This case involves the ad valorem tax assessments of property in Newton County for the year 1972. The procedure complained of and the constitutionality of the law under which appellant acted are substantially the same as set forth in
Griggs v. Greene,
and
Blackmon v. Brasington,
1. The Tax Commissioner contends this action should be dismissed because the taxpayer failed to tender the county ad valorem taxes admitted to be due prior to filing suit. We have reviewed all the Georgia cases on this subject. We find the rule of tender in cases challenging ad valorem taxation in Georgia has been applied rigorously. It reflects the court’s reluctance to interfere with revenue collections. "The general rule is that no injunction will lie to interfere with the collection of taxes. Before enjoining taxation, 'the law and the facts must be such as to clearly require such action.’
McCrory v. Board of Commissioners,
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"Equity has jurisdiction to interfere in behalf of a taxpayer and to enjoin the collection of alleged taxes which have not been assessed in accordance with the law, and therefore are not in fact taxes, although erroneously so called.”
Vincent v. Poole,
"One against whom an unlawful exaction in the form of a tax is sought to be made, by virtue of unconstitutional statute or procedure, is entitled to an injunction to restrain its collection, if adequate remedy at law by affidavit of illegality is not provided; and it is not necessary that he first tender any part of the wholly illegal tax, or resort to arbitration under invalid or inapplicable statutes, or await the levy of a tax execution.”
Pullman Co. v. Suttles,
Therefore, when a county ad valorem tax is attacked in equity as being "wholly” illegal and consequently "not in fact taxes” tender is not required. See
Trust Inv. & Dev. Co. v. City of Marietta,
This conclusion is consistent with the rule that tender is never required until the Revenue Commissioner has approved the digest and returned it to the county and taxes become legally due.
Register v. Langdale,
The fact that the taxpayer ultimately will have some tax liability does not require a tender of that amount. The taxpayer may admit that he can not escape some tax when legally imposed. However, the question for tender is whether any tax is legally due at the time suit is filed, not what is certain to become due in the future. See
Wright v. Southwestern R. Co.,
Tender is required, however, where the ad valorem tax digest has been approved by the Revenue Commissioner and returned to the county and an attack is made for an excessive levy. "One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that he 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.”
Peoples Credit Clothing Co. v. City of Atlanta,
In applying the rule of tender it is essential to recognize the difference between those cases which attack the tax as "wholly” illegal, and those cases which attack the tax as excessive and which may further complain that the excess is illegal. These
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latter cases attack only the excess. Therefore, they admit, if not expressly, by implication that some tax is due and, if the time of payment has arrived, tender of that amount is required before suit.
Elder v. Home Bldg. & Loan Assn.,
We point out that where tender is required the critical date is when the digest is approved by the Revenue Commissioner and returned to the county and the taxes become due. It is not the last date for payment of taxes after which they become delinquent.
Register v. Langdale,
In some cases attacks are made on the tax as being both excessive and "wholly” illegal. In these circumstances a court of equity taking jurisdiction to decide the question of whether the tax is "wholly” illegal may proceed to do justice to all the parties and also decide the question of excessiveness. "A court of equity, having acquired jurisdiction of the subject matter and of all of the interested parties, may grant full and complete relief, either legal or equitable, as to all purposes relating to the subject matter. . .”
Ammons v. Central of Ga. R. Co.,
Some cases holding that tender was required appear to depart from these rules but a careful reading indicates that the attacks were made against an excessive levy. If these cases are construed to hold that tender is required where the tax is attacked as "wholly” illegal they must yield to the older decisions cited herein.
Accordingly, one of the attacks in the instant case being that the tax was "wholly” illegal, tender was not required.
2. After the decision of this court in
Griggs v. Greene
and
Blackmon v. Brasington,
The State Revenue Commissioner complains that the trial court should have ordered the digest resubmitted to him for approval and that as it now stands the county has been ordered to collect *242 taxes on a digest which has not been approved. He further complains that the trial court erred in ordering that taxpayers who voluntarily paid their taxes prior to the trial court’s interim order may not recover the excess as ordered.
"Equity seeks to do full justice; and hence, having the parties before the court rightfully, it will proceed to give full relief to all parties in reference to the subject matter of the suit, provided the court has jurisdiction for that purpose.”
English v. English,
A voluntary payment of taxes can not be recovered. Taxes paid prior to the trial court’s interim protective order dated January 15, 1973, can not be recovered. Code § 20-1007;
Darby v. City of Vidalia,
Judgment affirmed in part; reversed in part.