O.C.G.A. § 48-3-26 (2019)

Annotations

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 Ga. LEXIS 33 (1881); Harris Orchard Co. v. Tharpe, 177 Ga. 547, 170 S.E. 811, 1933 Ga. LEXIS 353 (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 Ga. LEXIS 537 (1937). Prohibition applies only to taxes properly laid, and not to taxes laid without authority of law. Vanover v. Davis, 27 Ga. 354, 1859 Ga. LEXIS 73 (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 Ga. LEXIS 415 (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 Ga. LEXIS 110 (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 Ga. LEXIS 39 (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 Ga. LEXIS 404 (1877); Georgia Mut. Loan Ass’n v. McGowan, 59 Ga. 811; Burke v. Speer, 59 Ga. 353, 1877 Ga. LEXIS 272 (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 Ga. LEXIS 717 (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 Ga. LEXIS 165 (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 Ga. LEXIS 303 (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 Ga. LEXIS 527 (1935); Kent v. Murphey, 207 Ga. 707, 64 S.E.2d 49, 1951 Ga. LEXIS 508 (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 Ga. LEXIS 500 (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 Ga. LEXIS 410 (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 Ga. LEXIS 454 (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, 1936 Ga. LEXIS 443 (1936). 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, 1936 Ga. LEXIS 443 (1936). 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, 1936 Ga. LEXIS 443 (1936). When purported tax fi. fa. is of an origin unauthorized by law, the taxpayer is en-

titled to an injunction to prevent sale of property. Vincent v. Poole, 181 Ga. 718, 184 S.E. 269, 1936 Ga. LEXIS 415 (1936). Statute does not apply to municipal taxes. Elder v. Atlanta-Southern Dental College, 183 Ga. 634, 189 S.E. 254, 1936 Ga. LEXIS 163 (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 Ga. LEXIS 287 (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 Ga. LEXIS 508 (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 Ga. LEXIS 410 (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 Ga. LEXIS 216 (1897).

RESEARCH REFERENCES C.J.S. 85 C.J.S., Taxation, § 1204 et seq.