§ 34-8-168 - Authorized collection procedures; application of moneys obtained; procedure to contest execution; Attorney General to represent Commissioner; Commissioner's rights, authority, and prero
O.C.G.A. 34-8-168 (2010)
34-8-168. Authorized collection procedures; application of moneys obtained; procedure to contest execution; Attorney General to represent Commissioner; Commissioner's rights, authority, and prerogatives
(a) The Commissioner or an authorized representative of the Commissioner may use garnishment to collect the tax imposed by this chapter. Garnishment may be issued by the Commissioner in the same manner as is provided for the issuance of garnishment by the state revenue commissioner in Code Section 48-2-55 and by tax collectors in Code Sections 48-3-12 through 48-3-18 and 48-3-23, provided it is unnecessary for the Commissioner or an authorized representative of the Commissioner to make an entry of nulla bona prior to filing a garnishment action.
(b) After due notice and demand for payment, the Commissioner or an authorized representative of the Commissioner may levy upon all property and rights to property, except such as are exempt by law, belonging to such employer or liable individual. As used in this chapter, the term "property and rights to property" includes, but is not limited to, any account in or with a financial institution. Such levy shall be for the payment of the sum due, with penalty and interest for nonpayment, and such additional sums as shall be sufficient for the fees, costs, and expenses of such levy. The Commissioner or an authorized representative of the Commissioner may levy and conduct judicial sales in the manner now provided for sales by sheriffs and constables.
(c)(1) In the case of personal property, the levy shall be advertised ten days before the date of sale. Advertisements of sales shall designate the time and place of sale and give a reasonable description of the property to be sold. Advertisements of sales shall be posted and sales shall be conducted as provided in Code Section 48-2-55.
(2) In the case of real property, the Commissioner or an authorized representative of the Commissioner, after making the levy, shall make a return of such levy on the execution to the sheriff of the county in which the property is located and the sheriff shall proceed to advertise and sell the same as required by law.
(d) The department shall apply all moneys obtained under this Code section first against the expenses of the proceedings and then against the liability in respect to which the levy was made and any other liability owed to the department by the delinquent employer.
(e)(1) Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Commissioner or a duly authorized representative of the Commissioner, surrender such property or rights or discharge such obligation to the Commissioner or a duly authorized representative of the Commissioner, except such part of the property or rights as is subject, at the time of such demand, to an attachment or execution under any judicial process.
(2) Any person who willfully fails or refuses to surrender any property subject to levy shall be personally liable to the Commissioner for a sum equal to the value of the property or rights not so surrendered but not exceeding the amount of contributions, interest, and penalties for the collection of which such levy has been made, together with costs and interest at the rate of 18 percent per annum from the date of such levy. Any amount other than costs recovered under this subsection shall be credited against the subject employer's liability for the collection of which such levy was made.
(3) Any person in possession of or obligated with respect to property or rights to property subject to levy upon which a levy has been made who, upon demand by the Commissioner or the duly authorized representative of the Commissioner, surrenders such property or rights to property or discharges such obligation to the Commissioner or the Commissioner's duly authorized representative shall be discharged from any obligation or liability to the delinquent employer with respect to such property or rights to property arising from such surrender or payment.
(f)(1) In the event that any employer desires to contest the execution, such employer may do so by filing an affidavit of illegality with the levying officer at the time of the levy suspending such execution, as now prescribed by the general laws relating to the filing of affidavits of illegality. When such affidavit is so filed and the tax is paid or bond for the sum sought by the Commissioner is given, it shall be the duty of the levying officer to return the execution, together with the affidavit of illegality and bond and, in case of personal property, bond for the forthcoming of the property, to the clerk of the superior court of the county of the employer or defendant in execution. The superior court of the county shall, at the first or next term, cause the issue so made to be tried by a jury in the superior court of the county of the residence of the employer under the same rules of law and evidence as prevail in this state.
(2) If the department has levied upon property, any person other than the debtor who is liable to pay the debt out of which the levy arose who claims an interest in or lien on that property and claims that property was wrongfully levied upon may bring a civil action against the state in the Superior Court of Fulton County. The action may be brought whether or not that property has been surrendered to the department. The court may grant only the relief provided under paragraph (3) of this subsection. No other action to question the validity of or to restrain or enjoin a levy by the department may be maintained.
(3) In an action under paragraph (2) of this subsection, if a levy would irreparably injure rights to property, the court may enjoin the enforcement of that levy. If the court determines that the property has been wrongfully levied upon, it may grant a judgment for the amount of money obtained by levy.
(4) For purposes of an adjudication under this subsection, the determination of the debt upon which the interest or lien of the department is based is conclusively presumed to be valid. The department shall determine its costs and expenses to be paid in all cases of levy.
(5) The department may refund or credit any amount left after the applications under paragraph (2) of this subsection to the person entitled to that amount, upon submission of a claim therefor and satisfactory proof of the claim.
(g)(1) The department may release the levy upon all or a portion of any property levied upon to facilitate the collection of the liability or to grant relief from a wrongful levy; provided, however, such release shall not prevent any later levy.
(2) If the department determines that property has been the subject of a wrongful levy, the department may return the property at any time or may return an amount of money equal to the amount of moneys levied upon.
(3) The availability of the remedy under this Code section shall not abridge the right of the department to pursue other remedies.
(h) The Attorney General shall represent the Commissioner when any such cases or contests initiated by affidavits of illegality are filed in any county or any legal action in courts results from the issuance of any execution.
(i) The Commissioner, with respect to the administration of this chapter and the collection of contributions pursuant to this chapter and in addition to the authority granted the Commissioner by the provisions of this chapter, shall have the same rights, authority, and prerogatives provided the state revenue commissioner for securing reports and for the collection of taxes as contained in Title 48.