Personam and Rem Tax Executions
A significant and often avoided situation in the execution of delinquent taxes revolves around the selling of tax executions when the property owner is deceased, or the ownership of the property is unclear. A common misconception is that these sales are not valid; however, if the execution is properly issued I.e. in personam and in rem it is possible to proceed.
We consulted with Avery Jackson, County Attorney for Carroll County and Chief Legal counsel for GTS for clarification on this issue.
“ Taxes shall be charged against the owner of property if the owner is known and against the specific property itself if the owner is not known. O.C.G.A. § 48-5-9. This rule was taken from the decision in Burns v. Lewis, 86 Ga. 602 (1891) where the Court stated: “if [the owner] cannot be designated with reasonable certainty, that the property shall be pointed out in the executions as authority for seizing it irrespective of ownership, or as the property of some particular person. In all cases of doubt the execution should specify the particular realty on which the tax accrued, and direct the officer to seize it, or so much of it as is necessary to pay its own taxes.” Miller v. Brooks, 120 Ga. 232, 47 S.E. 646, 647 (1904). Furthermore, “[w]hen property which has not actually been returned by anyone is assessed for taxes, the tax collector or tax commissioner shall issue an execution against the property as soon as it is assessed for the amount due and costs.” O.C.G.A. § 48-4-2. Thus, in Georgia, there are two types of tax executions, in rem and in personam (i.e. against the specific property itself or against the owner). An in rem tax execution can be used if the property was not returned, if the owner is not known, or if the ownership is in doubt.
A. In Personam Tax Sale
If the tax execution is issued in personam, then the owner of the property stated on the tax execution must be a natural person, a corporation, or a quasi-person or entity, such as a partnership. Miller v. Brooks, 120 Ga. 232, 47 S.E. 646, 647 (1904). The law recognizes no other owners of property. Id. Tax executions issued in the following ways, when the former owner was deceased at the time of issuance, have been cited with approval by the Supreme Court of Georgia as valid tax executions:
1. “the widow and heirs of A.B., deceased”
2. “Henry Toland’s heirs”
3. “A.’s heirs”
4. “Leadbetter and Graves (Estate of L.S. Leadbetter, C.H. Graves, Admr.)”
5. “Leadbetter and Graves” [where Leadbetter was deceased and Graves was the administrator of the decedent’s estate]
Miller v. Brooks, 120 Ga. 232, 47 S.E. 646, 647-48 (1904); Graves v. Walker, 182 Ga. 644, 186 S.E. 820, 823 (1936). Tax executions issued in the following ways, when the former owner was deceased at the time of issuance, have been cited with disapproval by the Supreme Court of Georgia as void tax executions:
1. “the estate of Andrew King, deceased”
2. “estate of Parkhurst”
3. “Estate of Orrin Woodman.”
B. In Rem Tax Sale
In rem actions are proceedings primarily against the property itself, even though they are subject to the claims of persons owning an interest therein. Porche v. Noriega, 325 Ga. App. 524 (2014). “Every tax execution is, of course, an execution against the property of the defendant, in the sense that it directs the seizure of his property.” Miller v. Brooks, 120 Ga. 232, 47 S.E. 646, 647 (1904). An in rem execution must state specifically the particular property to be sold under the execution. See Martin v. Clark.”
The filing of all executions in personam and in rem is generally considered the soundest method for ensuring the validity of a tax sale. “Therefore, (as) the language in the fi.fa. and Sheriff’s Deed could both be argued to support in personam or in rem actions, and one could also argue that the fi.fa. was both in rem and in personam, and there is no authority to state the fi.fa. could not be issued as both in rem and in personam. If the tax deed was found to be in rem because it specifically describes the property, then it would be a valid tax execution.” You can find out more about this issue by by contacting GTS.
- Special thanks to Avery Jackson for contributing to this article.