We granted the petition for writ of certiorari filed by appellant Huff, who is the Muscogee County Tax Commissioner, to address the holding in Harpagon Co. v. Huff , 296 Ga. App. 107 1, 2 673 SE2d 592 2009, regarding the types of fees that may be collected pursuant to former OCGA § 48-5-161 c 2, which are assessed “once a levy is made or posted on the property of a delinquent or defaulting taxpayer.” Id. Although we disapprove certain language in the Court of Appeals’ opinion, we affirm its holding in Division 2 that no levy occurred in this case that would have authorized the imposition and collection of the statutory fees at issue. Because the absence of this essential factual predicate means that any appellate court construction of former OCGA § 48-5-161 c 2 would be advisory only, we accordingly reverse and remand this case to the Court of Appeals with direction that it vacate its holding in Division 1. 1. It is well established that Georgia law recognizes only two means of accomplishing a valid levy on real property. A levy on land may be accomplished by a simple entry on the fi. fa. by the levying officer. See OCGA § 9-13-12; Isam v. Hooks , 46 Ga. 309, 314-315 1872. Notwithstanding this fact, a valid levy of an attachment upon real estate may also be accomplished by some overt act of constructive seizure. Cit. . . . A constructive seizure may occur when there is the physical tacking of the notice of execution of levy on the real property in issue, resulting in a valid levy upon timely compliance with the notice requirements and other procedures set forth in the statutory scheme for tax sales. Citations and punctuation omitted. Powers v. CDSaxton Properties , 285 Ga. 303, 304-305 1 676 SE2d 186 2009. Accord former OCGA § 48-5-161 c 2. Although appellant, in asserting that the subject property was levied upon, points repeatedly to documents in the record reflecting unsigned and undated executions that were recorded in the execution docket,1 the record clearly reflects that there is no official entry of levy by the levying officer on those documents, i.e., no signature accompanying a statement that the property identified on the execution had been levied upon. The law is clear that neither the mere issuance of a writ of execution nor its recordation without the official entry of levy can qualify as a valid levy. See Powers , supra.
The Court of Appeals correctly recognized that the execution documents on which appellant relies did not show a valid levy occurred. Harpagon Co. , supra, 296 Ga. App. at 110 2. It next recognized properly that no levy occurred when a collection agent for Muscogee County was told to begin “phase two” of the collection process, id., as nothing in the record reflects a physical tacking of a valid notice of execution of levy on the real property in issue. See generally Powers , supra, 285 Ga. at 304-305 1.2 Then, quoting Black’s Law Dictionary and its definition of levy as “the legally sanctioned seizure and sale of property’ cit.,” Harpagon Co. , supra at 110 2, the Court of Appeals concluded that a levy “is the actual sale itself” of the property of a delinquent or defaulting taxpayer. Id. at 111 2. However, as stated above, there are only two means of accomplishing a levy in Georgia: by the official entry of levy on the execution or by some overt act of constructive seizure, i.e., posting on the property itself, “prior to issuing the required notices, advertisements, and sale of the property.” Footnote omitted. Tharp v. Vesta Holdings I , 276 Ga. App. 901, 903 1 a 625 SE2d 46 2005. See also Powers , supra tax sale set aside where no valid levy previously occurred; Kellogg & Co. v. Buckley & Short , 17 Ga. 187, 191 3 1855 recognizing there must be a previous valid levy on land under execution for its sale to be valid. We thus disapprove the Court of Appeals’ erroneous statement that the actual sale of property under execution is a levy.
