[Reserved] Execution for collection of money due the state; affidavit of illegality.

History. Repealed by Ga. L. 2017, p. 723, § 4/HB 337, effective January 1, 2018. Editor’s notes. Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: “Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case.” 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.’ ” Ga. L. 2017, p. 723, § 4/HB 337 provides for the repeal and reservation of this Code section, effective January 1, 2018. This Code section was based on Ga. L. 1889, p. 29, § 7; Civil Code 1895, § 789; Civil Code 1910, § 1041; Ga. L. 1916, p. 34, § 1; Ga. L. 1927, p. 136, § 1; Ga. L. 1931, p. 7, § 80; Ga. L. 1931, Ex. Sess., p. 24, § 39; Code 1933, §§ 92-2706, 92-3306, 92-7301; Ga. L. 1937, p. 109, § 19; Ga. L. 1951, p. 360, § 19; Ga. L. 1952, p. 334, § 2; Code 1933, § 91A-301, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 5; Ga. L. 1997, p. 734, § 3; Ga. L. 2012, p. 318, § 6/HB 100. Law reviews. For article discussing and comparing the principal means by which the Georgia taxpayer may obtain judicial review of his state tax liability with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975). JUDICIAL DECISIONS Procedure affords due process of law. — Inasmuch as this statute provides for affidavit of illegality to challenge tax execution and hearing thereon, it does not violate Ga. Const. 1877, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I) or the due process clause of U.S. Const., amend. 14. Hicks v. Stewart Oil Co., 182 Ga. 654, 186 S.E. 802, 1936 Ga. LEXIS 531 (1936). Right to jury trial on affidavit of illegality. — Statute does not violate Ga. Const. 1877, Art. VI, Sec. XVIII, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI) or U.S. Const., amend. 14 as regards the right to trial by jury. Hicks v. Stewart Oil Co., 182 Ga. 654, 186 S.E. 802, 1936 Ga. LEXIS 531 (1936). There is no right to a jury trial in the proceedings held in superior court on the affidavit of illegality. Fowler v. Strickland, 243 Ga. 30, 252 S.E.2d 459, 1979 Ga. LEXIS 787, cert. denied, 444 U.S. 827, 100 S. Ct. 53, 62 L. Ed. 2d 35, 1979 U.S. LEXIS 2592 (1979). Right to jury trial in tax collection proceedings. — As a general rule there is no right under general constitutional provisions to a jury trial in statutory or summary proceedings for collection of taxes. Hicks v. Stewart Oil Co., 182 Ga. 654, 186 S.E. 802, 1936 Ga. LEXIS 531 (1936). Affidavit of illegality is the “petition” of taxpayer seeking redress from what it considers an illegal tax assessment sought to be collected by the department. Dalton Carpet Indus., Inc. v. Chilivis, 137 Ga. App. 266, 223 S.E.2d 460, 1976 Ga. App. LEXIS 2409 (1976). Alternatives to filing affidavit of illegality. — Right of taxpayer to test legality of tax which is allegedly due by filing an affidavit of illegality is one of four available procedures under which the taxpayer can contest the taxpayer’s liability for state taxes. Fowler v. Strickland, 243 Ga. 30, 252 S.E.2d 459, 1979 Ga. LEXIS 787, cert. denied, 444 U.S. 827, 100 S. Ct. 53, 62 L. Ed. 2d 35, 1979 U.S. LEXIS 2592 (1979). Res judicata effect of adjudication on merits. — Taxpayer had available at least three remedial procedures for use in disputing correctness of assessment rendered against the taxpayer by the commissioner. The taxpayer may proceed by: (1) appeal under Ga. L. 1943, p. 204, § 3 (see now O.C.G.A. § 48-2-59); (2) contesting assessment and collection after issuance and levy of execution by filing an affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1); or (3) paying taxes illegally exacted and bringing an action for refund. By following any of these procedures through adjudication on the merits, the question became res judicata. Undercofler v. Ernhardt, 111 Ga. App. 598, 142 S.E.2d 317, 1965 Ga. App. LEXIS 1034 (1965); Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 210 S.E.2d 377, 1974 Ga. App. LEXIS 1001 (1974). Availability of injunctive relief. — Injunction will lie, at the instance of any taxpayer who has not estopped oneself, to enjoin sale of the taxpayer’s property for collection of an unauthorized tax, since an affidavit of illegality is not a proper remedy to contest the illegality of an execution in the nature of a tax execution, unless authorized by statute; but if one complains of illegality of taxing statute or collection procedure thereunder on an attempted levy of execution issued by the commissioner, foregoing rules and decisions are inapplicable, since under this statute the taxpayer has an adequate remedy at law by affidavit of illegality. Carreker v. Green & Milam, Inc., 183 Ga. 864, 189 S.E. 836, 1937 Ga. LEXIS 405 (1937). 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 tax covered by such executions, must pay or offer to pay amounts admitted to be due in order to obtain 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 Ga. LEXIS 630 (1940). Presumption is that necessary bond was filed unless record affirmatively shows that such bond was not filed. Williams v. Boykin, 94 Ga. App. 246, 94 S.E.2d 148, 1956 Ga. App. LEXIS 517 (1956). When affidavit of illegality is filed with clerk rather than with levying officer, and it does not appear that such procedure harmed the plaintiff in fieri facias, this mere irregularity will not void an affidavit of illegality. Williams v. Boykin, 94 Ga. App. 246, 94 S.E.2d 148, 1956 Ga. App. LEXIS 517 (1956). Notice to plaintiff in fieri facias of affidavit of illegality. — There is no provision in the law requiring the sheriff to notify the plaintiff in fieri facias that an affidavit of illegality has been filed to a levy, nor does failure of the defendant in fieri facias to serve the plaintiff in fieri facias void an affidavit of illegality. Williams v. Boykin, 94 Ga. App. 246, 94 S.E.2d 148, 1956 Ga. App. LEXIS 517 (1956). OPINIONS OF THE ATTORNEY GENERAL Duty to issue executions against public utilities. — Although the language of former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1) did not describe a mandatory or compelling duty and merely empowered the commissioner to issue execution, a fieri facias against a public utility other than a railroad should also be issued; this strict concept of mandatory duty in the case of all other utilities was strengthened in light of former Code 1933, §§ 92-2305, 92-2306, 92-2307, and 92-2308 (see now O.C.G.A. § 48-5-424). 1963-65 Ga. Op. Att'y Gen. 348. RESEARCH REFERENCES Am. Jur. 2d. 30 Am. Jur. 2d, Executions, §§ 35 et seq., 182 et seq., 526. C.J.S. 85 C.J.S., Taxation, § 1284 et seq. ALR. Character of action or proceeding in which purchaser at invalid sale for taxes or local improvement assessment may secure reimbursement from owner; and provisions of decree or judgment to relief, 86 A.L.R. 1208. Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145. Persons in possession of real property as affected by decree foreclosing tax lien, upon service by publication, or in a proceeding against unknown owners, 128 A.L.R. 114. Enforcement against tax-exempt property of tax on nonexempt property or on owner of tax-exempt property, 159 A.L.R. 461.