HB-661 was signed into law by Governor Deal on February 20, 2018.

The bill enacted changes regarding state tax executions and collections.

This brief post will highlight the important points of change the bill has brought.

First, before the bill was enacted, state tax executions applied statewide notwithstanding they had to only be filed in one county.  An Execution is synonymous with a Writ of Fieri FaciasSee, e.g., Black v. Black, 245 Ga. 281 (1980).  A writ is an order issued by one with authority, e.g., a judge, commanding something particular be done by someone.  See, e.g., Black’s Law Dictionary.  Fieri Facias is latin meaning “cause it to be done.”  Id.  Putting these together a Writ of Fieri Facias a/k/a Execution is a command that something be done.  Id.  Furthermore, under O.C.G.A. § 48-2-56, as amended by HB 661, “State Tax Execution” is defined as “any execution issued by the department for the collection of any tax, fee, penalty, interest, or collections costs due the state.”  Tax commissioners and the Georgia Department of Revenue are empowered with the authority to issue executions.

By virtue of HB 661, state tax executions only attach against real or personal property of the taxpayer in the county in which the execution is filed, making them more appropriately entitled “countywide” tax executions.  There is no limit as to how many counties they can be filed in, so the Georgia Department of Revenue can file the same tax execution in each of the 159 counties in Georgia.  Furthermore, tax executions used to become effective under O.C.G.A. § 48-2-56 when the particular tax came due.  Now, tax executions do not become effective until they are filed in the General Execution Docket or the lien index kept by the clerk of superior court.

Under the new regime, the distinction between a lien and an execution is clearer.  A lien for various taxes due counties or the state is created by statutes at various times, none of which are later than when, at least, the obligation is due.  There is no period of time after which the obligation comes due that must lapse before an obligation becomes lienable.  Formerly, attachment of the lien to any and all personal and real property occurred when the lien arose.  Now, Georgia law expressly states that real or personal property does not suffer an attachment until the execution is filed with the clerk of superior court.  So, when a tax is due, it is a still a lien, but the lien does not attach to any real or personal property of the taxpayer until an execution is filed with the clerk of superior court.

HB 661 addresses old executions in particular ways.  First, any tax execution filed before December 31, 2017 is now invalid.  However, any execution filed seven years before January 1, 2018 can be “renewed” by being refiled between January 1, 2018 and the effective date of the act, which was February 20, 2018, the date the governor signed the bill.  Renewed executions retain their priority they had when originally filed, and they are valid for a one-time ten (10) year period.  The Georgia Department of Revenue has to file executions electronically with the Georgia Superior Court Clerk’s Cooperative Authority (“GSCCCA”) who remits the execution to the intended clerk of superior court.

It is the receipt of the execution by the GSCCCA from the Georgia Department of Revenue that constitutes perfection and attachment, not indexing of the execution by the clerk of superior court, and the GSCCCA is supposed to provide the Georgia Department of Revenue a confirmation of receipt.  For the determination of priority, how is one supposed to determine when exactly an execution became effective relative to another document indexed the same day as the transmission occurred when the transmission record is not made public in an index kept by the clerk of superior court?  Georgia is a race-notice state, meaning the first one to file a document with the clerk of superior court has priority, because documents are recorded in the order they are filed.  Under HB 661, you have to compare the indexing of deeds kept and maintained by the clerk of superior court with the records of the filing of executions kept by the Georgia Department of Revenue.

HB 661 requires the Georgia Department of Revenue to maintain information about executions in its database and make it available to the public at no charge.  For priority determination, the critical information required by HB 661 the department of revenue must make available is “[t]he place, date, and time of the filing of the execution.”  Other information has to be provided, but for the purpose of determining priority, you have to compare the records of the department of revenue with the indexed documents maintained by the clerk of superior court.

Categories: Real Estate Law