land levied on as property of a named person, under tax execution against such person, was offered for sale by the sheriff on the regular sales day and the county was outbid by the bank and it was knocked off to the bank, and when the bank did not on the day of the sale pay the purchase price or receive a deed, but sometime thereafter "waived" the bank's bid in favor of the county in order that the sheriff might make a deed to the county upon the county's bid, which action was also assented to by the defendant in the fieri facias, the transaction did not constitute a judicial sale of the land to the county, and a deed conveying land to the county was void as against the holder of an outstanding security deed executed by the defendant in fieri facias before accrual of taxes. Citizens Bank v. Lamar County, 187 Ga. 123 , 200 S.E. 257 (1938).

When sale deemed complete for purposes of measuring period of redemption. - For purposes of determining the right to redeem land which has been sold at a tax sale, the sale is not to be considered complete until payment of purchase money by bidder. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

When the purchaser at a tax sale was represented at the sale by the county tax collector who, instead of paying the amount of the bid to the sheriff, merely paid the sheriff's costs and the advertising fee and, in an adjustment of the collector's account as a tax collector, settled with the county commissioners by deducting the taxes from credits to which the sheriff was entitled, there was no such payment of the purchase money as to cause the period of redemption to commence. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Right of redemption following bankruptcy. - LLC that purchased a debtor's home at a tax sale held pursuant to O.C.G.A. § 48-4-1 was entitled to an order lifting the stay that was imposed when the debtor declared Chapter 13 bankruptcy so the LLC could foreclose the deed the LLC received; although the debtor had the right under O.C.G.A. § 48-4-40 to redeem title to the home at the time the debtor declared bankruptcy because the time for doing so had not expired under state law, the debtor lost that right when the debtor failed to pay the LLC the amount it spent to purchase the tax deed, and the debtor's attempt to pay that amount in increments through the debtor's plan failed because the home was not property of the debtor's bankruptcy estate under 11 U.S.C.S. § 541. Harvest Assets, LLC v. Edwards (In re Edwards), Bankr. (Bankr. N.D. Ga. Nov. 13, 2014).

Tax sale of property proper. - Trial court properly granted summary judgment to the purchaser of real estate in a quiet title action that involved the taxpayer's home and the taxpayer's failure to pay the property taxes on the property as the property was properly levied upon and no question of fact remained that the sheriff officially seized the property. Further, the affidavits of the civil process coordinator at the time of the tax sale, and the coordinator's successor, were properly admitted into evidence as such affidavits fell within the business records exception to the rule against hearsay. Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008).

In a purchaser's quiet title action against the executor of a testatrix's estate, the trial court did not err in adopting the report of a special master and in decreeing that fee simple title to the land was vested in the purchaser because the purchaser acquired title to the property by virtue of a tax sale and deed, which was conducted in accordance with O.C.G.A. § 48-4-1 et seq.; a title search showed the testatrix's nephew as holding record title to the property, but out of caution, both the nephew and the executor were served with notice of the tax sale, the tax commissioner met with the executor prior to the sale and offered to accept payment for the back taxes, but the executor failed to do so, and the property was sold to the purchaser, with the overage going to the nephew, and the executor did not timely seek to exercise a right of redemption under O.C.G.A. § 48-4-40 . Mann v. Blalock, 286 Ga. 541 , 690 S.E.2d 375 (2010).

Trial court did not err in granting summary judgment to the county as the nuisance abatement statute did not preclude the county from using a nonjudicial tax foreclosure sale, instead of a judicial in rem tax foreclosure sale, to sell the property because: both methods were available for collecting real property ad valorem taxes; judicial in rem tax foreclosure procedures were an alternative to nonjudicial tax foreclosure procedures, rather than a replacement for them; and the nuisance abatement statute did not require the county to use a judicial in rem tax foreclosure sale when collecting on a nuisance abatement lien. Derby Props., LLC v. Watson, 346 Ga. App. 631 , 816 S.E.2d 766 (2018).

Effect of tax sale under an execution issued against one other than property owner. - When an owner fails to return land, there is no provision of law whereby the owner's title can be divested by levy and sale of the property 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).

As a general rule, no property can be sold under a tax execution in personam as the property of the defendant therein, if the defendant has neither title nor possession, nor any right to represent the person who has the property; and a sale under these circumstances would be void as to the true owner. James v. Riley, 181 Ga. 454 , 182 S.E. 604 (1935).

Entitlement to excess funds after tax sale. - Trial court erred by granting summary judgment to the property owner because the trial court erred by holding that the security deed holder lost the holder's right to excess funds that arose from the tax sale as the relevant date under O.C.G.A. § 44-14-80 when considering who was entitled to the excess funds from the tax sale was the tax sale date, not the fund distribution date. Worthwhile Investments, LLC v. Higgins, 337 Ga. App. 183 , 787 S.E.2d 245 (2016).

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) , and 48-4-1 was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and 48-5-137 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).

Cited in Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005); DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 255 et seq. 72 Am. Jur. 2d, State and Local Taxation, § 807.

C.J.S. - 85 C.J.S., Taxation, § 1221 et seq.

ALR. - Doctrine of marshaling assets or sale in inverse order of alienation as applicable to tax sale, 88 A.L.R. 1216 ; 131 A.L.R.4th 79.

Construction, application, and effect of statutory provision requiring seizure and possession of property before sale for delinquent taxes, 105 A.L.R. 635 .

Right of officer conducting sale under execution or distress warrant to refuse to accept best bid because inadequate, 110 A.L.R. 1077 .

What amounts to a sale at retail within tax statutes or ordinances, 139 A.L.R. 372 .

Necessity of consent of court to tax sale of property in custody of court or of receiver or trustee appointed by it, 3 A.L.R.2d 893.

Property owner's liability for unpaid taxes following acquisition of property by another at tax sale, 100 A.L.R.3d 593.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-4-2. Assessment and disposition of unreturned property.

When property which has not actually been returned by anyone is assessed for taxes, the tax collector or tax commissioner shall issue an execution against the property as soon as it is assessed for the amount due and costs. The sheriff shall advertise the property for sale in the newspaper in which sheriff's sales are advertised once a week for four weeks before the day of sale. If the taxes are not paid by the day of the sale, the property shall be sold, but only if renting or hiring the property will not bring the requisite amount. Surplus from a sale after the payment of the taxes and costs shall be paid over to the county governing authority as a part of the educational fund, together with a statement of the property and account of sales, subject to the claim of the true owner within four years.

(Orig. Code 1863, § 819; Code 1868, § 899; Code 1873, § 897; Code 1882, § 897; Civil Code 1895, § 908; Civil Code 1910, § 1168; Code 1933, § 92-8103; Code 1933, § 91A-402, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1984, p. 660, § 1.)

Law reviews. - For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For comment on Bell v. Summerlin, 188 Ga. 648 , 4 S.E.2d 831 (1939), see 2 Ga. B. J. 54 (1940).

JUDICIAL DECISIONS

When section inapplicable. - Statute is, by the statute's express terms, inapplicable to tax sales by a sheriff when the property is returned for taxes by the defendant in execution, and when the fieri facias is not against the specific property levied upon, but against the whole property of the defendant named therein. Lumpkin v. Cureton, 119 Ga. 64 , 45 S.E. 729 (1903).

What execution must show. - When the tax collector seeks to sell land which is unreturned, the execution should not only show that the land has been assessed for taxes, has been unreturned, but that the owner is unknown; for, in order to authorize the issuance of an execution for the collection of taxes in rem, it is necessary to show that the owner thereof is unknown. Leonard v. Pilkinton, 99 Ga. 738 , 27 S.E. 753 (1896).

Effect of misdescription as to state of improvement of land. - As the tax collector, whether unreturned land be wild or improved, has power to issue execution against the land for taxes, it would seem that a sale is not void because of a misdescription of the land as wild when in fact the land was improved. Gardner v. Donaldson, 80 Ga. 71 , 7 S.E. 163 (1887).

No authority to issue execution in rem when owner in possession. - Tax collector has no authority of law to issue a tax execution against land in rem if its owner is in possession thereof at the time when it becomes the officer's duty to make a return for the owner. Norris v. Coley, 100 Ga. 547 , 28 S.E. 222 (1897).

Effect of tax deed obtained under in rem proceedings. - If tax deeds represent in rem assessments, levies, and sales, a purchaser under such deed or deeds acquires a good title as against the whole world. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

When execution against life tenant deemed in rem. - Purchaser at a sale under a tax execution in personam against a life tenant acquires only the life estate but when (a) the life tenant is in possession, (b) the whole property is levied upon, and (c) execution embraces only the taxes upon the specific property, the purchaser acquires title to the fee, and the whole property, including the remainder estate, as well as the life estate, passes. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

Misapplication of surplus. - It may be that the persons having charge of the disbursement of the educational fund might maintain an action against the ordinary (now county governing authority) for a misapplication of the surplus, if not barred. Summers v. Christian, 72 Ga. 193 (1883).

OPINIONS OF THE ATTORNEY GENERAL

Tax executions in rem are issuable only if property is unreturned and owner is unknown. 1972 Op. Att'y Gen. No. U72-80.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1221 et seq.

ALR. - Failure of advertisement in judicial proceeding for sale of land for delinquent taxes or foreclosure of tax lien, to describe lands affected, as contrary to due process of law or other constitutional objection, 107 A.L.R. 285 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs, as affecting its validity, 147 A.L.R. 1141 .

Constitutionality of statutes authorizing tax sale or resale for less than the amount of the taxes due, 155 A.L.R. 1177 .

What constitutes "execution" of tax deed beginning or ending period for redemption from tax sale, 166 A.L.R. 853 .

48-4-3. Duties of levying officers.

The tax collector or tax commissioner may place his executions in the hands of any constable of the county, who shall be authorized to collect or levy the executions in any part of the county. The constable or other levying officer to whom the tax collector or tax commissioner delivers the tax executions for collection shall proceed promptly to enforce by levy and sale the collection of the executions. The levying or collecting officer shall make prompt settlements with the tax collector or tax commissioner and in no event shall be allowed longer than 90 days from the time the executions are placed in his hands within which to make final settlement with the tax collector or tax commissioner and return to the tax collector or tax commissioner the tax collected and the uncollected executions with proper entries on the executions. Any constable or other levying officer who fails or refuses to make a final return or settlement within the time provided in this Code section shall forfeit all costs due him on the executions and shall be subject to be ruled before any court of competent jurisdiction and made to account as required by this Code section.

(Orig. Code 1863, § 812; Code 1868, § 892; Code 1873, § 889; Code 1882, § 889; Civil Code 1895, § 906; Ga. L. 1899, p. 26, § 1; Civil Code 1910, § 1166; Code 1933, § 92-8104; Code 1933, § 91A-403, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Marshal of the municipal court of Columbus has authority to conduct tax sales. Percy Wilson Mtg. & Fin. Corp. v. Sizemore, 167 Ga. App. 211 , 305 S.E.2d 903 (1983).

Constable not treated as officer of a particular court or district. - Constable is not treated as the officer of a particular justice's court or limited to making a levy within the constable's district, but the tax collector may place the fieri facias in the hands of any one constable of the county, who shall be authorized to collect or levy the same in any part of the county. Winn v. Butts, 127 Ga. 385 , 56 S.E. 406 (1907).

Order in which parcels of realty levied on. - Before levy upon property in a house and lot, indivisible, and of great value, to pay city taxes, the marshal of the city should exhaust smaller and less valuable parcels assessed by the city at more than enough to pay double the tax fieri facias levied. But if the sale be postponed at the instance of, and assented to by, the defendant in fieri facias the defendant cannot attack the levy as excessive. Jones v. Johnson, 60 Ga. 260 (1878).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 620, 621, 769 et seq.

ALR. - Payment of tax or redemption from tax sale by public officer for benefit of owner, 66 A.L.R. 1035 .

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

48-4-4. Purchase by one obligated to pay.

One who is obligated to pay a tax on property cannot strengthen his title by purchasing the property at a tax sale. Each such purchase shall be treated as payment for the tax due.

(Civil Code 1895, § 904; Civil Code 1910, § 1164; Code 1933, § 92-8105; Code 1933, § 91A-404, enacted by Ga. L. 1978, p. 309, § 2.)

History of section. - This Code section is derived from the decision in Burns v. Lewis, 86 Ga. 591 , 13 S.E. 123 (1891).

JUDICIAL DECISIONS

Effect of purchase or redemption by person liable for taxes. - One who is bound to pay the tax on property cannot strengthen one's title by purchasing at a tax sale; such purchase shall be treated as payment of the tax due. The same rule applies when, after a sale for taxes, the property is redeemed by the person liable therefor. Holliday v. Guill, 196 Ga. 723 , 27 S.E.2d 398 (1943).

Purchase by heir at law deemed purchase by one obligated for tax. - As between the plaintiff in execution and the administrator, it is the duty of the administrator to pay the taxes during the course of administration; but the title to the realty having vested in the heirs at law subject only to administration for the payment of debts and distribution, such duty as to payment of taxes extends, at least morally or equitably, to the heirs at law, since the administrator is a mere trustee holding the land for their benefit. Therefore, the claimant, as an heir at law, cannot strengthen the claimant's title against the plaintiff in execution by purchasing the property at a tax sale; nor can the claimant do so indirectly by purchasing from another who had purchased at such a sale. This is true even though the claimant purchases from the other person after the period of redemption has expired. Veal v. Veal, 192 Ga. 503 , 15 S.E.2d 725 (1941).

Statute inapplicable when taxpayer purchases from sale purchaser or transferee. - Statute inapplicable when the purchaser at the tax sale conveys the property to another, although the latter buys the property for the use of the taxpayer, to whom the purchaser agrees to convey it upon the payment to the purchaser by the taxpayer of the amount which the purchaser is out upon the purchase, when such amount has not been paid. Miller v. Jennings, 168 Ga. 101 , 147 S.E. 32 (1929).

Effect of conspiracy intended to defeat outstanding security interest. - When one other than the owner of realty sold for taxes holds an option to acquire from the purchaser at a tax sale the tax title thereto for the benefit of the owner, as per a conspiracy to defeat an outstanding security deed, after the legal period for redemption from such tax sale has expired, the holder of the outstanding security deed to such realty, who by grace of the holder of the tax title is accorded the privilege of redeeming the realty from the tax sale, is entitled to relief in a court of equity. Horton v. Johnson, 192 Ga. 338 , 15 S.E.2d 605 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 842.

C.J.S. - 33 C.J.S., Executions, §§ 346, 347. 85 C.J.S., Taxation, § 1293.

ALR. - Right of delinquent taxpayer or other person having an original interest in the property to purchase at, or acquire and hold, as against taxing unit, title derived from or through, tax sale, 136 A.L.R. 1145 .

48-4-5. Payment of excess.

  1. If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. Such notice shall be sent by first-class mail within 30 days after the tax sale. The notice shall contain a description of the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds collected and held by the tax commissioner, tax collector, sheriff, or other officer. The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exist.
  2. The tax commissioner, tax collector, sheriff, or other officer may file, when deemed necessary, an interpleader action in superior court for the payment of the amount of such excess funds. Such excess funds shall be distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist. The cost of litigation of such an interpleader action, including reasonable attorney's fees, shall be paid from the excess funds upon order of the court.
  3. After five years have elapsed from the tax sale date, the tax commissioner, tax collector, sheriff, or other officer holding excess funds shall pay over to the department any excess unclaimed funds and for which no action or proceeding is pending in a claim for payment. Once excess funds are placed in the possession of the department, only a court order from an interpleader action filed in the county where the tax sale occurred, by the claimant for the funds, shall serve as justification for release of the funds.

    (Orig. Code 1863, § 814; Code 1868, § 894; Code 1873, § 892; Code 1882, § 892; Civil Code 1895, § 912; Civil Code 1910, § 1175; Code 1933, § 92-8106; Code 1933, § 91A-405, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2002, p. 1481, § 3; Ga. L. 2006, p. 770, § 5/SB 585; Ga. L. 2010, p. 878, § 48/HB 1387.)

Editor's notes. - Ga. L. 2006, p. 770, § 8, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

Law reviews. - For annual survey on real property, see 65 Mercer L. Rev. 233 (2013).

JUDICIAL DECISIONS

Standing. - Bank did not lack standing to participate in the interpleader action and to move for contempt against the redeeming creditor because the bank, as the grantee of the security deed, had an ownership interest in the property. J. Michael Vince, LLC v. SunTrust Bank, 352 Ga. App. 791 , 835 S.E.2d 809 (2019).

Responsibility of holding excess funds in the levying officer. - Language of O.C.G.A. § 48-4-5 directing that excess funds be paid over to the "person authorized to receive the excess" should be consistently construed. Thus, regardless of who owns the tax execution, the sheriff holds excess tax sale funds as the fiduciary of the record property owner and is not authorized to release such funds to the transferee of the tax execution. Alexander Inv. Group, Inc. v. Jarvis, 263 Ga. 489 , 435 S.E.2d 609 (1993).

As against the lienee, the lienor has no right to the excess from a sale of the encumbered property under tax fieri facias, even were the security returned for taxation and assessed in the name of the lienor, since under this statute the excess from any tax sale is to be paid to the person authorized to receive the excess. Particularly is this true if the lienor has contracted to keep the taxes on the property paid; the fact that the property was improperly returned for taxation in the name of the husband of the lienor and the tax assessed against the property in his name would not render the husband the person authorized to receive such excess from the tax sale. Simmons v. May, 53 Ga. App. 454 , 186 S.E. 441 (1936).

Effect of nonpayment of excess on right of redemption. - Fact that "excess" was never paid to the sheriff or settled in any manner furnishes an additional reason why the tax sale was not complete, relative to the owner's right to redeem. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Accrual of interest on surplus. - When a sheriff sells land as the property of an unrepresented estate for taxes and, after payment of the taxes and cost, a surplus remains in the sheriff's hands, the sheriff's term of office expires and the sheriff thereafter dies, and a number of years ensue before there is any administration upon the estate of the person whose property has thus been sold, in a suit by the administrator upon such estate upon the official bond of the sheriff, interest should be counted from the date of the qualification of the administrator. Morrison v. Slaton, 148 Ga. 294 , 96 S.E. 422 (1918).

Transfer of entitlement to excess funds allowed. - As a matter of law, a defendant in fieri facias can effect a transfer of the defendant's entitlement to the excess funds generated in a tax sale under O.C.G.A. § 48-4-5 . Barrett v. Marathon Inv. Corp., 268 Ga. App. 196 , 601 S.E.2d 516 (2004).

State of title held by purchaser or purchaser's grantee pending period of redemption. - Trial court properly granted summary judgment to an association, and the association's employee and a board member, on the claims by a property purchaser against them for extortion and removal of liens arising out of the purchaser's failure to pay association fees after purchasing seven properties in a subdivision through a tax sale resulting from unpaid property taxes; while it was true that the purchaser did not obtain a fee simple absolute title, and that title could be restored to specified predecessors through redemption or before the purchaser gave notice pursuant to O.C.G.A. § 48-4-45 , the purchaser did receive title sufficient to trigger automatic membership in the association and was thus required to pay its assessed fees. Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005).

Second unauthorized tax sale did not affect fee simple title of buyer at first tax sale. - Although a county did not have the recognized statutory option of conducting a second tax sale in order to satisfy the remainder of the tax deficiency owed, and while the assignee who took the property as a result of the second tax sale might be entitled to a refund of the purchase price, the special master's recommendation to issue a decree of fee simple title in the underlying property to the buyer at the first tax sale was upheld on appeal. DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903 , 655 S.E.2d 586 (2008).

Tax deed purchaser responsible for taxes after tax sale. - Tax deed purchaser, not the church, a defendant in fi. fa., was obligated to pay ad valorem taxes that accrued after the tax sale and before redemption, and the tax commissioner could not use the excess funds to satisfy the buyer's tax obligation that occurred after the tax sale. Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 321 Ga. App. 778 , 742 S.E.2d 742 (2013).

No right to excess funds generated by tax sale. - Trial court did not err in granting a tax commissioner summary judgment in a lienholder's action under O.C.G.A. § 15-13-3 to recover excess funds from a tax sale because at the time of the tax sale, at the time the tax commissioner notified the record owner of the property and record lienholders of the excess tax sale funds, and at the time the tax commissioner paid the excess tax sale funds to the record owner of the property, the lienholder had no recorded lien or interest in the property; after the tax commissioner fulfilled the obligation under O.C.G.A. § 48-4-5(a) to give notice to the record property owner and lienholders, the property owner submitted the only claim to the tax commissioner for the excess tax sale funds, and the lienholder failed to show that more was required of the tax commissioner before the funds were disbursed. Brina Bay Holdings, LLC v. Echols, 314 Ga. App. 242 , 723 S.E.2d 533 (2012), overruled on other grounds, DLT List, Inc. v. M7ven Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Entitlement to excess funds after tax sale. - Trial court erred by granting summary judgment to the property owner because the trial court erred by holding that the security deed holder lost the holder's right to excess funds that arose from the tax sale as the relevant date under O.C.G.A. § 44-14-80 when considering who was entitled to the excess funds from the tax sale was the tax sale date, not the fund distribution date. Worthwhile Investments, LLC v. Higgins, 337 Ga. App. 183 , 787 S.E.2d 245 (2016).

Trial court erred by awarding excess funds from a tax sale to a redeeming creditor because although the creditor had an interest in the property at the time of the tax sale that gave the creditor a statutory right of redemption, it was undisputed that the creditor's security deed had now been fully satisfied, and the creditor no longer retained any priority lien on the property; thus, the administrator of the original owner's estate was the party entitled to receipt of the funds. Bridges v. Collins-Hooten, 339 Ga. App. 756 , 792 S.E.2d 721 (2016).

Lender who had purchased a tax deed had a defeasible fee in the property, which became a fee simple interest when the property was not redeemed; excess proceeds from the tax sale were to be distributed first to the lender and then to any other recorded lien holder; and the lender's first-priority security lien was not merged into the tax deed purchase. However, the lender failed to show the amount owed, requiring reversal of the judgment in the lender's favor. Performance Food Group, Inc. v. Davis, 346 Ga. App. 487 , 816 S.E.2d 468 (2018).

Recovery of excess proceeds from tax commissioner. - Holding company was entitled to recover from the tax commissioner the amounts necessary to pay the tax executions from the excess proceeds of the tax sales before any payments to the owners of record at the time of the tax sale. As the holder of the tax liens, the holding company had the right to be paid "before any other debt, lien, or claim of any kind" could be claimed by the parties entitled to receive them, including those who hold other liens against the property. Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

Interpleader and attorney fees awarded to tax director. - Trial court properly allowed the Georgia Tax Director to interplead in the tax sale action regarding disbursement of excess funds and award the director attorney fees because O.C.G.A. § 48-4-5(b) permitted interpleader as well as a reasonable attorney fee and the fee was not conditioned upon litigation. Bridges v. Collins-Hooten, 339 Ga. App. 756 , 792 S.E.2d 721 (2016).

Original owner not redeemer was entitled to excess proceeds of tax sale. - Pursuant to O.C.G.A. § 48-4-5(a) , a county tax commissioner was properly ordered to disburse excess tax-sale funds totaling $105,188 to the original owner of the property and not the redeemer of the property from a tax sale purchaser; the redemption price would be the first priority lien, here the only lien, against the property going forward. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

To the extent that Wester v. United Capital Finance of Atlanta, LLC, 282 Ga. App. 392 , 638 S.E.2d 779 (2006), and United Capital Finance of Atlanta v. American Investment Assoc., 302 Ga. App. 400 , 691 S.E.2d 272 (2010), held that the redeeming creditor at a tax sale had a first priority claim on the excess tax funds for the amount paid to redeem the property, those cases are overruled. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

County's immunity from suit. - Pursuant to O.C.G.A. § 36-1-4 and Ga. Const. 1983, Art. I, Sec. II, Para. IX(e), a county was immune from a lender's suit because the lender pointed to no statute creating a waiver of immunity or any factual scenario warranting a waiver with respect to the lender's claim that the county failed to give it notice of the availability of excess funds following a tax sale as required by O.C.G.A. § 48-4-5 . Bartow County v. S. Dev., III, L.P., 325 Ga. App. 879 , 756 S.E.2d 11 (2014).

Cited in Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 812.

C.J.S. - 33 C.J.S., Executions, § 429. 85 C.J.S., Taxation, §§ 1312, 1313.

ALR. - Tax deed and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 30 A.L.R. 8 ; 88 A.L.R. 264 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs as affecting its validity, 97 A.L.R. 842 ; 147 A.L.R. 1141 .

48-4-6. Validity of deed made at tax sale.

The deed or bill of sale made by the sheriff to the purchaser at a tax sale shall be just as valid as if made under an ordinary execution issuing from the superior court.

(Orig. Code 1863, § 815; Code 1868, § 895; Code 1873, § 893; Code 1882, § 893; Civil Code 1895, § 913; Civil Code 1910, § 1176; Code 1933, § 92-8107; Code 1933, § 91A-406, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Inapplicable to sales for municipal taxes. - Statute has no application to deeds made by a municipal officer founded on sales for municipal taxes. Ansley v. Wilson, 50 Ga. 418 (1873); Johnson v. Phillips & Co., 89 Ga. 286 , 15 S.E. 368 (1892).

Recitals in deed as to manner of sale presumed correct. - Recitals in a deed in regard to the conduct of the selling officer, the levying officer, with respect to advertisements and the like are presumptively correct. Livingston v. Hudson, 85 Ga. 835 , 12 S.E. 17 (1890); Bennett v. Southern Pine Co., 123 Ga. 618 , 51 S.E. 654 (1905).

Admissibility in evidence. - Statute does not give tax titles a higher status than belongs to a deed made by the sheriff under the judgment of a court, and such a deed, unsupported by the execution on which it is based is generally not admissible in evidence. Sabattie v. Baggs, 55 Ga. 572 (1876).

Cited in Whitaker Acres, Inc. v. Schrenk, 170 Ga. App. 238 , 316 S.E.2d 537 (1984).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, § 464 et seq. 85 C.J.S., Taxation, § 1468 et seq.

ALR. - Necessity of actual possession to give title by adverse possession under invalid tax title, 22 A.L.R. 550 .

Right of holder of tax title or certificate of sale to reimbursement by taxing authorities where sale proves invalid, 77 A.L.R. 824 ; 116 A.L.R. 1408 .

Tax deeds and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 88 A.L.R. 264 .

Time limitation for attack on tax title as affected by defective description of property in the assessment or the tax deed, 133 A.L.R. 570 .

Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

Rights and remedies of owner against holder of invalid tax title respecting rents and profits or use and occupation, 173 A.L.R. 1179 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

48-4-7. Authority of levying officer to put purchaser in possession of land.

The officer selling property at a tax sale shall have the authority to put purchasers in possession of land sold under tax fi. fas., as in other cases.

(Orig. Code 1863, § 816; Code 1868, § 896; Code 1873, § 894; Code 1882, § 894; Civil Code 1895, § 914; Civil Code 1910, § 1177; Code 1933, § 92-8108; Code 1933, § 91A-407, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

No right to possession pending redemption. - Purchaser of land at a tax sale is not entitled to be placed in possession until after the time for redemption has expired. Elrod v. Groves, 116 Ga. 468 , 42 S.E. 731 (1902).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 403 et seq. 72 Am. Jur. 2d, State and Local Taxation, § 853.

C.J.S. - 33 C.J.S., Executions, §§ 496, 497. 85 C.J.S., Taxation, § 1480 et seq.

ARTICLE 2 PURCHASE BY COUNTIES

48-4-20. Authority of counties to buy property sold under tax executions.

  1. The governing authority of any county may purchase and hold in its official capacity any real property offered for sale by virtue of tax executions, except that the governing authority may bid on the real property only when other bids do not cover the amount of the tax executions and costs.
  2. The governing authority of the county shall not bid more for the property than the amount of taxes and costs. The governing authority, upon bidding on any property, shall draw its warrant on the county treasurer to pay to the levying officers the costs due on the tax executions and costs accrued in effecting the sales. The governing authority of the county shall not be required to pay the proportionate part of the taxes due the state, any school district, or any other political subdivision or authority of counties by virtue of the tax sale until the real property is redeemed in the manner provided in this chapter or is resold by the governing authority of the county.
  3. The 12 months' redemption period allowed under this chapter for the redemption of realty sold under a tax execution shall begin to run from the date of the sale; provided, however, that the redemption period for any realty sold under a tax execution before April 22, 1981, shall expire on December 31, 1988.

    (Ga. L. 1892, p. 252, § 1; Civil Code 1895, § 915; Civil Code 1910, § 1178; Code 1933, § 92-8201; Ga. L. 1937, p. 446, § 1; Code 1933, § 91A-420, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 9; Ga. L. 1988, p. 1957, § 2.)

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS

Effect of redemption on vesting title. - Purchaser at tax sale acquires defeasible title, under which the purchaser is entitled to a deed from the officer selling the property, and can convey the purchaser's own defeasible title to another person, subject only to the right of redemption. If the amount required for redemption is paid or sufficiently tendered, such payment or tender revests title in the owner, but otherwise, at the expiration of the redemption period, title becomes absolute in the purchaser or the purchaser's grantee. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Availability of injunctive relief to preserve right of redemption. - An injunction will lie in favor of the owner of land bought by the county at a tax sale in order to prevent the county from reselling the land before the time claimed by the owner as expiration of the owner's redemption period, when it is alleged that the county is threatening to sell the land in small tracts to numerous purchasers while the right of redemption still exists, which if done would subject the owner to a multiplicity of suits with such purchasers. Newsom v. Dade County, 177 Ga. 612 , 171 S.E. 145 (1933).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1336 et seq.

ALR. - Right of public officer to purchase tax certificates or tax titles, 5 A.L.R. 969 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs, as affecting its validity, 147 A.L.R. 1141 .

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

48-4-21. Right of redemption; disposition of unredeemed property by county governing authority.

  1. When real property sold under and by virtue of tax executions is successfully bid on by the governing authority of a county, the owner of such property shall have the privilege of redeeming it as in other cases.
  2. The governing authority of the county may dispose of real property purchased under a tax execution, and remaining unredeemed, as provided in this title.

    (Ga. L. 1892, p. 252, §§ 2, 3; Civil Code 1895, §§ 916, 917; Civil Code 1910, §§ 1179, 1180; Code 1933, §§ 92-8202, 92-8203; Code 1933, §§ 91A-421, 91A-422, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Effect of redemption on vesting of title. - Purchaser at tax sale acquires defeasible title under which the purchaser is entitled to a deed from the officer selling the property, and can convey the purchaser's own defeasible title to another person, subject only to the right of redemption. If the amount required for redemption is paid or sufficiently tendered, such payment or tender revests title in the owner, but otherwise, at the expiration of the redemption period, title becomes absolute in the purchaser or the purchaser's grantee. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 522 et seq. 72 Am. Jur. 2d, State and Local Taxation, §§ 900 et seq., 916.

C.J.S. - 85 C.J.S., Taxation, §§ 1343 et seq.

ALR. - Right of public officer to purchase tax certificates or tax titles, 5 A.L.R. 969 .

Right of person under disability to redeem from tax sale, 65 A.L.R. 582 ; 159 A.L.R. 1467 .

Necessity and sufficiency of statement in notice of application for tax deed, or notice to redeem from tax sale, as regards time for redemption, 82 A.L.R. 502 .

Judgment as lien on judgment debtor's equity of redemption in land sold for taxes, 91 A.L.R. 647 .

Unexpired right of redemption as affecting status of purchaser at judicial or execution sale as sole unconditional owner within insurance policy, 91 A.L.R. 1439 .

Refusal of tender, made under protest, of amount required for redemption from tax sale, 142 A.L.R. 1198 .

One in adverse possession as within class of persons entitled to redeem from tax sale, 164 A.L.R. 1285 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

Necessity and sufficiency of tender of payment by one seeking to redeem property from mortgage foreclosure, 80 A.L.R.2d 1317.

48-4-22. Authority of counties to buy property sold under tax executions; finality of tax execution sales; issuance of "Bill of Sale for Personal Property."

  1. The governing authority of any county may purchase and hold in its official capacity any personal property offered for sale by virtue of tax executions, except that the governing authority may bid on the personal property only when other bids do not cover the amount of tax executions, accrued interest, penalties, and costs.
  2. The governing authority of the county shall not bid more for the property than the amount of taxes, accrued interest, penalties, and costs. The governing authority, upon bidding on any property, shall draw its warrant on the county treasurer to pay to the levying officers the costs due on the tax executions and costs accrued in effecting tax sales. The governing authority of the county shall not be required to pay the proportionate part of the taxes due the state, any school district, or any other political subdivision or authority of counties by virtue of the tax sale until the personal property is resold by the governing authority of the county in the manner provided by law.
  3. When personal property is sold under tax executions at a tax sale, the sale is final.
  4. The officer authorized to conduct tax sales shall issue a "Bill of Sale for Personal Property" to the purchaser at the tax sale, and it shall be substantially as follows: (Code 1981, § 48-4-22 , enacted by Ga. L. 1984, p. 904, § 1.)

STATE OF GEORGIA

__________ COUNTY

BILL OF SALE FOR PERSONAL PROPERTY

This assignment made _____________, between the tax commissioner and ex officio sheriff of __________________ County, and _____________, as purchaser, Witnesseth: That, Whereas, in obedience to writ(s) of fieri facias issued against _____________, the taxpayer and defendant in fi. fa., for unpaid state, county, and applicable school taxes for the years _____________, said tax commissioner and ex officio sheriff of _____________ County did on _____________, seize, levy, and serve notice on the within described personal property and, after the same being duly advertised agreeable to law, expose the said property within the legal hours of sale, at public outcry before the courthouse door in _____________ County, Georgia, on the day and year first above written, when and where the same was knocked down to the named purchaser for the highest and best bid amount shown below, said purchaser being the highest and best bidder. Now, therefore, in consideration of the sum of $_____________, receipt of which is hereby acknowledged, the tax commissioner and ex officio sheriff of _____________ County does assign, bargain, and sell, so far as the office of ex officio sheriff authorizes him, unto the said purchaser, heirs, and assigns, ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ To have and to hold the said described personal property, together with all the rights and also all the estate, right, title, interest, claim, or demand of the said taxpayer and defendant in fi. fa., heirs, and assigns, legal, equitable, or otherwise whatsoever, in and to the same, unto the said purchaser, heirs, and assigns. In witness whereof, the said tax commissioner and ex officio sheriff of _____________ County has set his hand and affixed his seal hereto on the day and year first above written. ________________________ Tax commissioner and ex officio sheriff of ______ County, Georgia Signed, sealed, and delivered in the presence of: ________________________ Unofficial witness ________________________ Notary public

48-4-23. County tax commissioners and certain employees prohibited from purchasing property offered for sale under tax executions or tax foreclosure proceedings; criminal penalties.

  1. A tax commissioner and any person employed in the office of the tax commissioner working on behalf of the tax commissioner shall not, directly or indirectly, acquire an interest in, buy, or profit from any real property sold at public auction by the county for which such tax commissioner or employee thereof serves for delinquent taxes, except that such tax commissioner or employee thereof may purchase property sold at public auction for delinquent taxes if such tax commissioner or employee has any ownership interest in the property and had an ownership interest in the property at the time the taxes became delinquent.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by imprisonment for a period of not more than one year, by a fine not to exceed $1,000.00, or both.
  3. Any sale, transfer, or acquisition of interest in any real property in violation of this Code section shall be void. (Code 1981, § 48-4-23 , enacted by Ga. L. 2007, p. 111, § 1/HB 222.)

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required. - Violation of O.C.G.A. § 48-4-23 is not an offense designated as one that requires fingerprinting. 2009 Op. Att'y Gen. No. 2009-1.

ARTICLE 3 REDEMPTION OF PROPERTY SOLD FOR TAXES

JUDICIAL DECISIONS

Redemption provisions to be liberally construed. - Former Code 1933, ch. 92-83 (see now O.C.G.A. Art. 3, Ch. 4, T. 48) was to be construed liberally and most favorably to persons allowed by the statute to redeem. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936).

RESEARCH REFERENCES

ALR. - Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

Constitutionality of provision for service by publication of notice of proceeding by purchaser at tax sale to foreclose delinquent owner's right of redemption, or of other proceeding to perfect tax purchaser's title, 145 A.L.R. 597 .

Constitutionality, construction, and application of statutes providing for partial or proportional redemption from tax sale of land, 145 A.L.R. 1328 .

Who entitled to rents and profits, or rental value, during the redemption period following tax sale, 147 A.L.R. 1084 .

What constitutes "execution" of tax deed beginning or ending period for redemption from tax sale, 166 A.L.R. 853 .

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

Necessity and sufficiency of tender of payment by one seeking to redeem property from mortgage foreclosure, 80 A.L.R.2d 1317.

48-4-40. Persons entitled to redeem land sold under tax execution; payment; time.

Whenever any real property is sold under or by virtue of an execution issued for the collection of state, county, municipal, or school taxes or for special assessments, the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property may redeem the property from the sale by the payment of the amount required for redemption, as fixed and provided in Code Section 48-4-42:

  1. At any time within 12 months from the date of the sale; and
  2. At any time after the sale until the right to redeem is foreclosed by the giving of the notice provided for in Code Section 48-4-45.

    (Orig. Code 1863, § 820; Code 1873, § 898; Code 1882, § 898; Civil Code 1895, § 909; Civil Code 1910, § 1169; Code 1933, § 92-8301; Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-430, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 9; Ga. L. 2016, p. 758, § 1/SB 379; Ga. L. 2016, p. 793, § 1/HB 51.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, deleted "the redemption price or" following "payment of" near the end of the introductory paragraph. The second 2016 amendment, effective July 1, 2016, made identical changes.

Law reviews. - For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For annual survey on bankruptcy law, see 69 Mercer L. Rev. 1033 (2018). For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018). For annual survey on real property, see 71 Mercer L. Rev. 241 (2019).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Effect of subsequent executions. - It is not necessary for those seeking and entitled to redeem to tender the amount of tax fi. fas. issued subsequently to the sale. LaRoche v. Kinchlo, 154 Ga. 547 , 114 S.E. 706 (1922).

Sale under both tax fi. fa. and judgment. - Though there is incompatibility in selling land under both a tax fi. fa. and a fi. fa. founded on the judgment of a court at the same time, the sale is not void. The result is to annex to the sale as against both fi. fas. the statutory incident of redemption. The property is redeemable by refunding the whole amount paid by the purchaser, with the statutory premium thereon, but not by refunding a less amount measured by the taxes due. Clower v. Fleming, 81 Ga. 247 , 7 S.E. 278 (1888).

No redemption in case of drainage district assessment. - Right of redemption is not given when land is sold under execution issued for an assessment to meet interest or principal, or the cost of draining the land in a drainage district. Sigmon-Reinhardt Co. v. Atkins Nat'l Bank, 163 Ga. 136 , 135 S.E. 720 (1926).

Executor failed to exercise right of redemption. - In a purchaser's quiet title action against the executor of a testatrix's estate, the trial court did not err in adopting the report of a special master and in decreeing that fee simple title to the land was vested in the purchaser because the purchaser acquired title to the property by virtue of a tax sale and deed, which was conducted in accordance with O.C.G.A. § 48-4-1 et seq.; a title search showed the testatrix's nephew as holding record title to the property, but out of caution, both the nephew and the executor were served with notice of the tax sale, the tax commissioner met with the executor prior to the sale and offered to accept payment for the back taxes, but the executor failed to do so, and the property was sold to the purchaser, with the overage going to the nephew, and the executor did not timely seek to exercise a right of redemption under O.C.G.A. § 48-4-40 . Mann v. Blalock, 286 Ga. 541 , 690 S.E.2d 375 (2010).

Intervention to redeem when intervention previously denied on other grounds. - Judgment sustaining a general demurrer (now motion to dismiss) to an intervention seeking to cancel tax deeds, which intervention is on grounds that the levy was excessive and that an interest less than the fee was conveyed, will not bar subsequent intervention by an owner within the redemption period, seeking to redeem the property as provided by law. Forrester v. Lowe, 192 Ga. 469 , 15 S.E.2d 719 (1941).

Statute makes no exception in favor of minors for redeeming property sold under a tax execution. Dawson v. Dawson, 106 Ga. 45 , 32 S.E. 29 (1898).

Power to issue injunctions. - Superior courts are empowered to issue injunctions, Ga. Const. 1983, Art. VI, Sec. I, Para. IV; O.C.G.A. § 15-6-8 , and nothing in O.C.G.A. § 48-4-40(1) deprives them of that power in the arena of redemption of property following a tax sale. Am. Lien Fund, LLC v. Dixon, 286 Ga. 562 , 690 S.E.2d 415 (2010).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984); Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988); Tavakolian v. Agio Corp., 283 Ga. App. 881 , 642 S.E.2d 903 (2007); DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903 , 655 S.E.2d 586 (2008); DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Persons Who May Redeem

Right to redeem. - As to excess tax sale funds, a redeeming creditor can only make a claim for the funds in the amount of the pre-tax sale lien that gave the creditor the right to redeem. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Corporations. - No construction, however liberal, which could be given this statute granting the privilege of redeeming land sold for taxes to the owner thereof, can inure to the benefit of a party, if the owner be a corporation, and it a mere stockholder therein. Carver Cotton Gin Co. v. Barrett & Caswell, 66 Ga. 526 (1881).

Wife, who is a beneficiary of a homestead estate sold under tax fi. fa. against the husband, can redeem the property. Lamar v. Sheppard, 80 Ga. 25 , 5 S.E. 247 (1887).

Trustee in bankruptcy, as a creditor of a bankrupt, can redeem land sold under tax fieri facias if the trustee desires. In re Rogers & Williams, 3 F. Supp. 116 (S.D. Ga. 1933).

Right of redemption following bankruptcy. - LLC that purchased a debtor's home at a tax sale held pursuant to O.C.G.A. § 48-4-1 was entitled to an order lifting the stay that was imposed when the debtor declared Chapter 13 bankruptcy so the LLC could foreclose the deed the LLC received; although the debtor had the right under O.C.G.A. § 48-4-40 to redeem title to the home at the time the debtor declared bankruptcy because the time for doing so had not expired under state law, the debtor lost that right when the debtor failed to pay the LLC the amount it spent to purchase the tax deed, and the debtor's attempt to pay that amount in increments through the debtor's plan failed because the home was not property of the debtor's bankruptcy estate under 11 U.S.C. § 541. Harvest Assets, LLC v. Edwards (In re Edwards), Bankr. (Bankr. N.D. Ga. Nov. 13, 2014).

Lienholders acquiring interest subsequent to tax sale. - O.C.G.A. § 48-4-45 does not provide that the interest must have been held at the time of the tax sale. The statute requires notice to lienholders who exist at the time of any attempted foreclosure of the right of redemption. Therefore, such lienholders are not barred from the right of redemption by reason of having acquired their interest subsequent to the tax sale. Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986).

Interest re-conveyed prior to redemption deadline. - Chapter 13 debtor had a right of redemption under Georgia state law as of the debtor's petition date as the debtor obtained an interest in the property when the property was re-conveyed to the debtor prior to the redemption deadline. Although the tax sale purchaser held legal title to the property, the bundle of rights retained by the debtor was property of the debtor's bankruptcy estate. In re Jimerson, 564 Bankr. 430 (Bankr. N.D. Ga. 2017).

Assignee of redeemer. - Order disbursing excess tax sale funds to the assignee of the redeemer was reversed because the assignee could not show justifiable or good faith reliance on case law that had been overturned and, therefore, had no vested rights to the excess funds or that the issue was moot because it had already spent the funds. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Redemption Period

When time begins to run against owner. - Year for redemption of property sold for taxes runs from the date of the sale and not from the time when the sheriff's deed is recorded. Boyd v. Wilson, 86 Ga. 379 , 12 S.E. 744 (1890).

When out of time redemption is permissible. - An appellant was entitled to fee simple title to a 50-acre tract as a predecessor in interest who purchased the property from the county after the county had purchased the property at a tax sale did not make an out-of-time redemption under former Code 1933, § 92-8301 (see now O.C.G.A. § 48-4-40(2) ) as the extension of the right to redeem was not enacted until after the death of the initial purchaser, who was the predecessor's parent; the notice requirement in O.C.G.A. § 48-4-45 also was not enacted at that time. Selph v. Williams, 284 Ga. 349 , 667 S.E.2d 40 (2008).

Notice of foreclosure of right of redemption. - Claimant who asserted that the claimant was the owner of commercial property that had been sold at a tax sale, based on an oral contract that the claimant had fully performed and the claimant's payment of property taxes for over ten years, was not entitled to service of the notice of foreclosure of the right to redeem under O.C.G.A. § 48-4-45(a)(1) because subsection (b) required service on an "occupant" only if the occupant had an interest that was "of record," and the claimant had no recorded interest. Tyner v. Edge, 355 Ga. App. 196 , 843 S.E.2d 632 (2020).

Tender after the time allowed by law for redemption under a tax sale is without efficacy, and an allegation thereof should be stricken on demurrer (now motion to dismiss). Allen v. Gates, 145 Ga. 652 , 89 S.E. 821 (1916).

Redemption after expiration of period with permission of purchaser. - Although the statute affords a positive right to redeem only within the specified period, the statute does not inhibit the purchaser from according redemption after the period has expired as a matter of grace. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936); Caffey v. Parris, 186 Ga. 303 , 197 S.E. 898 (1938).

Power of court of equity to allow redemption after expiration of period. - After statutory redemption period has expired, the right to redeem is gone, and there is no power even in a court of equity to authorize redemption of the property in such cases. Boroughs v. Lance, 213 Ga. 143 , 97 S.E.2d 357 (1957).

Court not precluded from acting after 12 months have passed. - The declaration in O.C.G.A. § 48-4-40(1) that one entitled to redeem the property may do so within 12 months did not preclude the trial court from acting after those 12 months had passed. The taxpayer seeking redemption sought an injunction preserving the parties' status quo well before the passage of 12 months. Am. Lien Fund, LLC v. Dixon, 286 Ga. 562 , 690 S.E.2d 415 (2010).

Interest acquired following redemption date. - Oral agreement to buy a homeowner's association's lien and indebtedness against real property was required to be in writing and signed by the party to be charged pursuant to O.C.G.A. § 13-5-30(4); because the buyer did not acquire an interest in the property until after the date of redemption, contrary to O.C.G.A. §§ 48-4-40 and 48-4-41 , the redemption was void. DRST Holdings, Ltd. v. Brown, 290 Ga. 317 , 720 S.E.2d 626 (2012).

Application to bankruptcy proceedings. - When Chapter 13 debtor proposed an extension plan prior to the date when the right of redemption would have expired under Georgia state law, without regard to an extension provided by 11 U.S.C. § 108, the debtor did not reside on that property, and the Chapter 13 plan would pay the redemption amount in full, plus interest, then the redemption amount could be paid over the length of the plan regardless of whether applicable state law required a lump sum payment. In re Jimerson, 564 Bankr. 430 (Bankr. N.D. Ga. 2017).

Tender and Payment

Requirements as to tender on offer to redeem. - Tender on an offer to redeem property from taxes not only must be in due time and manner, but be continuous, with a continuous offer to pay; and if such continuity is not otherwise shown, at least bringing money into court on filing suit is necessary in place of continuous offer by pleading. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Sale not complete until purchase money paid. - Relative to the right of the owner to redeem the land, the sale will not be considered as complete until payment of the purchase money by the bidder. The owner has 12 months from the time of such payment within which to tender the money to the purchaser for the purpose of redemption. Wood v. Henry, 107 Ga. 389 , 33 S.E. 410 (1899). See also Cason v. United Realty & Auction Co., 158 Ga. 584 , 123 S.E. 894 (1924).

Deposit with clerk of unendorsed draft as tender. - Under requirement either that continuous good tender be made or that actual money be paid into court, mere deposit with the clerk of a draft drawn on bank of another state, payable to order of the defendant and unendorsed, would not suffice as tender on an offer to redeem property from taxes; because the draft was not endorsed; because its payment could be stopped or refused, and because there was no showing that the plaintiff had funds sufficient for payment of the draft on deposit with the drawee bank. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

To whom tender made when purchaser at sale has conveyed property to another. - Tender on offer to redeem property from a tax sale was ineffective when it is made to the purchaser at a tax sale instead of to the purchaser's grantee, after the grantee had paid the full tax money and consideration to the purchaser, and the person offering to redeem knew of such status of the property. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Payment or tender of redemption amount as prerequisite to equitable relief. - Under maxim that "he who would have equity must do equity", not only must the party seeking equitable relief from a tax sale have paid or tendered sum due to the other party, but one must have done so before filing of suit, unless tender, or offer to restore be excused upon some equitable ground. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

No actual, present bona fide offer to pay redemption price. - Defendant's motion for summary judgment on the estates' claims pertaining to the redemption of the disputed property sold at a tax sale was properly granted because there was no evidence of record demonstrating an actual, present bona fide offer on behalf of the estates to pay the redemption price before the suit was filed as there was no evidence of any pre-suit communications on behalf of either estate that included an actual, present bona fide offer to pay the redemption price that had been provided by the defendant's attorney; and the administrator of the two estates did not have the money to pay the redemption price and had not obtained the probate court's approval to seek redemption of the property on the estates' behalf. Strong v. JWM Holdings, LLC, 341 Ga. App. 309 , 800 S.E.2d 380 (2017).

Effect of nonpayment of purchase money by bidder. - As to right of owner to redeem land which has been sold at tax sale, sale is not to be considered as complete until payment of purchase money by bidder. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Deduction of sale taxes from credits to which tax collector entitled as payment. - When a purchaser at a tax sale was represented at the sale by the county tax collector, who, instead of paying amount of bid to the sheriff, merely paid the sheriff's costs and advertising fee and, in an adjustment of the sheriff's account as tax collector, settled with the county commissioners by deducting the taxes from credits to which the sheriff was entitled, there was no such payment of purchase money as to cause period of redemption to commence. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Effect of failure to pay or settle excess proceeds of sale. - Fact that "excess" was never paid to the sheriff or settled in any manner furnishes grounds that the tax sale was not complete, relative to the owner's right to redeem. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Failure to allege payment or tender before filing action to redeem. - Allegation that within one year after a tax sale the redeemer tendered to one who had taken title under the purchaser at the tax sale the amount of the purchase price of the property at the sale plus ten percent interest thereon from date, is subject to special demurrer (now motion to dismiss) if it does not show the amount of the purchase price or of the tender. Forrester v. Lowe, 192 Ga. 469 , 15 S.E.2d 719 (1941).

When one seeking in a court of equity to redeem property sold for taxes admits stated amounts to have been paid for the property at the sale, but fails to allege payment or tender of such amounts before filing such action, the petition should be dismissed on demurrer (now motion to dismiss). Allen v. Gates, 145 Ga. 652 , 89 S.E. 821 (1916).

Trial court did not err in granting a purchaser's motion to dismiss a redemption company's action to enforce redemption of real property because both the company's pre-suit tender to the purchaser and the subsequent tender to the bank that held a security deed on the property long after adding the bank as a party to the redemption action failed to meet the legal requirement of O.C.G.A. § 48-4-40 that tender to the proper party be made prior to the filing of suit; tender should have been made to the bank, which had already been named as the grantee in a security deed by the purchaser of the tax deed before suit was filed. Cmty. Renewal & Redemption v. Nix, 288 Ga. 439 , 704 S.E.2d 759 (2011).

Allegation that person to whom tender was made refused it and stated that it was unnecessary to make any further tender of any kind, as the person would not surrender the property save at the end of litigation, is sufficient to show a waiver of further tender, but does not supply the deficiencies in the allegations that there had been an actual tender of amounts, alleged in an indefinite way, the plaintiffs relying on actual tender as well as waiver. Allen v. Gates, 145 Ga. 652 , 89 S.E. 821 (1916).

Successor in interest to the owner of property had successfully redeemed the property from the purchaser of a tax deed by tendering an adequate amount, O.C.G.A. § 48-4-40(2) , although it was refused by the purchaser; the court rejected the purchaser's claim that the purchaser acquired title by prescription under O.C.G.A. § 48-4-48 because the prescriptive period was not met and the purchaer's possession of the unfenced, uninhabited property was not sufficiently adverse. Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

After a tax deed holder had waived the requirement of tender by refusing to communicate with the successor in title to property sold at a tax sale, the fact that the successor in title had paid less than the amount required for redemption into the trial court's registry did not prevent the successor in title from redeeming the property when the successor stood ready, willing, and able to pay the redemption price. Mark Turner Props., Inc. v. Evans, 274 Ga. 547 , 554 S.E.2d 492 (2001).

Title to, and Rights in, Property Pending Redemption

Effect on title of redemption or failure to redeem. - Purchaser at tax sale acquires a defeasible title, under which the purchaser is entitled to a deed from the officer selling the property, and can convey the purchaser's own defeasible title to another person, subject only to the right of redemption. If the amount required for redemption is paid or sufficiently tendered, such payment or tender revests title in the owner, but otherwise, at the expiration of the redemption period, title becomes absolute in the purchaser or the purchaser's grantee. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Upon tender by the owner for the purpose of redeeming the owner's property from a tax sale, the purchaser's inchoate, qualified, or defeasible estate terminates. Bowman v. Poole, 212 Ga. 261 , 91 S.E.2d 770 (1956).

When no redemption is made during the time in which redemption is authorized, the purchaser acquires under the tax deed an absolute and unconditional title to the land sold. Thereupon the owner and all other parties authorized by law to redeem lose their redemption rights and cease to have any interest in the land. Forrester v. Lowe, 192 Ga. 469 , 15 S.E.2d 719 (1941).

Recordation of interest not required. - O.C.G.A. § 48-4-40 does not require that a party's valid interest in property must be recorded in the county's deed books before the party is entitled to redeem the property. Freeman v. Eastern Sav. Bank, 271 Ga. 439 , 520 S.E.2d 902 (1999).

State of title held by sale purchaser or purchaser's grantee pending period of redemption. - Purchaser at a tax sale may convey the property before expiration of the redemption period, in which case the vendee acquires the inchoate or defeasible title which passed to the vendor under the tax sale, subject to the right of an owner to redeem within the time prescribed by this statute. Braswell v. Palmer, 191 Ga. 262 , 11 S.E.2d 889 (1940).

Trial court properly granted summary judgment to an association, and the association's employee and a board member, on the claims by a property purchaser against them for extortion and removal of liens arising out of the purchaser's failure to pay association fees after purchasing seven properties in a subdivision through a tax sale resulting from unpaid property taxes; while it was true that the purchaser did not obtain a fee simple absolute title, and that title could be restored to specified predecessors through redemption or before the purchaser gave notice pursuant to O.C.G.A. § 48-4-45 , the purchaser did receive title sufficient to trigger automatic membership in the association and was thus required to pay the association's assessed fees. Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005).

Trial court erred by granting summary judgment to appellee because the homeowners' association's assignment of a lien for unpaid association dues the association relied upon to show the association possessed a property interest that authorized the association's redemption of the property indicated a different name than the property owners and the appellee had already obtained the excess tax sale funds based on the association's asserted lien resulting from the redemption. Postell v. Trinitec Portfolio Svcs., LLC, 341 Ga. App. 283 , 799 S.E.2d 597 (2017).

Effect of redemption by cotenant on rights of other cotenants. - If cotenant redeemed property by payment of redemption money to the purchaser at tax sale, such redemption did not divest the other cotenant of title to that tenant's interest in the property. The effect of the redemption would be to restore title to the same owners who held the title before the tax sale. Andrews v. Walden, 208 Ga. 340 , 66 S.E.2d 801 (1951).

Right of possession pending redemption. - During the time allowed for redemption, a purchaser's title is inchoate and the purchaser does not have the right to be put in possession of the property. Elrod v. Owensboro Wagon Co., 128 Ga. 361 , 57 S.E. 712 (1907).

Rights concerning rents pending redemption. - Since rents accruing within 12 months after a tax sale may not be used to supplement cash tendered in a redemption, and a purchaser at a tax sale is not entitled to rents, issues, and profits accruing between the time of the purchaser's purchase and the redemption of the property, rent for the premises after the legal sale, not paid by the tenant purchaser, is recoverable up to the time the purchaser's deed became absolute. Beckham v. Lindsey, 22 Ga. App. 174 , 95 S.E. 745 (1918).

Quiet title action from tax sale. - 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).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 522 et seq. 72 Am. Jur. 2d, State and Local Taxation, § 889 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1354 et seq.

ALR. - Constitutionality of statute extending period for redemption from judicial or tax sale, or sale upon mortgage foreclosure, 1 A.L.R. 143 ; 38 A.L.R. 229 ; 89 A.L.R. 966 .

Effect of purchase by cotenant in possession of common property at foreclosure sale thereof, 6 A.L.R. 297 ; 54 A.L.R. 874 ; 85 A.L.R. 1535 .

Effect of imprisonment to extend time for redemption from judicial, execution, or tax sale, 18 A.L.R. 531 .

Right after redemption from tax sale or forfeiture to maintain action for trespass committed between sale or forfeiture and redemption, 33 A.L.R. 302 .

Payment of tax or redemption from tax sale by public officer for benefit of owner, 66 A.L.R. 1035 .

Necessity and sufficiency of statement in notice of application for tax deed, or notice to redeem from tax sale, as regards time for redemption, 82 A.L.R. 502 .

Judgment as lien on judgment debtor's equity of redemption in land sold for taxes, 91 A.L.R. 647 .

Unexpired right of redemption as affecting status of purchaser at judicial or execution sale as sole conditional own within insurance policy, 91 A.L.R. 1439 .

Deed from purchaser of tax title to former owner or lienor as a conveyance of a new title or a redemption, as regards rights or liens of third persons subordinate to tax lien, 106 A.L.R. 887 .

Right of creditor or mortgagee to redeem from his own sale, 108 A.L.R. 993 .

Constitutionality of statutory provisions relating to current taxes of tax delinquent property, 113 A.L.R. 1092 .

Right and remedy of mortgagee who for protection of his security pays taxes on, or redeems from tax sale of, mortgaged property, 123 A.L.R. 1248 .

Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Right of true owner to recover proceeds of sale or lease of real property made by another in the belief that he was the owner of the property, 133 A.L.R. 1443 .

Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

What amounts to a sale at retail within tax statutes or ordinances, 139 A.L.R. 372 .

Refusal of tender, made under protest, of amount required for redemption from tax sale, 142 A.L.R. 1198 .

Retroactive application, to previous sales, of statutes reducing period of redemption from tax sales, as unconstitutional impairment of contract obligations, 147 A.L.R. 1123 .

Sufficiency of tax redemption notice which includes more than one tax assessment for which land was sold, or more than one tract of land, 155 A.L.R. 1198 .

Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

Right of person under disability to redeem from tax sale, 159 A.L.R. 1467 .

One in adverse possession as within class of persons entitled to redeem from tax sale, 164 A.L.R. 1285 .

What constitutes "execution" of tax deed beginning or ending period for redemption from tax sale, 166 A.L.R. 853 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Effect of certificate, statement (or refusal thereof), or error by tax collector or other public officer regarding unpaid taxes or assessments against specific property, 21 A.L.R.2d 1273.

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

Applicability of tax redemption statutes to separate mineral estates, 56 A.L.R.2d 621.

What judgment creditors, other than the one on whose execution the sale was made, may redeem from execution sale, 58 A.L.R.2d 467.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-4-41. Redemption by creditor without lien.

If the property is redeemed by a creditor of the defendant in fi. fa. who has no lien, the creditor shall have a claim against the property for the amount advanced by him in order to redeem the property if:

  1. There is any sale of the property after the redemption under a judgment in favor of the creditor; and
  2. The quitclaim deed is recorded as required by law.

    (Ga. L. 1898, p. 85, § 4; Civil Code 1910, § 1171; Code 1933, § 92-8303; Code 1933, § 91A-432, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Construction with other law. - O.C.G.A. § 48-4-41 provides that if property that has been sold at a tax sale is redeemed by a creditor of the defendant in fi. fa. who has no lien, the creditor has a claim against the property for the amounts advanced to redeem the property if there is any sale of the property after the redemption under a judgment in favor of the creditor. O.C.G.A. § 48-4-41 does not address, however, the priority of this claim and whether it constitutes a separate lien, which are matters addressed by O.C.G.A. § 48-4-43 . United Capital Fin. of Atlanta, LLC v. Am. Inv. Assocs., 302 Ga. App. 400 , 691 S.E.2d 272 (2010), overruled on other grounds, DLT List, Inc. v. M7ven Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

Interest acquired following redemption date. - Oral agreement to buy a homeowner's association's lien and indebtedness against real property was required to be in writing and signed by the party to be charged, pursuant to O.C.G.A. § 13-5-30(4); because the buyer did not acquire an interest in the property until after the date of redemption, contrary to O.C.G.A. §§ 48-4-40 and 48-4-41 , the redemption was void. DRST Holdings, Ltd. v. Brown, 290 Ga. 317 , 720 S.E.2d 626 (2012).

Failure to show property interest. - Trial court erred by granting summary judgment to appellee because the homeowners' association's assignment of a lien for unpaid association dues the association relied upon to show the association possessed a property interest that authorized the association's redemption of the property indicated a different name than the property owners and the appellee had already obtained the excess tax sale funds based on the association's asserted lien resulting from the redemption. Postell v. Trinitec Portfolio Svcs., LLC, 341 Ga. App. 283 , 799 S.E.2d 597 (2017).

Cited in Ga. Home Appraisers, Inc. v. Trintec Portfolio Servs., LLC, 349 Ga. App. 356 , 825 S.E.2d 833 (2019).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 499.

C.J.S. - 85 C.J.S., Taxation, § 1359.

ALR. - Rights or interests covered by quitclaim deed, 44 A.L.R. 1266 ; 162 A.L.R. 556 .

Right of mortgagor or purchaser of equity of redemption to defeat lien of mortgage by acquisition of title at sale subsequent to mortgage for nonpayment of taxes, or of assessment for local improvement, 134 A.L.R. 289 .

48-4-42. Amount payable for redemption; additional costs.

  1. The amount required to be paid for redemption of property from any sale for taxes as provided in this chapter shall with respect to any sale made after July 1, 2002, be the amount paid for the property at the tax sale, as shown by the recitals in the tax deed, plus:
    1. Any taxes paid on the property by the purchaser after the sale for taxes;
    2. Any special assessments on the property; and
    3. A premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter.
  2. If redemption is not made until more than 30 days after the notice provided for in Code Section 48-4-45 has been given, there shall be added to the sums set forth in subsection (a) of this Code section the sheriff's cost in connection with serving the notice and the cost of publication of the notice, if any.
  3. With respect to any sale made after July 1, 2016, there shall be added to the sums set forth in subsections (a) and (b) of this Code section any sums:
    1. Paid from the date of the tax sale to the date of redemption to a property owners' association, as defined in Code Section 44-3-221, in accordance with Code Section 44-3-232;
    2. Paid to a condominium association, that is an association, as defined in Code Section 44-3-71, in accordance with Code Section 44-3-109; or
    3. Paid to a homeowners' association established by covenants restricting land to certain uses related to planned residential subdivisions.
  4. All of the amounts required to be paid by this Code section shall be paid in lawful money of the United States to the purchaser at the tax sale or to the purchaser's successors.

    (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-436, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 822, § 1; Ga. L. 1984, p. 1016, § 1; Ga. L. 1996, p. 1022, § 1; Ga. L. 1997, p. 458, § 1; Ga. L. 2002, p. 1481, § 4; Ga. L. 2016, p. 758, § 2/SB 379; Ga. L. 2016, p. 793, § 2/HB 51.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, substituted the present provisions of this Code section for the former provisions, which read: "The amount required to be paid for redemption of property from any sale for taxes as provided in this chapter, or the redemption price, shall with respect to any sale made after July 1, 2002, be the amount paid for the property at the tax sale, as shown by the recitals in the tax deed, plus any taxes paid on the property by the purchaser after the sale for taxes, plus any special assessments on the property, plus a premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter. If redemption is not made until more than 30 days after the notice provided for in Code Section 48-4-45 has been given, there shall be added to the redemption price the sheriff's cost in connection with serving the notice and the cost of publication of the notice, if any. All of the amounts required to be paid by this Code section shall be paid in lawful money of the United States to the purchaser at the tax sale or to the purchaser's successors." The second 2016 amendment, effective July 1, 2016, made identical changes, except "that is an association," was not included in paragraph (c)(2).

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006).

JUDICIAL DECISIONS

Tender requirement does not violate due process. - Delinquent taxpayers could not maintain a suit to set aside a tax deed because the taxpayers failed to pay or tender the redemption amount required under O.C.G.A. § 48-4-47 . O.C.G.A. § 48-4-47 did not violate their due process rights, although the redemption amount of $112,416 dwarfed the original $2,000 in unpaid taxes due to the addition of taxes and penalties under O.C.G.A. § 48-4-42 . Saffo v. Foxworthy, Inc., 286 Ga. 284 , 687 S.E.2d 463 (2009), cert. denied, 560 U.S. 939, 130 S. Ct. 3360 , 176 L. Ed. 2 d 1246 (2010).

Retroactive application not unconstitutional. - Since a tax sale took place in 1995, application of the 1996 amendment that increased the amount of the annual premium from 10 percent to 20 percent was not unconstitutionally retroactive as neither the tax deed holder's rights to the property nor those of a successor in title had fully vested prior to the effective date of the amendment. Mark Turner Props., Inc. v. Evans, 274 Ga. 547 , 554 S.E.2d 492 (2001).

One purpose of the 10 percent penalty is to make the purchaser whole for the use of the purchaser's money during the time it is tied up in the property. Southerland v. Bradshaw, 255 Ga. 455 , 339 S.E.2d 579 (1986).

Purpose of requirement that payment be made to purchaser or heirs. - By the terms of this statute, a prerequisite to redemption is that amounts required for redemption must be paid to the purchaser, or the purchaser's heirs, successors, or assigns in lawful money of the United States. The intent and purpose of this payment is to fully compensate the owner for what the owner paid plus a penalty. This purpose is defeated if payment is made to just anyone in the chain for the owner at the time is alone entitled to such payment. Herrington v. Old S. Inv. Co., 222 Ga. 428 , 150 S.E.2d 623 (1966).

Computation of time period for which premium is due. - By establishing the reference points of O.C.G.A. § 48-4-42 as "each year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made", the General Assembly has demonstrated its intention to compute the time period for which a 10 percent premium is due as a 12-month year running from the date of sale. Southerland v. Bradshaw, 255 Ga. 455 , 339 S.E.2d 579 (1986).

Effect of redemption. - Limited liability company (LLC) was entitled to fee simple title to property conveyed by a warranty deed after the LLC redeemed the property under O.C.G.A. § 48-4-42 as to a 1984 tax deed held by a corporation because title had not ripened in the corporation under O.C.G.A. § 48-4-48 as the corporation had not established adverse possession. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

Failure to pay or tender to proper party as bar to action to redeem. - When proper tender would have been to the holders under the security deed, failure to pay or tender to the holders the required amount for redemption is a bar to the prosecution of an action to redeem. Herrington v. Old S. Inv. Co., 222 Ga. 428 , 150 S.E.2d 623 (1966).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Agreement to redeem. - In taxpayers' claim against a purchaser's assignee for rescission of a redemption agreement, the facts did not support rescission. The assignee's attorney did not defraud them or conceal any facts, but advised them to hire an attorney, and any failure to advise them of their legal rights was an opinion as to a matter of law and not a material fact. Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640 , 755 S.E.2d 675 (2014).

Failure to show property interest. - Trial court erred by granting summary judgment to appellee because the homeowners' association's assignment of a lien for unpaid association dues the association relied upon to show the association possessed a property interest that authorized the association's redemption of the property indicated a different name than the property owners and the appellee had already obtained the excess tax sale funds based on the association's asserted lien resulting from the redemption. Postell v. Trinitec Portfolio Svcs., LLC, 341 Ga. App. 283 , 799 S.E.2d 597 (2017).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984); Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986); Davis v. Harpagon Co., LLC, 281 Ga. 250 , 637 S.E.2d 1 (2006); Human v. Harpagon Co., LLC, 281 Ga. 372 , 637 S.E.2d 684 (2006); Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008); Ga. Home Appraisers, Inc. v. Trintec Portfolio Servs., LLC, 349 Ga. App. 356 , 825 S.E.2d 833 (2019); Tyner v. Edge, 355 Ga. App. 196 , 843 S.E.2d 632 (2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 533, 534. 72 Am. Jur. 2d, State and Local Taxation, § 723.

C.J.S. - 85 C.J.S., Taxation, § 1434 et seq.

ALR. - Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

48-4-43. Effect of redemption.

When property has been redeemed, the effect of the redemption shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale. If the redemption has been made by any creditor of the defendant or by any person having any interest in the property, the amount expended by the creditor or person interested shall constitute a first lien on the property and, if the quitclaim deed provided for in Code Section 48-4-44 is recorded as required by law, shall be repaid prior to any other claims upon the property.

(Ga. L. 1898, p. 85, § 3; Civil Code 1910, § 1170; Code 1933, § 92-8302; Code 1933, § 91A-431, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

"Lien" construed. - As used in this statute, "lien" comprehends also title under deeds for security of debt. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936).

Applicability after statutory redemption period expired. - Statute is equally applicable when property is redeemed after statutory period has expired. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936); Caffey v. Parris, 186 Ga. 303 , 197 S.E. 898 (1938).

Applicability of this section to property sold for federal taxes. - Statute does not apply only to tax sales by the state or some subdivision thereof. While provisions of federal statutes control as to manner in which property may be redeemed after sale for federal taxes, once the redemption has become effective, the effect of the redemption as to other liens on the property is determined by state statutes. Lowe v. City of Atlanta, 221 Ga. 477 , 145 S.E.2d 534 (1965).

Effect of redemption by cotenant on rights of other cotenants. - If cotenant redeemed property by payment of redemption money to purchaser at tax sale, such redemption does not divest other cotenant of title to that cotenant's interest in the property. The effect of the redemption would be to restore title to the same owners who held title before the tax sale. Andrews v. Walden, 208 Ga. 340 , 66 S.E.2d 801 (1951).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Purchase by trustee in breach treated as redemption. - When in consequence of a trustee's breach of duty an estate is sold for taxes, the trustee cannot, even after the expiration of the redemption period, acquire a title from the purchaser at the tax sale, good against the cestui que trust. In equity the reconveyance will be treated as a correction of the wrong, leaving the property impressed with the original trust. Bourquin v. Bourquin, 120 Ga. 115 , 47 S.E. 639 (1904).

When a trustee allowed trust property to be sold for taxes, but purchased the property individually after the time for redemption had passed, the effect was a revesting of the interest of the cestui que trust, who was then entitled to redeem the land at a subsequent tax sale. Bourquin v. Bourquin, 120 Ga. 115 , 47 S.E. 639 (1904).

Rescission of redeemer's foreclosure sale due to lack of actual notice to interested parties. - In a judicial foreclosure sale held after a tax sale and redemption, the super lien holder's failure to give actual notice of the sale to the record owner and two lienholders justified the trial court's setting aside the sale under O.C.G.A. § 9-13-172 ; the disappointed buyer from that sale had no interest in the property and lacked standing to ask the court to confirm or set aside a second sale. Ga. Home Appraisers, Inc. v. Trintec Portfolio Servs., LLC, 349 Ga. App. 356 , 825 S.E.2d 833 (2019).

Effect against sale purchaser with independent title. - When land is redeemed no better title is acquired than the person redeeming had before, and if the purchaser at the tax sale has an independent title, it is not divested by the redemption. Elrod v. Owensboro Wagon Co., 128 Ga. 361 , 57 S.E. 712 (1907). See also Morrison v. Whiteside, 116 Ga. 459 , 42 S.E. 729 (1902).

Effect of sale and redemption on restrictions as to use of property. - Whether or not a restriction of land to use as a park might ordinarily be extinguished by a valid sale of the land under a municipal execution for paving assessments, when the owner of the property at the time of sale under execution merely redeems the property, the effect of such redemption is to place title back into such owner, subject to the restriction. Caffey v. Parris, 186 Ga. 303 , 197 S.E. 898 (1938).

No right to excess funds generated by tax sale. - Trial court did not err in granting a tax commissioner summary judgment in a lienholder's action under O.C.G.A. § 15-13-3 to recover excess funds from a tax sale because at the time of the tax sale, at the time the tax commissioner notified the record owner of the property and record lienholders of the excess tax sale funds, and at the time the tax commissioner paid the excess tax sale funds to the record owner of the property, the lienholder had no recorded lien or interest in the property; after the tax commissioner fulfilled the obligation under O.C.G.A. § 48-4-5(a) to give notice to the record property owner and lienholders, the property owner submitted the only claim to the tax commissioner for the excess tax sale funds, and the lienholder failed to show that more was required of the tax commissioner before the funds were disbursed. Brina Bay Holdings, LLC v. Echols, 314 Ga. App. 242 , 723 S.E.2d 533 (2012), overruled on other grounds, DLT List, Inc. v. M7ven Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

To the extent that Wester v. United Capital Finance of Atlanta, LLC, 282 Ga. App. 392 , 638 S.E.2d 779 (2006), and United Capital Finance of Atlanta v. American Investment Assoc., 302 Ga. App. 400 , 691 S.E.2d 272 (2010), held that the redeeming creditor at a tax sale had a first priority claim on the excess tax funds for the amount paid to redeem the property, those cases are overruled. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

As to excess tax sale funds, a redeeming creditor can only make a claim for the funds in the amount of the pre-tax sale lien that gave the creditor the right to redeem. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Order disbursing excess tax sale funds to the assignee of the redeemer was reversed because the assignee could not show justifiable or good faith reliance on case law that had been overturned and, therefore, had no vested rights to the excess funds or that the issue was moot because it had already spent the funds. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Cited in Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986); Pearlman v. Sec. Bank & Trust Co., 261 Ga. App. 270 , 582 S.E.2d 219 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 460 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1458 et seq.

ALR. - Judgment as lien on judgment debtor's equity of redemption in land sold for taxes, 91 A.L.R. 647 .

Deed from purchaser of tax title to former owner or lienor as a conveyance of a new title or a redemption, as regards rights or liens of third persons subordinate to tax lien, 106 A.L.R. 887 .

Right and remedy of mortgagee who for protection of his security pays taxes on, or redeems from tax sale of, mortgaged property, 123 A.L.R. 1248 .

Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

Rights and remedies of owner against holder of invalid tax title respecting rents and profits or use and occupation, 173 A.L.R. 1179 .

Applicability of tax redemption statutes to separate mineral estates, 56 A.L.R.2d 621.

48-4-44. Quitclaim deed by purchaser.

  1. In all cases where property is redeemed, the purchaser at the tax sale shall make a quitclaim deed to the defendant in fi. fa., which deed shall recite:
    1. The name of the person who has paid the redemption money; and
    2. The capacity in which or the claim of right or interest pursuant to which the redemption money was paid.
  2. The recitals required by subsection (a) of this Code section shall be prima-facie evidence of the facts stated.
  3. If the quitclaim deed provided for in subsection (a) of this Code section is presented to the purchaser at the time such person accepts the amount payable for the redemption in the form of cash or a certified check, the purchaser shall, at that time, sign the quitclaim deed if a notary public and an unofficial witness are present to witness such signature.
  4. If no quitclaim deed is presented at the time of the redemption or if sufficient witnesses are not present, it shall be the responsibility of the purchaser to prepare and properly execute such quitclaim deed as is required by law within seven days from the date of the redemption.
  5. It shall be the responsibility of the purchaser once the quitclaim deed is properly executed as required in subsection (d) of this Code section to present such deed for recordation to the clerk of the court within ten days of the redemption. The quitclaim deed shall be presented for recordation in the county where the tax sale originally occurred. The purchaser shall pay all recording costs and return the recorded quitclaim deed to the redeemer.

    (Ga. L. 1898, p. 85, § 5; Civil Code 1910, § 1172; Code 1933, § 92-8304; Code 1933, § 91A-433, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 770, § 6/SB 585.)

Editor's notes. - Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

JUDICIAL DECISIONS

Section inapplicable to sale for drainage assessments. - When land is sold under execution issued for an assessment to meet interest, principal, or costs of draining the land in a drainage district, the vendee will not be required to execute and deliver a quitclaim deed. Sigmon-Reinhardt Co. v. Atkins Nat'l Bank, 163 Ga. 136 , 135 S.E. 720 (1926).

That purchaser does not yet have deed is no defense to demand for deed. - It is no defense to a demand for a deed to answer that the purchaser has not yet had the selling officer make a deed to the purchaser. Elrod v. Owensboro Wagon Co., 128 Ga. 361 , 57 S.E. 712 (1907).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Cited in Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986); Selph v. Williams, 284 Ga. 349 , 667 S.E.2d 40 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 461, 462.

C.J.S. - 85 C.J.S., Taxation, § 1468 et seq.

ALR. - Rights or interests covered by quitclaim deed, 44 A.L.R. 1266 ; 162 A.L.R. 556 .

Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

48-4-45. Notice of foreclosure of right to redeem; time; persons entitled to notice.

  1. After 12 months from the date of a tax sale, the purchaser at the sale or his heirs, successors, or assigns may terminate, foreclose, divest, and forever bar the right to redeem the property from the sale by causing a notice or notices of the foreclosure, as provided for in this article:
    1. To be served upon all of the following persons who reside in the county in which the property is located:
      1. The defendant in the execution under or by virtue of which the sale was held;
      2. The occupant, if any, of the property; and
      3. All persons having of record in the county in which the land is located any right, title, or interest in, or lien upon the property;
    2. To be sent by registered or certified mail or statutory overnight delivery to each of the persons specified in subparagraphs (A), (B), and (C) of paragraph (1) of this subsection who resides outside the county in which the property is located, if the address of that person is reasonably ascertainable; and
    3. To be published, if that tax sale occurs on or after July 1, 1989, in the newspaper in which the sheriff's advertisements for the county are published in each county in which that property is located, which publication shall occur once a week for four consecutive weeks in the six-month period immediately prior to the week of the redemption deadline date specified in the notice.
  2. Nothing contained in this Code section shall be construed to require that any notice be sent to or served upon any person whose right, title, interest in, or lien upon the property does not appear of record in the county in which the land is located.
  3. The heirs of any deceased owner of any land entitled to notice pursuant to this Code section shall be served by the sheriff or notified as provided in this article.

    (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-434, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1391, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Notice requirements of O.C.G.A. § 48-4-45 must be complied with by one seeking redemption. Blizzard v. Moniz, 271 Ga. 50 , 518 S.E.2d 407 (1999).

Proper notice requires compliance with multiple provisions. - Under the plain language of O.C.G.A. § 48-4-45(a) , the right to redeem is foreclosed and forever barred only upon compliance with paragraphs (a)(1), (a)(2), and (a)(3); because those three paragraphs are set forth in the conjunctive, compliance with each paragraph is required. Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891 , 792 S.E.2d 680 (2016).

Lack of notice not affecting foreclosure of redemption. - Because the former owner's interest in property was foreclosed upon by the creditor prior to the issuance of the tax fi-fa, the former owner's interest did not appear of record in the county in which the property was located when the foreclosure of the right of redemption was begun and, accordingly, the lack of notice to the former owner did not affect the validity of the foreclosure. GE Capital Mtg. Servs. Inc. v. Clack, 271 Ga. 82 , 515 S.E.2d 619 (1999).

When notice requirement applicable. - Appellant was entitled to fee simple title to a 50-acre tract as a predecessor in interest who purchased the property from the county after the county had purchased the property at a tax sale did not make an out-of-time redemption under former Code 1933, § 92-8301 (see now O.C.G.A. § 48-4-40(2) ) as the extension of the right to redeem was not enacted until after the death of the initial purchaser, who was the predecessor's parent; the notice requirement in O.C.G.A. § 48-4-45 also was not enacted at that time. Selph v. Williams, 284 Ga. 349 , 667 S.E.2d 40 (2008).

Proof of publication of notice. - Tax sale purchaser's attachment of a copy of the newspaper notice to the summary judgment affidavit satisfied the purchaser's burden of showing on the record that the purchaser was entitled to judgment. GE Capital Mtg. Servs. Inc. v. Clack, 271 Ga. 82 , 515 S.E.2d 619 (1999).

Computation of time. - O.C.G.A. § 48-4-45 requires that 12 months shall have elapsed before the right to redeem property shall be foreclosed and before notice of the right to foreclose the right shall be served. Wallace v. President St., 263 Ga. 239 , 430 S.E.2d 1 (1993).

Lienholders acquiring interest subsequent to tax sales not barred from redemption. - O.C.G.A. § 48-4-45 does not provide that the interest must have been held at the time of the tax sale. The statute requires notice to lienholders who exist at the time of any attempted foreclosure of the right of redemption. Therefore, such lienholders are not barred from the right of redemption by reason of having acquired their interest subsequent to the tax sale. Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986).

Power of court of equity to allow redemption after expiration of period. - After the statutory redemption has expired, the right to redeem is gone, and there is no power even in a court of equity to authorize redemption of the property in such cases. Boroughs v. Lance, 213 Ga. 143 , 97 S.E.2d 357 (1957).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Notice of barment. - There was no evidence in the record showing that the notice of barment was ever provided to the sheriff by the purchaser for service; consequently, there was no evidence that the sheriff violated the sheriff's duties regarding service of the notice of barment as alleged. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901 , 625 S.E.2d 46 (2005).

Right to notice not shown. - Because a tax sale listed the wrong owner of the property to be sold and the description of the property was inconsistent, such that it was unclear which property was being sold, the bidder's deed was defective, as was the quitclaim deed of the purchaser of the property from the bidder, and, accordingly, there was no merit to the purchaser's claim that it was due summary judgment on the issue of whether the owner's executrix had a right to redeem the property or whether the sale was barred under O.C.G.A. § 48-4-45 ; after the tax sale, the bidder quitclaimed the deed to the purchaser, which occurred prior to the sheriff's "administrative cancellation" of the tax sale due to procedural errors, and the purchaser's action to quiet title, pursuant to O.C.G.A. § 23-3-40 et seq., resulted in summary judgment to the executrix. Harpagon Co. v. Gelfond, 279 Ga. 59 , 608 S.E.2d 597 (2005).

In a challenge to the tax deed holder's acquisition of the subject property, a neighbor's complaint that, because of the neighbor's claim of adverse possession, the neighbor was entitled to statutory notice of foreclosure of the right to redeem the property, was rendered moot by the neighbor's abandonment of the adverse possession claim and the neighbor failed to show any other basis for a right to notice under O.C.G.A. § 48-4-45(a)(1). Ritchie v. Metro Tax Investors, Inc., 280 Ga. 79 , 623 S.E.2d 498 (2005).

Alleged property owner not entitled to notice because interest not recorded. - Claimant who asserted that the claimant was the owner of commercial property that had been sold at a tax sale, based on an oral contract that the claimant had fully performed and the claimant's payment of property taxes for over ten years, was not entitled to service of the notice of foreclosure of the right to redeem under O.C.G.A. § 48-4-45(a)(1) because subsection (b) required service on an "occupant" only if the occupant had an interest that was "of record," and the claimant had no recorded interest. Tyner v. Edge, 355 Ga. App. 196 , 843 S.E.2d 632 (2020).

Power company easement a nullity. - Easement the power company obtained from the landowner after the landowner had already lost the property to a tax sale became a nullity when the property was not redeemed after a buyer properly invoked the state barment statutes. Land USA, LLC v. Ga. Power Co., 297 Ga. 237 , 773 S.E.2d 236 (2015).

No record of successful completion of foreclosure of redemption rights. - Buyer's claim of foreclosure of all rights to redeem property purchased by the buyer at a tax sale failed because the county real estate records did not contain an entry memorializing successful completion of the foreclosure of the right of redemption as provided by O.C.G.A. § 48-4-46(d) ; a corporation thus only had notice that the buyer, as a later tax deed grantee, held an inchoate or defeasible title, which could have been perfected on foreclosure of all senior redemption rights. The corporation stood in the position of a good-faith purchaser for value without notice. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Reasonably diligent steps to locate property owner. - Summary judgment for a tax sale purchaser was affirmed as the purchaser took reasonably diligent steps to locate a property owner to notify the owner of the foreclosure of the owner's right to redeem the property as it: (1) attempted to learn from the owner's tenant how to contact the owner; (2) left letters under the condominium door; (3) contacted the management company; and (4) contacted the owner's mortgage company; the owner's claims that the purchaser should have searched a state court's docket and should have used a phone book to locate the owner were rejected. Hamilton v. Renewed Hope, Inc., 281 Ga. 393 , 637 S.E.2d 412 (2006).

Tax sale buyer complied with O.C.G.A. § 48-4-45(a) 's notice requirements when, after conducting a reasonable search, the buyer sent notice to the owner's known addresses via certified mail, as the buyer resided outside the county where the property was located, and published the required notices in a newspaper in the county where the property was located. Mancuso v. TDGA, LLC, 301 Ga. 671 , 802 S.E.2d 248 (2017), cert. denied, 200 L. Ed. 2 d 518, 86 U.S.L.W. 3485 (U.S. 2018), cert. denied, 2018 U.S. LEXIS 2010, 200 L. Ed. 2 d 518 (U.S. 2018).

Bankruptcy. - Tax sale purchaser creditor's motion for relief from the automatic stay under 11 U.S.C. § 362(d) was denied, and the debtor could not yet proceed to foreclose on the debtor's equity of redemption under the barment provisions of O.C.G.A. §§ 48-4-45 and 48-4-46 because the foreclosure was filed after the chapter 13 bankruptcy petition. Greyfield Res., Inc. v. Drummer (In re Drummer), 457 Bankr. 912 (Bankr. N.D. Ga. 2011).

Although the time period for the chapter 13 debtor to exercise the debtor's right of redemption as to the tax deed sale of the debtor's real property passed, under O.C.G.A. § 48-4-45 , the debtor could still pay the claim pursuant to 11 U.S.C. § 1322 as a claim under the debtor's chapter 13 plan. Francis v. Scorpion Group, LLC (In re Francis), 489 Bankr. 262 (Bankr. N.D. Ga. 2013).

When Chapter 13 debtor proposed extension plan prior to date when the right of redemption would have expired under Georgia state law, without regard to an extension provided by 11 U.S.C. § 108, the debtor did not reside on that property, and the Chapter 13 plan would pay the redemption amount in full, plus interest, then the redemption amount could be paid over the length of the plan regardless of whether applicable state law required a lump sum payment. In re Jimerson, 564 Bankr. 430 (Bankr. N.D. Ga. 2017).

Redemption untimely. - Judgment denying the redeemer's motion for relief was reversed because the plain terms of O.C.G.A. § 48-4-45(a) provided unambiguously that the right to redeem was foreclosed only after compliance with paragraphs (a)(1), (a)(2), and (a)(3) and the redeemer attempted to redeem the property before the buyer had complied with paragraph (a)(3); thus, the right to redeem was not yet foreclosed, and the buyer improperly rejected the redeemer's tender of the redemption price as untimely. Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891 , 792 S.E.2d 680 (2016).

Cited in Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988); Davis v. Harpagon Co., LLC, 281 Ga. 250 , 637 S.E.2d 1 (2006); Human v. Harpagon Co., LLC, 281 Ga. 372 , 637 S.E.2d 684 (2006); Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008); BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009); Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 458. 72 Am. Jur. 2d, State and Local Taxation, § 911 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1370 et seq.

ALR. - Who entitled to notice necessary to perfect tax title, 54 A.L.R. 756 ; 169 A.L.R. 686 .

Necessity and sufficiency of statement in notice of application for tax deed, or notice to redeem for tax sale, as regards time for redemption, 82 A.L.R. 502 .

Tax title or deed as subject to attack for want of notice of application for tax deed or of expiration of redemption period, where a statute makes tax deed conclusive evidence of matters preliminary to its issuance or limits attack thereon to specific grounds or exempts deed from attack for procedural irregularities or omissions, 134 A.L.R. 796 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

Recovery of sales taxes paid on bad debts, 38 A.L.R.6th 255.

48-4-46. Form of notice of foreclosure of right to redeem; service; time; return and record; waiver.

  1. The notice provided for in Code Section 48-4-45 shall be written or printed, or written in part and printed in part, and shall be in substantially the following form:       Take notice that:        The right to redeem the following described property, to wit:       ____________ will expire and be forever foreclosed and barred on and after the ________ day of ________, ________.        The tax deed to which this notice relates is dated the ________ day of ________, ________, and is recorded in the office of the Clerk of the Superior Court of ________ County, Georgia, in Deed Book ________ at page ________.        The property may be redeemed at any time before the ________ day of ________, ________, by payment of the redemption price as fixed and provided by law to the undersigned at the following address: ________________________.        Please be governed accordingly. ________________________
  2. The purchaser at the tax sale or his heirs, successors, or assigns, as the case may be, shall make out an original notice in substantially the form prescribed in subsection (a) of this Code section and one copy of the notice for each person to be served with the notice. The purchaser shall deliver the notice and the copies together with a list of the persons to be served to the sheriff of the county in which the land is located not less than 45 days before the date set in each notice for the expiration of the right to redeem. Within 15 days after delivery to him, the sheriff shall serve a copy of the notice personally or by deputy upon each of the persons included on the list furnished him who reside in the county. The sheriff shall make an entry of the service on the original copy of the notice. Leaving a copy of the notice at the residence of any person required to be served with the notice shall be a sufficient service of the notice.
  3. If the sheriff personally or by deputy makes an entry that he is unable for any reason to effect service upon any person required to be served, the person who requested that the service be made shall forthwith cause a copy of the notice to be published once a week for two consecutive weeks in the newspaper in which the sheriff's advertisements for the county are published, unless that notice is being published as provided in paragraph (3) of subsection (a) of Code Section 48-4-45. Either publication shall operate as and for all purposes shall be treated as service upon all persons as to whom the sheriff has made an entry that he has been unable to effect service.
  4. Each original notice together with the entry of the sheriff on the notice shall be returned to the person by whom the service was requested upon the payment of the sheriff's costs as provided by law. Any original notice together with the entries on the notice may be filed and recorded on the deed records in the office of the clerk of the superior court of the county in which the land is located.
  5. Service of notices as provided in this Code section may be waived in writing by any person required or entitled to be served with the notice.

    (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-435, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1989, p. 1391, § 2; Ga. L. 1999, p. 81, § 48.)

JUDICIAL DECISIONS

Constitutionality. - Notice to persons outside the county under O.C.G.A. § 48-3-9(b) and subsections (b) and (c) of O.C.G.A. § 48-4-46 are not in accord with the requirements of due process because an owner of a security deed or mortgage who lives outside the county in which the land is located will only receive published notice of the foreclosure of the right to redeem. Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988).

It is not presumed that the General Assembly intended to enable a tax sale purchaser to forego any methods of notice of foreclosure of the right to redeem which might be required by the due process clause, and the words "for any reason" in O.C.G.A. § 48-4-46(c) are construed to mean that notice by publication is permissible only if a sheriff's inability to effect personal service satisfies the constitutional mandate of due process. Hamilton v. Renewed Hope, Inc., 277 Ga. 465 , 589 S.E.2d 81 (2003).

Responsibility of purchasers. - Purchasers of a business were required to establish a fund sufficient to cover unpaid taxes regardless of the existence of other claims superior to the state tax execution. Collins v. Lesters, Inc., 225 Ga. App. 405 , 484 S.E.2d 62 (1997).

No record of successful completion of foreclosure of redemption rights. - Buyer's claim of foreclosure of all rights to redeem property purchased by the buyer at a tax sale failed because the county real estate records did not contain an entry memorializing successful completion of the foreclosure of the right of redemption as provided by O.C.G.A. § 48-4-46(d) ; a corporation thus only had notice that the buyer, as a later tax deed grantee, held an inchoate or defeasible title, which could have been perfected on foreclosure of all senior redemption rights. The corporation stood in the position of a good-faith purchaser for value without notice. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Reasonable efforts at providing notice not established. - When the assignee of a party who purchased certain real property at a tax sale unsuccessfully tried to give the property's owner notice of the foreclosure of the assignee's right to redeem the property by personal service at the owner's address as found in tax and deed records for the subject property, publication could not be constitutionally used to give the owner notice of the foreclosure until further efforts were made to provide the owner notice, absent evidence that other channels of information to locate the owner were not reasonably available, or that use of those channels would have been impractical. Hamilton v. Renewed Hope, Inc., 277 Ga. 465 , 589 S.E.2d 81 (2003).

Reasonable efforts at providing notice established. - There was no evidence in the record showing that the notice of barment was ever provided to the sheriff by the purchaser for service; consequently, there was no evidence that the sheriff violated duties regarding service of the notice of barment as alleged. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901 , 625 S.E.2d 46 (2005).

Bankruptcy. - Tax sale purchaser creditor's motion for relief from the automatic stay under 11 U.S.C. § 362(d) was denied, and the debtor could not yet proceed to foreclose on debtor's equity of redemption under the barment provisions of O.C.G.A. §§ 48-4-45 and 48-4-46 because the foreclosure was filed after the chapter 13 bankruptcy petition. Greyfield Res., Inc. v. Drummer (In re Drummer), 457 Bankr. 912 (Bankr. N.D. Ga. 2011).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984); Dixon v. Conway, 262 Ga. 709 , 425 S.E.2d 651 (1993); Tyner v. Edge, 355 Ga. App. 196 , 843 S.E.2d 632 (2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 458. 72 Am. Jur. 2d, State and Local Taxation, § 911 et seq.

ALR. - Tax title or deed as subject to attack for want of notice of application for tax deed or of expiration of redemption period, where a statute makes tax deed conclusive evidence of matters preliminary to its issuance or limits attack thereon to specific grounds or exempts deed from attack for procedural irregularities or omissions, 134 A.L.R. 796 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-4-47. Tender of redemption price before action to cancel tax deed.

  1. After notice to foreclose the right of redemption as provided for in this article has been given, no action shall be filed, allowed, sanctioned, or maintained for the purpose of setting aside, canceling, or in any way invalidating the tax deed referred to in the notice or the title conveyed by the tax deed unless and until the plaintiff in the action pays or legally tenders to the grantee in the deed or to his successors the full amount of the redemption price for the property, as provided for in this article.
  2. Subsection (a) of this Code section shall apply unless it clearly appears that:
    1. The tax or special assessment for the collection of which the execution under or by virtue of which the sale was held was not due at the time of the sale; or
    2. Service or notice was not given as required in this article.

      (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-437, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Tender requirement does not violate due process. - Delinquent taxpayers could not maintain a suit to set aside a tax deed because they failed to pay or tender the redemption amount required under O.C.G.A. § 48-4-47 . O.C.G.A. § 48-4-47 did not violate their due process rights, although the redemption amount of $112,416 dwarfed the original $2,000 in unpaid taxes due to the addition of taxes and penalties under O.C.G.A. § 48-4-42 . Saffo v. Foxworthy, Inc., 286 Ga. 284 , 687 S.E.2d 463 (2009), cert. denied, 560 U.S. 939, 130 S. Ct. 3360 , 176 L. Ed. 2 d 1246 (2010).

Effect of plaintiff's financial inability to make tender. - Plaintiff's financial inability to make the tender of the amount owed does not alter the requirements of this statute. Ayer v. Lamar County, 194 Ga. 712 , 22 S.E.2d 606 (1942).

Collateral attack on ownership of property. - Plaintiffs were barred from collaterally attacking the validity of the county's ownership of property at the time of the demolition of a home on the property since there was no tender of the redemption price to the county regarding the property and there was nothing in the record to indicate that taxes, which formed the basis for the tax sale of the property, were not due at the time of sale or that the county failed to provide proper notice or service of the county's bar of redemption. Hill v. Mayor of Savannah, 233 Ga. App. 742 , 505 S.E.2d 35 (1998).

Tender of redemption price not required since notice not given to redeeming party. - Trial court erred by finding that the failure of the plaintiff to tender the full amount of the redemption price for the property at issue before filing suit barred that action under the statute since the plaintiff claimed that the plaintiff did not receive the statutorily required notice. H & C Dev., Inc. v. Bershader, 248 Ga. App. 546 , 546 S.E.2d 907 (2001).

Exception to tender requirement found. - Because an exception to the tender requirement that the redemption price be tendered before the validity of a tax deed could be challenged applied, as it appeared that the tax or special assessment for the collection of which the execution under or by virtue of which the sale was held was not due at the time of the sale based on the property's tax-exempt status, the appeals court rejected a claim that trustees for the property lacked standing to contest the tax sale because they did not tender the amount of unpaid taxes for which the property was sold. Marathon Inv. Corp. v. Spinkston, 281 Ga. 888 , 644 S.E.2d 133 (2007).

Because there was evidence in the form of a taxpayer's averment that there were no taxes due at the time of a tax sale, relieving the taxpayer of the obligation to make a complete tender prior to seeking redemption of the taxpayer's property under O.C.G.A. § 48-4-47(b)(1), a trial court did not abuse the court's discretion in granting an interlocutory injunction to maintain the status quo, pending resolution of the issues presented. Am. Lien Fund, LLC v. Dixon, 286 Ga. 562 , 690 S.E.2d 415 (2010).

Failure to give notice of right to redemption. - O.C.G.A. § 48-4-47 was inapplicable in a redemption company's action against a purchaser to enforce redemption of real property because the purchaser had not given the statutorily required notice of foreclosure of the right to redemption at any time since the purchaser's purchase of the property by tax deed. Cmty. Renewal & Redemption v. Nix, 288 Ga. 439 , 704 S.E.2d 759 (2011).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984); Tyner v. Edge, 355 Ga. App. 196 , 843 S.E.2d 632 (2020).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 723.

C.J.S. - 85 C.J.S., Taxation, § 1441 et seq.

ALR. - Necessity of recording tax deed to protect title as against interest derived from former owner, 65 A.L.R. 1015 .

Tax title or deed as subject to attack for want of notice of application for tax deed or of expiration of redemption period, where a statute makes tax deed conclusive evidence of matters preliminary to its issuance or limits attack thereon to specific grounds or exempts deed from attack for procedural irregularities or omissions, 134 A.L.R. 796 .

48-4-48. Ripening of tax deed title by prescription.

  1. A title under a tax deed properly executed at a valid and legal sale prior to July 1, 1989, shall ripen by prescription after a period of seven years from the date of execution of that deed.
  2. A title under a tax deed executed on or after July 1, 1989, but before July 1, 1996, shall ripen by prescription after a period of four years from the execution of that deed. A title under a tax deed properly executed on or after July 1, 1996, at a valid and legal sale shall ripen by prescription after a period of four years from the recordation of that deed in the land records in the county in which said land is located.
  3. A tax deed which has ripened by prescription pursuant to any provision of this Code section shall convey, when the defendant in fi. fa. is not laboring under any legal disability, a fee simple title to the property described in that deed, and that title shall vest absolutely in the grantee in the deed or in the grantee's heirs or assigns. In the event the defendant in fi. fa. is laboring under any legal disability, the prescriptive term specified in this Code section shall begin from the time the disabilities are removed or abated.
  4. Notice of foreclosure of the right to redeem property sold at a tax sale shall not be required to have been provided in order for the title to such property to have ripened under subsection (a) or (b) of this Code section.

    (Ga. L. 1949, p. 1132, § 1; Code 1933, § 91A-438, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1391, § 3; Ga. L. 1996, p. 783, § 1.)

Law reviews. - For annual survey article discussing real property law, see 51 Mercer L. Rev. 441 (1999). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1949, p. 1132, § 2-A, are included in the annotations for this Code section.

Vesting of rights. - Decision to award a limited liability company fee simple title in real property did not violate the contract impairment clauses in U.S. Const. Art. I, Sec. 10 and Ga. Const. 1983, Art. I, Sec. I, Para. X as a corporation's rights to the property pursuant to a 1984 tax deed had not vested prior to the effective date of a 1989 amendment of O.C.G.A. § 48-4-48 , which operated retrospectively. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

If levy of tax execution is excessive, sale held under levy is void. Craig v. Arnold, 227 Ga. 333 , 180 S.E.2d 733 (1971) (decided under Ga. L. 1949, p. 1132, § 2-A).

Adverse possession by the tax deed grantee required. - Tax grantee's title did not ripen since the grantee never occupied the property nor committed any acts or exhibited any conduct which would amount to adverse possession of the property for the requisite period. Blizzard v. Moniz, 271 Ga. 50 , 518 S.E.2d 407 (1999).

Since a tax deed holder never occupied the property or engaged in any act evidencing ownership other than payment of taxes, the trial court erred in finding that the tax deed holder had prescriptive title and in refusing to allow a successor in title to redeem the property. O.C.G.A. § 48-4-48 was not a statute of repose operating to foreclose the right of redemption upon the mere passage of time. Mark Turner Props., Inc. v. Evans, 274 Ga. 547 , 554 S.E.2d 492 (2001).

Because a tax deed was executed after the effective date of the amendment to O.C.G.A. § 48-4-48 , the trial court erred in ruling that title vested in a county by the passage of time and in granting summary judgment to its purchaser; the case was remanded for further proceedings since there were questions, inter alia, on the purchaser's entitlement to a prescriptive title. Cmty. Renewal & Redemption, LLC v. Nix, 279 Ga. 840 , 621 S.E.2d 722 (2005).

Limited liability company (LLC) was entitled to fee simple title to property conveyed by a warranty deed after the LLC redeemed the property under O.C.G.A. § 48-4-42 as to a 1984 tax deed held by a corporation because title had not ripened in the corporation under O.C.G.A. § 48-4-48 as the corporation had not established adverse possession. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

In a quiet title action under O.C.G.A. § 23-3-60 , although a corporation with a 1984 tax deed to the property in dispute claimed that ripening of title had occurred under O.C.G.A. § 48-4-48 as the corporation held the tax deed for the required seven-year period under a former version of the statute, a 1989 amendment that applied expressly to tax deeds executed prior to July 1, 1989, required adverse possession by the tax deed grantee in order for title to ripen. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

Successor in interest to the owner of property had successfully redeemed the property from the purchaser of a tax deed by tendering an adequate amount, O.C.G.A. § 48-4-40(2) , although it was refused by the purchaser; the court rejected the purchaser's claim that the purchaser acquired title by prescription under O.C.G.A. § 48-4-48 because the prescriptive period was not met and the purchaser's possession of the unfenced, uninhabited property was not sufficiently adverse. Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

Insufficient showing of actual possession. - Trial court did not err when the court concluded that a buyer's tax deed did not ripen by prescription into a fee simple title because neither the buyer's payments of taxes nor occasional cleanup and mowing of areas were sufficiently notorious or exclusive as to constitute actual possession. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Exercise of right of redemption required. - It was incumbent upon parties claiming a right to redemption actually to exercise the right during the four-year period; the filing of a civil action alleging the existence of that unexercised right was not sufficient. Machen v. Wolande Mgt. Group, Inc., 271 Ga. 163 , 517 S.E.2d 58 (1999).

State of title held by purchaser or purchaser's grantee pending period of redemption. - Trial court properly granted summary judgment to an association, and the association's employee and a board member, on the claims by a property purchaser against them for extortion and removal of liens arising out of the purchaser's failure to pay association fees after the purchaser purchased seven properties in a subdivision through a tax sale resulting from unpaid property taxes; while it was true that the purchaser did not obtain a fee simple absolute title, and that title could be restored to specified predecessors through redemption or before the purchaser gave notice pursuant to O.C.G.A. § 48-4-45 , the purchaser did receive title sufficient to trigger automatic membership in the association and was thus required to pay the association's assessed fees. Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005).

Cited in Moultrie v. Wright, 266 Ga. 30 , 464 S.E.2d 194 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 462.

ALR. - Necessity of actual possession to give title by adverse possession under invalid tax title, 22 A.L.R. 550 .

Necessity of recording tax deed to protect title as against interest derived from former owner, 65 A.L.R. 1015 .

Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Time limitation for attack on tax title as affected by defective description of property in the assessment or the tax deed, 133 A.L.R. 570 .

Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

ARTICLE 4 LAND BANK AUTHORITIES

48-4-60. Definitions.

As used in this article, the term:

  1. "Agreement" means:
    1. An interlocal cooperation agreement entered into by the parties pursuant to this article; or
    2. A resolution of a consolidated government establishing an authority pursuant to this article.
  2. "Authority" means the land bank authority established pursuant to this article.
  3. "Parties" means the parties to the agreement, which shall include one or more cities and the county containing such cities, or a consolidated government which has adopted a resolution establishing an authority.
  4. "Property" means real property, including any improvements thereon.
  5. "Tax delinquent property" means any property on which the taxes levied and assessed by any party remain in whole or in part unpaid on the date due and payable. (Code 1981, § 48-4-60 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1.)

48-4-61. Land bank authority established by interlocal cooperation agreement; powers; purpose; dissolution.

  1. One or more cities and the county containing such cities may enter into an interlocal cooperation agreement, or a consolidated government may adopt a resolution, for the purpose of establishing a land bank authority pursuant to this article.
  2. The authority shall be a public body corporate and politic with the power to sue and be sued, to accept and issue deeds in its name, including without limitation the acceptance of real property in accordance with the provisions of subsection (f) of Code Section 9-16-19, and to institute quia timet actions and shall have any other powers necessary and incidental to carry out the powers granted by this article.
  3. The authority shall be established to acquire the tax delinquent properties of the parties and any property deeded to it pursuant to paragraph (2.1) of subsection (u) of Code Section 16-13-49 in order to foster the public purpose of returning land which is in a nonrevenue-generating, nontax-producing status to an effective utilization status or of returning real property forfeited pursuant to Code Section 16-13-49 to such status in order to provide housing, new industry, and jobs for the citizens of the county. The authority shall have the powers provided in this article and those necessary and incidental to the exercise of such powers.
  4. Any authority established pursuant to this article may be dissolved by any party to the agreement or by resolution of a consolidated government or, where multiple cities are involved, any city may withdraw from the agreement which established the authority, or such authority may be dissolved by local Act of the General Assembly.
  5. An authority whose parties form a consolidated government after entering into an interlocal cooperation agreement shall thereafter operate under and be governed by the provisions of this article applicable to authorities of consolidated governments as if created by resolution of a consolidated government. The board governing such an authority shall be reconstituted by resolution of the consolidated governments in conformity with the provisions of subsection (a) of Code Section 48-4-62 prior to the first meeting of such board subsequent to the effective date of consolidation of the party governments.
  6. No land bank authority shall be created pursuant to this article on or after July 1, 2012. Except as otherwise provided in subsection (j) of Code Section 48-4-104 , any land bank created pursuant to this article prior to July 1, 2012, shall continue to be governed by this article. (Code 1981, § 48-4-61 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1; Ga. L. 2002, p. 1286, § 2; Ga. L. 2012, p. 1055, § 1/SB 284; Ga. L. 2015, p. 693, § 3-28/HB 233.)

The 2015 amendment, effective July 1, 2015, substituted "provisions of subsection (f) of Code Section 9-16-19" for "provisions of paragraph (2.1) of subsection (u) of Code Section 16-13-49" in subsection (b).

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015). For note on the 2002 amendment of this Code section, see 19 Ga. St. U. L. Rev. 92 (2002).

48-4-62. Board to govern authority; members; meetings; organization; staff.

  1. The authority shall be governed by a board composed in such a manner as to provide two members to represent each party: two appointed by the mayor of each party city and two appointed by the county commission of the party county. An authority established by resolution of a consolidated government shall be governed by a board composed of four members to be appointed by the governing authority of the consolidated government. Each member shall serve at the pleasure of the respective appointing authority for a term of four years and shall serve without compensation. The members shall be residents of the county and may be employees of the parties. Any vacancy shall be filled for the remainder of the unexpired term in the same manner as the original appointment.
  2. The board of the authority shall meet from time to time as required, and the presence of either (1) three members, if there are only two parties to the agreement or if the authority was created by a consolidated government or (2) 50 percent of the members then in office, if there are more than two parties to the agreement, shall constitute a quorum. Approval by a majority of the membership then in office shall be necessary for any action to be taken by the authority. All meetings shall be open to the public, except as otherwise provided by Chapter 14 of Title 50, and a written record shall be maintained of all meetings. A chairperson shall be elected from among the members, and he or she shall execute all deeds, leases, and contracts of the authority when authorized by the board.
  3. The authority may employ its own staff or may utilize employees of the parties, as determined by the agreement. (Code 1981, § 48-4-62 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1.)

48-4-63. Administration of properties.

  1. The authority shall hold in its own name, for the benefit of the parties, all properties conveyed to it by the parties, all tax delinquent properties acquired by it pursuant to this article, and all properties otherwise acquired.
  2. It shall be the duty of the authority to administer the properties acquired by it as follows:
    1. All property acquired by the authority shall be inventoried and appraised, and the inventory shall be maintained as a public record;
    2. The authority shall organize and classify the property on the basis of suitability for use;
    3. The authority shall maintain all property held by it in accordance with applicable laws and codes; and
    4. The authority shall have the power to manage, maintain, protect, rent, lease, repair, insure, alter, sell, trade, exchange, or otherwise dispose of any property on terms and conditions determined in the sole discretion of the authority. The authority may assemble tracts or parcels of property for public parks or other public purposes and to that end may exchange parcels and otherwise effectuate the purposes determined by agreement with any party.
  3. The acquisition and disposal of property by the authority shall not be governed or controlled by any regulations or laws of the parties unless specifically provided in the agreement, and transfers of property by parties to the authority shall be treated as transfers to a body politic as contemplated by subparagraph (a)(2)(A) of Code Section 36-9-3.
  4. Property held by the authority may be sold, traded, exchanged, or otherwise disposed of by the authority so long as the disposition is approved by a majority of the membership, as required in subsection (b) of Code Section 48-4-62 for any action by the authority, and approved as follows:
    1. If the property is located within a party city and the party county, approved by both authority members appointed by the mayor of such city and one of the authority members appointed by the county commission;
    2. If the property is located within the county party but outside all the party cities, approved by both authority members appointed by the county commission;
    3. If the property is located within a party city but outside the party county, approved by both authority members of such city; or
    4. If the property is located within the boundaries of a consolidated government, approved by a majority of the authority members. (Code 1981, § 48-4-63 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1; Ga. L. 2010, p. 878, § 48/HB 1387.)

48-4-64. Acquisition and disposal of property.

  1. If any party obtains a judgment for taxes against a tax delinquent property within the party county, any of the party cities, or the boundaries of the consolidated government and the property is ordered sold at a tax sale to satisfy the judgment, the authority may tender one bid at such sale, and such bid shall comprise the authority's commitment to pay not more than all costs of the sale and its assumption of liability for all taxes, accrued interest thereon, and penalties, and, if there is no other bid, the tax commissioner shall accept the authority's bid and make a deed of the property to the authority.
  2. In accordance with the provisions of Code Section 48-4-45, the authority shall have the right to foreclose the right to redeem property at any time after the 12 month redemption period has expired pursuant to Code Section 48-4-65. Notwithstanding the foregoing provisions of this subsection, the right of redemption shall automatically terminate and expire upon failure to redeem in accordance with Code Section 48-4-81 where the tax sale was conducted pursuant to Article 5 of this chapter.
  3. When a property is acquired by the authority, the authority shall have the power to extinguish all county and city or consolidated government taxes, including school district taxes, at the time it sells or otherwise disposes of property; provided, however, that, with respect to school district taxes, the authority shall first obtain the consent of the board of education governing the school district in which the property is located. In determining whether or not to extinguish taxes, the authority shall consider the public benefit to be gained by tax forgiveness with primary consideration given to purchasers who intend to build or rehabilitate low-income housing. The decision by the authority to extinguish taxes is subject to the vote requirements for dispositions of property under subsection (d) of Code Section 48-4-63.
  4. At the time that the authority sells or otherwise disposes of property as part of its land bank program, the proceeds from the sale, if any, shall be allocated as determined by the authority among the following priorities: (1) furtherance of authority operations; (2) recovery of authority expenses; and (3) distribution to the parties and the appropriate school district in proportion to and to the extent of their respective tax bills and costs. Any excess proceeds shall be distributed pursuant to the agreement of the parties or by resolution of the consolidated government in accordance with the public policy stated in this article.
  5. The authority shall have full discretion in determining the sale price of the property. The agreement of the parties shall provide for a distribution of property that favors neighborhood nonprofit entities obtaining the land for low-income housing and, secondarily, other entities intending to produce low-income or moderate-income housing. (Code 1981, § 48-4-64 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1992, p. 1355, § 1; Ga. L. 1995, p. 282, § 4; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1.)

48-4-65. Foreclosure of right of redemption to property conveyed to authority.

The authority may foreclose the right of redemption to the property conveyed to the authority pursuant to a tax sale conducted in accordance with Article 1 of this chapter in the following manner:

  1. The record title to the property shall be examined and a certificate of title shall be prepared for the benefit of the authority;
  2. The authority shall serve the prior owner whose interest was foreclosed upon and all persons having record title or interest in or lien upon the property with a notice of foreclosure of this right to redeem in conformance with Code Section 48-4-46;
  3. In the event persons entitled to service are located outside the county, they may be served by certified mail or statutory overnight delivery; or
  4. In the event the sheriff is unable to perfect service or certified mail or statutory overnight delivery attempts are returned unclaimed, the authority shall conduct a search for the person with an interest in the property conveyed to the authority, which search must, at a minimum, have included the following:
    1. An examination of the addresses given on the face of the instrument vesting interest or the addresses given to the clerk of the superior court by the transfer tax declaration form. The clerk of the superior court and the tax assessor of the county are required to share information contained in the transfer tax declaration form with one another in a timely manner;
    2. A search of the current telephone directory for the county in which the property is located;
    3. A letter of inquiry to the person who sold the property to the defendant in the tax sale at the address shown in the transfer tax declaration form or in the telephone directory;
    4. A letter of inquiry to the attorney handling the closing prior to the tax sale if provided on the deed forms;
    5. A sign being no less than four feet by six feet shall be erected on the property and maintained by the authority for a minimum of 30 days reading as follows: "THIS PROPERTY HAS BEEN CONVEYED TO THE __________________ LAND BANK AUTHORITY BY VIRTUE OF A SALE FOR UNPAID TAXES. PERSONS WITH INFORMATION REGARDING THE PRIOR OWNER OF THE PROPERTY ARE REQUESTED TO CALL __________________."; and
    6. If the authority has made the search as required by this paragraph and been unable to locate those persons required to be served under paragraph (2) of this Code section or, having located additional addresses of those persons through such search, attempted without success to serve those persons in either manner provided by paragraph (2) or (3) of this Code section, the authority shall make a written summary of the attempts made to serve the notice, in recordable form, and may authorize the foreclosure of the redemption rights of record. (Code 1981, § 48-4-65 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1; Ga. L. 2000, p. 1589, § 3.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, the subsection (a) designation was deleted.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

ARTICLE 5 AD VALOREM TAX FORECLOSURES

Law reviews. - For note on the 1995 enactment of this article, see 12 Ga. St. U. L. Rev. 352 (1995).

48-4-75. Legislative findings.

The General Assembly finds that the nonpayment of ad valorem taxes by property owners effectively shifts a greater tax burden to property owners willing and able to pay their share of such taxes, that the failure to pay ad valorem taxes creates a significant barrier to neighborhood and urban revitalization, that significant tax delinquency creates barriers to marketability of the property, and that nonjudicial tax foreclosure procedures are inefficient, lengthy, and commonly result in title to real property which is neither marketable nor insurable. In addition, the General Assembly finds that tax delinquency in many instances results in properties which present health and safety hazards to the public. Consequently, the General Assembly further finds that the alternative to nonjudicial tax foreclosure procedures authorized by this article is an effective means of eliminating health and safety hazards by putting certain tax delinquent properties back on the tax rolls and into productive use.

(Code 1981, § 48-4-75 , enacted by Ga. L. 1995, p. 272, § 1.)

48-4-76. Judicial in rem tax foreclosures.

  1. In addition to any other rights and remedies provided under state law for the enforcement of tax liens by the State of Georgia and its counties and municipalities, such governmental entities may proceed with judicial in rem tax foreclosures for delinquent taxes in accordance with the provisions of this article by enactment of an ordinance or resolution of the governing authority of the county in which the property is located which ordinance or resolution shall be sufficient authority for use of the provisions of this article by such county and all municipalities within such county as to their respective taxes. In the event that the governing authority of a county does not so act, a municipality located in such county may, by enactment of its own ordinance or resolution, authorize the use of judicial in rem tax foreclosures for delinquent municipal taxes in accordance with the provision of this article. Any such ordinance or resolution may set forth criteria for selection of properties to be subject to the provisions of this article.
  2. Proceedings in accordance with this article are designed solely to enforce the lien for ad valorem taxes against the property subject to such taxation and shall not constitute an action for personal liability for such taxes of the owner or owners of such property.
  3. The rights and remedies set forth in this article are available solely to the governmental entities authorized by law to collect ad valorem taxes and shall not extend to any transferee of tax executions or tax liens.
  4. The enforcement proceedings authorized by this article may be initiated by a county, by a municipality, by one acting on behalf of the other pursuant to contract, or by joint action in a single proceeding. (Code 1981, § 48-4-76 , enacted by Ga. L. 1995, p. 272, § 1; Ga. L. 1996, p. 1280, § 1; Ga. L. 2004, p. 907, § 4.)

JUDICIAL DECISIONS

Tax foreclosure sale. - Trial court did not err in granting summary judgment to the county as the nuisance abatement statute did not preclude the county from using a nonjudicial tax foreclosure sale, instead of a judicial in rem tax foreclosure sale, to sell the property because both methods were available for collecting real property ad valorem taxes; judicial in rem tax foreclosure procedures were an alternative to nonjudicial tax foreclosure procedures, rather than a replacement for them; and the nuisance abatement statute did not require the county to use a judicial in rem tax foreclosure sale when collecting on a nuisance abatement lien. Derby Props., LLC v. Watson, 346 Ga. App. 631 , 816 S.E.2d 766 (2018).

48-4-77. Definitions.

As used in this article, the term:

  1. "Interested party" means:
    1. Those parties having an interest in the property as revealed by a certification of title to the property conducted in accordance with the title standards of the State Bar of Georgia;
    2. Those parties having filed a notice in accordance with Code Section 48-3-9; and
    3. Any other party having an interest in the property whose identity and address are reasonably ascertainable from the records of the petitioner or records maintained in the county courthouse or by the clerk of the court. "Interested party" shall not include the holder of the benefit or burden of any easement or right of way whose interest is properly recorded which interest shall remain unaffected.
  2. "Redemption amount" means the full amount of the delinquent ad valorem taxes, accrued interest at the rate specified in Code Section 48-2-40 , penalties determined in accordance with Code Section 48-2-44 , and costs incurred by the governmental entity in collecting such taxes including without limitation the cost of title examination and publication of notices. (Code 1981, § 48-4-77 , enacted by Ga. L. 1995, p. 272, § 1; Ga. L. 1999, p. 81, § 48.)

JUDICIAL DECISIONS

"Interested party." - Party whose interest in property derived from an unrecorded deed received from a party who was the holder of a deed to secure debt from the record owner of the property was not an "interested party" under paragraph (1) and the party had no right under O.C.G.A. § 9-11-24(a) to intervene in an in rem judicial tax foreclosure proceeding. Burruss v. Ferdinand, 245 Ga. App. 203 , 536 S.E.2d 555 (2000).

Definition of "interested party" in O.C.G.A. § 48-4-77(1)(A) for purposes of a tax foreclosure has no application to an action to redeem property after a tax sale; however, even if the definition was applicable, it was unlikely that the bank that held a security deed on real property would constitute an interested party as one having an interest in the property whose identity and address were reasonably ascertainable from the records maintained in the county courthouse or by the clerk of court. Cmty. Renewal & Redemption v. Nix, 288 Ga. 439 , 704 S.E.2d 759 (2011).

48-4-78. Identification of properties on which ad valorem taxes are delinquent; petition for tax foreclosure; contents of petition; notice.

  1. After an ad valorem tax lien, based upon a digest approved in accordance with the law, has become payable and is past due and thereby delinquent, a tax commissioner or other tax collector, as appropriate, may identify those properties on which to commence a tax foreclosure in accordance with this article. The tax commissioner or other tax collector, as appropriate, shall not commence tax foreclosure in accordance with this article for a