In a physical precedent only case [1] , Georgia Court of Appeals Rule 33, the Court of Appeals allowed the reduction in value from $137,700.00 to $25,000.00. That is almost an 82% reduction in value and companion reduction in the taxes due the County on the property. The Court of Appeals cut through OCGA § 48-5-2 [2] and found that a Sheriff's Sale that only returned $25,000.00 on the courthouse steps in cash constitued an "arm's length, bona fide" [sale] transaction.
Our firm has never evaluated such a sale as Fair Market Value (FMV) price and this opinion provides a new weapon against counties in the ongoing (never ending actually) [3] battle against rising real estate property taxes.
Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Suite 250
Atlanta (Tucker), GA 30084
www.woodandmeredith.com
hwood@woodandmeredith.com
www.hughwood.blogspot.com
Phone: 404-633-4100
Cell: 404-449-9041
Fax: 404-633-0068
[1]
783 S.E.2d 453
Court of Appeals of Georgia.
PARK SOLUTIONS, LLC
v.
DEKALB COUNTY BOARD OF TAX ASSESSORS.
No. A15A2136.
March 23, 2016.Reconsideration Denied April 14, 2016.
Synopsis
Background: Judicial foreclosure sale purchaser appealed decision of county board of equalization (BOE) that upheld assessor's valuation of real property. The Superior Court, DeKalb County affirmed. Purchaser appealed.
Holding: The Court of Appeals, McFadden, J., held that judicial foreclosure sale qualified as an “arm's length, bona fide sale” for purposes of statute providing one-year freeze of ad valorem tax value of property.
Reversed.
Dillard, J., concurred in judgment only and filed statement.
Attorneys and Law Firms
*453 C. Terry Blanton, for Appellant.
Jermaine Anthony Walker, Decatur, Laura Karen Johnson, Mark A. Thompson, Shaheem Malik Williams, for Appellee.
Opinion
McFADDEN, Judge.
The issue in this appeal is whether a sheriff's sale of certain real property was an “arm's length, bona fide” sale under OCGA § 48–5–2(3) so that the sale price constituted the property's maximum allowable fair market value for the next taxable year. Because *454 we find that the sheriff's sale was such an arm's length, bona fide sale, the superior court's ruling to the contrary was erroneous and must be reversed.
On June 4, 2013, Park Solutions, LLC bought a tract of land for $25,000 at a sheriff's sale in DeKalb County. The sheriff's deed provided that Mollye Devault and Robert Christopher Taylor were the owners of the property; that the owners made the deed by and through the DeKalb County sheriff, acting in his official capacity; that the sheriff conducted the sale to satisfy a default judgment of $37,796 obtained by DRST Holdings LTD; that the sale was held “at the usual place for conducting [s]heriff's sales in DeKalb [C]ounty before the [c]ourthouse door;” and that Park Solutions was the highest bidder at the “public outcry.”
After the sale, the county appraised the value of the property as $146,900 for the 2014 tax year, and Park Solutions appealed that valuation to the DeKalb County Board of Tax Assessors. The board of tax assessors issued a decision finding that the fair market value of the property was $137,700. Park Solutions appealed that decision to the DeKalb County Board of Equalization, which upheld the county tax assessor's fair market value finding of the property as $137,700. Park Solutions then appealed to the superior court, asserting that pursuant to OCGA § 48–5–2(3), the maximum allowable fair market value of the property for the 2014 tax year was the $25,000 price that it had paid at the sheriff's sale. The trial court rejected the argument, finding that the sheriff's sale was not an arm's length, bona fide sale under that statute because such “judicial foreclosure sales are not mentioned in the statute and also the parties to the sale are related and affiliated.” The trial court concluded that the county had accurately determined the fair market value of the property as of January 1, 2014, to be $137,700. Park Solutions appeals from the superior court's final order.
1. Sheriff's sale.
1
Park Solutions asserts that the trial court erred in finding that the sheriff's sale in this case was not governed by OCGA § 48–5–2(3) because such judicial foreclosure sales are not mentioned in the statute. We agree with the assertion.
OCGA § 48–5–2(3), which is part of the code governing ad valorem taxation of property, provides, in pertinent part:
“Fair market value of property” means the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm's length, bona fide sale.... Notwithstanding any other provision of this chapter to the contrary, the transaction amount of the most recent arm's length, bona fide sale in any year shall be the maximum allowable fair market value for the next taxable year.
The term “arm's length, bona fide” sale as used in this code section is defined as “mean[ing] a transaction which has occurred in good faith without fraud or deceit carried out by unrelated or unaffiliated parties, as by a willing buyer and a willing seller, each acting in his or her own self-interest, including but not limited to a distress sale, short sale, bank sale, or sale at public auction.” OCGA § 48–5–2(.1) (emphasis supplied).
Thus, OCGA § 48–5–2(3) “provides the method for assessing [fair market] value as of [January 1 of the applicable tax year] ..., with its focus on the actual market-determined value of property on the actual date the property was acquired, rather than its value as much as a year later[.]” Columbus Bd. of Tax Assessors v. Yeoman, 293 Ga. 107, 109(2), 744 S.E.2d 18 (2013). “This amounts to a freeze on the ad valorem tax value of property for one year. [Cit.]” Ballard v. Newton County Bd. of Tax Assessors, 332 Ga.App. 521, 522, 773 S.E.2d 780 (2015).
In finding that this freeze on the value of the property did not apply to the sheriff's sale in this case, the trial court relied on OCGA § 48–5–1, which provides that “[t]he intent and purpose of the tax laws of this state are to have all property and subjects of taxation returned at the value which would be realized from the cash sale, but not the forced sale, of the property and subjects as such property and subjects are usually sold except as otherwise provided in this chapter.” (Emphasis supplied.) The trial court *455 then reasoned that foreclosure sales are considered to be forced sales and therefore “[r]eading [OCGA] § 48–5–2(.1) to include judicial foreclosure sales would be contrary to the expressed intent of Title 48 to exclude values realized as a result of the forced sale of a property.”
2
However, the trial court overlooked the plain language in OCGA § 48–5–1 providing that it applies “except as otherwise provided in this chapter.” Likewise, the controlling portion of OCGA § 48–5–2(3) itself expressly provides that it applies “[n]otwithstanding any other provision of this chapter to the contrary[.]” We must construe these statutes together and harmonize them to ascertain the legislative intent. Aimwell, Inc. v. McLendon Enterprises, 318 Ga.App. 394, 397(1), 734 S.E.2d 84 (2012). In so doing, even if we assume, without deciding, that there is some inconsistency between them, it is apparent from the plain language of both code sections that, notwithstanding anything to the contrary, the legislative intent was to allow the specific provision of a one-year freeze on ad valorem tax value set forth in OCGA § 48–5–2(3) to control over the general expression of purpose set forth in OCGA § 48–5–1. See Hubert Properties, LLP v. Cobb County, 318 Ga.App. 321, 323(1), 733 S.E.2d 373 (2012) (specific statute will prevail over a general statute to resolve any inconsistency between them).
Moreover, the trial court also erred in concluding that the absence of the term “foreclosure sale” from OCGA § 48–5–2(.1) indicates that such sales were excluded by the legislature from that code section's definition of an arm's length, bona fide sale. As recited above, OCGA § 48–5–2(.1) defines an arm's length, bona fide sale as “including but not limited to a distress sale, short sale, bank sale, or sale at public auction.” (Emphasis supplied.) Contrary to the trial court's interpretation of this code section, the legislature's use of the phrase “including but not limited to” is not restrictive or exclusive, and instead “reflects broad language of illustration or enlargement. [Cit.]” Hendry v. Hendry, 292 Ga. 1, 2(1), n. 2, 734 S.E.2d 46 (2012).
Indeed, two of the examples of the types of sales expressly included in the definition of an arm's length, bona fide sale set forth in OCGA § 48–5–2(.1)—distress sales and public auctions—clearly include the foreclosure sale executed by the sheriff in this case. “The statute does not define the ... terms [‘distress sale’ or ‘public auction,’] and we therefore look to their plain and ordinary meanings as defined by dictionaries.” Skelhorn v. State, 332 Ga.App. 782, 787(3)(b), 773 S.E.2d 45 (2015) (citation and punctuation omitted). Black's Law Dictionary (10th ed. 2014), defines the term “distress sale” as “[a] form of liquidation in which the seller receives less for the goods than what would be received under normal sales conditions,” and as a “foreclosure ... sale.” Under this ordinary meaning of the phrase, the sheriff's foreclosure sale in this case was a distress sale as contemplated by the statute.
Furthermore, Black's Law Dictionary (10th ed. 2014) defines the word “auction” as being “[a] public sale of property to the highest bidder,” and it defines the term “public sale” as meaning “[a] sale made after public notice, as in an auction or sheriff's sale.” Consistent with this dictionary definition, another statute in our official code provides that “the term ‘public sale’ means any sale, the notice of which must by law in any manner be given to the public.” OCGA § 9–13–160(a). Thus, under these definitions, the sheriff's sale in this case was a public auction at which Park Solutions was the high bidder.
“OCGA § 48–5–2(.1) expressly defines an arm's length, bona fide sale to include those types of transactions where the seller might suffer a financial loss[,] including distress sales ... or sales at public auction[ ].” CPF Investments v. Fulton County Bd. of Assessors, 330 Ga.App. 744, 749, 769 S.E.2d 159 (2015) (punctuation omitted). Here, because the sheriff's sale of the subject property was a distress sale and public auction, it was an arm's length, bona fide sale under the plain terms of OCGA § 48–5–2(.1). Consequently, the board of tax assessors could not “assess the property at a higher value in the year following the sale, regardless of whether the [b]oard believe[d] the sale price reflect[ed] the actual fair market value of the property.” CPF Investments, supra at 747 *456 , n. 4, 769 S.E.2d 159. The trial court's findings to the contrary with regard to the sheriff's sale in this case were erroneous and must be reversed. Compare Ballard, supra at 525, 773 S.E.2d 780 (holding that a tax sale purchaser receives only a defeasible fee interest and since fair market value “is not defined as the amount a buyer would pay to purchase, and a willing seller accept, for a defeasible interest in property, a tax sale does not qualify as an arm's length, bona fide sale such that the one-year freeze of OCGA § 48–5–2(3) would apply.”) (emphasis in original).
2. Parties to the sale.
The trial court also found that the sheriff's sale was not an arm's length transaction under OCGA § 48–5–2(.1) because the parties to the 2013 sheriff's sale were DRST and Park Solutions and those parties were related in that the president of DRST and the manager of Park Solutions were, respectively, father and son. However, regardless of the relationship between the father and son and the respective corporate entities, the factual premise of the trial court's ruling is flawed because DRST was not a party to the sale.
As the sheriff's deed plainly shows, the parties to the sale were the sheriff as the grantor, acting in his official capacity on behalf of the property owners, and Park Solutions as the grantee after being the highest bidder for the property at the public auction. See Associates Financial Svcs. Co. v. Johnson, 128 Ga.App. 712, 713, 197 S.E.2d 764 (1973) (sheriffs who are legally authorized to make sales at a public outcry represent the sellers of the property). Thus, contrary to the trial court's finding, DRST simply was not a party to the sheriff's sale, which instead was an arm's length sale between the unrelated and unaffiliated parties of the grantor sheriff and the grantee Park Solutions. Accordingly, the trial court's finding that the transaction was not an arm's length sale was erroneous. “In light of the foregoing [errors], the [final] order of the trial court ... is reversed.” CPF Investments, supra at 750, 769 S.E.2d 159.
Judgment reversed.
ELLINGTON, P.J., concurs and DILLARD, J., concurs in the judgment only.
DILLARD, Judge, concurring in judgment only.
I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority's opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33(a).
All Citations
783 S.E.2d 453
[2]
Effective: July 1, 2014
Ga. Code Ann., § 48-5-2
OCGA § 48-5-2. Definitions
Currentness
As used in this chapter, the term:
(.1) “Arm's length, bona fide sale” means a transaction which has occurred in good faith without fraud or deceit carried out by unrelated or unaffiliated parties, as by a willing buyer and a willing seller, each acting in his or her own self-interest, including but not limited to a distress sale, short sale, bank sale, or sale at public auction.
(1) “Current use value” of bona fide conservation use property means the amount a knowledgeable buyer would pay for the property with the intention of continuing the property in its existing use and in an arm's length, bona fide sale and shall be determined in accordance with the specifications and criteria provided for in subsection (b) of Code Section 48-5-269.
(2) “Current use value” of bona fide residential transitional property means the amount a knowledgeable buyer would pay for the property with the intention of continuing the property in its existing use and in an arm's length, bona fide sale. The tax assessor shall consider the following criteria, as applicable, in determining the current use value of bona fide residential transitional property:
(A) The current use of such property;
(B) Annual productivity; and
(C) Sales data of comparable real property with and for the same existing use.
(3) “Fair market value of property” means the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm's length, bona fide sale. The income approach, if data is available, shall be considered in determining the fair market value of income-producing property. Notwithstanding any other provision of this chapter to the contrary, the transaction amount of the most recent arm's length, bona fide sale in any year shall be the maximum allowable fair market value for the next taxable year. With respect to the valuation of equipment, machinery, and fixtures when no ready market exists for the sale of the equipment, machinery, and fixtures, fair market value may be determined by resorting to any reasonable, relevant, and useful information available, including, but not limited to, the original cost of the property, any depreciation or obsolescence, and any increase in value by reason of inflation. Each tax assessor shall have access to any public records of the taxpayer for the purpose of discovering such information.
(A) In determining the fair market value of a going business where its continued operation is reasonably anticipated, the tax assessor may value the equipment, machinery, and fixtures which are the property of the business as a whole where appropriate to reflect the accurate fair market value.
(B) The tax assessor shall apply the following criteria in determining the fair market value of real property:
(i) Existing zoning of property;
(ii) Existing use of property, including any restrictions or limitations on the use of property resulting from state or federal law or rules or regulations adopted pursuant to the authority of state or federal law;
(iii) Existing covenants or restrictions in deed dedicating the property to a particular use;
(iv) Bank sales, other financial institution owned sales, or distressed sales, or any combination thereof, of comparable real property;
(v) Decreased value of the property based on limitations and restrictions resulting from the property being in a conservation easement;
(vi) Rent limitations, operational requirements, and any other restrictions imposed upon the property in connection with the property being eligible for any income tax credits described in subparagraph (B.1) of this paragraph or receiving any other state or federal subsidies provided with respect to the use of the property as residential rental property; provided, however, that such properties described in subparagraph (B.1) of this paragraph shall not be considered comparable real property for assessment or appeal of assessment of other properties; and
(vii) Any other existing factors provided by law or by rule and regulation of the commissioner deemed pertinent in arriving at fair market value.
(B.1) The tax assessor shall not consider any income tax credits with respect to real property which are claimed and granted pursuant to either Section 42 of the Internal Revenue Code of 1986, as amended, or Chapter 7 of this title in determining the fair market value of real property.
(B.2) In determining the fair market value of real property, the tax assessor shall not include the value of any intangible assets used by a business, wherever located, including patents, trademarks, trade names, customer agreements, and merchandising agreements.
(C) Fair market value of “historic property” as such term is defined in subsection (a) of Code Section 48-5-7.2 means:
(i) For the first eight years in which the property is classified as “rehabilitated historic property,” the value equal to the greater of the acquisition cost of the property or the appraised fair market value of the property as recorded in the county tax digest at the time preliminary certification on such property was received by the county board of tax assessors pursuant to subsection (c) of Code Section 48-5-7.2;
(ii) For the ninth year in which the property is classified as “rehabilitated historic property,” the value of the property as determined by division (i) of this subparagraph plus one-half of the difference between such value and the current fair market value exclusive of the provisions of this subparagraph; and
(iii) For the tenth and following years, the fair market value of such property as determined by the provisions of this paragraph, excluding the provisions of this subparagraph.
(D) Fair market value of “landmark historic property” as such term is defined in subsection (a) of Code Section 48-5-7.3 means:
(i) For the first eight years in which the property is classified as “landmark historic property,” the value equal to the greater of the acquisition cost of the property or the appraised fair market value of the property as recorded in the county tax digest at the time certification on such property was received by the county board of tax assessors pursuant to subsection (c) of Code Section 48-5-7.3;
(ii) For the ninth year in which the property is classified as “landmark historic property,” the value of the property as determined by division (i) of this subparagraph plus one-half of the difference between such value and the current fair market value exclusive of the provisions of this subparagraph; and
(iii) For the tenth and following years, the fair market value of such property as determined by the provisions of this paragraph, excluding the provisions of this subparagraph.
(E) Timber shall be valued at its fair market value at the time of its harvest or sale in the manner specified in Code Section 48-5-7.5.
(F) Fair market value of “brownfield property” as such term is defined in subsection (a) of Code Section 48-5-7.6 means:
(i) Unless sooner disqualified pursuant to subsection (e) of Code Section 48-5-7.6, for the first ten years in which the property is classified as “brownfield property,” or as this period of preferential assessment may be extended pursuant to subsection (o) of Code Section 48-5-7. 6, the value equal to the lesser of the acquisition cost of the property or the appraised fair market value of the property as recorded in the county tax digest at the time application was made to the Environmental Protection Division of the Department of Natural Resources for participation under Article 9 of Chapter 8 of Title 12, the “Georgia Hazardous Site Reuse and Redevelopment Act,” as amended; and
(ii) Unless sooner disqualified pursuant to subsection (e) of Code Section 48-5-7.6, for the eleventh and following years, or at the end of any extension of this period of preferential assessment pursuant to subsection (o) of Code Section 48-5-7.6, the fair market value of such property as determined by the provisions of this paragraph, excluding the provisions of this subparagraph.
(4) “Foreign merchandise in transit” means personal property of any description which has been or will be moved by waterborne commerce through any port located in this state and:
(A) Which has entered the export stream, although temporarily stored or warehoused in the county where the port of export is located; or
(B) Which was shipped from a point of origin located outside the customs territory of the United States and on which United States customs duties are paid at or through any customs district or port located in this state, although stored or warehoused in the county where the port of entry is located while in transit to a final destination.
(5) “Forest land conservation value” of forest land conservation use property means the amount determined in accordance with the specifications and criteria provided for in Code Section 48-5-271 and Article VII, Section I, Paragraph III(f) of the Constitution.
(6) “Forest land fair market value” means the 2008 fair market value of the forest land; provided, however, that when the 2008 fair market value of the forest land has been appealed by a property owner and the ultimate fair market value of the forest land is changed in the appeal process by either the board of assessors, the board of equalization, a hearing officer, an arbitrator, or a superior court judge, then the final fair market value of the forest land shall replace the 2008 fair market value of the forest land. This final fair market value of the forest land shall be used in the calculation of local assistance grants. If local assistance grants have been granted to either a county, a county board of education, or a municipality based on the 2008 fair market value of forest land and subsequently the fair market value of such forest land is reduced on an appeal, then the county or the municipality shall reimburse the state, within 12 months unless otherwise agreed to by the parties, the difference between local assistance grants paid to the county or municipality and the amount which would have been due based on the final fair market value of the forest land. Such 2008 valuation may increase from one taxable year to the next by a rate equal to the percentage change in the price index for gross output of state and local government from the prior year to the current year as defined by the National Income and Product Accounts and determined by the United States Bureau of Economic Analysis and indicated by the Price Index for Government Consumption Expenditures and General Government Gross Output (Table 3.10.4).
[3]
One of the first known taxes: Egyptian Pharaohs levied a tax on household cooking oil. Taxes have been an ongoing event since then.
END
Egyptian Pharaohs
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