Revisiting a previous post, under Georgia law, a tax commissioner holds excess funds generated by a tax sale in a fiduciary capacity, and the disbursement of those funds is governed by OCGA § 48-4-5. But, after a tax sale, if there are excess funds after paying taxes, costs, and all expenses of a sale, who gets these funds? The answer, generally, is distribution of excess tax funds is based on the right to the funds at the time of the tax sale.
When there are excess tax funds, the officer selling the property shall give written notice of the excess funds to the record owner of the property at the time of the tax sale and to the record owner of each security deed affecting the property and to all other parties having any recorded equity interest or claim in such property at the time of the tax sale. Such notice shall be sent by first-class mail within 30 days after the tax sale, and shall contain a description of the land sold, the date sold, the name and address of the tax sale purchaser, the total sale price, and the amount of excess funds collected and held by the tax commissioner, tax collector, sheriff, or other officer. The notice shall state that the excess funds are available for distribution to the owner or owners as their interests appear in the order of priority in which their interests exist.
If there is a dispute regarding who is entitled to the excess tax funds, an interpleader is filed and the excess funds are distributed by the superior court to the intended parties, including the owner, as their interests appear and in the order of priority in which their interests exist.
Some issues that come up in regard to distribution of excess tax funds is whether a “super-lien” obtained via a redemption gives the redeeming party a right to claim the excess funds. The answer is no because a super-lien places a lien on the real property but not on the excess tax sale funds.
Another issue is when additional taxes come due after the tax sale—is the tax commissioner allowed to use the excess funds for taxes due after the tax sale? The answer is no because the tax deed purchaser is the party responsible for paying property taxes after the tax sale. The remedy for the tax purchaser is to add taxes paid to the redemption price.
And, finally, what happens if the owner of the property sells the property after the tax sale? Is the new owner entitled to the excess tax sale funds? The answer is no. Georgia law considers excess tax sale funds to be personal property; thus, these funds do not attach to the real estate. One exception is if the sales agreement contains language assigning the excess tax sale funds, then the person who sold the property loses their right to the excess funds. Georgia Lien Services, Inc. v. Barrett, 272 Ga. App. 656 (2005).