TITLE 48 REVENUE AND TAXATION

Section 5. Ad Valorem Taxation of Property, 48-5-1 through 48-5-607.

ARTICLE 6 MUNICIPAL TAXATION

48-5-359. Sale of property for taxes due municipality; purchase and sale by municipality; recitals in tax deeds prima-facie correct; distribution and retention of proceeds of sale.

The time, place, and manner of the sale of real and personal property for taxes due municipalities shall be the same as that provided by law for sheriffs' sales for state and county taxes. A sale for taxes due may be conducted by the marshal or duly authorized officer of the municipality and may be held in the council chamber or the usual place of meeting of the governing authority of the municipality.
If, during any sale of property by a municipality for taxes due and after the property has been offered a reasonable time, no one present at the sale bids an amount for the property being sold which is as much as the total of the tax due plus the officer's cost due on the sale, then any duly appointed officer or agent of the municipality may purchase the property for the municipality. If the municipality purchases property at a sale, the marshal or other officer conducting the sale shall make to the municipality a deed to the property sold and shall deliver the deed to the officer designated by the municipality to receive it. Title acquired by a municipality at a tax sale by a deed issued pursuant to the sale shall be as perfect, valid, and binding, after the period provided for redemption by the owner has elapsed and there is no redemption by the owner, as if purchased by any person other than the municipality. The marshal or other duly authorized officer conducting the sale shall put the municipality, through any officer or person the municipality designates, in possession of the property so sold.
Property acquired by a municipality pursuant to subsection (b) of this Code section may be divested or alienated by the municipality only by public sale of the property to the highest bidder. However, when it is clearly shown to the municipal governing authority that returned or unreturned property has been sold and purchased by the governing authority to protect both the taxes of the municipality and the cost of collecting such taxes and that the governing authority has not parted with title to the property, the governing authority may quitclaim the property by unanimous vote to the owner of the property at the time of purchase by the governing authority or to the owner's administrators, executors, heirs, or assigns upon payment of all taxes which are due on the property and all costs due by reason of the sale.
Each municipality may pass appropriate ordinances and bylaws to carry into effect this Code section.
The recitals in a deed under a sale for municipal taxes shall be prima-facie evidence of the facts recited in the deed.
The marshal of a municipality and other officers of the municipality whose duty it is to collect the taxes and other revenues of the municipality by levy and sale shall be subject to be ruled for money in the hands of the officer arising from the public sale of any property pursuant to process issued by the municipality. Action pursuant to this Code section may be taken either in the superior court, city court, or state court in the county where the municipality is located and shall be accomplished in the same manner as sheriffs and constables are ruled for the distribution of money coming into their hands from the sale of any property.
When an execution is placed in the hands of the marshal or other selling officer of any municipality with written notice to retain the proceeds arising from the sale of any property of the defendant in fi. fa., the marshal or other selling officer, after first paying to the municipality the amount due on the process under which the sale was made, shall retain the balance of the funds in his hands until he is ordered by the court first acquiring jurisdiction under proper proceedings to pay out the funds.

(Ga. L. 1877, p. 125, §§ 1-4; Code 1882, §§ 3656a, 3656c, 3656d, 3656e; Civil Code 1895, §§ 732, 734, 735, 736, 738; Ga. L. 1900, p. 81, §§ 1, 2; Ga. L. 1901, p. 23, § 1; Ga. L. 1904, p. 52, § 1; Ga. L. 1906, p. 32, § 1; Civil Code 1910, §§ 879, 881, 882, 883, 885, 911, 912; Code 1933, §§ 92-4401, 92-4403, 92-4404, 92-4405, 92-4407, 92-4408, 92-4409; Ga. L. 1939, p. 226, § 1; Code 1933, § 91A-1511, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 884, § 3-35.)

History of section.

- This Code section is partially derived from the decision in Johnson v. Phillips & Co., 89 Ga. 286, 15 S.E. 368 (1892).

JUDICIAL DECISIONS

"Time, place, and manner of sale" does not embrace advertisement of sale.

- Words "time, place, and manner of sale" do not embrace the newspaper in which the sale is to be advertised. Consequently, the statute does not require that sales for municipal taxes shall be advertised in the same newspaper in which the sheriff's sales for city and county taxes are advertised. Bacon v. Mayor of Savannah, 86 Ga. 301, 12 S.E. 580 (1890); Scheurman v. City of Columbus, 106 Ga. 34, 31 S.E. 787 (1898).

Proper notice.

- Even if the documents from the sheriff's office notifying a property owner of a tax sale were not properly authenticated, that would not render the tax sale or the deed therefrom void; the owner's claim that a buyer failed to properly provide notice of foreclosure of the owner's right of redemption because the notification was delivered by a private process server rather than the sheriff had been rejected. Davis v. Harpagon Co., LLC, 281 Ga. 250, 637 S.E.2d 1 (2006).

Sufficiency of advertisement.

- Under a provision in a city charter declaring that tax sales shall be advertised for 30 days, one insertion of the advertisement of such a sale in each calendar week during the period of 30 days immediately preceding the day of sale will suffice, provided the first insertion appeared at least 30 days before the sale. Montford v. Allen, 111 Ga. 18, 36 S.E. 305 (1900).

Advertisement of marshal's sale in Sunday newspaper.

- Publication of the advertisement of a marshal's sale for taxes in a newspaper appearing on Sunday is not legal, and the sale thereunder passes no title. Sawyer v. Cargile, 72 Ga. 290 (1884).

Notice provision in city charter must be strictly followed.

- As regards the effect of a failure properly to advertise, there is a distinction to be drawn between tax sales had in pursuance of the general law of the state and those had in pursuance of a provision in a municipal charter. In the former, the law in reference to notice is merely directory, and purchasers at such sales, if themselves without fault, will be protected; whereas a provision of a city charter prescribing the time for giving notice of a municipal tax sale must be strictly complied with, or the sale will be void even as against an innocent purchaser. Montford v. Allen, 111 Ga. 18, 36 S.E. 305 (1900).

City clerk unauthorized to postpone tax sale or grant indulgence to defendant in execution.

- When, under a city charter, it is the duty of the marshal to collect executions for taxes and conduct sales thereunder, the city clerk has no authority to postpone a tax sale or grant indulgence to the defendant in the tax execution, the taxpayer would rely on the execution at the taxpayer's peril, and such an arrangement would not invalidate the sale, even if made. Montford v. Allen, 111 Ga. 18, 36 S.E. 305 (1900).

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 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; 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).

Authority of city to bid and purchase at sale.

- When city was authorized to pave the city's streets and assess costs of such paving against abutting property, the law must be read into the city's charter and the city may bid upon and purchase such property when execution, levy, and sale were necessary to collect the assessments. City of Valdosta v. Ousley, 175 Ga. 775, 166 S.E. 195 (1932).

Valid tax sale.

- Buyer provided sufficient evidence that a tax sale took place as the tax sale deed was appropriately signed by the sheriff; a valid fiere facias (fi fa) was issued by the county as the tax commissioner appropriately attached the commissioner's signature to the fi fa. Davis v. Harpagon Co., LLC, 281 Ga. 250, 637 S.E.2d 1 (2006).

Title acquired by city subject to lien of special assessment.

- Title acquired by the city at a tax sale is the same as that any individual would have obtained; that is, the city obtains title subject to the lien of the special assessment. The city is authorized to convey no better title than it holds. The city may not by merely reselling the property divest the lien of the assessment for to allow this would provide a method for vitiating the provision making this lien coequal with the lien of other taxes. Steele v. City of Waycross, 190 Ga. 816, 10 S.E.2d 867 (1940).

Manner in which and by whom property redeemed.

- Realty which has been levied upon and sold under a fi. fa. for municipal paving may be redeemed by the owner, the owner's grantee in a security deed, or a mortgagee, as well as others having an interest in the property, upon paying or tendering to pay to the purchaser, within 12 months, the purchase price, with a premium of 10 percent from the date of the sale to the date of the offer to redeem. Hopkins v. Chatham Phoenix Nat'l Bank & Trust Co., 174 Ga. 136, 162 S.E. 521 (1932).

Summary judgment properly denied.

- Special master did not err in finding that a fact question remained as to whether a proper levy of the property occurred in accordance with O.C.G.A. § 9-13-12 as deposition testimony from representatives of the sheriff's office raised significant questions as to whether required entries of the levy, including the necessary description of the property, were appropriately made on the writ of execution, or fiere facias, and in the sheriff's records; on the other hand, however, the buyer presented a tax sale deed that recited that the formalities required for a levy had been honored, thereby providing evidence that some seizure of the property had occurred. Davis v. Harpagon Co., LLC, 281 Ga. 250, 637 S.E.2d 1 (2006).

OPINIONS OF THE ATTORNEY GENERAL

City official may not bid on own behalf.

- It would not be legal for a city official to bid for the official's own private use at public sales conducted by the city as the city is itself authorized to make purchases in the city's own behalf. 1952-53 Op. Att'y Gen. p. 386.

RESEARCH REFERENCES

Am. Jur. 2d.

- 72 Am. Jur. 2d, State and Local Taxation, §§ 807, 820, 833, 857.

C.J.S.

- 64A C.J.S., Municipal Corporations, § 2430 et seq. 85 C.J.S., Taxation, §§ 1221 et seq., 1539 et seq.

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.

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