AGO 1993-064.

• Case Date: December 21, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-064. December 21, 1993OPINION NO. 1993-064The Honorable Alan R. Mayberry Wood County Prosecuting Attorney One Courthouse Square Bowling Green, Ohio 43402 Dear Prosecutor Mayberry: You have requested an opinion concerning the withholding of real property taxes from the proceeds of a judicial sale of real property. Your letter states that, in reviewing confirmation entries on bank foreclosure, partition, and other judicial sales of property, your office has found that different counties employ different methods of withholding real property taxes from proceeds at those sales. For example, when a sale occurs in January, some counties withhold only the first half taxes and others withhold taxes due for the entire year in collection. Still others withhold taxes for the entire year in collection and also withhold a prorated portion of taxes for the current year on the basis of tax figures from the prior year. Your question is which of these methods is correct. Sales Under R.C. 323.47 Your letter of request asks about sales made pursuant to R.C. 323.47, which, as recently amended,(fn1) reads as follows:

If land held by tenants in common is sold upon proceedings in partition, or taken by the election of any of the parties to such proceedings, or real estate is sold at judicial sale, or by administrators, executors, guardians, or trustees, the court shall order that the taxes, penalties, and assessments then due and payable, and interest thereon, that are or will be a lien on such land or real estate at the time the deed is transferred following the sale, be discharged out of the proceeds of such sale or election. For purposes of determining such amount, the county treasurer may estimate the amount of taxes, assessments, interest, and penalties that will be payable at the time the deed of the property is transferred to the purchaser. If the county treasurer's estimate exceeds the amount of taxes, assessments, interest, and penalties actually payable when the deed is transferred to the purchaser, the officer who conducted the sale shall refund to the purchaser the difference between the estimate and the amount actually payable. If the amount of taxes, assessments, interest, and penalties actually payable when the deed is transferred to the purchaser exceeds the county treasurer's estimate, the officer shall certify the amount of the excess to the treasurer, who shall enter that amount on the real and public utility property tax duplicate opposite the property; the amount of the excess shall be payable at the next succeeding date prescribed for payment of taxes in section 323.12 of the Revised Code. (Emphasis added.)

The language of R.C. 323.47 states that the amount that is to be discharged out of the proceeds of a judicial sale is the amount of "taxes, penalties, and assessments then due and payable, and interest thereon, that are or will be a lien on such land or real estate at the time the deed is transferred following the sale." Prior to the recent amendment of R.C. 323.47, the word "then" referred to the time of sale, which was also the time at which the taxes due and payable were to be determined. See note 1, supra. The word "then" was retained when the time for that determination was changed to the time of transfer of the deed, and it appears that "then" must now be construed as applying to "the time the deed is transferred following the sale." The issue for determination is which taxes, penalties, assessments, and interest are due and payable and are a lien on land...