O.C.G.A. § 48-2-56 (2019)

Annotations

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 comment on Brown v. Nash, 216 Ga. 303, 116 S.E.2d 227 (1960), see 12 Mercer L. Rev. 425 (1961). 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 note on the 1993 amendment of this Code section, see 10 Ga. St. U. L. Rev. 218 (1993). 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).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION WHEN LIEN ATTACHES TAXES COVERED BY LIEN PROPERTY SUBJECT TO LIEN RANK AND PRIORITY OF LIENS 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 B.R. 718, 1983 Bankr. LEXIS 6009 (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 Ga. App. LEXIS 1423 (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 Ga. App. LEXIS 990 (1964). 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 Ga. App. LEXIS 655 (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 Ga. LEXIS 316 (1931). Effect of failure to record lien. - Recording a fieri facias issued by the commissioner on the general execution

When Lien Attaches (Cont’d) 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 Ga. App. LEXIS 655 (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 Ga. App. LEXIS 500 (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 Ga. LEXIS 363 (1933). Bankruptcy case would serve no purpose that creditors of trust could not otherwise achieve under state law because one creditor was fully protected by their property tax liens, which were first priority liens under state law, and other creditors held first mortgages on three of the trust’s parcels. In re Two Rivers Irrevocable Trust, 653 B.R. 284, 2023 Bankr. LEXIS 1773 (Bankr. M.D. Ga. 2023). 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 Ga. App. LEXIS 500 (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 Ga. LEXIS 218 (1926); Decatur County Bldg. & Loan Ass’n v. Thigpen, 173 Ga. 363, 160 S.E. 387, 1931 Ga. LEXIS 316 (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 Ga. App. LEXIS 803 (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 Ga. LEXIS 341 (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 Ga. App. LEXIS 745 (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 Ga. LEXIS 341 (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 Ga. LEXIS 525 (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 Ga. LEXIS 173 (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 Ga. LEXIS 316 (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 Ga. App. LEXIS 337 (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 Ga. App. LEXIS 930 (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 Ga. LEXIS 752 (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 Ga. LEXIS 577 (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 Ga. App. LEXIS 337 (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,

Property Subject to Lien (Cont’d) 120 Ga. 936, 48 S.E. 361, 1904 Ga. LEXIS 752 (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 Ga. LEXIS 723 (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 B.R. 718, 1983 Bankr. LEXIS 6009 (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 B.R. 983, 1996 Bankr. LEXIS 274 (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 B.R. 983, 1996 Bankr. LEXIS 274 (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 B.R. 718, 1983 Bankr. LEXIS 6009 (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 Ga. App. LEXIS 251 (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 Ga. LEXIS 374 (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 Ga. LEXIS 374 (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 B.R. 718, 1983 Bankr. LEXIS 6009 (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 Ga. App. LEXIS 2704 (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 Ga. LEXIS 529 (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 Ga. LEXIS 529 (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 Ga. LEXIS 577 (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 Ga. LEXIS 37 (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 Ga. LEXIS 196 (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 Ga. LEXIS 74 (1881); Carroll v. Richards, 50 Ga. App. 272, 178 S.E. 178, 1934 Ga. App. LEXIS 737 (1934). Debtor’s action, which alleged that the Tax Commissioner violated the automatic stay by filing writs of fieri facias postpetition 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), No. 18-69488-JWC, No. 19-05304-JWC, 2020 Bankr. LEXIS 877 (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 B.R. 358, 1984 Bankr. LEXIS 6420 (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 Ga. LEXIS 342 (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

Rank and Priority of Liens (Cont’d) 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 Ga. LEXIS 81 (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 Ga. Op. Att’y Gen. 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 Ga. Op. Att’y Gen. 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.