321 Ga. App. 778
Ga. Ct. App.2013Background
- In 2007 the Cobb County Tax Commissioner conducted a levy and tax sale of 1671 Sams Street for delinquent 2004-2006 ad valorem taxes; Appellant church owned the property.
- JB Holdings, Inc. purchased the property at the tax sale; a tax deed was issued subject to Appellant’s statutory right of redemption.
- Tax sale proceeds exceeded the delinquent taxes; approximately $38,000 of excess funds remained after paying the security deed holder.
- In 2008-2010, delinquencies on the property accrued; the Tax Commissioner paid those taxes from the excess funds rather than from JB Holdings or Appellant.
- Appellant remained in possession and did not lose redemption rights; interpleader action deposited remaining excess funds with the court, later awarded to Appellant.
- Appellant sought to recover the approximately $4,700 disbursed to satisfy 2008-2010 taxes; trial court granted summary judgment for the Tax Commissioner, reversing on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who bears post-sale ad valorem taxes during redemption? | Appellant contends JB Holdings bears post-sale taxes. | Tax Commissioner argues Appellant is liable as defendant in fi. fa. for post-sale taxes. | Tax deed purchaser bears post-sale taxes during redemption; defendant in fi. fa. not liable. |
| Can excess funds from a 2007 tax sale be used to satisfy post-sale taxes? | Excess funds should be paid to Appellant; not used to satisfy 2008-2010 taxes. | Excess funds may be used to satisfy delinquent taxes owed by the defendant in fi. fa. | No; excess funds cannot be used to satisfy post-sale taxes owed by the tax deed purchaser. |
| How do OCGA §§ 48-4-5, 48-4-42, and 48-5-9 interact regarding liability for post-sale taxes? | OCs harmonization places post-sale taxes on purchaser, not defendant in fi. fa. | OCGA provisions could render defendant in fi. fa. liable for taxes under certain reading. | OCGA § 48-4-42 controls; tax deed purchaser is responsible for post-sale taxes, defendant in fi. fa. reimburses only if redeeming. |
| Was Appellant properly charged under OCGA § 48-5-9 when redemption rights were not foreclosed? | OCGA § 48-5-9 makes owner liable for taxes if known owner or life tenant; Appellant retained interest. | Patterson and National Tax Funding show purchaser bears post-sale taxes; 48-5-9 should not broaden liability. | OCGA § 48-5-9 does not authorize charging Appellant for post-sale taxes; more specific 48-4-42 governs. |
Key Cases Cited
- Patterson v. Florida Realty & Finance Corp., 212 Ga. 440 (1956) (tax deed purchaser liable for post-sale taxes during redemption)
- National Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 (2003) (tax deed purchaser liable for post-sale taxes; defeasible fee interest)
- Mulligan v. Security Bank of Bibb County, 280 Ga. App. 248 (2006) (excess funds generally payable to interests in priority; reference to 48-4-5)
- Croft v. Fairfield Plantation Property Owners Assn., 276 Ga. App. 311 (2005) (tax deed purchaser responsible for assessments after sale; redemption context)
- Whitaker Acres, Inc. v. Schrenk, 170 Ga. App. 238 (1984) (defendant in fi. fa. retains possession during redemption; not a mere owner)
- Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394 (2012) (statutes in pari materia construed together; 48-5-9 vs. 48-4-42)