Dehco, Inc. v. Fulton County Tax Commissioner

• Court: Court of Appeals of Georgia
• Decided: April 26, 2012
• Docket: A12A0600
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

April 26, 2012

In the Court of Appeals of Georgia A12A0600. DEHCO, INC. v. FULTON COUNTY TAX COMMISSIONER.

MCFADDEN, Judge.

This appeal concerns the distribution of funds paid into the court registry in

connection with a condemnation proceeding. The condemnee, Dehco, Inc., appeals

from the trial court’s order disbursing a portion of the funds to the Fulton County Tax

Commissioner (the Commissioner) to cover the 2008 ad valorem taxes on the

condemned property. Because the trial court correctly held that Dehco was

responsible for the taxes, we affirm.

The relevant facts are undisputed, and we review the court’s ruling de novo.

Vesta Holdings I v. Tax Commr. of Fulton County, 259 Ga. App. 717 (578 SE2d 293)

(2003). On January 1, 2008, Dehco owned the property at issue. On March 7, 2008, the Georgia Department of Transportation (DOT) filed a petition and declaration of

taking. Subsequently, Dehco and the DOT entered into a consent order regarding the

condemnation, under which the DOT deposited funds into the court registry. On

September 10, 2009, the Commissioner moved for the court to disburse a portion of

those funds to cover the unpaid 2008 ad valorem taxes on the property. Subsequently,

Dehco filed a competing motion for distribution of the funds. The court denied

Dehco’s motion and concluded that, under OCGA § 48-5-10, Dehco was responsible

for the 2008 taxes on the property. In a separate order, the court granted the

Commissioner’s motion, and it directed the clerk of court to pay the amount of the

taxes to the Commissioner and to pay the remaining balance of funds in the registry

to a trust account on behalf of Dehco.

Dehco contends that it should be responsible for only a portion of the 2008

taxes and asserts that the court erred in finding it responsible for the entire amount.

We disagree. OCGA § 48-5-10 pertinently provides that “[e]ach return by a taxpayer

shall be for property held and subject to taxation on January 1 next preceding each

return.” Thus, as the owner of the property on January 1, 2008, Dehco was

responsible for the 2008 taxes. See Jamestown Assoc. v. Fulton County Bd. of Tax

Assessors, 228 Ga. App. 360, 361 (492 SE2d 1) (1997) (ad valorem taxes upon real

2 property are assessed upon the owner of record of the property as of January 1 of each

tax year). Absent an agreement with the DOT to prorate those taxes, Dehco remained

legally obligated to pay the full amount of the taxes regardless of the subsequent

transfer of title to the DOT. See 1988 Op. Atty. Gen. U88-12 (although proration of

property ad valorem taxes between a buyer and seller is customarily included in

agreements transferring title to property, such proration “is not provided for or

recognized in the law”).

Dehco argues that the application of OCGA § 48-5-10 in this manner violated

its constitutional right to equal protection of the law by allowing the DOT “to engage

in coercive tactics which creates two classes of condemnees, those who negotiate and

sell the property to the DOT before the institution of condemnation proceedings and

those who are required to litigate over the value of what has been taken.” The former

group, it argues, is in a position to negotiate an agreement in which ad valorem

property taxes are prorated; the latter group, into which it fell, is not. But the record

does not reflect that Dehco presented this constitutional argument to the trial court

and, even assuming that it did, the trial court did not rule on the statute’s

constitutionality in either of its orders. Thus, we will not consider arguments on the

statute’s constitutionality as applied in this case. See Haynes v. Wells, 273 Ga. 106,

3 108 (3) (538 SE2d 430) (2000); Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26,

31 (5) (693 SE2d 99) (2010). Cf. East Ga. Land & Dev. Co. v. Baker, 286 Ga. 551,

553 (1) (690 SE2d 145) (2010) (Supreme Court of Georgia has exclusive jurisdiction

where constitutionality of statute, as applied, has been raised and ruled upon by trial

court).

Judgment affirmed. Barnes, P. J., and Adams, J., concur.