2020 Georgia Code
Title 48 - Revenue and Taxation
Chapter 5 - Ad Valorem Taxation of Property
Article 5 - Uniform Property Tax Administration and Equalization
Part 2 - County Boards of Tax Assessors
§ 48-5-299. Ascertainment of Taxable Property; Assessments Against Unreturned Personal Property; Penalty for Unreturned Property; Changing Real Property Values Established by Appeal in Prior Year or Stipulated by Agreement

1. It shall be the duty of the county board of tax assessors to investigate diligently and to inquire into the property owned in the county for the purpose of ascertaining what real and personal property is subject to taxation in the county and to require the proper return of the property for taxation. The board shall make such investigation as may be necessary to determine the value of any property upon which for any reason all taxes due the state or the county have not been paid in full as required by law. In all cases where the full amount of taxes due the state or county has not been paid, the board shall assess against the owner, if known, and against the property, if the owner is not known, the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations. In all cases where taxes are assessed against the owner of property, the board may proceed to assess the taxes against the owner of the property according to the best information obtainable; and such assessment, if otherwise lawful, shall constitute a valid lien against the property so assessed.
2. In all cases in which unreturned personal property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the assessment of the property a penalty of 10 percent, which shall be included as a part of the taxable value for the year.
3. When the value of real property is reduced or is unchanged from the value on the initial annual notice of assessment or a corrected annual notice of assessment issued by the board of tax assessors and such valuation has been established as the result of an appeal decision rendered by the board of equalization, hearing officer, arbitrator, or superior court pursuant to Code Section 48-5-311 or stipulated by written agreement signed by the board of tax assessors and taxpayer or taxpayer's authorized representative, the new valuation so established by appeal decision or agreement may not be increased by the board of tax assessors during the next two successive years, unless otherwise agreed in writing by both parties, subject to the following exceptions:
   1. This subsection shall not apply to a valuation established by an appeal decision if the taxpayer or his or her authorized representative failed to attend the appeal hearing or provide the board of equalization, hearing officer, or arbitrator with some written evidence supporting the taxpayer's opinion of value;
   2. This subsection shall not apply to a valuation established by an appeal decision or agreement if the taxpayer files a return at a different valuation during the next two successive years;
   3. Unless otherwise agreed in writing by both parties, if the taxpayer files an appeal pursuant to Code Section 48-5-311 during the next two successive years, the board of tax assessors, the board of equalization, hearing officer, or arbitrator may increase or decrease the value of the real property based on the evidence presented by the taxpayer during the appeal process; and
   4. The board of tax assessors may increase or decrease the value of the real property if, after a visual on-site inspection of the property, it is found that there have been substantial additions, deletions, or improvements to such property or that there are errors in the board of tax assessors' records as to the description or characterization of the property, or the board of tax assessors finds an occurrence of other material factors that substantially affect the current fair market value of such property.
4. When real or personal property is located within a municipality whose boundaries extend into more than one county, it shall be the duty of each board of tax assessors of a county, wherein a portion of the municipality lies, to cooperatively investigate diligently into whether the valuation of such property is uniformly assessed with other properties located within the municipality but outside the county where such property is located. Such investigation shall include, but is not limited to, an analysis of the assessment to sales ratio of properties that have recently sold within the municipality and a comparison of the average assessment level of such properties by the various counties wherein a portion of the municipality lies. The respective boards shall exchange such information as will facilitate this investigation and make any necessary adjustments to the assessment of the real and personal property that is located in their respective counties within the municipality to achieve a uniform assessment of such property throughout the municipality. Any uniformity adjustments pursuant to this subsection shall only apply to the assessment used for municipal ad valorem tax purposes within the applicable county.

(Ga. L. 1913, p. 123, § 7; Code 1933, § 92-6913; Ga. L. 1937, p. 517, § 3; Ga. L. 1976, p. 1042, § 1; Ga. L. 1976, p. 1071, § 1; Code 1933, § 91A-1440, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1994, p. 786, § 1; Ga. L. 2000, p. 873, § 1; Ga. L. 2006, p. 431, § 1/HB 560; Ga. L. 2015, p. 1219, § 12/HB 202; Ga. L. 2016, p. 166, § 4/SB 258; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of subsections (b) and (c) for the former provisions, which read: "(b)(1) In all cases where unreturned property is assessed by the county board of tax assessors after the time provided by law for making tax returns has expired, the board shall add to the amount of state and county taxes due a penalty of 10 percent of the amount of the tax due or, if the principal sum of the tax so assessed is less than $10.00 in amount, a penalty of $1.00. The penalty provided in this subsection shall be collected by the tax collector or the tax commissioner and in all cases shall be paid into the county treasury and shall remain the property of the county.

"(2)(A) The provisions of paragraph (1) of this subsection to the contrary notwithstanding, this paragraph shall apply with respect to counties having a population of 600,000 or more according to the United States decennial census of 1970 or any future such census.

"(2)(B) In all cases in which unreturned property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the assessment of the property a penalty of 10 percent, which shall be included as a part of the taxable value for the year.

"(c) Real property, the value of which was established by an appeal in any year, that has not been returned by the taxpayer at a different value during the next two successive years, may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court. In such cases, before changing such value or decision, the board of assessors shall first conduct an investigation into factors currently affecting the fair market value. The investigation necessary shall include, but not be limited to, a visual on-site inspection of the property to ascertain if there have been any additions, deletions, or improvements to such property or the occurrence of other factors that might affect the current fair market value. If a review to determine if there are any errors in the description and characterization of such property in the files and records of the board of tax assessors discloses any errors, such errors shall not be the sole sufficient basis for increasing the valuation during the two-year period." See Editor's notes for applicability.

The 2016 amendment, effective April 26, 2016, substituted the present provisions of the introductory paragraph of subsection (c) for the former provisions, which read: "When the value of real property is reduced or is unchanged from the value on the initial annual notice of assessment and such valuation is established as the result of either an appeal decision rendered pursuant to Code Section 48-5-311 or stipulated by agreement of the parties to such an appeal that this subsection shall apply in any year, the valuation so established by appeal decision or agreement may not be increased by the board of tax assessors during the next two successive years, subject to the following exceptions:"; and, in paragraph (c)(3), substituted "Unless otherwise agree in writing by the parties, if" for "If" at the beginning, inserted "the board of tax assessors," in the middle, and substituted "taxpayer" for "parties" near the end.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "writing by both parties" for "writing by the parties" near the beginning of paragraph (c)(3).

- Pursuant to Code Section 28-9-5, in 2016, "agreed" was substituted for "agree" near the beginning of paragraph (c)(3).

- Ga. L. 2015, p. 1219, § 27(c)/HB 202, not codified by the General Assembly, provides, in part, that Sections 9, 12, and 15 of this Act shall be applicable to all appeals filed on or after January 1, 2016.

- For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For annual survey on local government law, see 71 Mercer L. Rev. 189 (2019).

JUDICIAL DECISIONS

Effective date for application of subsection (c).

- Taxpayer was not entitled to the protection of subsection (c) of O.C.G.A. § 48-5-299 for a judicial determination setting valuations for years prior to 1995 and its effective date; however, the taxpayer would be entitled to such protection as to an appeal establishing the valuation for the tax year 1995, which then would affect 1996 and 1997 as coming under subsection (c). Moreton Rolleston, Jr., Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405, 523 S.E.2d 600 (1999), cert. denied, 2000 Ga. LEXIS 97 (2000).

Pursuant to subsection (c) of O.C.G.A. § 48-5-299, only those appeals which result in a valuation established by the board of equalization or superior court will prohibit the tax assessor from changing the value within the next two successive years. Cullum v. Chatham County Bd. of Tax Assessors, 243 Ga. App. 865, 534 S.E.2d 535 (2000).

Because a taxpayer paid taxes based on a lower valuation from the county board of equalization and not based on the value assigned on appeal, the case did not involve a reassessment or a change in valuation of the taxpayer's real property, but rather, the tax assessors merely sought to apply the fair market land value, as determined through the appeals process and automatically returned by the taxpayer, in the two succeeding tax years, a request that fell squarely within O.C.G.A. § 48-5-299(c); thus, the tax assessors did not violate O.C.G.A. § 48-5-299(c) because the assessors did not improperly reassess the value of the taxpayer's property within two years after the appeal established the property's value. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855, 605 S.E.2d 443 (2004).

Subsection (a) of O.C.G.A. § 48-5-299 empowers the board to audit, at any time within the statute of limitations, prior personalty tax returns and collect taxes over and above those that may have been assessed and paid because the valuation of the personalty by the taxpayer was incorrect, and thus was not "paid in full." Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94, 491 S.E.2d 173 (1997).

O.C.G.A. § 48-5-306(a) does not require tax assessors to use any definite system or method but demands only that valuations be just and that the valuations be fairly and justly equalized among the individual taxpayers according to the best information obtainable. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 279 S.E.2d 223 (1981).

- Georgia Court of Appeals held that in applying rules of statutory interpretation, and reading O.C.G.A. § 48-5-299(c)(4) as a whole, the other material factors contemplated by the statute must meet two requirements: first, they must be factors that an on-site inspection of the property would reveal; and, second, they must be factors that are specific to the particular piece of property at issue DeKalb County Bd. of Tax Assessors v. CWS SGARR Brookhaven, LLC, 352 Ga. App. 848, 836 S.E.2d 729 (2019).

- Grant of summary judgment to the taxpayers in the taxpayers' respective assessment appeals was upheld because the county board's stated basis for increasing the properties' valuations of changes in comparable sales could not, as a matter of law, constitute a material factor as contemplated by O.C.G.A. § 48-5-299(c)(4). DeKalb County Bd. of Tax Assessors v. CWS SGARR Brookhaven, LLC, 352 Ga. App. 848, 836 S.E.2d 729 (2019).

- Summary judgment for a county board of tax assessors (BTA) in a taxpayer's suit seeking injunctive relief and a writ of mandamus compelling a board of equalization (BOE) to adjudicate its appeal of a reassessment for one tax year was reversed as: (1) there were no objective criteria in place for choosing businesses for audits when the taxpayer was chosen for a four-year audit; (2) there was evidence that the BTA attempted to thwart the taxpayer's statutory right to prompt adjudication of its appeal before the BOE under O.C.G.A. § 48-5-311; and (3) there was a jury question as to whether the audit was begun by an accounting firm or the BTA for an improper purpose in violation of O.C.G.A. § 48-5-299(a). Parisian, Inc. v. Cobb County Bd. of Tax Assessors, 263 Ga. App. 332, 587 S.E.2d 771 (2003).

- Board is empowered by subsection (a) of O.C.G.A. § 48-5-299 to issue a new assessment notice to correct an obvious and undisputed clerical error which occurs when the original valuation figure is entered into the computer, even though the taxpayer has already paid the taxes in full based on the erroneous notice. Barland Co. v. Bartow County Bd. of Tax Assessors, 176 Ga. App. 798, 338 S.E.2d 16 (1985).

- Trial court did not err in ruling that a county board of tax assessors (BOA) lacked authority under O.C.G.A. § 48-5-299(a) to issue two corrected property tax assessment notices that increased the fair market value of the taxpayers' property because the BOA's second and third corrected notices were not authorized since the notices were not sent merely to remedy a clerical error but to revise the BOA's view of the proper value of the property during a pending appeal of the prior year valuation; retroactive amendments to assessments are prohibited absent a clerical error or some other lawful basis. Douglas County Bd. of Assessors v. Denyse, 314 Ga. App. 266, 723 S.E.2d 705 (2012).

- Pursuant to subsection (c) of O.C.G.A. § 48-5-299, the fair market value of property which has been subject to reassessment by the board of equalization or the superior court on appeal cannot be reassessed to avoid disparate treatment of other property valuations because the earlier reassessment appealed from has already determined the property's fair market value in the county. Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 228 Ga. App. 371, 491 S.E.2d 812 (1997), aff'd in part and vacated in part, 230 Ga. 539, 497 S.E.2d 274 (1998).

- For years prior to the enactment of present O.C.G.A. § 48-2-49, a county board of tax assessors was seeking to collect additional taxes on the basis of a totally new appraisal of the value of realty as improved property. O.C.G.A. § 48-5-299 was not authority for the board's reassessments. Fayette County Bd. of Tax Assessors v. Georgia Utils. Co., 186 Ga. App. 723, 368 S.E.2d 326, cert. denied, 186 Ga. App. 917, 368 S.E.2d 326 (1988).

- An assessment made in the manner prescribed by law is indispensable in proceedings to enforce the collection of taxes. Colvard v. Ridley, 218 Ga. 490, 128 S.E.2d 732 (1962).

- It is the duty of the board of tax assessors to see that all taxable property within the county is returned and assessed for taxes at the property's just and fair value, and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only the taxpayer's proportionate share of taxes. Colvard v. Ridley, 218 Ga. 490, 128 S.E.2d 732 (1962).

- Tax assessors must use the same standard or system in determining and fixing taxable value of all property of the same class. Colvard v. Ridley, 218 Ga. 490, 128 S.E.2d 732 (1962).

- Tax assessors may use any system, method, cadastral survey, books, available lists of valuations of types of property, city valuations or other instruments or other information obtainable, provided such information is the best information available in their fixing of just and fair valuation of the property assessed, and provided that the taxation as between individual taxpayers is justly and fairly equalized. Kight v. Gilliard, 214 Ga. 445, 105 S.E.2d 333 (1958); Colvard v. Ridley, 218 Ga. 490, 128 S.E.2d 732 (1962).

Trial court erred in denying the taxpayer's motion for summary judgment challenging the county's reassessment of the taxpayer's property because as in case law interpreting O.C.G.A. § 48-5-299(c)(4), the other material factors exception in order to raise the value on a recently appealed property based upon sales of comparable properties did not apply to justify the increased valuation. Brookhaven v. DeKalb Cty. Bd. of Tax Assessors, 353 Ga. App. 556, 839 S.E.2d 24 (2020).

- This statute does not require the tax assessors to use any definite system or method, but demands only that the valuations be just and that the valuation be fairly and justly equalized among the individual taxpayers, according to the best information obtainable. Kight v. Gilliard, 214 Ga. 445, 105 S.E.2d 333 (1958); Colvard v. Ridley, 218 Ga. 490, 128 S.E.2d 732 (1962).

- Employment of professional tax appraisers and the use of the appraisals by the board of tax assessors does not constitute an unauthorized delegation of authority by the board. Register v. Langdale, 226 Ga. 82, 172 S.E.2d 620 (1970).

Subpoena of personal property tax returns by the county board of tax assessors was a proper means of determining unreturned property tax liability. Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454, 469 S.E.2d 285 (1996).

- Authority granted by Ga. L. 1941, p. 382 and Ga. L. 1951, p. 85 to tax assessors to use information based upon a cadastral survey in equalizing values for taxation is not a substitution of the survey for the discretion of the assessors. Hutchins v. Candler, 209 Ga. 415, 73 S.E.2d 191 (1952).

- Duties placed on the board of tax assessors do not require the use of any definite system or method, but demand only that the valuations be just and fair and that the valuations be justly and fairly equalized among taxpayers. The failure to use any particular system, method, cadastral survey, book, or other instruments used in the past to derive values would not in any way render void the valuations placed on such property by the assessors. Hutchins v. Williams, 212 Ga. 754, 95 S.E.2d 674 (1956).

- When the owner of land is known, and the ownership is not doubtful, officers in charge of levying and collecting taxes may not issue an execution in rem against the land. Suttles v. B-X Corp., 212 Ga. 221, 91 S.E.2d 334 (1956).

- When land is in possession of known persons, tax officials are without authority to issue an execution in rem against the property since the officials must at all times use reasonable diligence to ascertain the owner thereof. Suttles v. B-X Corp., 212 Ga. 221, 91 S.E.2d 334 (1956).

- When the tax officials do not know the owner or possessor, it is the officials' duty to assess the property and describe the property particularly in a default book kept for that purpose. Suttles v. B-X Corp., 212 Ga. 221, 91 S.E.2d 334 (1956).

- Only duty a county board of tax assessors has under O.C.G.A. § 48-5-299 is to investigate and determine if motor vehicles are returned, returned in the correct county, returned in the correct state, or to apportion the ad valorem taxation between states when the vehicle is used in interstate commerce. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998).

- Declaration that a county could not challenge a previous jury adjudication of property value for two years was proper; while a part of the property was sold after the jury adjudication, a change in valuation under O.C.G.A. § 48-5-299(c) or the relevant rules and regulations was authorized only if the sale affected the value of the property retained by the ownership. DeKalb County v. Wellborn Rd. Common Tenancy, 276 Ga. App. 14, 622 S.E.2d 409 (2005).

- Ruling as to the value of the owners' real property, pursuant to O.C.G.A. § 48-5-299(c), did not "establish" the value of the property as contemplated by that provision so as to entitle a taxpayer to an additional two-year period of protection; a trial court's ruling, that a consent judgment setting property value for 1999 froze the value for 2000 and 2001, but not 2002, was proper. Mundell v. Chatham County Bd. of Tax Assessors, 280 Ga. App. 389, 634 S.E.2d 180 (2006).

- In a breach of contract suit brought by a taxpayer against the tax service hired to handle real property assessments regarding an office building, a trial court ruling in favor of the tax service for tax year 2002 was reversed since the taxpayer established that the tax service breached a duty to the taxpayer by failing to protect the taxpayer from an upward reassessment of its property pursuant to O.C.G.A. § 48-5-299(c). However, because the taxpayer failed to show any damage or loss for tax year 2003, the trial court's ruling in favor of the tax service for that year was upheld. AT&T Corp. v. Property Tax Servs., 288 Ga. App. 679, 655 S.E.2d 295 (2007).

- Because the property owners did not file a return for 2013, the property owners were deemed to have returned their property for the value from 2012, which was the same value from 2011, and the property owners did not trigger the exception found in O.C.G.A. § 48-5-299(c) that might have allowed them to contest the assessed value of their property for the 2013 tax year. Surette v. Henry County Bd. of Tax Assessors, 332 Ga. App. 457, 773 S.E.2d 416 (2015).

- Owner was entitled to attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) in an appeal of a property valuation because the final determination of value on appeal to the trial court was 85 percent or less of the valuation set by the board of tax assessors; it was irrelevant that the owner's appeal to the trial court dealt with a "freeze" of the property value under O.C.G.A. § 48-5-299(c) and not a new determination of value. Fulton County Bd. of Tax Assessors v. Lamb, 298 Ga. App. 618, 680 S.E.2d 656 (2009).

Final property valuation that was set by operation of law pursuant to O.C.G.A. § 48-5-299(c) based on a prior tax year appeal did not preclude an award of attorney's fees and costs under O.C.G.A. § 48-5-311(g)(4)(B)(ii). Fulton County Bd. of Tax Assessors v. LM Atlanta Airport, LLC, 313 Ga. App. 439, 721 S.E.2d 640 (2011).

- Trial court did not err by denying a group of property owners their request for mandamus relief in the nature of finding that the county board of tax assessors certified their property tax appeals because it was undisputed that the tax appeals were physically delivered to the trial court and that it had ruled that such appeals were certified to it, thus, the property owners received the relief sought regarding certification. Newton Timber Co., L.L.L.P. v. Monroe County Bd. of Tax Assessors, Ga. , 755 S.E.2d 770 (2014).

Cited in Georgian Art Lighting Designs, Inc. v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510, 439 S.E.2d 687 (1993); Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478, 568 S.E.2d 786 (2002); Hall County Bd. of Tax Assessors v. Westrec Props., 303 Ga. 69, 809 S.E.2d 780 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Assessment of unreturned personal property.

- County tax assessors may assess unreturned personal property discovered in an audit for all tax years within the seven year period of limitation pertinent to property tax liabilities. 1987 Op. Att'y Gen. No. U87-13.

- Property that has been returned may only be revalued in accordance with O.C.G.A. § 48-5-306 if the county board of tax assessors has not previously rendered a final assessment of that property pursuant to the same Code section. 1987 Op. Att'y Gen. No. U87-13, rescinding and superseding Op. Att'y Gen. 1961, p. 482 insofar as it suggests that returned property may be revalued and reassessed at any time within the applicable period of limitation.

- Statute does not provide for any notice to the taxpayer and no notice is required when property has not been returned for taxation. 1954-56 Op. Att'y Gen. p. 827.

- It is not necessary that the tax assessors receive any official notice from the comptroller general or state revenue commissioner in making a correction on a tax return. 1957 Op. Att'y Gen. p. 254.

- County board of tax assessors in the discharge of the assessors' official duties are entitled to have access to the files of the state revenue commissioner, including the income tax files. Any files furnished to county boards of tax assessors retain their privileged or confidential character in the hands of those officials. 1965-66 Op. Att'y Gen. No. 66-225.

- Information in state income tax returns may not be furnished to city or municipal tax assessors. 1965-66 Op. Att'y Gen. No. 66-225.

- It was the intention of the General Assembly in enacting this statute to provide a penalty of ten percent which would cover all state and county taxes, including county-wide school tax. 1954-56 Op. Att'y Gen. p. 826.

- Statute, which imposes a penalty of ten percent upon the failure to file a tax return, applies to all taxpayers who come within the statutory provisions. However, this statute states that "the board shall add to the amount of state and county taxes due a penalty of ten percent." It therefore follows that the penalty can only be imposed on taxes on property in excess of the homestead exemption. 1954-56 Op. Att'y Gen. p. 741.

- After the taxpayer has once filed for homestead exemption on real property the exemption is automatically renewed. Therefore, the ten percent penalty for filing a late return is on tax due on property over and above the homestead exemption. 1954-56 Op. Att'y Gen. p. 725.

Penalties arising under this statute are the property of the county, and no division should be made for the state or the school system. Since, under former Code 1933, § 92-6913 (see now O.C.G.A. § 48-5-299), penalties must be paid into the county treasury, Ga. L. 1937-38, Ex. Sess., p. 77, § 37 (see now O.C.G.A. § 48-2-42) did not affect the matter, even though the latter section stated that penalties "are part of the tax." 1954-56 Op. Att'y Gen. p. 577; 1954-56 Op. Att'y Gen. p. 825; 1972 Op. Att'y Gen. No. U72-22.

Board of education is not entitled to any portion of penalties collected by tax commissioner. 1969 Op. Att'y Gen. No. 69-391.

RESEARCH REFERENCES

Am. Jur. 2d.

- 72 Am. Jur. 2d, State and Local Taxation, § 620.

- 84 C.J.S., Taxation, §§ 467 et seq., 503 et seq., 530 et seq., 554 et seq.

- Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331; 84 A.L.R. 197.

Outstanding lease as affecting taxable value of property against owner, 30 A.L.R. 361.