O.C.G.A. § 48-3-21 (2019)

Annotations

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 Ga. LEXIS 565 (1906), rev’d, 207 U.S. 127, 28 S. Ct. 47, 52 L. Ed. 134, 1907 U.S. LEXIS 1209 (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 Ga. LEXIS 481 (1940). Former Code 1933, §§ 67-2501 and 672503 (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 Ga. LEXIS 468 (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 Ga. App. LEXIS 839 (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 Ga. LEXIS 468 (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 Ga. LEXIS 468 (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 Ga. LEXIS 468 (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 Ga. App. LEXIS 839 (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 Ga. App. LEXIS 1364 (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 Ga. App. LEXIS 839 (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 Ga. LEXIS 565 (1906), rev’d, 207 U.S. 127, 28 S. Ct. 47, 52 L. Ed. 134, 1907 U.S. LEXIS 1209 (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, 1927 Ga. App. LEXIS 69 (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 Ga. LEXIS 287 (1928).

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 Ga. Op. Att’y Gen. 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 Ga. Op. Att’y Gen. 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.