Editor's notes. - Ga. L. 1978, p. 309, et seq., enacted a recodification of the revenue laws for the state. Section 1 of the Act provides that the intent of the General Assembly was to provide for a general recodification of revenue laws, to omit obsolete and duplicative provisions, to make uniform administrative provisions where uniformity was possible without major substantive change, and to use simple understandable English in the revenue laws. The section further provides that it was not the intent of the General Assembly to make any substantive change in the revenue laws of this state as the laws existed prior to January 1, 1980, except as expressly provided in the reenactment.

Law reviews. - For article surveying taxpayers' remedies in Georgia, see 1 Ga. B. J. 19 (1939). For article discussing application of the principle that he who would have equity must do equity to taxpayer's suits, see 7 Ga. St. B. J. 305 (1971). For article discussing taxation of foreign businesses in Georgia, see 27 Mercer L. Rev. 629 (1976). For article surveying provisions of the Public Revenue Code, former Code 1933, T. 92 (see this title), see 14 Ga. St. B. J. 156 (1978). For article, "A Practical Guide to State Tax Practice," see 15 Ga. St. B. J. 74 (1978). For article surveying judicial decisions affecting Georgia's state and local taxation laws, decided under the prior Public Revenue Code, Code 1933, Title 92 (see this title), see 31 Mercer L. Rev. 217 (1979). For article discussing ad valorem taxation and interest in real property in Georgia, prior to the enactment of the Georgia Public Revenue Code, T. 48, see 31 Mercer L. Rev. 293 (1979). For article, "Reflections on the Revenue Act of 1978 and Future Tax Policy," see 13 Ga. L. Rev. 687 (1979). For annual survey on state and local taxation, see 36 Mercer L. Rev. 307 (1984). For article surveying state and local tax law, see 37 Mercer L. Rev. 361 (1985). For annual survey of state and local taxation, see 40 Mercer L. Rev. 357 (1988). For annual survey of state and local taxation, see 42 Mercer L. Rev. 421 (1990). For article, "Revenue and Taxation: Sales and Use Taxes," see 29 Ga. St. U. L. Rev. 112 (2012). For article, "Simplexity: Plain Language and the Tax Law," see 66 Emory L.J. 189 (2017).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1929, p. 58 and former Code 1933, T. 92, which was subsequently repealed but was succeeded by provisions in this title, are included in the annotations for this title.

Revenue laws to be construed in favor of taxpayer. - Revenue laws are neither remedial statutes nor laws founded upon any permanent public policy, and are not, therefore, to be liberally construed. Hence, whenever there is a just doubt, that doubt should absolve the taxpayer from the burden. Mystyle Hosiery Shops, Inc. v. Harrison, 171 Ga. 430 , 155 S.E. 765 (1930) (decided under Ga. L. 1929, p. 58).

Effect upon local laws. - The 1978 Georgia Public Revenue Code, Ga. L. 1978, p. 309, did not repeal by implication a local Act authorizing a city and county to contract for a consolidated board of tax assessors, and a later statute repealing the local Act was not void. Chatham County v. Hussey, 267 Ga. 895 , 485 S.E.2d 753 (1997).

Revenue laws require strict construction. - Statutes which impose restrictions upon trade or common occupations, and which levy an excise or tax upon those trades or occupations, must be construed strictly. Mystyle Hosiery Shops, Inc. v. Harrison, 171 Ga. 430 , 155 S.E. 765 (1930) (decided under Ga. L. 1929, p. 58).

Revenue laws are not to be extended by implication. - Statutes levying duties or taxes upon subjects or citizens are to be construed most strongly against the government, and in favor of their subjects or citizens, and their provisions are not to be extended, by implication, beyond the clear import of the language used. Mystyle Hosiery Shops, Inc. v. Harrison, 171 Ga. 430 , 155 S.E. 765 (1930) (decided under Ga. L. 1929, p. 58).

When taxpayer's remedies do not expressly include action at law, such action does not lie. - When the General Assembly authorizes a tax for governmental purposes and provides an adequate remedy for the tax's collection by administrative officers, the necessary intent is that the collection of the tax is exclusively confined to that administrative department of the government, and when the statute undertakes to provide remedies for the collection of taxes, and those given do not embrace an action at law, a common-law action for the recovery of taxes as a debt will not lie. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935) (decided under former Code 1933, T. 92).

Court of equity has no power to foreclose lien and order sale. - Power to levy and collect taxes is exclusively a legislative function, and unless authorized by statute, a court of equity is without power to foreclose a lien for taxes and order a sale of the property. No such power having been conferred by statute on a court of equity in this state, a court errs in decreeing that land be sold by the sheriff for the payment of state and county taxes. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935) (decided under former Code 1933, T. 92).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, T. 92, which was subsequently repealed but was succeeded by provisions in this title, are included in the annotations for this title.

Transaction must have object other than tax evasion. - While ordinarily motive is not controlling in a transaction planned for tax avoidance purposes, the rule is subject to an exception. There must be some authentic object other than the defeat of a tax. 1962 Op. Att'y Gen. p. 558 (decided under former Code 1933, T. 92).

RESEARCH REFERENCES

ALR. - Validity of statutory classifications based on population - tax statutes, 98 A.L.R.3d 1083.

CHAPTER 1 GENERAL PROVISIONS

Sec.

Cross references. - Power of state to tax, Ga. Const. 1983, Art. VII, Sec. I.

Levy by counties and municipalities of excise tax on sale of distilled spirits by the drink, § 3-4-130 et seq.

Excise taxes relating to sale of malt beverages, § 3-5-60 et seq.

Excise taxation relating to sale of wine, § 3-6-50 et seq.

Excise taxation of sale of distilled spirits in private clubs, § 3-7-60 .

Taxation of gross direct premiums received by insurance companies doing business in state, § 33-8-4 .

Power of Governor to suspend collection of taxes due state until meeting of next General Assembly, § 45-12-22 .

RESEARCH REFERENCES

ALR. - Liability to refund local taxes as within coverage of liability insurance, 21 A.L.R.4th 895.

48-1-1. Short title.

This title shall be known and may be cited as the "Georgia Public Revenue Code."

(Code 1933, § 91A-101, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Cited in City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

48-1-2. Definitions.

As used in this title, the term:

  1. "Agency" means any department, commission, institution, office, or officer of this state.
  2. "Aircraft" means any contrivance used or designed for navigation or flight through the air.
  3. "Airline company" means any person who undertakes, directly or indirectly, to engage in the scheduled transportation by aircraft of persons or property for hire in intrastate, interstate, or international transportation.
  4. "Commissioner" means the state revenue commissioner.
  5. "Contraband article" means:
    1. Any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking, prima facie evidencing the payment of any tax imposed by the revenue laws of this state;
    2. Any article, plate, die, stamp, machine, apparatus, paraphernalia, or other device or material designed for use, intended to be used, or used in the making of any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking described in subparagraph (A) of this paragraph; or
    3. Any article or property to which any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking prima facie evidencing the payment of any tax imposed by the revenue laws of this state is attached or affixed.
  6. "Department" means the Department of Revenue.
  7. "Deputy commissioner" means the deputy revenue commissioner.
  8. "Domestic," when applied to any corporation or association (including, but not limited to, a partnership), means created, organized, or domiciled in this state.
  9. "Fiduciary" means a guardian, trustee, executor, administrator, receiver, conservator, or any person, whether individual or corporate, acting in any fiduciary capacity for any person.
  10. Reserved.
  11. "Foreign," when applied to any corporation or association (including, but not limited to, a partnership), means created or organized outside this state.
  12. "Individual" means a natural person.
  13. "Intangible personal property" means the capital stock of all corporations; money, notes, bonds, accounts, or other credits, secured or unsecured; patent rights, copyrights, franchises, and any other classes and kinds of property defined by law as intangible personal property.
  14. "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning on or after January 1, 2017, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before February 9, 2018, except that Section 108(i), Section 163(e)(5)(F), Section 168(b)(3)(I), Section 168(e)(3)(B)(vii), Section 168(e)(3)(E)(ix), Section 168(e)(8), Section 168(k), Section 168(m), Section 168(n), Section 179(d)(1)(B)(ii), Section 179(f), Section 199, Section 381(c)(20), Section 382(d)(3), Section 810(b)(4), Section 1400L, Section 1400N(d)(1), Section 1400N(f), Section 1400N(j), Section 1400N(k), and Section 1400N(o) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that Section 168(e)(7), Section 172(b)(1)(F), and Section 172(i)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2008 enactment of federal Public Law 110-343, and except that Section 163(i)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as it was in effect before the 2009 enactment of federal Public Law 111-5, and except that Section 13(e)(4) of 2009 federal Public Law 111-92 shall be treated as if it was not in effect, and except that Section 118, Section 163(j), and Section 382(k)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2017 enactment of federal Public Law 115-97, and except that the limitations provided in Section 179(b)(1) shall be $250,000.00 for tax years beginning in 2010, shall be $250,000.00 for tax years beginning in 2011, shall be $250,000.00 for tax years beginning in 2012, shall be $250,000.00 for tax years beginning in 2013, and shall be $500,000.00 for tax years beginning in 2014, and except that the limitations provided in Section 179(b)(2) shall be $800,000.00 for tax years beginning in 2010, shall be $800,000.00 for tax years beginning in 2011, shall be $800,000.00 for tax years beginning in 2012, shall be $800,000.00 for tax years beginning in 2013, and shall be $2 million for tax years beginning in 2014, and provided that Section 1106 of federal Public Law 112-95 as amended by federal Public Law 113-243 shall be treated as if it is in effect, except the phrase "Code Section 48-2-35 (or, if later, November 15, 2015)" shall be substituted for the phrase "section 6511(a) of such Code (or, if later, April 15, 2015)," and notwithstanding any other provision in this title, no interest shall be refunded with respect to any claim for refund filed pursuant to Section 1106 of federal Public Law 112-95, and provided that subsection (b) of Section 3 of federal Public Law 114-292 shall be treated as if it is in effect, except the phrase "Code Section 48-2-35" shall be substituted for the phrase "section 6511(a) of the Internal Revenue Code of 1986" and the phrase "such section" shall be substituted for the phrase "such subsection." In the event a reference is made in this title to the Internal Revenue Code or the Internal Revenue Code of 1954 as it existed on a specific date prior to February 9, 2018, the term means the provisions of the Internal Revenue Code or the Internal Revenue Code of 1954 as it existed on the prior date. Unless otherwise provided in this title, any term used in this title shall have the same meaning as when used in a comparable provision or context in the Internal Revenue Code of 1986, as amended. For taxable years beginning on or after January 1, 2017, provisions of the Internal Revenue Code of 1986, as amended, which were as of February 9, 2018, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

    (14.1) "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning after December 31, 2005, but before January 1, 2007, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January 1, 2006, except that Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 199, Section 1400L, Section 1400N(d)(1), Section 1400N(j), and Section 1400N(k) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that the following provisions shall be as amended by the federal Tax Relief and Health Care Act of 2006 (Pub. L. No. 109-432) as such federal act existed on December 20, 2006, and effective for purposes of Georgia taxation on the same dates upon which they became effective for federal tax purposes pursuant to said federal act: Sections 38, 41, 45A, 45N, 51, 51A, 61, 62, 106, 121, 143, 164, 168 (except 168(k) but not excepting 168(k)(2)(A)(i), 168 (k)(2)(D)(i), and 168(k)(2)(E)), 170, 179E, 198, 220, 222, 223, 263, 280C, 312, 355, 613A, 954, 1043, 1221, 1245, 1355, 1397E, 1400A, 1400B, 7623, and 7872. For such taxable years, provisions of the Internal Revenue Code of 1986, as amended, which were as of January 1, 2006, enacted into law but not yet effective shall be effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes. The provisions of this paragraph shall supersede and control over any provision of paragraph (14) of this Code section to the contrary.

    (14.2) "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning after December 31, 2006, but before January 1, 2008, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January 1, 2008, except that Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 199, Section 1400L, Section 1400N(d)(1), Section 1400N(j), and Section 1400N(k) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect. For such taxable years, provisions of the Internal Revenue Code of 1986, as amended, which were as of January 1, 2008, enacted into law but not yet effective shall be effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes. The provisions of this paragraph shall supersede and control over any provision of paragraph (14) of this Code section to the contrary.

    (14.3) "Internal Revenue Code" or "Internal Revenue Code of 1986" means for taxable years beginning after December 31, 2007, but before January 1, 2009, the provisions of the United States Internal Revenue Code of 1986, as amended, provided for in federal law enacted on or before January 1, 2009, except that Section 168(b)(3)(I), Section 168(e)(3)(B)(vii), Section 168(e)(3)(E)(ix), Section 168(e)(8), Section 168(k) (but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E)), Section 168(m), Section 168(n), Section 172(b)(1)(F), Section 172(b)(1)(J), Section 172(j), Section 199, Section 1400L, Section 1400N(d)(1), Section 1400N(f), Section 1400N(j), Section 1400N(k), and Section 1400N(o) of the Internal Revenue Code of 1986, as amended, shall be treated as if they were not in effect, and except that Section 168(e)(7), Section 172(i)(1), and Section 1221 of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2008 enactment of federal Public Law 110-343. For such taxable years, provisions of the Internal Revenue Code of 1986, as amended, which were as of January 1, 2009, enacted into law but not yet effective shall be effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes. The provisions of this paragraph shall supersede and control over any provision of paragraph (14) of this Code section to the contrary.

  15. "Internal Revenue Service" or "IRS" means the Internal Revenue Service of the United States Department of the Treasury.
  16. "Member of the armed forces" means commissioned officers and personnel below the grade of commissioned officers in all regular and reserve components of the uniformed services subject to the jurisdiction of the United States Department of Defense. The term also includes the Coast Guard, but it does not include civilian employees of the armed forces.
  17. "Municipality" means an incorporated municipality in this state.
  18. "Person" means any individual, firm, partnership, cooperative, nonprofit membership corporation, joint venture, association, company, corporation, agency, syndicate, estate, trust, business trust, receiver, fiduciary, or other group or combination acting as a unit, body politic, or political subdivision, whether public, private, or quasi-public.
  19. "Personal property" means all tangible personal property and all intangible personal property, as the terms are defined in this Code section.
  20. "Personal representative" means the duly qualified and acting personal representative of the estate of a decedent or, if there is no duly qualified and acting representative, the person in possession of any property of the decedent.
  21. "Public utility" means all railroad companies, street and suburban railroads, or sleeping car companies; persons or companies operating railroads, street railroads, suburban railroads, or sleeping cars in this state; all express companies including railroad companies doing express, telephone, or telegraph business (except small telephone companies or persons operating a telephone business, the value of whose capital stock or property is less than $5,000.00); all gas, electric light, electric power, hydroelectric power, steam heat, refrigerated air, dockage or cranage, canal, toll road, toll bridge, railroad equipment, and navigation companies; and any person or persons operating a gas, electric light, electric power, hydroelectric power, steam heat, refrigerated air, dockage or cranage, canal, toll road, toll bridge, railroad equipment, or navigation business, through their president, general manager, owner, or agent having control of the company's offices in this state.
  22. "Tangible personal property" means personal property which may be seen, weighed, measured, felt, or touched or which is in any other manner perceptible to the senses. The term "tangible personal property" shall not include intangible personal property. This paragraph shall not apply to Chapter 8 of this title relating to sales and use taxation.
  23. "Tax collector" means a county tax collector.
  24. "Tax commissioner" means a county tax commissioner.
  25. "Taxpayer" means any person required by law to file a return or to pay taxes.
  26. "Tax receiver" means a county tax receiver.

    (Code 1933, § 91A-102, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 2; Ga. L. 1981, p. 1857, § 2; Ga. L. 1981, p. 1903, § 1; Ga. L. 1982, p. 3, § 48; Ga. L. 1984, p. 1323, § 1; Ga. L. 1987, p. 191, § 1; Ga. L. 1988, p. 475, § 1; Ga. L. 1989, p. 1402, § 1; Ga. L. 1990, p. 1350, § 1; Ga. L. 1991, p. 367, § 1; Ga. L. 1992, p. 1441, § 1; Ga. L. 1993, p. 728, § 1; Ga. L. 1993, p. 1402, § 16; Ga. L. 1994, p. 797, § 1; Ga. L. 1995, p. 324, § 1; Ga. L. 1996, p. 117, § 1; Ga. L. 1996, p. 130, § 1; Ga. L. 1996, p. 308, § 1; Ga. L. 1997, p. 396, § 1; Ga. L. 1998, p. 1224, § 1; Ga. L. 1999, p. 483, § 1; Ga. L. 2000, p. 1296, § 1; Ga. L. 2001, p. 1224, § 1; Ga. L. 2002, p. 439, § 1; Ga. L. 2003, p. 665, § 2; Ga. L. 2004, p. 410, § 2; Ga. L. 2005, p. 159, § 2/HB 488; Ga. L. 2006, p. 200, § 1/HB 1310; Ga. L. 2007, p. 2, §§ 1, 2/HB 357; Ga. L. 2008, p. 10, §§ 1, 2/HB 926; Ga. L. 2008, p. 324, § 48/SB 455; Ga. L. 2009, p. 6, §§ 1, 2/HB 74; Ga. L. 2010, p. 895, § 1/HB 1138; Ga. L. 2011, p. 38, § 1/HB 168; Ga. L. 2012, p. 694, § 1/HB 729; Ga. L. 2013, p. 7, § 1/HB 266; Ga. L. 2014, p. 231, § 1/HB 918; Ga. L. 2015, p. 2, § 1/HB 292; Ga. L. 2016, p. 1, § 1/HB 742; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 4, § 1/HB 283; Ga. L. 2018, p. 8, § 1-1/HB 918.)

The 2015 amendment, effective March 6, 2015, in paragraph (14), substituted "January 1, 2014" for "January 1, 2013" twice, substituted January 1, 2015" for "January 1, 2014" three times, substituted "November 15, 2015" for "November 15, 2013" and "April 15, 2015" for "April 15, 2013" once each, deleted "and" following "for tax years beginning in 2012," twice, inserted "and shall be $500,000.00 for tax years beginning in 2014,", inserted "and shall be $2 million for tax years beginning in 2014,", and inserted "as amended by federal Public Law 113-243". See Editor's notes for applicability.

The 2016 amendments. The first 2016 amendment, effective February 23, 2016, in paragraph (14), substituted "January 1, 2015" for "January 1, 2014" twice, substituted "January 1, 2016" for "January 1, 2015" three times, and substituted "Section 168(k)(2)(E))" for "Section 168(k)(2)(E)". See Editor's notes for applicability. The second 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (14).

The 2017 amendment, effective March 21, 2017, in paragraph (14), substituted "2016" for "2015" twice, substituted "2017" for "2016" three times, and added ", and provided that subsection (b) of Section 3 of federal Public Law 114-292 shall be treated as if it is in effect, except the phrase 'Code Section 48-2-35' shall be substituted for the phrase 'section 6511(a) of the Internal Revenue Code of 1986' and the phrase 'such section' shall be substituted for the phrase 'such subsection'" at the end of the second sentence. See Editor's note for applicability.

The 2018 amendment, effective March 2, 2018, in paragraph (14), substituted "2017" for "2016" twice; substituted "February 9, 2018" for "January 1, 2017" three times; and in the first sentence, deleted "Section 85(c)," following "except that", deleted "Section 164(a)(6), Section 164(b)(6)," following "Section 163(e)(5)(F),", deleted "(but not excepting Section 168(k)(2)(A)(i), Section 168(k)(2)(D)(i), and Section 168(k)(2)(E))" preceding ", Section 168(m)", substituted "Section 179(d)(1)(B)(ii)" for "Section 172(b)(1)(H), Section 172(b)(1)(J), Section 172(j)", inserted "Section 381(c)(20), Section 382(d)(3)," following "Section 199,", inserted "and" following "Section 172(b)(1)(F),", deleted ", and Section 1221" following "Section 172(i)(1)", and inserted "and except that Section 118, Section 163(j), and Section 382(k)(1) of the Internal Revenue Code of 1986, as amended, shall be treated as they were in effect before the 2017 enactment of federal Public Law 115-97,". See Editor's notes for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2007, quotes were deleted surrounding ", as amended," in paragraphs (14) and (14.1); and "supersede" was substituted for "supercede" in paragraph (14.1).

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that the Act applied to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply; and also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act; and also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1988, p. 475, § 3, not codified by the General Assembly, provided that the Act applies to taxable years beginning on or after January 1, 1988; and also provided that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1988, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1989, p. 1402, § 2, not codified by the General Assembly, provides that the amendments to this Act shall apply to taxable years beginning on or after January 1, 1989, and that provisions of the Internal Revenue Code of 1986, which were as of January 1, 1989, enacted into law but not yet effective, shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1990, p. 1350, § 2, not codified by the General Assembly, provided that the Act applies to taxable years beginning on or after January 1, 1990, and that provisions of the Internal Revenue Code of 1986, which were as of January 1, 1990, enacted into law but not yet effective, shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1991, p. 367, § 2, not codified by the General Assembly, provided that this Act became effective April 4, 1991, and applies to taxable years beginning on or after January 1, 1991. Provisions of the Internal Revenue Code of 1986, which were as of January 1, 1991, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1992, p. 1441, § 2, not codified by the General Assembly, provided that the Act shall apply to taxable years beginning on or after January 1, 1992, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1992, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1993, p. 728, § 2, not codified by the General Assembly, provided that the Act shall become effective April 9, 1993, and shall apply to taxable years beginning on or after January 1, 1993, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1993, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they became effective for federal tax purposes.

Ga. L. 1994, p. 797, § 2, not codified by the General Assembly, provides that the Act shall apply to taxable years beginning on or after January 1, 1994, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1994, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1995, p. 324, § 2, not codified by the General Assembly, provides that the Act shall apply to taxable years beginning on or after January 1, 1995, and that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1995, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1996, p. 117, § 9, not codified by the General Assembly, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides that the 1996 amendment enacted by that Act becomes effective on January 1, 1997, and shall be applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November 1996, general election; if such resolution is not ratified, the amendment shall not become effective and shall stand repealed on January 1, 1997. House Resolution 734 was ratified in 1996; and provided that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

Ga. L. 1996, p. 308, § 2, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to taxable years beginning on or after January 1, 1996. Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1996, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes." [Ga. L. 1996, p. 308 was approved and became effective April 1, 1996.]

Ga. L. 1997, p. 396, § 2, not codified by the General Assembly, makes that Act applicable "to taxable years beginning on or after January 1, 1997. Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1997, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 1998, p. 1224, § 8(b), not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 1998, and provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1998, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 1999, p. 483, § 3, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 1999, and provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1999, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2000, p. 1296, § 2, not codified by the General Assembly, provides that the amendment to this Code section is applicable to taxable years beginning on or after January 1, 2000.

Ga. L. 2001, p. 1224, § 2, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 2001, and that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2001, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2002, p. 439, § 2, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 2002, and that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2002, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(b), not codified by the General Assembly, provides that paragraph (14) of this Code section is applicable to all taxable years beginning on or after January 1, 2003.

Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004."'

Ga. L. 2004, p. 410, § 10(b), not codified by the General Assembly, provides that the amendment by that Act shall be applicable to all taxable years beginning on or after January 1, 2004, and further provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2004, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27/HB 488, not codified by the General Assembly, provides that the 2005 amendment applies to all taxable years beginning on or after January 1, 2005, and further provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2005, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2006, p. 200, § 6/HB 1310, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 2006, and further provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 2006, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 2007, p. 2, § 3(a)/HB 357, not codified by the General Assembly, provides that paragraph (14.1) shall be applicable to all taxable years beginning after December 31, 2005, but before January 1, 2007.

Ga. L. 2007, p. 2, § 3(b)/HB 357, not codified by the General Assembly, provides that paragraph (14) shall be applicable to all taxable years beginning on or after January 1, 2007.

Ga. L. 2008, p. 10, § 3/HB 926, not codified by the General Assembly, provides in § 3(a) that the amendment to paragraph (14) is applicable to all taxable years beginning on or after January 1, 2008, and provides in § 3(b) that the addition of paragraph (14.2) is applicable to all taxable years beginning after December 31, 2006, but before January 1, 2008.

Ga. L. 2009, p. 6, § 3/HB 74, not codified by the General Assembly, provides in part that the amendment to paragraph (14) shall be applicable to all taxable years beginning on or after January 1, 2009, and the addition of paragraph (14.3) shall be applicable to all taxable years beginning after December 31, 2007, but before January 1, 2009.

Ga. L. 2010, p. 895, § 4(b)/HB 1138, not codified by the General Assembly, provides that the 2010 amendment shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2011, p. 38, § 10/HB 168, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2010.

Ga. L. 2012, p. 694, § 5(b)/HB 729, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2011.

Ga. L. 2013, p. 7, § 7(a)/HB 266, not codified by the General Assembly, provides, in part, that the 2013 amendment shall be applicable to all taxable years beginning on or after January 1, 2012, except the provisions in Section 1 relating to Section 1106 of federal Public Law 112-95 shall also apply to taxable years beginning before January 1, 2012.

Ga. L. 2014, p. 231, § 3/HB 918, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and Section 1 shall be applicable to all taxable years beginning on or after January 1, 2013." This Act became effective April 15, 2014.

Ga. L. 2015, p. 2, § 1/HB 292, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2014." This Act became effective March 6, 2015.

Ga. L. 2016, p. 1, § 8/HB 742, not codified by the General Assembly, provides, in part, that: "Section 1 of this Act shall be applicable to all taxable years beginning on or after January 1, 2015."

Ga. L. 2017, p. 4, § 2/HB 283, not codified by the General Assembly, provides that the amendment of paragraph (14) shall be applicable to all taxable years beginning on or after January 1, 2016.

Ga. L. 2018, p. 8, § 3-1(a)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall be applicable to all taxable years beginning on or after January 1, 2017."

U.S. Code. - The Internal Revenue Code, referred to throughout this Code section, is codified at Title 26 of the United States Code.

Administrative Rules and Regulations. - Meaning of terms used, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-6-.02.

Law reviews. - For article, "Issues and Opportunities Under Georgia's Updated Income Tax Provisions," see 25 Ga. St. B. J. 144 (1989). For article, "A Taxing Exception: Southern LNG, Inc. v. MacGinnitie's Narrow Interpretation of the Mandamus Exception," see 66 Mercer L. Rev. 855 (2015). For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 233 (2003).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 92-102, 92-113, and 92-5902 are included in the annotations for this Code section.

A foreign corporation is not synonymous and cannot be equated with a nonresident corporation. Therefore, simply because a contractor may be considered a foreign corporation because it was incorporated in Texas does not preclude a finding that it is a resident contractor. Lenox Hotel Co. v. Charter Bldrs., Inc., 717 F. Supp. 1558 (N.D. Ga. 1989).

Ordinarily, bills receivable and accounts receivable are personal property and subject to be taxed. Davis v. Smith, 197 Ga. 95 , 28 S.E.2d 148 (1943), aff'd, 323 U.S. 111, 65 S. Ct. 157 , 89 L. Ed. 107 (1944) (decided under former Code 1933, § 92-102).

Customers' notes used as collateral for loans are intangible personal property. - Owner of customers' notes used as collateral for demand loans is legally obligated to pay the required intangibles tax. Yancey Bros. Co. v. United States, 319 F. Supp. 441 (N.D. Ga. 1970) (decided under former Code 1933, § 92-113).

Taxability of personal property which agent of nonresident does not have "on hand." - Former Code 1933, §§ 92-101, 92-102 and 92-105 (see now O.C.G.A. §§ 48-1-2 and 48-5-3 ) declare in effect that the kinds of property mentioned in former Code 1933, § 92-6208 (see now O.C.G.A. § 48-5-16 ) shall be taxed in Georgia if within its jurisdiction, and manifestly the latter section was not intended to create an exception to taxability or to exempt property of any kind that is otherwise taxable, merely because, if belonging to a nonresident, an agent does not have it "on hand" in this state. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84 , 38 S.E.2d 786 (1946) (decided under former Code 1933, § 92-102).

When corporate purpose clause of taxpayer's charter authorizes taxpayer to engage in a gas business, the taxpayer is therefore a "gas company" within the meaning of this section although not doing a gas business. Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 , 152 S.E.2d 768 (1966) (decided under former Code 1933, § 92-5902).

Liquid petroleum products are not gas within the meaning of this section. Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 , 152 S.E.2d 768 (1966) (decided under former Code 1933, § 92-5902).

Public utility. - In a gas company's suit against the state revenue commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and 48-5-511(a) , remand was proper to determine if the company had an acceptable alternative remedy in its pending county tax appeals under O.C.G.A. § 48-5-311 , if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

Mandamus improperly granted to a company. - Judgment of the trial court granting a company mandamus relief was reversed because the judgment did not show that the State Revenue Commissioner, in refusing to accept the company's ad valorem tax returns as a gas company, violated a clear legal duty, failed to act, or engaged in arbitrary, capricious, and unreasonable actions because the company was not authorized to engage in the business of a gas company under O.C.G.A. § 46-1-1(5) nor be a natural-gas company as defined in 15 U.S.C. § 717a(6). Riley v. Southern LNG, Inc., 300 Ga. 689 , 797 S.E.2d 878 (2017).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-102 and Ga. L. 1951, p. 360, § 3 are included in the annotations for this Code section.

Georgia Seed Development Commission is included within the definition of "person." 1971 Op. Att'y Gen. No. 71-72 (rendered under Ga. L. 1951, p. 360, § 3).

Area vocational-technical schools as persons. - Area vocational-technical schools, operated by local units of school administration, engaged in selling books and other miscellaneous materials to their students on a nonprofit basis, must collect and remit sales taxes on sales made by them; upon failure to make such collections and remittances the local units are liable themselves for the tax. 1973 Op. Att'y Gen. No. 73-83 (rendered under Ga. L. 1951, p. 360, § 3).

Personal property owned by persons in military service. - Resident of Georgia is required to pay ad valorem taxes upon motor vehicles owned by the resident during the time that the taxpayer is in active military service and does not physically reside in Georgia. 1952-53 Op. Att'y Gen. p. 425 (rendered under former Code 1933, § 92-102).

Personal property of a citizen of Georgia in the military service is subject to taxation, whether such property is located within the state or outside the state because of such service. 1954-56 Op. Att'y Gen. p. 671 (rendered under former Code 1933, § 92-102).

Legal resident of this state is liable for Georgia ad valorem taxes on personal property owned by the resident on January first, irrespective of the fact that such person is in the military service and irrespective of the fact that both the property and the owner are absent from the state on January first, or the entire year; this would be so even if no Georgia license plate were purchased. 1962 Op. Att'y Gen. p. 476 (rendered under former Code 1933, § 92-102).

Boats owned and operated by military personnel on duty in this state, if properly registered in state of owner's residence, are not taxable in this state. 1962 Op. Att'y Gen. p. 484 (rendered under former Code 1933, § 92-102).

What constitutes personal property. - Vessels and other watercraft are personal property and are taxable like all other such property within the jurisdiction of a municipality where their situs for taxation is located. 1958-59 Op. Att'y Gen. p. 350 (rendered under former Code 1933, § 92-102).

Shrimp boats are personal property and are subject to taxation in the same manner as other personal property is taxed. 1958-59 Op. Att'y Gen. p. 350 (rendered under former Code 1933, § 92-102).

Motor vehicles of interstate motor carriers which are residents of or are domiciled in state, when not returned for ad valorem taxes, should be placed on tax digest by the county tax commissioner. 1962 Op. Att'y Gen. p. 491 (rendered under former Code 1933, § 92-102).

When a power company's property is located in this state and is a part of its reservoir used for producing electricity distributed to its customers, none of whom are Georgia residents, the company is a power company or a hydroelectric power company as that term is used in this section. 1968 Op. Att'y Gen. No. 68-155 (rendered under former Code 1933, § 92-5902; see O.C.G.A. § 48-1-2 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Property, §§ 8, 9, 19. 64 Am. Jur. 2d, Public Utilities, § 1 et seq. 71 Am. Jur. 2d, State and Local Taxation, § 122 et seq.

C.J.S. - 47A C.J.S., Internal Revenue, § 1 et seq. 62 C.J.S., Municipal Corporations, § 1 et seq. 73B C.J.S., Public Utilities, § 1 et seq. 81A C.J.S., States, § 269 et seq. 82 C.J.S., Statutes, §§ 389 et seq., 402, 410 et seq., 436 et seq.

ALR. - Situs for taxation of membership in exchange or board of trade, 17 A.L.R. 89 .

Gains from unlawful business or transactions as subject of income tax, 43 A.L.R. 799 ; 51 A.L.R. 1026 ; 166 A.L.R. 891 .

Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378 ; 65 A.L.R. 677 .

Oil and gas royalty as real or personal property, 131 A.L.R. 1371 .

Meaning of association or joint stock company within statutes taxing associations or joint stock companies as corporations ("Massachusetts" or business trusts), 144 A.L.R. 1050 ; 166 A.L.R. 1461 .

What passes under term "personal estate" in will, 53 A.L.R.2d 1059.

Solid mineral royalty as real or personal property, 68 A.L.R.2d 728.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.

48-1-3. Forms and filings prior to January 1, 1980.

Every form of tax document or other tax related filing lawfully in use immediately prior to January 1, 1980, may continue to be so used and to be effective until the commissioner otherwise prescribes in accordance with this title.

(Code 1933, § 91A-104, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in this Code section.

48-1-4. Unlawful exercise by unauthorized person of duties or functions of representative of commissioner or department; penalty.

  1. It shall be unlawful for any unauthorized person to exercise, attempt to exercise, or hold himself out to anyone as exercising the duties or functions of an auditor, agent, or other representative of the commissioner, the department, or any official, unit, or division of the department in any manner or for any purpose.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1961, p. 452, § 1; Code 1933, § 91A-9901, enacted by Ga. L. 1978, p. 309, § 2.)

48-1-5. Unlawful conversion of funds collected for benefit of state; penalty.

  1. It shall be unlawful for any person knowingly and willfully to convert funds collected for the benefit of the state pursuant to this title to his own use or to any other person's use with the intention of depriving the state of the funds.
  2. Any person who violates subsection (a) of this Code section shall be guilty of theft by conversion and shall be punished as provided for in Code Section 16-8-12.

    (Code 1933, § 91A-9901.1, enacted by Ga. L. 1980, p. 834, § 1.)

Cross references. - Theft by conversion generally, § 16-8-4 .

JUDICIAL DECISIONS

Dismissal not error. - Trial court did not err by granting the defendant's motion for a plea in bar dismissing the charges of conversion of sales and use taxes, theft by taking, and false swearing against the defendant because the charges were not brought within four years of the dates on which the crimes were allegedly committed as required by O.C.G.A. § 17-3-1 . State v. Crowder, 338 Ga. App. 642 , 791 S.E.2d 423 (2016).

48-1-6. Unlawful filing of false documents; omissions; tax evasion; penalty.

  1. It shall be unlawful for any person, willfully and with intent to defraud the state, to:
    1. File any return, report, protest, or claim for refund containing any false or fraudulent statement known by the person to be false;
    2. Omit knowingly and intentionally any fact, circumstance, condition, or thing in any written document, the omission of which constitutes a material misstatement or misrepresentation of fact; or
    3. By any trick, device, scheme, or plan, evade or attempt to evade any tax, license, penalty, interest, or other amount due the state.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 43; Code 1933, § 91A-9902, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Legitimately minimizing taxes permitted. - Legitimate arrangement of one's affairs so as to minimize or avoid taxes differs from sham transactions designed to camouflage the actual situation; the former are permissible, but the latter are disapproved and may result in penalty or criminal prosecution. Whitley v. Whitley, 220 Ga. 471 , 139 S.E.2d 381 (1964), later appeal, 221 Ga. 140 , 143 S.E.2d 634 (1965).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 512, 513, 514.

C.J.S. - 37 C.J.S., Fraud, §§ 2 et seq., 161, 162, 184 et seq. 84 C.J.S., Taxation, §§ 542, 547. 85 C.J.S., Taxation, §§ 1715, 1723 et seq., 1742, 1785.

ALR. - Right of grantor or transferor or his privies to attack conveyance or transfer made for purpose of evading taxation, 118 A.L.R. 1184 .

Misrepresentation as to tax law as within rule that party to contract or other instrument may not rely upon misrepresentation as to matters of law, 153 A.L.R. 538 .

Test of "wilfulness" in prosecution for wilful failure to pay tax, file tax return, etc., under § 7203 of the Internal Revenue Code of 1954 (26 USC § 7203), 22 A.L.R.3d 1173.

Construction and application of 26 USCA § 6015(b)(1)(C) requiring that spouse not know of understatement of tax arising from erroneous deduction, credit, or basis to obtain innocent spouse exemption from liability for tax, 154 A.L.R. Fed. 233, 161 A.L.R. Fed. 373.

Construction and application of 26 U.S.C.A. § 6015(b)(1)(C), requiring that spouse not know of omission of gross income from joint tax return to obtain innocent spouse exemption from liability for tax, 161 A.L.R. Fed. 373.

48-1-7. Fraudulent use of exemption certificate to evade taxes; penalty.

  1. It shall be unlawful for any person to attempt to evade the taxes imposed by this title by virtue of a certificate of exemption obtained through fraud or by using a certificate of exemption to which he is not entitled.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1935, p. 11, § 22; Code 1933, § 91A-9903, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 512, 513, 514.

C.J.S. - 37 C.J.S., Fraud, §§ 12 et seq., 20, 25, 115, 123, 124. 84 C.J.S., Taxation, §§ 542, 547. 85 C.J.S., Taxation, §§ 1715, 1723 et seq., 1742, 1785.

48-1-8. Computer software.

  1. As used in this Code section, the term "computer software" means any program or routine, or any set of one or more programs or routines, which are used or intended for use to cause one or more computers or pieces of computer related peripheral equipment, or any combination thereof, to perform a task or set of tasks. Without limiting the generality of the foregoing, the term "computer software" shall include operating and application programs and all related documentation.
  2. Except as otherwise provided in subsection (c) of this Code section, for the purposes of Chapters 5 and 6 of this title, computer software shall constitute personal property only to the extent of the value of the unmounted or uninstalled medium on or in which it is stored or transmitted.
  3. Nothing herein shall be deemed to affect the taxation under Chapter 5 or 8 of this title of copies of computer software held as inventory in a tangible medium ready for sale at retail by one who is a dealer with respect to such property and the sale of which is subject to sales and use taxation. (Code 1981, § 48-1-8 , enacted by Ga. L. 1993, p. 1647, § 1; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "under Chapter 5 or 8" for "under Chapter 5 or Chapter 8" in subsection (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, Code Section 48-1-8, enacted by Ga. L. 1993, p. 294, § 1, was redesignated as Code Section 48-1-9, since Ga. L. 1993, p. 1647, § 1, also enacted a Code Section 48-1-8.

Law reviews. - For note on the 1993 enactment of this Code section, see 10 Ga. St. U. L. Rev. 215 (1993). For note on the 1993 enactment of this Code section, see 10 Ga. St. U. L. Rev. 218 (1993).

48-1-9. Taxpayer Bill of Rights.

  1. This Code section shall be known and may be cited as the "Taxpayer Bill of Rights."
  2. The commissioner shall, as soon as practicable, but not later than January 1, 1994, prepare a statement which sets forth in simple and nontechnical terms:
    1. The rights of a taxpayer and the obligations of the commissioner during any tax audit or examination;
    2. The procedure by which a taxpayer may appeal any adverse decision of the commissioner, including administrative and judicial appeals;
    3. The procedures for prosecuting refund claims and for filing of taxpayer complaints; and
    4. The procedures which the commissioner may use in enforcing the state's revenue laws, including the filing and enforcement of liens.
  3. The statement shall also inform the taxpayer that the taxpayer shall receive:
    1. Fair and courteous treatment in all dealings with the department;
    2. Prompt and accurate responses to all questions and requests for tax assistance; and
    3. A fair and timely hearing on a dispute of any tax liability as provided for by law.
  4. The statement prepared in accordance with this Code section shall be distributed by the commissioner to a taxpayer:
    1. Upon request by the taxpayer;
    2. When a proposed assessment of any state tax is made against the taxpayer or when the taxpayer is contacted by the department for an examination of the taxpayer's records, whichever is earlier; or
    3. When the commissioner deems it appropriate.
  5. The commissioner shall take such action as deemed necessary to ensure that distribution to a taxpayer does not result in multiple statements being sent to any one taxpayer. (Code 1981, § 48-1-9 , enacted by Ga. L. 1993, p. 294, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, Code Section 48-1-8, enacted by Ga. L. 1993, p. 294, § 1, was redesignated as Code Section 48-1-9, since Ga. L. 1993, p. 1647, § 1, also enacted a Code Section 48-1-8.

48-1-10. Economic incentives to users of raw forest products.

  1. As used in this Code section, the term:
    1. "Economic incentive" means any direct price subsidy made available by the state directly to support the purchase of raw forestry products. Such term shall not mean any such benefit available under statutorily provided programs.
    2. "Raw forest product" means any raw material harvested or recovered from forest wood or wood waste at its initial conversion.
  2. It is the intent of the General Assembly that any economic incentive granted on or after July 1, 2010, to any person, company, partnership, or other entity engaged in the commercial use of raw forest products shall be extended equitably to all users of raw forest products in this state so as to establish and maintain parity within that segment of the economy. (Code 1981, § 48-1-10 , enacted by Ga. L. 2010, p. 203, § 2/SB 409.)

Editor's notes. - This Code section formerly pertained to the tax exemption of articles, equipment, and materials at the XXVI Summer Olympiad and the 1996 Atlanta Paralympic games. This Code section was based on Code 1981, § 48-1-10 , enacted by Ga. L. 1995, p. 465, § 1 and was repealed by Ga. L. 1995, p. 465, § 1, effective December 31, 1996.

Ga. L. 2010, p. 203, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Forest Product Fairness Act.' "

CHAPTER 2 STATE ADMINISTRATIVE ORGANIZATION, ADMINISTRATION, AND ENFORCEMENT

Article 1

State Administrative Organization.

Article 2

Administration.

Article 3

Enforcement.

Article 4

Facilitating Business Rapid Response to State Declared Disasters.

Article 5

Refunds for Eligible Recipients.

Administrative Rules and Regulations. - Organization, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Administrative Unit, Chapter 560-1-1.

Substantive regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fiscal Operations Division, Chapter 560-3-2.

Substantive regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Chapter 560-7-3.

Returns and collections, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Chapter 560-7-8.

Substantive regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-2.

Taxation of standing timber, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-5.

Conservation use property, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-6.

Appraisal procedures manual, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-10.

Forms applicable to sales and use taxes, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Chapter 560-12-3.

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, §§ 164, 165, 260, 261.

ALR. - Power to allow discount or rebate for prompt payment of taxes, 51 A.L.R. 286 ; 102 A.L.R. 433 .

Use of initial instead of first or middle name in publication of notice in tax proceeding, 53 A.L.R. 903 .

Wilfulness or intent as an element of offenses denounced by Federal Income Tax Law, 90 A.L.R. 1280 .

Uncollected taxes for previous years as deductible in determining amount to be appropriated or amount of taxes to be assessed for current year, 98 A.L.R. 500 .

Right of one who pays taxes for which another is bound, to subrogation to the right of the taxing power, 106 A.L.R. 1212 .

Enforceability, against undivided tract, of tax or special assessment levied against part of it at one rate and part at another, 112 A.L.R. 73 .

Injunction, rather than quo warranto, as available to restrain enforcement of tax against real property upon ground involving attack upon legal existence of municipality, or upon inclusion of property within its boundaries, 129 A.L.R. 255 .

Mandamus as taxpayer's remedy in respect of valuation of property for taxation, 131 A.L.R. 360 .

Constitutionality of statute which provides for summary entry of judgment upon certificate or finding by taxing body or officer, 149 A.L.R. 312 .

Liability of mortgagor or his grantee to mortgagee for loss or depreciation in value of mortgage security as result of failure to pay taxes, 154 A.L.R. 614 .

Right of property taxpayer to recover back taxes voluntarily but mistakenly paid a second or successive time, 84 A.L.R.2d 1133.

ARTICLE 1 STATE ADMINISTRATIVE ORGANIZATION

48-2-1. Department of Revenue.

The Department of Revenue is created and shall be under the direction of the state revenue commissioner. Except as otherwise expressly provided for by law, the department shall administer and enforce the revenue laws of this state and such other laws as may be specifically assigned by law to the department or to the commissioner. The official and legal office of the department and of the commissioner shall be in Fulton County.

(Ga. L. 1923, Ex. Sess., p. 13, §§ 1, 7; Ga. L. 1931, p. 7, §§ 78, 83; Ga. L. 1931, Ex. Sess., p. 24, § 42; Code 1933, §§ 92-4501, 92-4503; Ga. L. 1937-38, Ex. Sess., p. 77, § 2; Ga. L. 1943, p. 204, § 1; Ga. L. 1951, p. 614, § 1; Ga. L. 1960, p. 1185, § 1; Ga. L. 1962, p. 123, § 1; Ga. L. 1968, p. 118, § 1; Code 1933, § 91A-201, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 4.)

JUDICIAL DECISIONS

Immunity from federal suit. - Georgia Department of Revenue is a state entity, entitled to Eleventh Amendment immunity from suit in federal court. Miles v. Georgia Dep't of Revenue, 797 F. Supp. 987 (S.D. Ga. 1992).

Cited in Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 95, 98.

48-2-2. Office of state revenue commissioner.

  1. The office of state revenue commissioner is created.
  2. The commissioner shall be appointed by the Governor with the consent of the Senate and shall serve at the pleasure of the Governor.
  3. Beginning July 1, 1999, the commissioner shall receive an annual salary to be set by the Governor, payable monthly or semimonthly, which shall be his or her total compensation for services as commissioner. The commissioner shall not be entitled to receive a contingent expense allowance, except that the commissioner shall be reimbursed for all actual and necessary expenses incurred by him or her in carrying out his or her official duties.
  4. The commissioner shall be required to take and subscribe before the Governor an oath to discharge faithfully and impartially the duties of such office, which oath shall be in addition to the oath required of all civil officers.
  5. The commissioner shall be personally liable to the state for any losses occasioned to it by his or her own intentional acts of misconduct. To indemnify the state for any such losses, the commissioner, upon beginning his or her duties, shall execute and file with the Governor an official surety bond approved as to form and sufficiency by the Attorney General in the amount of $100,000.00. The premium on the commissioner's bond shall be paid as an expense of the department.

    (Ga. L. 1923, Ex. Sess., p. 16, §§ 1, 8, 45; Ga. L. 1931, p. 7, §§ 78, 83, 85; Code 1933, § 92-4501; Ga. L. 1937-38, Ex. Sess., p. 77, § 2; Ga. L. 1943, p. 204, § 1; Ga. L. 1951, p. 614, § 1; Ga. L. 1960, p. 1185, § 1; Ga. L. 1962, p. 123, § 1; Ga. L. 1968, p. 118, § 1; Code 1933, § 91A-202, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1999, p. 910, § 5; Ga. L. 1999, p. 1213, § 8.)

Cross references. - Powers and duties of commissioner with regard to regulation of alcoholic beverages generally, T. 3, C. 2.

Official bonds generally, T. 45, C. 4.

Amount of salary for commissioner, § 45-7-4 .

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 8, 9, 21, 22, 46 et seq. 81A C.J.S., States, §§ 164 et seq., 260, 261.

48-2-3. Eligibility for office of commissioner.

Reserved. Repealed by Ga. L. 1983, p. 526, § 1, effective March 15, 1983.

Editor's notes. - This Code section, repealed by Ga. L. 1983, p. 526, § 1, effective March 15, 1983, was based on Ga. L. 1937-38, Ex. Sess., p. 77, § 3a; Ga. L. 1949, p. 22, §§ 1, 2; Ga. L. 1959, p. 4, § 2; Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 3.

48-2-4. Eligibility for elective office.

  1. No person serving as commissioner shall be eligible during his term of service and for a period of 12 months after the expiration or termination of his term of service to be a candidate in any primary, special, or general election for any state or federal elective office or to hold any such office.
  2. Subsection (a) of this Code section shall not be construed to prevent any commissioner or former commissioner from being appointed to any elective office, to disqualify him from being a candidate in any election to succeed himself in any such office to which he has been appointed, or to disqualify him from holding any such office in the event he is elected to and otherwise qualifies for the office.

    (Ga. L. 1949, p. 22, §§ 1, 2; Ga. L. 1955, p. 656, §§ 1, 2; Code 1933, § 91A-204, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 29 C.J.S., Elections, § 33 et seq. 67 C.J.S., Officers and Public Employees, § 43.

48-2-5. Office of deputy state revenue commissioner.

  1. There is created the office of deputy state revenue commissioner, who shall exercise the authority of the commissioner in matters specified by law and in any other such matters as the commissioner may delegate to him or her in writing. The actions of the deputy commissioner, within the scope of his or her authority, shall have the same force and effect as the actions of the commissioner.
  2. The deputy commissioner shall be appointed by the commissioner. He or she shall hold office at the pleasure of the commissioner and shall not be subject to the state system of personnel administration provided by Chapter 20 of Title 45. The deputy commissioner shall take the oath of office of the commissioner as provided in subsection (d) of Code Section 48-2-2.
  3. The deputy commissioner shall receive a salary as determined by the commissioner, subject to the approval of the Office of Planning and Budget and paid from funds appropriated by the department. The deputy commissioner's salary shall in no event exceed the salary of the commissioner.
  4. The deputy commissioner shall execute and file an official surety bond approved as to form and sufficiency by the Attorney General in the same amount as required for the commissioner by subsection (e) of Code Section 48-2-2. The premium on the bond shall be paid as an expense of the department.
  5. The deputy commissioner shall have the authority of the commissioner to:
    1. Issue licenses;
    2. Make proposed and final assessments;
    3. Deny protests and claims for refund;
    4. Issue summons of garnishment;
    5. Enter into agreements extending statutory periods of limitation;
    6. Issue, amend, and cancel tax executions; and
    7. Execute all documents and papers necessary for the performance of his or her or the commissioner's duties or for the exercise of his or her authority or the authority of the commissioner which has been delegated to him or her in writing.

      (Ga. L. 1951, p. 614, § 2; Ga. L. 1963, p. 133, § 1; Ga. L. 1970, p. 108, § 1; Code 1933, § 91A-205, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 5; Ga. L. 1983, p. 526, § 2; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-88/HB 642.)

Cross references. - Official bonds generally, T. 45, C. 4.

Editor's notes. - Ga. L. 2009, p. 745, § 1/SB 97, was treated as replacing "State Merit System" with "State Personnel Administration".

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

JUDICIAL DECISIONS

Deputy director not authorized to execute instrument closing question of tax liability. - Plea in bar based upon an instrument signed by the petitioner and by one described as the deputy director, Department of Revenue, Income Tax Unit, whereby the revenue commissioner and the petitioner were obligated not to reopen the question of liability for taxes sought to be recovered, the instrument not being executed by anyone authorized by law to execute it on behalf of the state is binding upon neither, and the plea based thereon was properly dismissed on demurrer (now motion to dismiss). Redwine v. Schenley Indus., Inc., 210 Ga. 769 , 83 S.E.2d 16 (1954).

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 174.

ALR. - Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

48-2-6. Departmental organization; employees; compensation; collection of delinquent taxes by contractors; mandatory fingerprinting.

  1. The commissioner shall establish by executive order such units within the department as he or she deems proper for its administration and shall designate persons to be directors and assistant directors of such units to exercise such authority as he or she may delegate to them in writing.
  2. The commissioner shall have the authority to employ as many persons as he or she deems necessary for the administration of the department and for the discharge of the duties of his or her office. He or she shall issue all necessary directions, instructions, orders, and rules applicable to such persons. He or she shall have authority, as he or she deems proper, to employ, assign, compensate, and discharge employees of the department within the limitations of the department's appropriation, the requirements of the state system of personnel administration, including the rules and regulations of the State Personnel Board, and the restrictions set forth by law.
  3. All employees of the department shall be compensated upon a fixed salary basis and no person shall be compensated for services to the department on a commission or contingent fee basis.
  4. Neither the commissioner nor any officer or employee of the department shall be given or receive any fee, compensation, loan, gift, or other thing of value in addition to the compensation and expense allowance provided by law for any service or pretended service either rendered or to be rendered as commissioner or as an officer or employee of the department.
  5. The commissioner is authorized to provide for the collection of delinquent taxes, including penalties and interest, by contractors. Any such contractors must be approved by the commissioner. No employee of the department shall be approved as a contractor under this subsection. Such contractors shall be compensated only on a commission or contingent fee basis.
  6. The following persons shall be subject to the mandatory fingerprinting and criminal record checks described in subsection (g) of this Code section:
    1. All prospective employees of the department, as a condition of employment;
    2. All personnel employed by the department after January 1, 2019, who have not had a criminal record check within the prior ten years, as a condition of continuing employment, with a requirement for subsequent criminal record checks not less frequently than once every ten years;
    3. Employees of prospective contractors of the department, and any subcontractors thereof, who may have access to confidential information as provided in Code Section 48-2-15 or 48-7-60 or who may have access to returns or return information as defined in 26 U.S.C. Section 6103 prior to any access to any of the foregoing information; and
    4. All personnel employed by contractors of the department, and any subcontractors thereof, after January 1, 2019, who have not had a criminal record check within the prior ten years, with a requirement for subsequent criminal record checks not less frequently than once every ten years.
    1. The department's Office of Special Investigations shall have the authority and responsibility to order criminal record checks pursuant to this Code section through the Georgia Crime Information Center and the Federal Bureau of Investigation and shall have the authority to receive the results of such criminal record checks.
    2. Fingerprints shall be in such form and of such quality as shall be acceptable for submission to the Georgia Crime Information Center and the Federal Bureau of Investigation. It shall be the duty of each law enforcement agency in this state to fingerprint those persons required to be fingerprinted by this Code section. At the discretion of the department, such fingerprinting may be performed by the department's Office of Special Investigations.
    3. Upon receipt thereof, the Georgia Crime Information Center shall promptly transmit one set of fingerprints to the Federal Bureau of Investigation for a search of the bureau records, retain another set of fingerprints, and conduct a search of its own records and records to which it has access. The Georgia Crime Information Center shall notify the department in writing of any findings or if there are no such findings. All conviction data received by the department shall not be public record, shall be privileged, and shall not be disclosed to any other person or agency except to any person or agency which otherwise has a legal right to inspect the employment file. All such information shall be maintained by the department in conformity with the requirements of the Georgia Crime Information Center and the Federal Bureau of Investigation. As used in this subsection, the term "conviction data" means a record of a finding or verdict of guilty, a plea of guilty, or a plea of nolo contendere with regard to any crime, regardless of whether an appeal of the conviction has been sought.
    4. At the discretion of the department, fees required for a criminal record check by the Georgia Crime Information Center or the Federal Bureau of Investigation shall be paid by the department or by the individual seeking employment or making application to the department. Contractors and subcontractors shall pay such fees for their employees and prospective employees.
    5. The department may use the information obtained from fingerprinting and a person's criminal record check only for the purpose of verifying the identification of such person and in the official determination of the fitness of such person's qualification for initial or continuing employment, or in the case of employees of contractors and subcontractors, for the purpose of allowing or denying access to legally protected information.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 11; Ga. L. 1951, p. 360, § 22; Ga. L. 1960, p. 944, § 1; Ga. L. 1967, p. 788, § 7; Code 1933, § 91A-206, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1995, p. 781, § 3; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-89/HB 642; Ga. L. 2018, p. 233, § 1/HB 816.)

The 2018 amendment, effective May 3, 2018, added subsections (f) and (g).

Editor's notes. - Ga. L. 2009, p. 745, § 1, was treated as replacing "State Merit System" with "State Personnel Administration".

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Ga. St. U. L. Rev. 217 (2011).

JUDICIAL DECISIONS

Directors of departmental units not state officials for purposes of § 45-15-11 . - Although under the authority delegated to the commissioner, the commissioner may, for any reason satisfactory to the commissioner, designate a person as director of some tax unit, such designation cannot create an office or official, and the person so designated is not a state official or public official within the terms and provisions of Ga. L. 1943, p. 284, § 7 (see now O.C.G.A. § 45-15-11 ). Jones v. Mills, 216 Ga. 616 , 118 S.E.2d 484 (1961).

Authority of commissioner as to employees within merit system. - Inclusion of Department of Revenue in the state merit system changed the authority of the commissioner to employ, discharge, and fix salaries of departmental employees, but the commissioner retains authority to pay all salaries and expenses of the office and to call for necessary appropriations to do so. Undercofler v. Scott, 220 Ga. 406 , 139 S.E.2d 299 (1964).

Exemption interpreted as to foreign public authorities. - Legislature intended to exempt only the public authorities of Georgia and the U.S. Government and did not intend to include public authorities of other states when it amended the exemption statute, O.C.G.A. § 48-6-2(a)(3), to include public corporations and authorities. Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545 , 594 S.E.2d 745 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-8 are included in the annotations for this Code section.

Construed with § 48-6-5 . - General Assembly did not contemplate the creation of an employer-employee relationship between the department and clerks of the superior courts in Ga. L. 1967, p. 788, § 4 (see now O.C.G.A. § 48-6-5 ). 1969 Op. Att'y Gen. No. 69-168 (decided under former Code 1933, Ch. 92-8).

Clerks of superior courts and staffs do not come under Employees' Retirement System of Georgia by virtue of their tax collection duties set forth in former Code 1933, Ch. 92-8 (see now O.C.G.A. Art. 1, Ch. 2, T. 48). 1969 Op. Att'y Gen. No. 69-168 (decided under former Code 1933, Ch. 92-8).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 195, 98.

48-2-6.1. Disclosure of return information; purpose; confidentiality.

  1. As used in this Code section, the term "return information" means any information secured by the commissioner incident to the administration of any tax.
  2. Notwithstanding any other provision of law, the commissioner shall be permitted to disclose any return information to such other persons as may be authorized by law to collect delinquent tax liabilities on behalf of the state to the extent such information is reasonably needed to effect such collections. Such information shall retain its privileged and confidential nature in the hands of such other persons to the same extent and under the same conditions as that information is privileged and confidential in the hands of the commissioner. Any such other person shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department. (Code 1981, § 48-2-6.1 , enacted by Ga. L. 1996, p. 780, § 1.)

48-2-7. Duties and powers of commissioner.

  1. The commissioner shall:
    1. Direct the affairs of the department in the administration and enforcement of all laws enacted for the purpose of raising revenues for this state by taxation or otherwise;
    2. Supervise all tax administration throughout the state, subject to the sovereign rights of the counties to regulate their own affairs;
    3. Assist local tax officials in every feasible manner when so requested by the local tax officials;
    4. Make studies of taxation in this state and elsewhere with a view to improvement of administration and legislation affecting the people of this state. In this connection, he may assemble and publish in print or electronically such statistics and reports as he may deem advisable within the limitations of his appropriation; and
    5. Submit to the Governor and to each regular session of the General Assembly an annual report of the conduct of his or her office. The commissioner shall not be required to distribute copies of the annual report to the members of the General Assembly but shall notify the members of the availability of the annual report in the manner which he or she deems to be most effective and efficient. As the chief revenue official of the state, he or she shall advise the Governor and the General Assembly on all matters relating to revenue.
  2. The commissioner shall annually prepare and publish in print or electronically statistics reasonably available with respect to the operations of Chapter 7 of this title, including classification of taxpayers and of income; the amounts allowed as deductions, exemptions, and credits; and any other facts deemed pertinent and valuable.
  3. The provisions of this Code section enumerating the duties of the commissioner shall not be construed to exclude other duties assigned to the commissioner by law.
  4. No provision of this chapter shall be construed to give the commissioner any power to:
    1. Make assessments for ad valorem taxation or to collect such assessments from any taxpayer, except as specifically provided by law; or
    2. Examine the books, records, inventories, or business of any taxpayer for any purpose other than determining liability for taxes collected directly by the commissioner, except as otherwise specifically provided by law.

      (Ga. L. 1937-38, Ex. Sess., p. 77, §§ 5, 46; Ga. L. 1967, p. 764, § 1; Ga. L. 1970, p. 298, § 1; Ga. L. 1972, p. 1125, § 7; Code 1933, § 91A-207, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 6, 6A; Ga. L. 2005, p. 1036, § 37/SB 49; Ga. L. 2010, p. 838, § 10/SB 388.)

Cross references. - Powers and duties of state revenue commissioner relative to administration and enforcement of Georgia Alcoholic Beverage Code, T. 3.

Powers and duties of commissioner with regard to certificates of title, security interests, and liens relating to motor vehicles, § 40-3-3 .

Powers and duties of commissioner with regard to unclaimed or abandoned property, § 44-12-190 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937-38, Ex. Sess., p. 156 are included in the annotations for this Code section.

Audits conducted solely to uncover criminal activity prohibited. - When the plaintiffs could show that Department of Revenue employees, acting for the commissioner, were engaged in a series of audits conducted solely to uncover criminal activity unrelated to tax improprieties on the part of the person audited, such conduct would be illegal and would constitute grounds for the issuance of an injunction against such employees. Willis v. Department of Revenue, 255 Ga. 649 , 340 S.E.2d 591 (1986).

When appeals from assessment within jurisdiction of Court of Appeals. - Appeals from a local governing authority's assessment of ad valorem taxation which do not raise the constitutionality of a statute or ordinance nor involve equitable remedies shall be in the jurisdiction of the Court of Appeals and not transferred to the Supreme Court. DeKalb County Bd. of Tax Assessors v. W.C. Harris & Co., 248 Ga. 277 , 282 S.E.2d 880 (1981).

Good faith of taxing officials and the validity of their actions are presumed, and when assailed the burden of proof is upon the complaining party. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84 , 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490 , 91 L. Ed. 685 (1947) (decided under Ga. L. 1937-38, Ex. Sess., p. 156).

What constitutes discrimination in administration of tax laws. - Whether there was administrative discrimination would depend not on what the taxing authorities thought of a statute which was not then effective, but on whether they intentionally and systematically discriminated against the plaintiff and in favor of others in the actual administration of the existing tax laws. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84 , 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490 , 91 L. Ed. 685 (1947) (decided under Ga. L. 1937-38, Ex. Sess., p. 156).

Proof of discrimination in administration of tax laws. - To establish unlawful discrimination, it is not enough to show that the tax officials have merely made a mistake, or have not been diligent in seeking out those subject to tax, but there must be a clear and affirmative showing that the difference is an intentional discrimination and one adopted as a practice. Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84 , 38 S.E.2d 786 (1946), cert. denied, 329 U.S. 801, 67 S. Ct. 490 , 91 L. Ed. 685 (1947) (decided under Ga. L. 1937-38, Ex. Sess., p. 156).

Immunity from federal suit. - Georgia Department of Revenue is a state entity entitled to Eleventh Amendment immunity from suit in federal court. Miles v. Georgia Dep't of Revenue, 797 F. Supp. 987 (S.D. Ga. 1992).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 98.

C.J.S. - 81A C.J.S., States, §§ 260, 261. 84 C.J.S., Taxation, §§ 14, 731 et seq.

48-2-8. Judicial and investigative powers of commissioner.

  1. In the performance of his duties and in relation to any investigation or inquiry which the commissioner is authorized to conduct, the commissioner or any agent designated by him in writing may:
    1. Administer oaths and take affidavits;
    2. Conduct hearings;
    3. Examine witnesses under oath; and
    4. Subpoena the attendance of witnesses and require the production of books, papers, records, and documents and, subject to the rights of the taxpayer as to rights of privacy guaranteed to the taxpayer by the Constitution and laws of this state, may examine such items and the books, records, inventories, or business of any taxpayer or of any fiduciary, bailee, or other person having knowledge of the tax liability of any taxpayer or knowledge pertinent to the investigation or inquiry. The subpoena may be served by the commissioner or the commissioner's authorized representative to such person at the person's last known address by registered or certified mail or statutory overnight delivery, return receipt requested. If such person refuses to accept service of a subpoena by registered or certified mail or statutory overnight delivery, the subpoena shall be served by the commissioner or the commissioner's authorized representative under any other method of lawful service, and the person shall be personally liable to the commissioner for a sum equal to the actual costs incurred to serve the subpoena. This liability shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as other taxes administered by the commissioner.
  2. The powers conferred pursuant to subsection (a) of this Code section shall be exercised with due regard to the rights of the citizen and, when invoked, subject to the approval of the superior courts of this state.
  3. The commissioner, pursuant to his duties in relation to the collection of state ad valorem taxes, shall investigate settlements by tax collectors or tax commissioners and take appropriate action to collect any revenue due the state which has not been collected or, having been collected, has not been paid to the commissioner. No official or person may employ or commission any person to collect any of such taxes on a commission basis.

    (Ga. L. 1931, p. 7, §§ 79, 80, 83-85; Ga. L. 1931, Ex. Sess., p. 24, §§ 45, 46; Code 1933, §§ 92-3213, 92-3214, 92-4511; Ga. L. 1937-38, Ex. Sess., p. 77, § 6; Ga. L. 1937-38, Ex. Sess., p. 156, § 9; Ga. L. 1951, p. 360, § 21; Ga. L. 1976, p. 341, § 1; Code 1933, § 91A-211, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 7; Ga. L. 2009, p. 816, § 2/HB 485.)

Editor's notes. - Ga. L. 2009, p. 816, § 1/HB 485, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Improved Taxpayer Customer Service Act of 2009.'"

JUDICIAL DECISIONS

Editor's Notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1951, p. 360, § 17 are included in the annotations for this Code section.

Limits on right to examine records. - Right to examine records was not limited by the three-year period set forth in former Code 1933, § 92-3303 (see now O.C.G.A. § 48-7-82 ) for deficiency assessments, which period applied only to the assessment and collection of taxes. Redwine v. Arvaniti, 83 Ga. App. 203 , 63 S.E.2d 222 (1951).

Declaratory judgment as to taxability under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Ch. 8, T. 48) will not relieve a taxpayer from audit of the taxpayer's books under Ga. L. 1951, p. 360, §§ 17, 18, and 21 (see now O.C.G.A. §§ 48-2-8 , 48-8-52 , and 48-8-55 ). Undercofler v. Eastern Air Lines, 221 Ga. 824 , 147 S.E.2d 436 (1966) (decided under Ga. L. 1951, p. 360, § 17).

OPINIONS OF THE ATTORNEY GENERAL

Duty to keep tax records. - Former Code 1933, §§ 91A-4525 and 91A-4526 (see now O.C.G.A. §§ 48-8-52 and 48-8-53 ) require that certain tax records be kept for a period of three years and pertains only to sales tax information. 1969 Op. Att'y Gen. No. 69-288.

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Oaths and Affirmations, §§ 5, 6. 81A C.J.S., States, §§ 260, 261.

48-2-9. Powers of commissioner in tax proceedings; assistance by Attorney General.

The commissioner is authorized and empowered, subject to the law provided in such cases, to act in the name and in behalf of the state to institute any action or judicial proceeding to collect delinquent state taxes, to cause property not listed to be assessed, to cause by mandamus the performance of any act required by law pursuant to the administration of any state revenue, or to collect any claim or obligation of any person, including any public official, which may be due the state. The commissioner is authorized to act as relator in any and all such actions or judicial proceedings. The Attorney General shall provide legal advice and assistance as may be necessary to enable the commissioner to perform the duties required by this Code section.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 8; Ga. L. 1975, p. 722, § 1; Code 1933, § 91A-216, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language and punctuation in this Code section.

JUDICIAL DECISIONS

Effect of judgment rendered against named commissioner after commissioner has left office. - Since cases arising in the administration of state revenue laws appear in the name of its successive agents, designated commissioners, as provided by this section, a verdict and judgment against a named commissioner in the commissioner's representative capacity, rendered after the commissioner is no longer in office, is not binding on the state. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956) .

When appeal was taken to superior court by taxpayer against commissioner, and judgment is rendered approximately nine months after that commissioner had been succeeded in office by another person, nothing having been done prior to the rendition of the judgment to substitute the name of the latter as agent of the state in lieu of the former, such judgment is a nullity, and no further proceedings can be had in the cause until parties have been made, when case must be tried de novo. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956).

Immunity from federal suit. - Georgia Department of Revenue is a state entity, entitled to Eleventh Amendment immunity from suit in federal court. Miles v. Georgia Dep't of Revenue, 797 F. Supp. 987 (S.D. Ga. 1992).

Notice as to actions under Ch. 8 of this title. - An action to recover a sum alleged to be due as a tax imposed by former Code 1933, Ch. 92-34A (see now O.C.G.A. Ch. 8, T. 48) may be maintained under that chapter without giving notice thereof under Ga. L. 1937-38, Ex. Sess., p. 77, § 8 (see now O.C.G.A. § 48-2-9 ). Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 , 73 S.E.2d 749 (1952).

RESEARCH REFERENCES

C.J.S. - 7A C.J.S., Attorney General, § 28 et seq. 55 C.J.S., Mandamus, § 231 et seq. 85 C.J.S., Taxation, § 960 et seq.

ALR. - Judgment in favor of defendant or respondent in an action or proceeding involving a matter of public right or interest as a bar to a subsequent action or proceeding by a different plaintiff or relator, 20 A.L.R. 1133 ; 64 A.L.R. 1262 .

Construction and application of statutes denying remedy by injunction against assessment or collection of tax, 108 A.L.R. 184 .

48-2-10. Collection of certain local taxes by commissioner.

The commissioner is authorized to negotiate and contract with the governing authority of any county or municipality for the purpose of arranging for the collection by the commissioner of any tax levied by the county or municipality when the tax is also levied and collected by the commissioner for the state. The agreement shall include a fee to be paid by the county or municipality to the commissioner in an amount which covers fully the cost of collection of the local portion of the tax by the commissioner. The commissioner shall transmit to the county or municipality all taxes so collected on behalf of the county or municipality on or before the date specified in the agreement, less the collection fee agreed upon.

(Ga. L. 1969, p. 743, § 1; Code 1933, § 91A-259, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 732.

C.J.S. - 85 C.J.S., Taxation, § 1109 et seq.

48-2-11. Delegation of certain duties.

  1. When license fees are incidentally collected in connection with regulatory activities of some agency or department of the state government other than the Department of Revenue and such fees could be collected more economically by the regulatory agency or department than by the Department of Revenue, the commissioner may delegate by executive order approved by the Governor the collection of the license fees to the state official responsible for administering the regulatory activities.
  2. No delegation pursuant to subsection (a) of this Code section shall extend beyond the term of office of the commissioner or of the officer to whom the collection of fees is delegated by the commissioner.
  3. Except as otherwise expressly provided by law, no other department of the state government may employ any person or persons to collect any fees, licenses, or taxes or to inspect for the purpose of collecting such fees, licenses, or taxes, except when the authority to collect the licenses, fees, or taxes has been expressly delegated to the other department by the commissioner under the terms of this Code section.
  4. In any case in which the collection of any tax or license fee is delegated as provided in this Code section, the commissioner is charged with the duty of retaining supervisory authority over such activity. In any case in which the commissioner finds that a delegation should be revoked, modified, or transferred to another department or other departments, the commissioner, by executive order approved by the Governor, may make the revocation, modification, or transfer.
  5. This chapter shall not in any way affect the collection and administration activities of those regulatory, professional, or vocational bodies or boards operated under the division director of the professional licensing boards division appointed by the Secretary of State under Code Section 43-1-2 as provided by law or of those other regulatory bodies where a major portion of the license fees is collected by mail.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 10; Code 1933, § 91A-209, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1706, § 25.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 95, 98.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 330. 81A C.J.S., States, §§ 174, 235 et seq.

ALR. - Authority of county to employ tax ferret, 32 A.L.R. 88 .

48-2-12. Rules and regulations; forms.

  1. The commissioner shall have the power to make and publish in print or electronically reasonable rules and regulations not inconsistent with this title or other laws or with the Constitution of this state or of the United States for the enforcement of this title and the collection of revenues under this title.
  2. The commissioner shall prescribe the forms he deems necessary for the administration and enforcement of this title or any law which it is his duty to administer.
  3. The authority granted to the commissioner pursuant to this Code section shall be exercised at all times in conformity with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  4. This Code section shall apply to all rules and regulations promulgated by the commissioner pursuant to this title or pursuant to any revenue law of this state which is not a part of this title.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 7; Code 1933, § 91A-215, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted "with respect" following "shall apply" in subsection (d).

Administrative Rules and Regulations. - Meaning of terms used, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Elections and Divisions, § 560-7-6-.02.

Law reviews. - For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937-38, Ex. Sess., p. 77, § 25 are included in the annotations for this Code section.

Construction and effect of rules and regulations. - Ga. L. 1972, p. 1104, § 1 et seq. (see now O.C.G.A. Pt. 1, Art. 5, Ch. 5, T. 48) does not establish detailed procedures for the employment and termination of the appraisal staff. The commissioner may make necessary rules and regulations not inconsistent with that Act, and such rules and regulations shall have the full force and effect of law. Spell v. Blalock, 243 Ga. 459 , 254 S.E.2d 842 (1979).

Commissioner's determination entitled to deference. - Florida public authority's action under O.C.G.A. § 48-6-7(b) , protesting the denial by the Revenue Commissioner of the State of Georgia of its request for a refund of real estate transfer tax, paid pursuant to O.C.G.A. § 48-6-1 , was denied since it was found that the exemption provided in O.C.G.A. § 48-6-2(a)(3) did not apply to the out-of-state public authority; the Commissioner's determination that the exemption did not apply to such an entity was entitled to deference pursuant to the principles of O.C.G.A. § 48-2-12 . Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545 , 594 S.E.2d 745 (2004).

Trial court erred in declaring invalid a regulation used to interpret a research tax credit codified in a state statute on the ground that the regulation exceeded the scope of the authority upon which it was predicated; the state revenue commissioner had explicit authority to promulgate regulations for the enforcement of the Public Revenue Code and the collection of revenues under it, the regulation itself was authorized by statute, and the regulation reasonably required that a recipient have a positive Georgia taxable net income for each of the preceding three years in order to receive the tax credit. Ga. Dep't of Revenue v. Ga. Chemistry Council, Inc., 270 Ga. App. 615 , 607 S.E.2d 207 (2004).

Refund denied for failure to comply with regulations. - Grant of the Georgia Department of Revenue's motion to dismiss the appellants' complaint seeking a refund under O.C.G.A. § 48-2-35 of state sales tax paid was affirmed because the appellants failed to comply with a regulation that, before seeking a refund on behalf of their customers under § 48-2-35 , the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded to their customers, which the appellants admittedly had not done. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 340 Ga. App. 316 , 797 S.E.2d 190 (2017).

Cited in Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 , 629 S.E.2d 501 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under Ga. L. 1937-38, Ex. Sess., p. 77, § 25 are included in the annotations for this Code section.

Reasonability of stop payment rules and regulations. - Rules and regulations providing for stop payments to be issued after 180 days and the return of funds to the general treasury are deemed reasonable in the absence of statutory authority to the contrary. 1973 Op. Att'y Gen. No. 73-103 (decided under Ga. L. 1937-38, Ex. Sess., p. 77, § 25).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 98.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 326 et seq. 81A C.J.S., States, §§ 260, 261.

48-2-13. Oaths and certifications.

The commissioner and every officer or employee of the department designated by the commissioner for that purpose may administer such oaths or affirmations to any person and may certify such papers, reports, or returns of any person, as may be required or authorized under the revenue and license laws or regulations of this state.

(Ga. L. 1931, p. 7, § 80; Ga. L. 1931, Ex. Sess., p. 24, § 53; Code 1933, § 92-3004; Code 1933, § 91A-208, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Oaths and Affirmations, § 3.

48-2-14. Official seal.

The commissioner shall have an official seal of such device as he or she shall select, subject to the approval of the Governor.

(Ga. L. 1931, p. 7, § 81; Code 1933, § 92-4504; Code 1933, § 91A-210, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2011, p. 99, § 91/HB 24.)

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

RESEARCH REFERENCES

C.J.S. - 31A C.J.S., Evidence, § 61. 32A C.J.S., Evidence, § 1107 et seq.

48-2-15. (For effective date, see note.) Confidential and privileged information.

  1. Except as otherwise provided in this Code section, information secured by the commissioner incident to the administration of any tax shall be confidential and privileged. Neither the commissioner nor any officer or employee of the department shall divulge or disclose any such confidential information obtained from the department's records or from an examination of the business of any taxpayer to any person other than the commissioner, an officer or employee of the department, an officer of the state or local government entitled in his or her official capacity to have access to such information, or the taxpayer.
  2. This Code section shall not:
    1. Be construed to prevent the use of confidential information as evidence before any state or federal court in the event of litigation involving tax liability of any taxpayer;
    2. Be deemed to prevent the print or electronic publication of statistics so arranged as not to reveal information respecting an individual taxpayer;
    3. Apply in any way whatsoever to any official finding of the commissioner with respect to any assessment or any information properly entered upon an assessment roll or other public record;
    4. Affect any information which in the regular course of business is by law made the subject matter of a public document in any federal or state office or in any local office in this state;
    5. Apply to information, records, and reports required and obtained under Article 1 of Chapter 9 of this title, which requires distributors of motor fuels to make reports of the amounts of motor fuels sold and used in each county by the distributor, or under Article 2 of Chapter 9 of this title, relating to road tax on motor carriers;
    6. Be construed to prevent the disclosure of information, so arranged as not to reveal information respecting an individual taxpayer, requested by the House Committee on Ways and Means or the Senate Finance Committee regarding the department's administration of any tax; or
    7. Apply to information, records, and reports required and obtained under Title 38 or Title 46 as each pertains to collection and remittance of prepaid and postpaid 9-1-1 fees or charges. The application of the exemption provided for under this paragraph to Code Section 38-3-190 shall apply exclusively to the Georgia Emergency Communications Authority and Department of Revenue in the handling of such information.
  3. The provisions of this Code section shall not apply with respect to Chapter 7 of this title, relating to income taxation.
  4. Reserved.

    (d.1) (1) Notwithstanding this Code section, the commissioner, upon request by resolution of the governing authority of any county, consolidated government, or municipality of this state, shall furnish to the designated finance officer or taxing official of the county, consolidated government, or municipality information included on the vendor's sales tax certificate for all vendors that have filed a report for the designated period, to be used by such designated officer or official in the discharge of his or her official duties.

    (2) (A) Such designated officer or official shall not be authorized to contact in any manner any taxpayer identified in such confidential information.

    (B) Such designated officer or official to whom such confidential information is provided under this subsection may request the commissioner to validate the political subdivision to which a taxpayer with a business location within the political subdivision has remitted sales and use taxes for the designated period. Upon inquiry by such designated officer or official, the commissioner shall, within 30 days, respond to the inquiry and validate that the sales tax being collected from a taxpayer is being remitted to the proper political subdivision and take other appropriate action as provided by law.

    (C) Any information furnished under this subsection to such designated officer or official shall retain its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner.

    (3) Any such information furnished under this subsection shall constitute confidential tax information for purposes of paragraph (2) of Code Section 50-14-2 and paragraph (43) of subsection (a) of Code Section 50-18-72 and shall not be discussed or disclosed except as specifically authorized under this subsection.

    (4) Such information may be discussed with or disclosed to the members of the governing authority of such county or municipality levying a tax pursuant to the provisions of Article 4 of Chapter 8 of this title, but only when the members of such governing authority are in executive session as defined in paragraph (2) of subsection (a) of Code Section 50-14-1. In the event of such discussion with or disclosure to the members of such governing authority, any such information so discussed or disclosed shall retain its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner, and any further disclosure by the members of such governing authority is prohibited. Prior to such discussion with or disclosure to the members of such governing authority, any member of the governing authority who has a conflict of interest shall be required to recuse himself or herself from the executive session. For purposes of such recusal, a conflict of interest shall include, but not be limited to, engaging in similar business to those which are identified in the confidential information or having a financial or other personal interest, direct or indirect, in such matter which is incompatible with the impartial and proper discharge of that person's official duties, which would tend to impair the independence of that person's judgment or actions, or which would make such person privy to information that would provide a competitive business advantage.

    (5) It shall be unlawful for any person to divulge confidential tax information in violation of this subsection. Any person who violates this paragraph shall, upon conviction thereof, be subject to the same penalties that would apply to an employee of the department convicted of divulging confidential tax information.

    (6) The commissioner may make a nominal charge for any information so furnished, not to exceed the actual cost of furnishing the information; provided, however, that any such charge shall be in addition to the 1 percent administrative fee otherwise allowed to the commissioner for defraying the cost of collecting a local sales and use tax.

    (7) Nothing contained in this subsection shall prevent or be construed to prevent:

    1. The use of the information as evidence in any state or federal court in the event of litigation involving any municipal or county tax liability of a taxpayer; or
    2. The release of the information pursuant to a subpoena or court order.
    1. This Code section shall not be construed to prohibit persons or groups of persons other than employees of the department from having access to tax information when necessary to:

      (A) Conduct research commissioned by the department or where necessary in connection with the processing, storage, transmission, and reproduction of such tax information; the programming, maintenance, repair, testing, and procurement of equipment; and the providing of other services for purposes of tax administration; or

      (B) (i) Contract with an entity licensed to do business in this state for data analytics services that assist the department in the identification of taxpayers that are noncompliant with Chapter 8 of this title; provided, however, that:

      1. Any access allowed by this subsection shall be pursuant to a written agreement with the department providing for the handling, permitted uses, and destruction of such tax information, requiring security clearance checks for such persons or groups of persons similar to those required of employees of the department, and including such other terms and conditions as the department may require to protect the confidentiality of the tax information to be disclosed.
      2. A contracting entity granted access, as provided in subparagraph (B) of paragraph (1) of this subsection, shall not utilize or retain such taxpayer information, whether anonymized or not, in any manner that is not specifically authorized in the written agreement with the department, which shall expressly prohibit any action not specifically set out in such agreement, including but not limited to the aggregation, study, transmission, retention, or dissemination of taxpayer information.
      3. Any person who divulges or makes known any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department.
  6. This Code section shall not be construed to prohibit disclosure as required in subsection (h) of Code Section 48-2-35.
  1. No such contract shall be for a period of more than three years; and
  2. Any services to be performed as provided in this subparagraph shall be by specific North American Industry Classification System (NAICS) sectors, as designated by the commissioner; and when such sectors have been so designated by the commissioner, such services shall encompass the entirety of taxpayers within such sectors.

    (ii) Compensation for such data analytics services may be based on collections that may be attributable thereto.

    (iii) Any contact with a taxpayer resulting from the data analytics services provided pursuant to this subparagraph, including correspondence, billings, assessments and audits, shall only be made by the department.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 12; Ga. L. 1945, p. 160, § 1; Ga. L. 1969, p. 1137, § 1; Code 1933, § 91A-212, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 8, 9; Ga. L. 1981, p. 1857, § 4; Ga. L. 1991, p. 303, § 1; Ga. L. 2006, p. 200, § 2/HB 1310; Ga. L. 2010, p. 838, § 11/SB 388; Ga. L. 2011, p. 297, § 1/HB 346; Ga. L. 2016, p. 574, § 1/HB 960; Ga. L. 2018, p. 312, § 1/HB 811; Ga. L. 2018, p. 689, § 3-4/HB 751; Ga. L. 2018, p. 720, § 1/SB 371.)

Delayed effective date. - Subsection (a) and paragraphs (b)(5) through (b)(7), as set out above, become effective January 1, 2019. For version of subsection (a) and paragraphs (b)(5) through (b)(7) in effect until January 1, 2019, see the 2018 amendment note. Until January 1, 2019, there is no paragraph (b)(7).

The 2016 amendment, effective July 1, 2016, in subsection (b), deleted "or" at the end of paragraph (b)(4), substituted "; or" for a period at the end of paragraph (b)(5), and added paragraph (b)(6); and added subsection (f).

The 2018 amendments. The first 2018 amendment, effective May 3, 2018, substituted the present provisions of subsection (e) for the former provisions, which read: "This Code section shall not be construed to prohibit persons or groups of persons other than employees of the department from having access to tax information when necessary to conduct research commissioned by the department or where necessary in connection with the processing, storage, transmission, and reproduction of such tax information; the programming, maintenance, repair, testing, and procurement of equipment; and the providing of other services for purposes of tax administration. Any such access shall be pursuant to a written agreement with the department providing for the handling, permitted uses, and destruction of such tax information, requiring security clearance checks for such persons or groups of persons similar to those required of employees of the department, and including such other terms and conditions as the department may require to protect the confidentiality of the tax information to be disclosed. Any person who divulges or makes known any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department." The second 2018 amendment, effective January 1, 2019, inserted "or her" near the end of subsection (a); deleted "or" at the end of paragraph (b)(5); substituted "; or" for a period at the end of paragraph (b)(6); and added paragraph (b)(7). The third 2018 amendment, effective July 1, 2018, repealed and reserved former subsection (d), which read: "Notwithstanding this Code section, the commissioner, upon request by resolution of the governing authority of any municipality of this state having a population of 350,000 or more according to the United States decennial census of 1970 or any future such census, shall furnish to the finance officer or taxing official of the municipality any pertinent tax information from state tax returns to be used by those officials in the discharge of their official duties. Any information so furnished shall retain, in the hands of the local officials, its privileged and confidential nature to the same extent and under the same conditions as that information is privileged and confidential in the hands of the commissioner. The commissioner may make a nominal charge for any information so furnished, not to exceed the actual cost of furnishing the information. Nothing contained in this subsection shall be construed to prevent the use of the information as evidence in any state or federal court in the event of litigation involving any municipal or county tax liability of a taxpayer."; and added subsection (d.1). See Editor's notes for applicability of the second amendment.

Editor's notes. - Ga. L. 2018, p. 689, § 4-1(b)/HB 751, not codified by the General Assembly, provides that: "The provisions of this Act shall not in any manner diminish, extinguish, reduce, or affect any cause of action for audits, services, or the recovery of funds from service providers which may have existed prior to January 1, 2019. Any such cause of action is expressly preserved."

Law reviews. - For comment, "Confidentiality and Dissemination of Personal Information: An Examination of State Laws Governing Data Protection," see 41 Emory L.J. 1185 (1992).

JUDICIAL DECISIONS

Purpose of exceptions to confidentiality of tax information. - It was clear from the exceptions to former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) and Ga. L. 1969, p. 1137, § 1 (see now O.C.G.A. § 48-2-15 ) that the confidentiality of tax returns is not absolute and that the social policy underlying the law providing for confidentiality of tax returns inures to the benefit of the state by encouraging the citizenry in voluntary reporting and assessment of income. Thus, the decision to produce the returns or appeal an order demanding the returns for use in a criminal prosecution lies with the Attorney General. Garrett v. State, 147 Ga. App. 666 , 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322 , 253 S.E.2d 741 (1979).

Use of tax information in litigation. - While a court will afford the utmost deference to a claim of privacy raised by the Attorney General with respect to income tax returns, the Attorney General cannot defeat the need for evidence in pending criminal proceedings based upon a generalized interest in confidentiality. In extraordinary cases, when the interest in criminal prosecution is as important as the release of privileged information to other governmental units for the purpose of collection of taxes, there exists a specific exception to the confidentiality of income tax returns. Garrett v. State, 147 Ga. App. 666 , 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322 , 253 S.E.2d 741 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Legislative purpose. - Purpose of Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15 ) and former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) is to encourage taxpayers to fully disclose their income and to protect any confidential information with reference to their business which it is essential to divulge in an income tax return; it is also the intent of the General Assembly to relieve the department from furnishing information concerning a taxpayer's income tax return. 1960-61 Op. Att'y Gen. p. 538.

Former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) and Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15 ) must be construed together. 1954-56 Op. Att'y Gen. p. 767.

Permissible grounds for release of tax information. - Release of tax information for use is authorized only in cases involving the integrity of the tax return itself as the main issue, and not merely as a collateral issue. 1971 Op. Att'y Gen. No. 71-184.

Disclosure of information which is neither secret nor confidential. - This section would not prohibit disclosure of information as to whether a taxpayer filed a tax return for a particular year. 1957 Op. Att'y Gen. p. 317.

When Ga. L. 1945, p. 160, § 1 and Ga. L. 1959, p. 88, § 1 (see now O.C.G.A. §§ 48-2-15 and 50-18-70 ) are considered together, it was readily apparent, there being no prohibition by court order or by law against public inspection of public utilities tax information at the county level, that information incident to assessment of ad valorem taxes on public utilities furnished by the commissioner to the counties was not covered by the secrecy provision of Ga. L. 1945, p. 160, § 1, and that release of information to the public by the commissioner would not violate Ga. L. 1945, p. 160, § 1. However, any information obtained by the commissioner which in the regular course of business is not furnished to the county in the process of assessing the tax would not be the subject matter of a public document in the county office and, therefore, would remain covered by the secrecy provision of Ga. L. 1945, p. 160, § 1. 1963-65 Op. Att'y Gen. p. 277.

An application for a liquor permit is a public record and is not confidential or secret. 1963-65 Op. Att'y Gen. p. 171.

Release of tax information to public officers and agencies. - Records of the income tax unit of the department constitute confidential information and should not be divulged to local taxing authorities of this state. 1952-53 Op. Att'y Gen. p. 471.

In order to assist county tax assessors in the discharge of their duties as prescribed by law, the commissioner has authority to furnish tax information to county boards of tax assessors upon official request. 1954-56 Op. Att'y Gen. p. 767.

This section limits the commissioner to furnishing the appropriate tax official of a local government with information to which the local official is entitled by law to have access. The commissioner may only furnish other tax information to the tax or legal officer of another state, territory, country, or to the United States government. 1954-56 Op. Att'y Gen. p. 828.

Neither former Code 1933, § 92-3216 (see now O.C.G.A. § 48-7-60 ) nor Ga. L. 1945, p. 160, § 1 (see now O.C.G.A. § 48-2-15 ) makes income tax returns privileged or confidential as to the commissioner, the commissioner's agents, or other persons who properly have access to them for use in the administration and the enforcement of any tax. 1965-66 Op. Att'y Gen. No. 66-225.

County boards of tax assessors in the discharge of their official duties are entitled to have access to the files of the commissioner, including the income tax files; any files furnished to county boards of tax assessors retain their privileged or confidential character in the hands of those officials. 1965-66 Op. Att'y Gen. No. 66-225.

Information contained in state income tax returns may not be furnished to city or municipal tax assessors. 1965-66 Op. Att'y Gen. No. 66-225.

Release of tax information to private firms and other groups. - It is not a violation of law for the department to deliver income tax returns to a private company for processing the information onto punch cards, if certain restrictions are followed. 1960-61 Op. Att'y Gen. p. 538.

Disclosure to National Alcohol Beverage Control Association of prices posted in department by various distilleries is not prohibited. 1962 Op. Att'y Gen. p. 300.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 675.

ALR. - Recovery of damages under § 7431(c)(1)(B) of Internal Revenue Code (26 USCA § 7431(c)(1)(B)) based on improper release of confidential tax return information, 154 A.L.R. Fed. 537.

48-2-15.1. Disclosure of confidential taxpayer information or records.

Notwithstanding any other provision of law to the contrary, confidential taxpayer information or records with respect to which the taxpayer has granted express written authorization to the commissioner or an officer or employee of the department may be disclosed to or discussed with another party.

(Code 1981, § 48-2-15.1 , enacted by Ga. L. 2004, p. 429, § 1.)

48-2-15.2. "Ruling" defined; regulations prescribing guidelines; precedential value of ruling.

  1. As used in this Code section, the term "ruling" means a written determination that is issued to a person by the commissioner pursuant to regulations promulgated for that purpose, in response to such person's written inquiry about his or her status for tax purposes or the tax effects of acts or transactions, and is based on applying the tax statutes, regulations, or other legal authority to such person's specific set of facts. Such term thus does not include, for example, notices of proposed or final assessment or decisions thereon, decisions on claims for refund, decisions to accept or reject offers in compromise, voluntary disclosure or closing agreements, and responses to petitions or applications under Code sections permitting the commissioner to waive penalty or interest.
  2. The commissioner is authorized to promulgate regulations prescribing guidelines and procedures for the submission of rulings, issuance or denial of issuance of rulings, and the redaction and disclosure of rulings to the public. The commissioner may not disclose a ruling to the public without first deleting the name, address, and other identifying details of the person to whom the ruling was issued.
  3. A ruling shall have no precedential value except to the person to whom the ruling was issued and then only for the specific transaction addressed in the ruling. (Code 1981, § 48-2-15.2 , enacted by Ga. L. 2012, p. 735, § 1/HB 846.)

Editor's notes. - Ga. L. 2012, p. 735, § 4(b)/HB 846, not codified by the General Assembly, provides that this Code section "shall only be applied to rulings requested after the effective date of this Act." This Act became effective May 1, 2012.

48-2-16. Exchange of tax information.

  1. The commissioner and each tax receiver, tax collector, and tax commissioner of this state, at his discretion, may furnish to the tax officials of any other state, political subdivision of any other state, political subdivision of this state, the District of Columbia, or the United States and its territories any information contained in tax returns, reports, and related schedules and documents filed pursuant to the tax laws of this state or contained in the report of an audit or investigation made with respect to any such return, report, schedule, or document if the jurisdiction to which the information is furnished grants similar privileges to this state and if the information is to be used only for tax purposes.
  2. The commissioner and each tax receiver, tax collector, and tax commissioner of this state may enter into agreements with tax officials described in subsection (a) of this Code section to provide for the exchange of tax information as authorized by this Code section.
  3. Furnishing information as permitted by this Code section shall not be deemed to change the confidential character of the information furnished.

    (Ga. L. 1967, p. 537, §§ 1, 2; Code 1933, § 91A-213, enacted by Ga. L. 1978, p. 309, § 2.)

48-2-17. Payment to Office of the State Treasurer.

Except as otherwise provided by law, all taxes, penalties, interest, and other moneys collected or received by the commissioner, the department, or any unit, officer, or employee of the department pursuant to this title or any other revenue or licensing law shall be paid to the Office of the State Treasurer and deposited within 45 days of such collection or receipt.

(Ga. L. 1931, p. 7, § 85; Ga. L. 1931, Ex. Sess., p. 24, § 60; Code 1933, §§ 92-3009, 92-3502; Ga. L. 1951, p. 360, § 23; Ga. L. 1955, p. 268, § 26; Ga. L. 1960, p. 7, § 27; Ga. L. 1968, p. 360, § 16; Code 1933, § 91A-214, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2002, p. 1315, § 1; Ga. L. 2010, p. 863, § 2/SB 296.)

Cross references. - Revenue to be paid into general fund, Ga. Const. 1983, Art. VII, Sec. III, Para. II.

Keeping taxes raised for school purposes separate, § 20-2-411 .

Duties of Office of the State Treasurer generally, § 50-5A-7 .

OPINIONS OF THE ATTORNEY GENERAL

What fees paid to Office of the State Treasurer. - Fees charged by the State Board of Barbers must be forwarded to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected pursuant to establishment of the State Board of Cosmetology must be remitted to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected pursuant to establishment of Composite State Board of Medical Examiners must be forwarded by the joint secretary to the fiscal division (now Office of the State Treasurer) and may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected pursuant to establishment of the Georgia Real Estate Commission must be transmitted by the joint secretary of the state examining boards to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursement of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected for the Georgia Board of Nursing must be forwarded to the fiscal division (now Office of the State Treasurer) and may not be retained by the Office of Secretary of State as reimbursements of expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

Fees collected by the Secretary of State as commissioner of securities must be paid to the fiscal division (now Office of the State Treasurer) and such fees may not be retained by the Office of Secretary of State as reimbursements for expenses of that office. 1969 Op. Att'y Gen. No. 69-13.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1109 et seq., 1786 et seq.

48-2-18. State Board of Equalization; duties.

  1. There is established a board composed of the commissioner, the state auditor, and the executive director of the State Properties Commission.
  2. The board created by this Code section shall be designated the State Board of Equalization. The chairman and administrative officer of the board shall be the commissioner. Each year, when the digest of assessments proposed by the commissioner is complete, the commissioner shall submit the digest to the State Board of Equalization which shall carefully examine the proposed assessments of each class of taxpayers or property and the digest of proposed assessments as a whole to determine that they are reasonably apportioned among the several tax jurisdictions and reasonably uniform with the values set on other classes of property throughout the state. If the board determines that the proposed assessed values of any one or more of the classes of taxpayers or property or the digest as a whole does not reasonably conform to the values set for other property throughout the state, it shall inquire as to the reason for the lack of conformity and shall adjust and equalize the same by either adding or subtracting a fixed percentage to the class of taxpayer, to the class of property, or to the digest as a whole, as the case may be.
  3. As chairperson and chief administrative officer of the board, the commissioner shall furnish to the board all necessary records and files and in this capacity may compel the attendance of witnesses and the production of books and records or other documents as the commissioner is empowered to do in the administration of the tax laws. After final approval by the State Board of Equalization of the digest of proposed assessments made by the commissioner and after any adjustments by the board as authorized by this Code section are made, the commissioner shall notify within 30 days each taxpayer in writing of the proposed assessment of its property. At the same time, the commissioner shall notify in writing the board of tax assessors of such county, as outlined in Code Section 48-5-511, of the total proposed assessment of the property located within the county of taxpayers who are required to return their property to the commissioner. If any such taxpayer notifies the commissioner and the board of tax assessors in any such county of its intent to dispute a portion of the proposed assessment within 20 days after receipt of the notice, the county board of tax assessors shall include in the county digest only the undisputed amount of the assessment, and the taxpayer may challenge the commissioner's proposed assessment in an appeal filed in the Superior Court of Fulton County or with the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 within 30 days of receipt of the notice. In any such appeal to the superior court, the taxpayer shall have the right of discovery as provided in Chapter 11 of Title 9, the "Georgia Civil Practice Act." In any such appeal to the Georgia Tax Tribunal, discovery shall be as provided in Chapter 13A of Title 50, the "Georgia Tax Tribunal Act of 2012." Upon conclusion of the appeal, the taxpayer shall remit to the appropriate counties any additional taxes owed, with interest at the rate provided by law for judgments. Such interest shall accrue from the date the taxes would have been due absent the appeal to the date the additional taxes are remitted.
  4. Within 30 days after receipt of the proposed digest of assessments, the county board of tax assessors shall make the final assessment of the property in question and provide notice to the taxpayer. Such notice and any appeal therefrom shall be accomplished as is provided by Code Sections 48-5-306 and 48-5-311. In the event of an appeal, the department shall, upon request of the local board of tax assessors and without any charge or cost therefor, provide the local board of tax assessors with any and all technical assistance available from the resources of the department, including without limitation expert testimony by the employees of the department.
  5. Assessments made in accordance with subsection (d) of this Code section shall be added to the regular county digest at the time the digest is transmitted to the commissioner or at such time as the digest is otherwise required to be compiled. In the event that the commissioner has not provided to the board of tax assessors by August 1 of a tax year the notice of proposed assessments set forth in subsection (c) of this Code section for taxpayers who are required to return their property to the commissioner pursuant to Code Section 48-5-511, the tax commissioner or tax receiver of the county where such property is located may issue an interim tax bill to such taxpayers, owning property in the county in an amount equal to 85 percent of such taxpayer's property tax bill for the immediately preceding tax year or, in the event that such tax year is under appeal, the tax bill for the most recent tax year in which the taxes for such property were finally assessed. At such time as the county board of tax assessors adds the assessments for the tax year made in accordance with subsection (d) of this Code section to the regular county digest, the tax commissioner or tax receiver shall issue a corrected tax bill to each taxpayer who received an interim tax bill, such corrected tax bill to be in an amount based upon the assessed value of such taxpayer's property shown on the regular county digest and such taxpayer shall remit any additional taxes due or, in the event of overpayment, shall be entitled to a tax refund, in either case, without interest or penalty. Nothing in this subsection is intended to alter a taxpayer's right to appeal from either the commissioner's notice of proposed assessment or the county board of assessors' final assessment under the procedures set forth in subsections (c) and (d) of this Code section. The billing pursuant to this Code section shall not subject the tax commissioner or tax receiver of the county to the forfeiture provisions of Code Section 48-5-135.
  6. The notice and appeal procedures provided for in this Code section shall not apply to any decision of the board relating to the assessed value of motor vehicle property.

    (Ga. L. 1953, Jan.-Feb. Sess., p. 185, § 1; Ga. L. 1972, p. 1015, § 1702; Ga. L. 1972, p. 1120, § 1; Code 1933, § 91A-217, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 1; Ga. L. 1984, p. 352, § 1; Ga. L. 1985, p. 149, § 48; Ga. L. 1987, p. 485, § 1; Ga. L. 1988, p. 13, § 48; Ga. L. 1988, p. 1568, § 1; Ga. L. 1988, p. 1763, § 2; Ga. L. 1992, p. 1346, § 1; Ga. L. 2010, p. 1104, § 8-1/SB 346; Ga. L. 2012, p. 318, § 1/HB 100; Ga. L. 2013, p. 141, § 48/HB 79.)

Cross references. - Appeals to superior court from decisions of commissioner, § 48-2-59 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, "in Code Section 48-5-511" was substituted for "in Georgia Code Annotated 48-5-511" in the third sentence of subsection (c), and "in Chapter 11 of Title 9, the 'Georgia Civil Practice Act'" was substituted for "in the Georgia Civil Practice Act" at the end of the next-to-last sentence in subsection (c).

Pursuant to Code Section 28-9-5, in 2010, in subsection (e), in the second sentence, "the" was deleted preceding "such property" near the middle and a period was deleted following "preceding tax year" near the end; "the" was deleted preceding "subsections (c) and (d)" in the next to the last sentence; and "be" was deleted preceding "subject the" in the last sentence.

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

JUDICIAL DECISIONS

Utility whose returns are not accepted by the commissioner. - In a gas company's suit against the state revenue commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and 48-5-511(a) , remand was proper to determine if the company had an acceptable alternative remedy in its pending county tax appeals under O.C.G.A. § 48-5-311 , if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

Procedure pending appeal. - When utility companies sought to enjoin counties from collecting more than the undisputed amount of the tax during the pendency of a Fulton County appeal, the court properly concluded that no injunction was necessary; subsection (c) of O.C.G.A. § 48-2-18 states plainly that during the pendency of an appeal, the county board of tax assessors may include in the county digest only the undisputed amount of the assessment. It is not necessary to enjoin the counties to carry out the clear legislative mandate. Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

If, under O.C.G.A. § 48-2-18 , a utility had both subsection (c) and subsection (d) appeals proceeding simultaneously, and a local appeal was still pending when the subsection (c) appeal was concluded, the provisions for the payment of taxes during the pendency of an appeal would apply. Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

Improper joinder of appeals. - O.C.G.A. § 48-2-18 contemplates an appeal taken from the proposed assessment made by the State Board of Equalization, as well as individual appeals in each county where a utility owns property, from actual final assessments made by the local tax assessors; thus, appeals pursuant to subsection (d) of § 48-2-18 were improperly joined in an appeal pursuant to subsection (c). Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

Board exceeded authority. - In an action filed by a utility seeking equitable relief from the rejection of the State Commissioner's fair market valuation by the county board of tax assessors, the trial court erred in granting summary judgment to a county board of tax assessors; the board exceeded the board's authority when, in the course of making a final assessment of a utility's property, it not only substituted the board's own assessment ratio, but also the board's own fair market value for those calculated by the State Commissioner, as a final assessment could not include a reappraisal of the fair market value of a taxpayer required to make a return to the state. Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007), aff'd, 283 Ga. 12 , 655 S.E.2d 817 (2008).

Court of Appeals of Georgia properly held that, although the county board of tax assessors could alter the assessment ratio proposed by the Georgia Revenue Commissioner on land owned by a utility in the course of making a final assessment of a utility's property, it could not alter the apportioned fair market value for the property used by the Commissioner in its proposed assessment. Monroe County v. Ga. Power Co., 283 Ga. 12 , 655 S.E.2d 817 (2008).

Cited in Colonial Pipeline Co. v. Collins, 921 F.2d 1237 (11th Cir. 1991); Burt, Burt & Rentz Ret. Pension Trust v. Dougherty County Tax Assessors, 256 Ga. App. 648 , 569 S.E.2d 557 (2002); Ferdinand v. City of East Point, 288 Ga. App. 152 , 653 S.E.2d 529 (2007), cert. denied, 2008 Ga. LEXIS 213 (Ga. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Scope of board's authority. - Statute authorizes the board to settle and compromise tax claims falling under two categories: (1) cases involving insolvency of the taxpayer, and (2) cases involving any proposed tax assessment, any final tax assessment, or any tax fieri facias in which the questionable legal position of the state makes the collection of such taxes doubtful, and such settlement or compromise is in the best interest of the state. 1958-59 Op. Att'y Gen. p. 358.

Construing this statute as a whole, the board is not limited to situations when only a question of law is involved; it further confers power to settle if the state's legal position is questionable so as to render collection doubtful. 1958-59 Op. Att'y Gen. p. 358.

Word "compromise" covers both law and fact; any other interpretation would render this statute virtually meaningless because it is difficult to conceive of a case involving only a question of law. 1958-59 Op. Att'y Gen. p. 358.

Board must consider both questions of fact and law. - Board must of necessity find and consider both questions of fact and law which affect the state's legal position in order to determine whether the state occupies a questionable legal position which makes the collection of such taxes doubtful. If this were not true there would be no way for the board to determine the state's legal position in any case. 1958-59 Op. Att'y Gen. p. 358.

Person's legal position is ascertained and determined by applying principles and rules of law to basic facts and circumstances presented by that person's particular case, a mental process embracing both law and fact; determination of the state's legal position requires combining both functions in a single unitary process, and involves a mixed question of law and fact. 1958-59 Op. Att'y Gen. p. 358.

Contributions required by former Ga. L. 1937, p. 806 (see now O.C.G.A. Ch. 8, T. 34) were state taxes within the meaning of Ga. L. 1953, Jan.-Feb. Sess., p. 185, § 1 (see now O.C.G.A. § 48-2-18 ); the board had jurisdiction and authority to settle or compromise such tax liability. 1965-66 Op. Att'y Gen. No. 66-91.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 701, 710.

C.J.S. - 84 C.J.S., Taxation, § 700 et seq.

ALR. - Power or duty of tax review or equalization boards to act after date for adjournment or closing of books, 105 A.L.R. 624 .

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

48-2-18.1. Settlement or compromise of tax assessments; application fee.

  1. The commissioner or his or her designee shall be authorized to settle and compromise any proposed tax assessment, any final tax assessment, or any tax fi. fa., where there is doubt as to liability or there is doubt as to collectability, and the settlement or compromise is in the best interests of the state. The commissioner shall develop procedures for the acceptance and rejection of offers in compromise. The commissioner shall keep a record of all settlements and compromises made and the reasons for each settlement and compromise.
  2. Each offer in compromise shall be accompanied by a $100.00 nonrefundable application fee. If the offer is accepted by the commissioner, such application fee shall be treated as part of the offer. Such application fee shall not apply if the applicant's total monthly income is at or below levels based on the poverty guidelines established by the United States Department of Health and Human Services. If this is the case, the applicant shall certify as such with their offer. (Code 1981, § 48-2-18.1 , enacted by Ga. L. 1984, p. 352, § 2; Ga. L. 1988, p. 426, § 1; Ga. L. 1997, p. 734, § 1; Ga. L. 2005, p. 159, § 3/HB 488.)

Editor's notes. - Ga. L. 2005, p. 159, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

48-2-19. Modernization and improvement of licensing, registration, valuation, and titling functions; utilization of tag and title information in electronic form.

  1. It is the intent of the General Assembly that the state revenue commissioner shall have total responsibility for the administration of the laws of the state relating to the licensing, registration, valuation, and titling of motor vehicles and that the commissioner shall carry out a complete modernization and improvement of such functions.
  2. The state revenue commissioner shall have total responsibility for developing and implementing a comprehensive and detailed plan to accomplish the modernization and improvement of the functions specified in subsection (a) of this Code section. Such plan shall include:
    1. A detailed analysis of personnel, equipment, motor vehicles, and facilities necessary for the administration of the laws relating to the licensing, registration, valuation, and titling of motor vehicles;
    2. A detailed analysis of the funding necessary to administer such functions of the department;
    3. Detailed recommendations for the most effective methods of carrying out the functions provided for in subsection (a) of this Code section, bearing in mind that the citizens of the State of Georgia should have a right to expect prompt, courteous, and cost-efficient service with respect to such functions;
    4. Recommendations for any changes in the relevant laws needed to accomplish the goals referred to in paragraph (3) of this subsection; and
    5. A suggested timetable for the completion of such recommendations.
  3. The state revenue commissioner shall from time to time report to the presiding officers of the Senate and House of Representatives with respect to:
    1. The progress of implementation of the plan provided for in subsection (b) of this Code section;
    2. Any deficiencies or inefficiencies noted by the state revenue commissioner in the current carrying out of the functions provided for in subsection (a) of this Code section; and
    3. Any interim improvements which should be made in the carrying out of such functions pending completion of the plan provided for in subsection (b) of this Code section.
  4. The state revenue commissioner shall obtain the necessary equipment and personnel in order to utilize effectively motor vehicle registration, licensing, and title information submitted in electronic form by the tax collectors and tax commissioners of the various counties of this state.  All counties which have the technological capability of submitting such registration, licensing, and title information in an electronic form shall do so and all other counties are encouraged to develop such capabilities.  The state revenue commissioner may promulgate rules and regulations for the purpose of standardizing the format of such electronic information to be submitted by the tax collectors and tax commissioners of the various counties, provided that such rules and regulations shall provide for the use of one or more electronic formats currently utilized by local taxing officials. (Code 1981, § 48-2-19 , enacted by Ga. L. 1994, p. 514, § 3.)

ARTICLE 2 ADMINISTRATION

48-2-30. Remittances.

  1. Except with regard to ad valorem property taxes, when an application or return is filed with the commissioner under the revenue or license laws or regulations of this state and an amount is shown on the application or return to be due or to become due, the person required to make the application or return shall remit the amount with the application or return without further assessment, notice, or demand to the commissioner or department at the time and place fixed for filing of the application or return. Upon any failure in this regard, the commissioner shall have the authority to issue forthwith a fi. fa. for the collection of the amount due.
  2. The acceptance by the commissioner or the department of any payment received with respect to any tax or license fee shall not imply that the tax or license fee is thereby fully assessed, fixed, determined, or satisfied. All persons making such payments shall understand that the payments will be accepted and the proper account credited with the payment subject to a final determination of its correctness in due course, any condition expressed in such payment to the contrary notwithstanding. This subsection shall not apply to payments received pursuant to authorized compromises and settlements, which payments shall be governed by the special agreements and proceedings applicable thereto.
  3. No condition affixed to any remittance with respect to the time or manner of processing or negotiating its payment shall be given any force or effect.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 26; Ga. L. 1961, p. 445, § 1; Code 1933, § 91A-230, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1951, p. 360, § 18 are included in the annotations for this Code section.

Date and superiority of lien for sales and use taxes. - Lien and the lien's rank is provided for the state for sales and use taxes. Such lien attaches on the day on which the dealer is required to make the dealer's return and remittance to the commissioner and is declared to be superior to all other liens. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954) (decided under Ga. L. 1951, p. 360, § 18).

Effect of recording lien. - Recording of the fieri facias issued by the commissioner on the general execution docket is not a condition precedent to the attachment of a lien for sales taxes. Only effect of failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954) (decided under Ga. L. 1951, p. 360, § 18).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 712, 713.

C.J.S. - 85 C.J.S., Taxation, § 991 et seq.

ALR. - Partial payment of tax, 84 A.L.R. 774 .

Power to remit, release, or compromise tax claim, 99 A.L.R. 1062 ; 28 A.L.R.2d 1425.

48-2-31. Currency in which taxes to be paid.

Except as otherwise provided in Code Section 48-2-32, all taxes imposed by this title or any other revenue or license law shall be paid in lawful money of the United States, free from any expense to the state or any political subdivision of this state.

(Laws 1804, Cobb's 1851 Digest, p. 1051; Ga. L. 1851-52, p. 288, § 19; Code 1863, §§ 737, 762; Code 1868, §§ 804, 829; Code 1873, §§ 807, 833; Code 1882, §§ 807, 833; Civil Code 1895, §§ 773, 806; Civil Code 1910, §§ 1013, 1044; Code 1933, § 92-5706; Code 1933, § 91A-231, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Payment by check sufficient even if bank fails before collection. - If a tax collector accepted a taxpayer's check and delivered a receipt for payment of state and county taxes, the payor bank charged the amount of the check to the drawer's account and later delivered the check canceled to the drawer, having also mailed to an intermediary bank a cashier's or exchange check, which remained unpaid because before the check's collection the first bank failed and discontinued business, the taxpayer was not subject to execution issued by the tax collector for the amount of the tax so paid. Palmer v. Harrison, 165 Ga. 842 , 142 S.E. 276 (1928).

OPINIONS OF THE ATTORNEY GENERAL

What "bankable paper" includes. - Words "free of any expense to the state," found in former Code 1933, § 92-5706 (see now O.C.G.A. § 48-2-31 ), restrict the term "bankable paper," found in former Code 1933, § 68-208 (see now O.C.G.A. § 40-2-29 ), in that the former provision prohibited accepting postdated checks, checks drawn on non-par banks, and any check which was so qualified or conditioned that expense to the state would necessarily be incurred. 1963-65 Op. Att'y Gen. p. 607.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1032.

48-2-32. Forms of payment.

  1. The commissioner may receive in payment of taxes and license fees personal, company, certified, treasurer's, and cashier's checks and bank, postal, and express money orders to the extent and under the conditions which he may reasonably prescribe by regulations or instructions.
  2. A check or money order, when authorized, shall be deemed to be payment as of the time it is received by the commissioner, provided the check or money order is duly paid upon presentation to the drawee. The time of receipt as shown by the records of the department shall be prima facie correct as to the time of actual receipt.
  3. If a check or money order so received is not duly paid, the person on whose account the check or money order was tendered shall remain liable for the payment of the tax or license fee and for all legal penalties and additions to the same extent as if the check or money order had not been tendered. Delay in the presentation for payment of the check or money order shall not absolve the person of this liability.
  4. If any certified, treasurer's, or cashier's check or money order so received is not duly paid, the state, in addition to its right to exact payment from the party originally obligated therefor, shall have a lien for the amount of the check or money order upon all assets of the bank or trust company on which drawn or for the amount of the money order upon all the assets of the issuer of the money order. The amount of the check or money order shall be paid out of such assets in preference to any other claims whatsoever against the banker or issuer.
    1. On and after July 1, 2004, if any check or money order tendered to the commissioner in payment of any tax or license fee is not duly paid when presented to the drawee or issuer for payment, there shall be paid by the person who tendered the check or money order upon notice and demand of the commissioner or his delegate, in the same manner as tax, a penalty in an amount equal to 2 percent of the amount of the check or money order, unless the amount of the check or money order is less than $1,250.00, in which case the penalty under this Code section shall be $25.00. This penalty shall be in addition to any other penalties provided by law.
    2. This subsection shall not apply if the person who tendered the check or money order shows to the commissioner's reasonable satisfaction that the check or money order was tendered in good faith and with reasonable cause to believe it would be duly paid.
    1. As used in this subsection, the term "electronic funds transfer" means a method of making financial payments from one party to another through a series of instructions and messages communicated electronically, via computer, among financial institutions. Such term shall not include the electronic filing of tax returns.
    2. The commissioner may require that any person or business owing more than $10,000.00 in connection with any return, report, or other document required to be filed with the department on or after July 1, 1992, shall pay any such sales tax, use tax, withholding tax, motor fuel distributor tax, corporate estimated income tax, or individual estimated income tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment.

      (2.1) (A) The commissioner may require that any person or business owing more than $1,000.00 in connection with any return, report, or other document pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax required to be filed with the department for tax periods beginning on or after January 1, 2010, and prior to January 1, 2011, shall pay any such sales tax, use tax, withholding tax, or motor fuel distributor tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment.

      (B) The commissioner may require that any person or business owing more than $500.00 in connection with any return, report, or other document pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax required to be filed with the department for tax periods beginning on or after January 1, 2011, shall pay any such sales tax, use tax, withholding tax, or motor fuel distributor tax liability to the state by electronic funds transfer so that the state receives collectable funds on the date such payment is required to be made. In emergency situations, the commissioner may authorize alternative means of payment in funds immediately available to the state on the date of payment.

    3. In addition to the requirements contained in paragraph (2) of this subsection, every employer whose tax withheld or required to be withheld under Code Section 48-7-103 exceeds $50,000.00 in the aggregate for the lookback period as defined in paragraph (4) of subsection (b) of Code Section 48-7-103 must pay the taxes by electronic funds transfer as follows:
      1. For paydays occurring on Wednesday, Thursday, or Friday, the taxes must be remitted on or before the following Wednesday or, in the case of a holiday, the next banking day thereafter;
      2. For paydays occurring on Saturday, Sunday, Monday, or Tuesday, the taxes must be remitted on or before the following Friday or, in the case of a holiday, the next banking day thereafter; and
      3. Notwithstanding any other provision of this paragraph to the contrary, for employers whose tax withheld or required to be withheld exceeds $100,000.00 for the payday, the taxes must be remitted by the next banking day.
    4. In addition to the requirements contained in paragraphs (2), (2.1), and (3) of this subsection, every third-party payroll provider who prepares or remits, or both, Georgia withholding tax for more than 250 employers must pay the taxes by electronic funds transfer. Also, such third-party payroll providers must submit all state withholding tax registration applications electronically in the manner specified by the department. Any state withholding tax registration applications that are not submitted electronically by such third-party payroll provider in the manner specified by the department shall not be considered by the department.
    5. The commissioner is specifically authorized to establish due dates and times for the initiation of electronic payments, establish an implementation schedule, promulgate regulations, and prescribe rules and procedures to implement this subsection.
    6. A penalty of 10 percent of the amount due shall be added to any payment which is made in other than immediately available funds which are specified by regulation of the commissioner unless the commissioner has authorized an alternate means of payment in an emergency.
    7. In addition to authority granted in Code Section 48-2-41, the commissioner is authorized to waive the collection of interest on electronic funds transfer payments, not to exceed the first two scheduled payments, whenever and to the extent that the commissioner reasonably determines that the default giving rise to the interest charge was due to reasonable cause and not due to gross or willful neglect or disregard of this subsection or regulations or instructions issued pursuant to this subsection.
    8. Notwithstanding any provision of law to the contrary, the commissioner is authorized to promulgate rules and regulations setting forth the requirements for electronically transmitting all required returns, reports, or other documents required to be filed with taxes paid by electronic funds transfer.
    9. Notwithstanding any provision of law to the contrary, the commissioner is authorized to promulgate rules and regulations setting forth the procedure for satisfying the signature requirement for returns whether by electronic signature, voice signature, or other means, so long as appropriate security measures are implemented which assure security and verification of the signature procedure.
    10. Notwithstanding any provision of law to the contrary, the commissioner is authorized to pay all tax refunds by electronic funds transfer when requested by a taxpayer who has filed his or her return electronically with the department.

      (Ga. L. 1960, p. 211, § 1; Code 1933, § 91A-232, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1991, p. 715, § 1; Ga. L. 1992, p. 1234, § 1; Ga. L. 1993, p. 91, § 48; Ga. L. 1996, p. 307, § 1; Ga. L. 1997, p. 734, § 2; Ga. L. 2003, p. 665, § 3; Ga. L. 2004, p. 410, §§ 3, 4; Ga. L. 2004, p. 631, § 48; Ga. L. 2005, p. 159, § 4/HB 488; Ga. L. 2006, p. 200, § 3/HB 1310; Ga. L. 2009, p. 648, § 1/HB 334; Ga. L. 2014, p. 231, § 2/HB 918.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(c), not codified by the General Assembly, provides that subsection (f) of this Code section shall be applicable to all calendar quarters beginning on or after April 1, 2004.

Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004."'

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27/HB 488, not codified by the General Assembly, provides that the 2005 amendment applies to all payments made on or after January 1, 2005.

Law reviews. - For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 233 (2003).

OPINIONS OF THE ATTORNEY GENERAL

General Assembly intended that former Code 1933, §§ 68-208 and 68-212 and Ga. L. 1960, p. 211, § 1 (see now O.C.G.A. §§ 40-2-29 and 48-2-32 ) be construed together; when so construed, the words "or other similar bankable paper" found in former Code 1933, § 68-208 (see now O.C.G.A. § 40-2-29 ) include personal and company checks. 1963-65 Op. Att'y Gen. p. 607.

Remedies available if check dishonored. - When a tax commissioner accepts a check as payment for a motor vehicle license plate, which check is not honored by the bank but returned to the tax commissioner marked "insufficient funds", the tax commissioner would not have authority to seize or cancel the license plate which the commissioner issued. The tag agent accepts checks for motor vehicle license fees at the agent's own risk; consequently, the tag agent would have a cause of action against the applicant for the amount of the license fee and the possibility of criminal action against the applicant. 1968 Op. Att'y Gen. No. 68-215.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 721 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1032.

ALR. - Payment of tax by check or draft, 44 A.L.R. 1234 ; 124 A.L.R. 1155 .

Payment of tax by check or draft; and question of subrogation in that connection, 124 A.L.R. 1155 .

48-2-33. Receipts for taxes.

  1. The commissioner and his agents and employees, upon request, shall give receipts for all sums collected by the commissioner or the department, except when the sums are in payment for stamps, tags, or license plates sold and delivered. No receipt shall be issued in lieu of a stamp representing a tax.
  2. When payment of any tax or license fee (except for stamps, tags, or license plates sold and delivered) is made in cash, it shall be the duty of the person making the payment to demand and receive, and the duty of the person receiving the payment to furnish, a written receipt for the payment in the form prescribed by the commissioner for official receipts of the department. The written receipt shall be conclusive as to the transaction and the commissioner shall not be required to give credit for a cash payment under any other circumstances. For the purposes of this subsection, a cash payment includes payment by check, money order, or other instrument payable or endorsed to bearer or to any payee or endorsee except a bearer, payee, or endorsee which is, in substance, the department.
  3. The commissioner, upon request, shall give to the person paying an estate tax duplicate receipts, either of which shall be sufficient evidence of such payment. The receipt shall entitle the legal representative of the estate to be credited and allowed the amount of the payment by any court having jurisdiction to audit or settle the legal representative's accounts.

    (Ga. L. 1931, p. 7, § 85; Ga. L. 1931, Ex. Sess., p. 24, § 57; Code 1933, § 92-3312; Ga. L. 1960, p. 211, § 2; Code 1933, § 91A-233, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 715.

C.J.S. - 85 C.J.S., Taxation, §§ 1035 et seq., 1044.

ALR. - Conclusiveness of tax receipt, 73 A.L.R. 152 .

48-2-34. Failure to give official receipt for payment of taxes or license fees; penalty.

  1. Except as otherwise specifically authorized by law, it shall be unlawful for any person to receive payment of taxes or license fees without giving an official receipt as required in subsection (b) of Code Section 48-2-33.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1960, p. 211, § 2; Code 1933, § 91A-9913, enacted by Ga. L. 1978, p. 309, § 2.)

48-2-35. Refunds.

  1. A taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from such taxpayer under the laws of this state, whether paid voluntarily or involuntarily, and shall be refunded interest, except as provided in subsection (b) of this Code section, on the amount of the taxes or fees from the date of payment of the tax or fee to the commissioner at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly. Such annual interest rate shall be determined for each calendar year based on the first weekly posting of statistical release H. 15 on or after January 1 of each calendar year. For the purposes of this Code section, any period of less than one month shall be considered to be one month. Refunds shall be drawn from the treasury on warrants of the Governor issued upon itemized requisitions showing in each instance the person to whom the refund is to be made, the amount of the refund, and the reason for the refund.
  2. No interest shall be paid if the taxes or fees were erroneously or illegally assessed and collected due to the taxpayer failing to claim any credits listed in Article 2 of Chapter 7 of this title on or before the due date for filing the applicable income tax return, including any extensions which have been granted.
      1. A claim for refund of a tax or fee erroneously or illegally assessed and collected may be made by the taxpayer at any time within three years after:
        1. The date of the payment of the tax or fee to the commissioner; or
        2. In the case of income taxes, the later of the date of the payment of the tax or fee to the commissioner or the due date for filing the applicable income tax return, including any extensions which have been granted.
      2. Each claim shall be filed in writing in the form and containing such information as the commissioner may reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies and an identification of the transactions being contested.
      3. Should any person be prevented from filing such a claim because of service of such person or such person's counsel in the armed forces during such period, the period of limitation shall date from the discharge of such person or such person's counsel from such service.
      4. A claim for refund may not be submitted by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.
    2. In the event the taxpayer desires a conference or hearing before the commissioner or the commissioner's delegate in connection with any claim for refund, he or she shall specify such desire in writing in the claim and, if the claim conforms with the requirements of this Code section, the commissioner shall grant a conference at a time he or she shall reasonably specify. A taxpayer may contest any claim for refund that is denied in whole or in part by filing with the commissioner a written protest at any time within 30 days from the date of notice of refund denial or partial payment. Such 30 day period shall be extended for such additional period as may be agreed upon in writing between the taxpayer and the commissioner during the initial 30 day period or any extension thereof. In the event the taxpayer wishes to request a conference, that request shall be included in the written protest. All protests shall be prepared in the form and contain such information as the commissioner shall reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies, an identification of the transactions being contested, and the reasons for disputing the findings of the commissioner. The commissioner shall grant a conference before the commissioner's designated officer or agent at a time specified and shall make reasonable rules governing the conduct of conferences. The discretion given in this Code section to the commissioner shall be reasonably exercised on all occasions.
    3. The commissioner or the commissioner's delegate shall consider information contained in the taxpayer's claim for refund, together with such other information as may be available, and shall approve or deny the taxpayer's claim and notify the taxpayer of the action.
    4. Any taxpayer whose claim for refund is denied by the commissioner or the commissioner's delegate or whose claim is not decided by the commissioner or the commissioner's delegate within one year from the date of filing the claim shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the superior court of the county of the residence of the taxpayer, except that:
      1. If the taxpayer is a public utility or a nonresident, the taxpayer shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the superior court of the county in which is located the taxpayer's principal place of doing business in this state or in which the taxpayer's chief or highest corporate officer or employee resident in this state maintains an office; or
      2. If the taxpayer is a nonresident individual or foreign corporation having no place of doing business and no officer or employee resident and maintaining an office in this state, the taxpayer shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the Superior Court of Fulton County or in the superior court of the county in which the commissioner in office at the time the action is filed resides.
    5. An action for a refund pursuant to paragraph (4) of this subsection shall not be brought by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.
      1. No action or proceeding for the recovery of a refund under this Code section shall be commenced before the expiration of one year from the date of filing the claim for refund unless the commissioner or the commissioner's delegate renders a decision on the claim within that time, nor shall any action or proceeding be commenced after the later of:
        1. The expiration of two years from the date the claim is denied; or
        2. If a valid protest is filed under paragraph (2) of this subsection, 30 days after the date of the department's notice of decision on such protest.
      2. The period prescribed in this paragraph for filing an action for refund shall be extended for such period as may be agreed upon in writing between the taxpayer and the commissioner prior to the expiration of such period or any extension thereof.
  4. In the event any taxpayer's claim for refund is approved by the commissioner or the commissioner's delegate and the taxpayer has not paid other state taxes which have become due, the commissioner or department may offset any existing liabilities against the refund. Once the offset authorized by this subsection occurs, the refund shall be deemed granted and the amount of the offset shall be considered for all purposes as a payment toward the particular tax liabilities at issue. Any excess refund amount after any offsets have been applied shall be refunded to the taxpayer at the same time the offset is taken.
  5. This Code section shall not apply to taxes paid for alcoholic beverages pursuant to Title 3.
  6. For purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term "taxpayer," as defined under Code Section 48-2-35.1, shall apply. Such claim for refund shall contain the total refund claimed and the allocation of the local sales and use tax by the political subdivision.
  7. Any taxpayer required to pay taxes electronically in accordance with paragraph (2.1) of subsection (f) of Code Section 48-2-32 shall also file any claims for refund electronically. The department shall make claim for refund forms consistent with this subsection electronically available.
    1. As used in this subsection, the term:

      (A) "Political subdivision designee" means the chief officer or officers designated by the political subdivision to receive information about a refund claim of local significance pursuant to this subsection. Each political subdivision shall certify to the commissioner that any such designee is so authorized on a form and in a manner prescribed by the department.

      (B) "Refund claim of local significance" means a taxpayer's claim for refund of sales and use taxes erroneously or illegally assessed and collected or the department's discovery of any overpayment of such taxes, if such claim for refund or overpayment is for an amount equal to or greater than 10 percent of the total yearly average of aggregate sales and use tax distributions to any single political subdivision based on the average of the three most recent calendar years.

    2. Within 30 business days following the department's receipt of a refund claim of local significance, the department shall notify each affected political subdivision's political subdivision designee that a refund claim of local significance to the political subdivision has been received and shall furnish the taxpayer with a copy of such notification. Such notification shall include the date the refund claim of local significance was filed, the amount in the claim for refund for which the political subdivision itself would be responsible if the request is granted, and a copy of the confidentiality provisions in Code Section 48-2-15 and this Code section. After the department has completed an audit of the claim for refund and determined a final refund amount, the department shall supplement the above notice by transmitting to the political subdivision designee the final refund amount for which the political subdivision is responsible.
    3. Any information supplied to a political subdivision designee pursuant to this subsection shall retain, in the hands of the local official, its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner, pursuant to Code Section 48-2-15. It shall be the responsibility of the political subdivision designee, and not the department, to protect privileged and confidential information received under this subsection. Any person who divulges any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as provided for divulgence of tax information by employees of the department. Though privileged and confidential information shall not be disclosed, the political subdivision designee may make reasonable budgetary recommendations to elected officials, city managers, and tax officials in political subdivisions based on the confidential information furnished. The department shall not be subject to any criminal or civil liability for the unauthorized divulgence of privileged and confidential information by a political subdivision designee. Notwithstanding the foregoing, in the event all or any portion of the refund claim of local significance is for a tax levied under Part 1 of Article 3 of Chapter 8 of this title, the affected county shall not be in violation of this confidential provision if it notifies all municipal political subdivision designees in the county that such notification has been received from the department.
    4. The commissioner, by rule or regulation, shall establish guidelines for identifying and producing documents to the Department of Audits and Accounts for review relating to the handling of refund claims of local significance. In the event of such review, the Department of Audits and Accounts shall assess whether the department followed proper procedures and used appropriate methodology to reach its final determination on a refund claim of local significance.
    5. Any refund claims of local significance pending with the department for two years after the claim for refund was filed shall be automatically transferred to the Georgia Tax Tribunal as a declaratory judgment of the commissioner requesting a show cause proceeding pursuant to Code Section 50-13A-19.1.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 34; Ga. L. 1945, p. 272, § 1; Ga. L. 1955, p. 455, § 1; Ga. L. 1971, p. 378, § 1; Ga. L. 1973, p. 507, § 1; Ga. L. 1975, p. 156, §§ 7, 8; Code 1933, § 91A-245, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 11; Ga. L. 1979, p. 1078, §§ 1, 2; Ga. L. 1992, p. 1458, § 4; Ga. L. 2000, p. 777, § 1; Ga. L. 2003, p. 355, §§ 1, 2; Ga. L. 2003, p. 429, § 1; Ga. L. 2005, p. 159, § 5/HB 488; Ga. L. 2006, p. 72, § 48/SB 465; Ga. L. 2009, p. 816, § 3/HB 485; Ga. L. 2012, p. 318, § 2/HB 100; Ga. L. 2016, p. 574, § 2/HB 960.)

The 2016 amendment, effective July 1, 2016, in subsection (a), in the first sentence, deleted "at the rate of 1 percent per month" following "taxes or fees" near the middle and added "at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly" at the end, and added the second sentence; added the second sentence in subsection (f); and added subsections (g) and (h). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2003, p. 355, § 8(b), not codified by the General Assembly, provides that the first 2003 amendment shall apply to all claims for refunds filed or actions for refunds brought pursuant to this Code section before, on, or after May 29, 2003.

Ga. L. 2003, p. 429, § 2, not codified by the General Assembly, provides that the second 2003 amendment shall be applicable to all taxable years beginning on or after January 1, 2003.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2009, p. 816, § 1/HB 485, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Improved Taxpayer Customer Service Act of 2009.'"

Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Ga. L. 2016, p. 574, § 6(b)/HB 960, not codified by the General Assembly, provides: "The new penalty and interest rates provided in Sections 2, 3, and 4 of this Act shall apply to penalties and interest accrued on or after the effective date of this Act." This Act became effective July 1, 2016.

Ga. L. 2016, p. 574, § 6(c)/HB 960, not codified by the General Assembly, provides: "The new notification requirement and the automatic transfer to the Georgia Tax Tribunal requirement contained in Section 2 of this Act regarding a refund claim of local significance shall apply to claims for refund received by the department on or after the effective date of this Act." This Act became effective July 1, 2016.

Law reviews. - For article discussing remedies for tax illegally assessed under the former Georgia Retailers' and Consumers' Sales and Use Tax Act (former Code 1933, Ch. 92-34 (see Ch. 8 of this title), see 9 Ga. St. B. J. 45 (1972). For article discussing and comparing the principal means by which the Georgia taxpayer may obtain judicial review of his state tax liability, with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Nature of action. - Right given to bring an action for refund of taxes illegally assessed and collected is in the nature of an action for money had and received. Hawes v. Bigbie, 123 Ga. App. 122 , 179 S.E.2d 660 (1970).

Availability of other procedures and remedies. - Only method by which a taxpayer may present a claim for refund to the superior court is by the procedure outlined in this statute. Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

Taxpayer has at least three remedial procedures available for use in disputing the correctness of an assessment rendered against the taxpayer by the commissioner under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Ch. 8, T. 48) relating to sales and use taxes. Taxpayer may proceed: (1) by the method of appeal under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ); (2) by affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ); or (3) by paying taxes illegally exacted and suing for refund under Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35 ). Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

When the manufacturer remitted tax payments under the pre-1985 version of O.C.G.A. § 3-4-60 , even if the manufacturer was not procedurally barred from seeking a refund under O.C.G.A. § 48-2-35 , the manufacturer's failure to avail itself of the predeprivation remedies available to the manufacturer prior to payment of the disputed taxes results in denial of recovery of taxes so paid. James B. Beam Distilling Co. v. State, 263 Ga. 609 , 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662 , 130 L. Ed. 2 d 597 (1994).

O.C.G.A. § 48-2-35 , though the statute does not satisfy the criteria of the Tax Injunction Act, 28 U.S.C. § 1341, so as to bar jurisdiction of the federal court, is not the only means by which a taxpayer might challenge the constitutional validity of a state tax and win retrospective relief, as a taxpayer can bring an action in state court under 42 U.S.C. § 1983. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Predeprivation remedies. - State could not hold out what plainly appeared to be a "clear and certain" postdeprivation remedy and then declare, only after the disputed taxes had been paid, that no such remedy existed. Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547 , 130 L. Ed. 2 d 454 (1994).

Jurisdiction of federal court. - Though the holding in Reich v. Collins, 262 Ga. 625 , 422 S.E.2d 846 (1992), seems to bar most refunds under O.C.G.A. § 48-2-35 when this tax is challenged on constitutional grounds, the uncertain status of this holding makes a constitutional claim under the Georgia refund statute equally uncertain, and so does not satisfy the criteria of providing a "plain, speedy and efficient" post-taxation remedy so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

O.C.G.A. § 48-2-35 does not constitute a waiver of immunity under the Eleventh Amendment to the United States Constitution and was not enough to confer jurisdiction on federal courts in Georgia to hear a plaintiff's claims against the state for damages or prospective relief regarding the automobile "title transfer fee" statute (O.C.G.A. § 40-3-21.1 ) [repealed]. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Class action suit for tax refund may not be maintained in Georgia. State v. Private Truck Council of Am., Inc., 258 Ga. 531 , 371 S.E.2d 378 (1988).

Direct cause of action against dealer not permitted. - Since the plain language of O.C.G.A. § 48-2-35.1(d) provides that a person may seek a refund of erroneously paid sales tax from a dealer who collected and remitted the tax to the commissioner or directly from the commissioner, but does not mention a direct cause of action against the dealer, the customers were not authorized to bring a direct action for a refund of allegedly over-collected sales tax against the power company. Ga. Power Co. v. Cazier, 321 Ga. App. 576 , 740 S.E.2d 458 (2013).

Liability of Department of Revenue for refund of fees charged by another department. - Emission testing company, seeking a refund under O.C.G.A. § 48-2-35(a) , was not entitled to recover invalid fees from the state revenue commissioner since the fee was collected by the Director of the Environmental Protection Division of the Department of Natural Resources; deletion of the first "by the Commissioner" from what was now the first sentence of the statute was not intended to allow a citizen to recover from the Revenue Commissioner any fee paid to any other department or agency of Georgia government. Ga. Emission Testing Co. v. Jackson, 259 Ga. App. 250 , 576 S.E.2d 642 (2003).

Availability of defenses. - Effect of having an express statutory right to sue for a refund was to remove the defense of voluntary payment under former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13 ). Hawes v. Smith, 120 Ga. App. 158 , 169 S.E.2d 823 (1969).

Mandamus relief improperly denied. - Plaintiffs' mandamus claims were improperly denied as the plaintiffs did not have an adequate legal remedy to challenge the constitutionality of Ga. L. 2015, pp. 236, 241-264, §§ 5-8 (HB 170) by pursuing a refund action because the plaintiffs did not argue that H.B. 170 illegally assessed taxes against them, but, rather, the plaintiffs argued that it violated the state constitution by allowing revenues from taxes on motor fuels to be apportioned for purposes other than on roads and bridges; thus, the relief the plaintiffs sought was broader than the relief provided by the statute, O.C.G.A. § 48-9-3 , which was limited to a refund of the assessed taxes plus interest, and the trial court erred in concluding that the refund statute was an adequate legal remedy for the plaintiffs' claims. Ga. Motor Trucking Ass'n v. Georgia Dep't of Revenue, 301 Ga. 354 , 801 S.E.2d 9 (2017).

Cited in Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986); Barber v. Collins, 201 Ga. App. 104 , 410 S.E.2d 444 (1991); C.W. Matthews Contracting Co. v. Collins, 210 Ga. App. 1 , 435 S.E.2d 221 (1993).

Standing and Consent to Bring Action Against State

Prerequisites to filing of claim for refund. - Before a claim for refund is filed with the commissioner there should be a legal determination that the tax was erroneously or illegally collected by the commissioner. Parke, Davis & Co. v. Cook, 198 Ga. 457 , 31 S.E.2d 728 (1944), appeal dismissed. 323 U.S. 681, 65 S. Ct. 436 , 89 L. Ed. 552 (1945).

Standing to claim refund. - Refunds provided for under this statute are to be made to taxpayers. A retailer, like a distributor of gasoline, is not a taxpayer in the retailer's capacity of collecting motor fuel taxes and turning the taxes over to the commissioner. Maynard v. Thrasher, 77 Ga. App. 316 , 48 S.E.2d 471 (1948).

To come within this statute, one need only qualify as a taxpayer. Under former Code 1933, Ch. 92-14 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) the consumer was the taxpayer. Hawes v. Shepherd Constr. Co., 117 Ga. App. 842 , 162 S.E.2d 231 (1968).

Only the party who actually paid the taxes is entitled to claim a refund. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169 , 198 S.E.2d 900 (1973).

Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35 ) does not preclude the owner of the facility into which waste treatment equipment is incorporated from filing a claim for refund pursuant to a regulation of the commissioner pursuant to Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3 ) which regulation provides that the application for a refund be filed by the ultimate user. Eimco BSP Servs. Co. v. Chilivis, 241 Ga. 263 , 244 S.E.2d 829 (1978).

When, under the pre-1985 version of O.C.G.A. § 3-4-60 , the manufacturer remitted a tax payment to the revenue commissioner and subsequently, in an itemized billing statement, required the wholesaler to remit payment for "state stamps" or "state tax," it was the wholesaler which was the taxpayer for purposes of O.C.G.A. § 48-2-35 and, due to the manufacturer's lack of standing, the manufacturer was procedurally barred from pursuing an action for refund. James B. Beam Distilling Co. v. State, 263 Ga. 609 , 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662 , 130 L. Ed. 2 d 597 (1994).

When it is shown that customers and not retailers paid taxes, retailers have no legal standing to obtain a refund. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Since this statute extends the state's consent to be sued only to the taxpayer who has overpaid the taxpayer's tax liability, a seller may not bring an action for a refund of sales and use taxes under this statute unless the seller establishes the seller's standing to assert that as a taxpayer the seller has overpaid the seller's tax liability. If a seller has merely remitted taxes which the seller has shifted to the seller's customers, the seller lacks standing to assert that as to those payments the seller as a taxpayer has overpaid the seller's liability. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Electrical membership corporation lacked direct standing to pursue a claim for a refund of sales tax on behalf of the corporation's members/patrons, pursuant to O.C.G.A. § 48-2-35(b)(1), as it was not a "taxpayer" within O.C.G.A. § 48-2-35(b)(4) for purposes of bringing an action for a tax refund as the corporation did not bear the burden of the tax because the tax was passed on to the corporation's members/patrons; one purpose of the EMC was to furnish electrical energy and service to the corporation's members, pursuant to O.C.G.A. § 46-3-200(1) , and the sale of electricity required a retail sales tax paid to the EMC, which was passed onto the Georgia Commissioner of Revenue, pursuant to O.C.G.A. § 48-8-30(a) . Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22 , 608 S.E.2d 611 (2005).

No standing to claim refund. - Trial court did not err in dismissing a bank's complaint alleging that the bank was entitled to a refund for sales tax paid under the General Refund Statute, O.C.G.A. § 48-2-35 , because the bank was not a taxpayer entitled to a refund under § 48-2-35 since the bank was simply a third-party lender that contracted to advance the money for the consumer, and ultimately the merchant, to meet their obligations to pay the sales tax; the bank's recourse was against the consumer who defaulted on the debt or possibly through any provisions in the credit card program contracts assigning responsibility for bad debts among the various parties. Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120 , 726 S.E.2d 617 (2012), cert. denied, No. S12C1281, 2012 Ga. LEXIS 1017 (Ga. 2012).

Statute as providing standing to attack constitutionality of other provisions. - Authority under this statute to bring an action for a refund does not provide standing to attack constitutionality of another statute when facts alleged show no injury from enforcement of such statute. Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295 , 149 S.E.2d 691 (1966).

State as real party at interest. - Action under this statute against the predecessor of the present commissioner in an official capacity as commissioner is an action against the state. Forrester v. Continental Gin Co., 67 Ga. App. 119 , 19 S.E.2d 807 (1942).

State, by this statute, has consented to be sued. Thompson v. Continental Gin Co., 73 Ga. App. 694 , 37 S.E.2d 819 (1946).

Consent to be strictly construed. - State may not be sued without the state's consent. If consent to be sued is extended by the state, the scope of consent may not be extended by implication. Therefore, this statute is to be strictly construed. Schaffer v. Oxford, 102 Ga. App. 710 , 117 S.E.2d 637 (1960).

Electrical membership corporation lacked associational standing to seek a sales tax refund on behalf of the corporation's members/patrons as the corporation was a nontaxpayer acting in a representative capacity and there was a very limited waiver of sovereign immunity provided by O.C.G.A. § 48-2-35 , which did not extend to nontaxpayers; further, the waiver of sovereign immunity by Ga. Const. 1983, Art. I, Sec. II, Para. IX(e) was to be strictly construed, and even a taxpayer was prohibited from bringing a refund action on behalf of other taxpayers similarly situated, pursuant to O.C.G.A. § 48-2-35 (b)(5). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22 , 608 S.E.2d 611 (2005).

Consent is conditioned on prior filing of refund claim. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

To whom consent granted. - Statute extends state's consent to be sued only with respect to overpayments by the taxpayer from whom such tax was collected. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Refundable Payments

Applicability of statute. - Statute is meant to apply in cases of taxes erroneously or illegally assessed or collected. Hawes v. Bigbie, 123 Ga. App. 122 , 179 S.E.2d 660 (1970).

What payments refundable. - Revenue derived through enforcement of executive order of commissioner providing for warehousing and other services with respect to distilled spirits passing through or stored in a state-operated warehouse and handled by state employees is not revenue obtained through tax or license within the purview of this statute. Schaffer v. Oxford, 102 Ga. App. 710 , 117 S.E.2d 637 (1960).

Compensation granted a dealer is not allowable for one's own tax liability. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169 , 198 S.E.2d 900 (1973).

Trial court properly dismissed the testing company's lawsuit brought pursuant to O.C.G.A. § 48-2-35 and seeking a refund of fees improperly assessed under the Motor Vehicle Emission Inspection and Maintenance Act, O.C.G.A. § 12-9-40 et seq., as the state revenue commissioner did not collect or administer the fee at issue and O.C.G.A. § 48-2-35 only applied to the illegal collection of a tax or license made by the state revenue commissioner. Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560 , 602 S.E.2d 153 (2004).

Dealer not required to prepay potentially refundable taxes prior to seeking approval of refund from Department of Revenue. - With regard to the period beginning by May 5, 2009 and ending on September 7, 2010, the court of appeals erred by affirming the dismissal of the dealer's case requesting a tax refund from the Georgia Department of Revenue because the statutes did not require a dealer to prepay potentially refundable taxes to consumers prior to seeking approval for a refund from the Department; and, although the Department's regulations required a dealer to pay any refund amount to the dealer's customers prior to the point that the dealer could acquire repayment of those funds from the Department, the statutes did not require a dealer to repay funds to the dealer's customers prior to filing a request for a refund or prior to the Department's decision of whether or not a refund was due. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 303 Ga. 468 , 813 S.E.2d 388 (2018).

Elements of Proof

Elements of proof of claim for refund. - In any case when tax was illegally collected, the plaintiff may file the plaintiff's claim for a refund, but in order to prevail upon the trial of the action the plaintiff must show that the taxing authority is not in equity and good conscience entitled to the money. Hawes v. Bigbie, 123 Ga. App. 122 , 179 S.E.2d 660 (1970).

As a prerequisite to maintenance of an action, the plaintiff must prove at trial the plaintiff's averment that the basis on which the plaintiff computed and paid taxes is that taxes were not first collected by the plaintiff from the plaintiff's customers and that the plaintiff bore the burden of taxes claimed to have been overpaid, not the plaintiff's customers. Otherwise, the plaintiff has not established a basis for asserting that the plaintiff as a retailer has overpaid the plaintiff's liability as a taxpayer. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171 , 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449 , 578 S.E.2d 110 (2003).

Denial of Claim

Refund of sales tax for failure to comply with regulations. - Grant of the Georgia Department of Revenue's motion to dismiss the appellants' complaint seeking a refund under O.C.G.A. § 48-2-35 of state sales tax paid was affirmed because the appellants failed to comply with a regulation that, before seeking a refund on behalf of their customers under § 48-2-35 , the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded to their customers, which the appellants admittedly had not done. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 340 Ga. App. 316 , 797 S.E.2d 190 (2017).

Effect of denial of claim by commissioner. - When claim for tax refund is denied by the commissioner, the taxpayer has action against the state for refund. The money, having been paid into the state treasury, is no longer within the power or control of the commissioner. Wright v. Forrester, 192 Ga. 864 , 16 S.E.2d 873 (1941).

State is the real party at interest on question of tax refund, and the statute imposes no further duty on the commissioner if the commissioner denies the claim. Wright v. Forrester, 192 Ga. 864 , 16 S.E.2d 873 (1941).

Limitation of action. - Letter from Department of Revenue denying a claim for refund of sales and use taxes commenced the running of the two-year limitations period even though the denial was for "lack of documentation" and there was subsequent communication between the taxpayer and the Department. Collins v. Columbus Foundries, Inc., 262 Ga. 710 , 425 S.E.2d 281 (1993).

OPINIONS OF THE ATTORNEY GENERAL

What payments refundable. - Payment of retail liquor license by the owner of a store, which the owner shortly thereafter sold to another, is not recoverable if voluntarily made. 1948-49 Op. Att'y Gen. p. 593.

Language of this statute clearly limits refunds made to such taxes which may be determined to have been erroneously or illegally assessed and collected. Therefore, license fees voluntarily paid for motor vehicle license plates cannot be recovered when the owner of such vehicle later decides not to operate the vehicle within the state. 1950-51 Op. Att'y Gen. p. 190.

Statute applies only to taxes paid to the state and has no application to the recording tax imposed on long-term real estate notes. 1960-61 Op. Att'y Gen. p. 521.

Overpayment of income taxes resulting from excess withholdings may not be recovered under normal circumstances by filing a claim for refund or by obtaining credit against liability of different years, when the taxpayer does not file an income tax return until more than three years after the date of payment. 1976 Op. Att'y Gen. No. 76-54.

Election by husband and wife to change from joint return to separate returns. - Husband and wife may amend a previously filed return or returns so as to change from joint return basis to separate return basis, or vice versa, but beyond the due date of the return they no longer have such right of election. The tax resulting from such election is not erroneously or illegally assessed or collected and no refund shall be issued, even if the tax is higher than if they had not so elected. 1963-65 Op. Att'y Gen. p. 589.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 965 et seq.

ALR. - Right to interest on tax refunds, 57 A.L.R. 357 .

When may payment of tax or assessment be regarded as involuntary or made under duress, 64 A.L.R. 9 ; 84 A.L.R. 294 .

Corporation which pays tax wrongfully exacted upon shares of its stock as proper party to maintain action for its recovery, 84 A.L.R. 107 .

Action to recover back tax illegally exacted as one upon contract as regards applicability of limitation statutes, 92 A.L.R. 1360 .

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284 .

Excessive assessments as within contemplation of statute providing for refunding of taxes erroneously or illegally charged, 110 A.L.R. 670 .

Right to amend claim for refund of taxes after time for filing has expired, 113 A.L.R. 1291 .

Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542 .

Statute repealing or modifying previous statute providing for refunding of taxes illegally or erroneously assessed, collected, or paid, as applicable retroactively, 124 A.L.R. 1480 .

Assignability of claim for tax refund, and rights of assignee in respect thereof, 134 A.L.R. 1202 .

Right of payer, as against taxing authority, to refund of, or credit for, amount paid on another's income tax, 154 A.L.R. 159 .

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 154 A.L.R. 1052 ; 12 A.L.R.2d 815.

Power or duty, in absence of statute, to allow tax or license fee illegally exacted or erroneously paid as credit on valid tax or license fee, 160 A.L.R. 1423 .

Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778 .

Right to refund or recovery of back taxes paid on property not owned by taxpayer, 165 A.L.R. 879 .

When does special limitation period for filing applications for tax refund begin to run, 175 A.L.R. 1100 .

Retrospective application and effect of statutory provision for interest or changed rate of interest, 4 A.L.R.2d 932.

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 12 A.L.R.2d 815.

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

What constitutes laches barring right to relief in taxpayer's action, 71 A.L.R.2d 529.

Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Refund of state inheritance or estate tax where claims are proven against estate after tax was paid, 63 A.L.R.3d 924.

Propriety of class action in state courts to recover taxes, 10 A.L.R.4th 655.

Recovery of tax paid on exempt property, 25 A.L.R.4th 186.

Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147.

Retrospective application and effect of state statute or rule allowing interest or changing rate of interest on judgments or verdicts, 41 A.L.R.4th 694.

Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

Voluntary payment doctrine as bar to recovery of payment of generally unlawful tax, 1 A.L.R.6th 229.

Construction and operation of statutory time limit for filing claim for state tax refund, 14 A.L.R.6th 119.

Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437.

What constitutes payment for purposes of commencing limitations period under Internal Revenue Code (26 U.S.C.A. § 6511(a)) for refund of tax overpayments, 160 A.L.R. Fed. 137.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

48-2-35.1. Refund of sales and use taxes; expedited refunds.

  1. If a certificate or exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase tangible personal property or taxable services without the payment of sales and use tax has not been obtained and used prior to purchasing such tangible personal property or taxable services, a refund of sales and use taxes shall be made without interest.
  2. Any taxpayer who wishes to expedite the payment of a sales and use tax claim for refund may apply to the commissioner for such expedited refund; and as part of such application the taxpayer shall file a bond that is satisfactory to the commissioner as security for the repayment of such refund and any applicable tax, interest, penalties, fees, or costs in the event that the commissioner determines within the applicable statute of limitations that all or a portion of such refund was paid in error. The commissioner shall issue the refund within 30 days of the date of the posting of the approved bond. Any assessment of tax, interest, penalties, fees, or costs related to the payment of such refund claim shall be made within three years after the date that such refund was paid by the commissioner.
    1. As used in this subsection, the term:
      1. "Disregard" means any careless, reckless, or intentional disregard.
      2. "Excessive amount" means that portion of the claim for refund that exceeds the amount that is eligible for refund and for which there is no reasonable basis.
      3. "Frivolously filed" means a sales and use tax claim for refund in which the amount claimed exceeds the amount eligible for refund by at least 50 percent.
      4. "Negligence" includes any failure to make a reasonable attempt to comply with the provisions of this title.
      5. "Reasonable basis" means a position that is reasonably based on one or more of the following authorities: applicable provisions of this title and other statutory provisions; proposed and adopted regulations construing such statutes; court cases; official opinions of the Attorney General; and letter rulings, policy statements, informational bulletins, and other administrative pronouncements published by the commissioner. Notwithstanding the preceding list of authorities, an authority shall not continue to be an authority to the extent it is overruled or modified, implicitly or explicitly, by a body with the power to overrule or modify the earlier authority.
    2. Any taxpayer who frivolously files a sales and use tax claim for refund shall be subject to a penalty of 20 percent of the excessive amount. No penalty shall be assessed pursuant to this subsection against any portion of an excessive amount for which a refund is claimed in good faith and the filing of which was not due to negligence or disregard of the law. The determination of whether a taxpayer acted in good faith shall be made on a case-by-case basis, taking into account all pertinent facts and circumstances. Generally, the most important factor in such determination is the extent of the taxpayer's effort to assess the taxpayer's proper tax liability. Circumstances that may indicate good faith shall include an honest misunderstanding of fact or law that is reasonable in light of all the facts and circumstances, including the experience, knowledge, and education of the taxpayer. An isolated computational or transcriptional error generally is not inconsistent with good faith.
    3. In addition to the penalty imposed under paragraph (2) of this subsection, when all or part of the excessive amount of the taxpayer's claim for refund is based on a position which is knowingly and willfully advanced in bad faith and is patently improper, such taxpayer shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $1,000.00.
  4. Except as provided for in this subsection, for the purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term "taxpayer" as used in Code Section 48-2-35 shall mean a dealer as defined in Code Section 48-8-2 that collected and remitted erroneous or illegal sales and use taxes to the commissioner. A person that has erroneously or illegally paid sales taxes to a dealer that collected and remitted such taxes to the commissioner may file a claim for refund either initially with the commissioner or, alternatively, elect to seek a refund from the dealer, by submitting a written request for refund to the dealer, and file a claim for refund with the commissioner after being unable to obtain a refund from such dealer. Such person shall also be considered a taxpayer for purposes of filing a claim for refund with the commissioner under Code Section 48-2-35 , but only if such person:
    1. When filing a refund claim initially with the commissioner, provides the department with a notarized form prescribed by the commissioner and executed by the dealer affirming that the dealer:
      1. Has not claimed or will not claim a refund of the same tax included in the person's request for refund;
      2. Will provide to the person any information or documentation in the dealer's possession needed for submission to the department to support or prove the claim for refund;
      3. Has remitted to the state the taxes being sought for refund; and
      4. Has not taken or will not take a credit for taxes being sought for refund; or
      1. When filing a refund claim with the commissioner after being unable to obtain a refund from such dealer, such person provides a letter or other information as may be requested by the commissioner that either:
        1. The dealer refused or was unable to refund the erroneously or illegally assessed and collected taxes; or
        2. The dealer did not act upon the person's written request for refund of the erroneously or illegally assessed and collected taxes within 90 days from the date of such request for refund.
      2. Upon acceptance of such letter or information by the commissioner, the dealer shall be deemed to have assigned all rights to the refund to such person. (Code 1981, § 48-2-35.1 , enacted by Ga. L. 2004, p. 630, § 1; Ga. L. 2009, p. 813, § 1/HB 441; Ga. L. 2009, p. 816, § 4/HB 485; Ga. L. 2013, p. 677, § 1/SB 137.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, subsection (a) as enacted by Ga. L. 2009, p. 816, § 4/HB 485 was redesignated as subsection (d). Subsection (b) as designated by Ga. L. 2009, p. 816, § 4/HB 485 was identical to subsection (a) as designated by Ga. L. 2009, p. 813, § 1/HB 441, so the subsection (a) designation by Ga. L. 2009, p. 813, § 1/HB 441, was retained.

Editor's notes. - Ga. L. 2004, p. 630, § 2, not codified by the General Assembly, provides that this Code section shall be applicable to any sales and use tax refund claim filed on or after July 1, 2004.

Ga. L. 2009, p. 816, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Improved Taxpayer Customer Service Act of 2009.'"

JUDICIAL DECISIONS

Direct cause of action not permitted. - Since the plain language of O.C.G.A. § 48-2-35.1(d) provides that a person may seek a refund of erroneously paid sales tax from a dealer who collected and remitted the tax to the commissioner or directly from the commissioner, but does not mention a direct cause of action against the dealer, the customers were not authorized to bring a direct action for a refund of allegedly over-collected sales tax against the power company. Ga. Power Co. v. Cazier, 321 Ga. App. 576 , 740 S.E.2d 458 (2013).

Dealer not required to prepay potenially refundable taxes prior to seeking approval of refund from Department of Revenue. - With regard to the period beginning by May 5, 2009 and ending on September 7, 2010, the court of appeals erred by affirming the dismissal of the dealer's case requesting a tax refund from the Georgia Department of Revenue because the statutes did not require a dealer to prepay potentially refundable taxes to consumers prior to seeking approval for a refund from the Department; and, although the Department's regulations required a dealer to pay any refund amount to the dealer's customers prior to the point that the dealer could acquire repayment of those funds from the Department, the stautes did not require a dealer to repay funds to the dealer's customers prior to filing a request for a refund or prior to the Department's decision of whether or not a refund was due. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 303 Ga. 468 , 813 S.E.2d 388 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting not required. - An offense arising from a violation of O.C.G.A. § 48-2-35.1 does not, at this time, appear to be an offense for which fingerprinting is required; thus, this offense is not designated as one for which those charged are to be fingerprinted. 2010 Op. Att'y Gen. No. 2010-2.

RESEARCH REFERENCES

ALR. - Construction and operation of statutory time limit for filing claim for state tax refund, 14 A.L.R.6th 119.

48-2-36. Extension of time for returns.

  1. The commissioner may grant, upon written request, a reasonable extension of time for filing returns, declarations, or other documents required under state revenue laws whenever, in the reasonable exercise of such commissioner's judgment, a good cause for the extension exists. The commissioner shall keep a record of every extension granted and the reason for the extension. No extension or extensions, except as otherwise expressly provided by law, shall aggregate more than six months, nor shall any extension of time for filing returns, except as otherwise expressly provided by law, operate to delay the payment of a tax unless a bond satisfactory to the commissioner is posted. In no event shall the commissioner extend the time of filing returns which are required to be filed with the tax receiver or tax commissioner.
  2. Notwithstanding any other provision in the laws of this state, in the case of a taxpayer determined by the commissioner to be affected by a presidentially declared disaster, as defined in Internal Revenue Code Section 1033(h)(3), or a terroristic or military action, as defined in Internal Revenue Code Section 692(c)(2), the commissioner may specify a period of up to one year that may be disregarded in determining, under the laws of this state, in respect of any tax liability, fee liability, or other liability of such taxpayer:
    1. Whether any of the actions described in subsection (c) of this Code section were performed within the time prescribed therefor, determined without regard to extension under any other provision of the laws of this state for periods after the date, as determined by the commissioner, of such disaster or action;
    2. The amount of any interest, penalty, or addition to the taxes, fees, or other liability for periods after the date, as determined by the commissioner, of such disaster or action; and
    3. The amount of any refund.
  3. Actions which may be extended:
    1. Filing any return of taxes, fees, or other liability;
    2. Payment of any taxes, fees, or other liability or any installment thereof;
    3. Filing a petition with the superior court, the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50, or the Office of State Administrative Hearings as allowed under the laws of this state;
    4. Allowance of a refund of any taxes, fees, or other liability;
    5. Filing a claim for refund of any taxes, fees, or other liability;
    6. Bringing suit upon any such claim for refund;
    7. Assessment of any taxes, fees, or other liability;
    8. Giving or making any notice, assessment, or demand for the payment of any taxes, fees, or other liability;
    9. Collection, by the commissioner, by tax execution, or otherwise, of the amount of any liability of any taxes, fees, or other liability;
    10. Bringing suit by the department, or any officer on its behalf, in respect of any liability in respect of any taxes, fees, or other liability; and
    11. Any other action required or permitted under the laws administered by the commissioner.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 27; Code 1933, § 91A-234, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 200, § 4/HB 1310; Ga. L. 2012, p. 318, § 3/HB 100; Ga. L. 2016, p. 864, § 48/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised capitalization in paragraph (c)(3).

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides, in part, that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

RESEARCH REFERENCES

ALR. - Power of officer charged with duty of extending taxes to add to amount certified to him, 110 A.L.R. 126 .

48-2-37. Preparation of delinquent returns.

In any case in which any return, report, or other information is not filed or made available to the commissioner as required by law, the commissioner may proceed at the expense of the delinquent taxpayer to ascertain such information in any way which the commissioner reasonably considers proper or appropriate; and the commissioner is authorized to prepare, execute, and file such returns. Any return so made and filed by the commissioner or his agent shall be prima facie correct and sufficient for all legal purposes.

(Ga. L. 1931, Ex. Sess., p. 24, § 48; Code 1933, § 92-3212; Ga. L. 1937, p. 109, § 16; Ga. L. 1937-38, Ex. Sess., p. 77, § 35; Code 1933, § 91A-246, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Construction with other provisions. - Construing former Code 1933, § 92-3212 (see now O.C.G.A. § 48-2-37 ) together with former Code 1933, Ch. 92-30 through 92-33C (see now O.C.G.A. Ch. 7, T. 48), the General Assembly did not intend more than that the return prepared by the commissioner should take the place of a return prepared by the taxpayer. Therefore, the commissioner has authority to make and file a return on behalf of a delinquent taxpayer when no return has been filed, and such return may be based upon the best information available to the commissioner. 1954-56 Op. Att'y Gen. p. 757.

It was the intent of the General Assembly that the procedure provided in former Code 1933, § 92-3302 (see now O.C.G.A. § 48-2-48 ) should be followed regardless of whether a return was filed by the taxpayer personally or the commissioner under former Code 1933, § 92-3212 (see now O.C.G.A. § 48-2-37 ) in the commissioner's behalf. Therefore, the commissioner or the commissioner's deputy cannot issue a fieri facias in cases when a return was made and filed under former Code 1933, § 92-3212 without making a formal assessment under the procedure provided for in former Code 1933, § 92-3302. 1954-56 Op. Att'y Gen. p. 757.

48-2-38. Due date; interest on deferred taxes.

  1. Except as otherwise expressly provided by law, all state taxes and licenses except ad valorem and income taxes shall be due and payable either with the return or within 30 days after notice, as the case may be.
  2. When the collection of any tax specified in subsection (a) of this Code section is deferred under any law and unless a higher rate of interest or penalty is fixed by law, interest at the rate specified in Code Section 48-2-40 shall be collected thereon from the due date until the date of payment.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 28; Code 1933, § 91A-235, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 724, 730, 767.

48-2-39. When date for payment or filing on holiday.

When the date prescribed by or imposed pursuant to law for the making of any return, the filing of any paper or document, or the payment of any tax or license fee pursuant to this title or any law relating to the taxation and licensing of automobiles, trucks, or trailers falls on a Saturday, Sunday, legal holiday, or day on which the Federal Reserve Bank is closed, the making of the return, the filing of the paper or document, or the payment of the tax or license fee shall be postponed by the person required to take such action until the first day following which is not a Saturday, Sunday, legal holiday, or day on which the Federal Reserve Bank is closed.

(Code 1933, § 91A-236, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 712, § 1; Ga. L. 2015, p. 888, § 1/HB 234.)

The 2015 amendment, effective May 6, 2015, substituted "Sunday, legal holiday, or day on which the Federal Reserve Bank is closed" for "Sunday, or legal holiday" in the middle and at the end of this Code section.

48-2-40. Rate of interest on past due taxes.

Except as otherwise expressly provided by law, taxes owed the state or any local taxing jurisdiction shall bear interest at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly. Such annual interest rate shall be determined for each calendar year based on the first weekly posting of statistical release H. 15 on or after January 1 of each calendar year. Interest shall begin to accrue from the date the tax is due until the date the tax is paid. For the purposes of this Code section, any period of less than one month shall be considered to be one month. This Code section shall also apply to alcoholic beverage taxes.

(Code 1933, § 91A-239.2, enacted by Ga. L. 1980, p. 10, § 4; Ga. L. 1980, p. 1759, § 1; Ga. L. 2016, p. 574, § 3/HB 960.)

The 2016 amendment, effective July 1, 2016, in the first sentence, substituted "at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly" for "at the rate of 1 percent per month", added the second sentence, and added "Interest shall begin to accrue" at the beginning of the third sentence. See Editor's notes for applicability.

Cross references. - Penalties for failure to pay taxes or license fees on alcoholic beverages, § 3-2-11 .

Editor's notes. - Ga. L. 2016, p. 574, § 6(b)/HB 960, not codified by the General Assembly, provides: "The new penalty and interest rates provided in Sections 2, 3, and 4 of this Act shall apply to penalties and interest accrued on or after the effective date of this Act." This Act became effective July 1, 2016.

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990).

JUDICIAL DECISIONS

Failure to award interest. - When a trial court found a tax commissioner improperly refused to pay a tax execution holder's executions, but did not find the commissioner had good cause for the refusal and did not award the holder 20 percent interest, pursuant to O.C.G.A. § 15-13-3(a) , the matter had to be remanded for a determination of the good cause issue and to consider the holder's entitlement to one percent interest per month, pursuant to O.C.G.A. §§ 48-2-40 and 48-3-20 . Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

OPINIONS OF THE ATTORNEY GENERAL

Reference in O.C.G.A. § 48-2-40 to a month means that period of time from any day of a month to the same (or nearest) day of the next succeeding month. 1982 Op. Att'y Gen. No. U82-19.

48-2-41. Authority to waive interest on unpaid taxes.

The commissioner may waive the collection of any interest, in whole or in part, due the state on any unpaid taxes whenever or to the extent that he reasonably determines that the delay in payment of the taxes was attributable to the action or inaction of the department.

(Ga. L. 1960, p. 990, § 2; Code 1933, § 91A-238, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48.)

OPINIONS OF THE ATTORNEY GENERAL

Authority if facts undisputed and assessment correct. - There is no provision authorizing the commissioner to compromise or settle the principal amount of tax in dispute when there is no dispute as to the facts and the commissioner finds that the assessment is correct in all respects. 1969 Op. Att'y Gen. No. 69-30.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 749, 750.

C.J.S. - 85 C.J.S., Taxation, §§ 743 et seq., 1750 et seq.

ALR. - Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

48-2-42. Nature of penalties.

All penalties imposed by law are part of the tax and are to be collected as such. The proceedings to collect the original tax, the tax constituted from penalties imposed, and the interest shall all be conducted in the same manner. Any provision of law for criminal prosecution shall not operate under the tax laws of this state to relieve any taxpayer of any tax, penalty, or interest imposed by law.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 37; Code 1933, § 91A-237, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Cited in Bannister v. Douglas County Bd. of Tax Assessors, 219 Ga. App. 68 , 464 S.E.2d 29 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Construction with other provisions. - Penalty collected under former Code 1933, § 92-6913 (see now O.C.G.A. § 48-5-299 ) should be paid into the county treasury, and remain the property of the county, notwithstanding Ga. L. 1937-38, Ex. Sess., p. 77, § 37 (see now O.C.G.A. § 48-2-42 ). 1954-56 Op. Att'y Gen. p. 577.

Penalties for failure to make timely tax returns arising under former Code 1933, § 92-6913 (see now O.C.G.A. § 48-5-299 ) were property of the county, and no division should be made for the state or the school system. Since under former Code 1933, § 92-6913, penalties must be paid into the county treasury, Ga. L. 1937-38, Ex. Sess., p. 77, § 37 (see now O.C.G.A. § 48-2-42 ) did not affect the matter, even though Ga. L. 1937-38, Ex. Sess., p. 77, § 37 stated that penalties were part of the tax. 1972 Op. Att'y Gen. No. U72-22.

Statute makes penalties and interest as much a part of the tax as the tax itself. 1963-65 Op. Att'y Gen. p. 25.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 717.

C.J.S. - 85 C.J.S., Taxation, §§ 1715, 1728 et seq., 1742, 1747 et seq.

ALR. - Constitutionality of legislation prescribing rate of interest or penalty for nonpayment of taxes, or the conditions liability in that regard, operative only in certain political subdivisions, 111 A.L.R. 1354 .

Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 147 A.L.R. 142 .

Debts arising from tax penalties as exceptions to bankruptcy discharge under § 523(a)(7)(A) and (B) of Bankruptcy Code of 1978 (11 USCA § 523(a)(7)(A) and (B)), 157 A.L.R. Fed. 313.

48-2-43. Authority to waive penalties.

The commissioner may waive, in whole or in part, the collection of any amount due the state as a penalty under any revenue law of this state whenever or to the extent that he reasonably determines that the default giving rise to the penalty was due to reasonable cause and not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law.

(Ga. L. 1960, p. 990, § 1; Code 1933, § 91A-239, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Grounds for waiving penalty. - There is no provision authorizing the commissioner to compromise or settle the principal amount of tax in dispute when there is no dispute as to the facts and the commissioner finds that the assessment is correct in all respects. 1969 Op. Att'y Gen. No. 69-30.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 749.

C.J.S. - 85 C.J.S., Taxation, §§ 1711 et seq., 1743.

ALR. - Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 147 A.L.R. 142 .

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

48-2-44. Penalty and interest on failure to file return or pay revenue held in trust for state; penalty and interest on willful failure to pay ad valorem tax; distribution of penalties and interest.

  1. In any instance in which any person willfully fails to file a report, return, or other information required by law or willfully fails to pay the commissioner any revenue held in trust for the state, such person shall pay, in the absence of a specific statutory civil penalty for the failure, a penalty of 10 percent of the amount of revenue held in trust and not paid on or before the time prescribed by law, together with interest on the principal amount at the rate specified in Code Section 48-2-40 from the date the return should have been filed or the revenue held in trust should have been remitted until it is paid.
    1. In any instance in which any person willfully fails, on or after July 1, 1981, to pay, within 120 days of the date when due, any ad valorem tax owed the state or any local government, such person shall pay, in the absence of a specific statutory civil penalty for the failure, a penalty of 5 percent of the amount of tax due and not paid at the time such penalty is assessed, together with interest as specified by law. After 120 days from the imposition of the initial penalty, an additional penalty of 5 percent of any tax amount remaining due shall be imposed, together with interest as specified by law. If any tax amount remains due after 120 days from the imposition of such additional penalty, a penalty of 5 percent shall be imposed, together with interest as specified by law. Should any tax amount remain due 120 days after such date, a penalty of 5 percent shall be imposed, together with interest as specified by law. The aggregate amount of penalties imposed pursuant to this subsection shall not exceed an amount equal to 20 percent of the principal amount of the tax originally due. These penalties shall not, however, apply in the case of:
      1. Ad valorem taxes of $500.00 or less on homestead property as defined in Part 1 of Article 2 of Chapter 5 of this title; or
      2. With respect to tax year 1986 and future tax years, ad valorem taxes of any amount on homestead property as defined in Part 1 of Article 2 of Chapter 5 of this title, if the homestead property was during the tax year acquired by a new owner who did not receive a tax bill for the tax year and who immediately before acquiring the homestead property resided outside the State of Georgia and if the taxes are paid within one year following the due date.
    2. Any city or county authorized as of April 22, 1981, by statute or constitutional amendment to receive a penalty of greater than 10 percent for failure to pay an ad valorem tax is authorized to continue to receive that amount.
    3. With respect to all penalties and interest received by the tax commissioner on or after July 1, 1998, unless otherwise specifically provided for by general law, the tax commissioner shall distribute penalties collected and interest collected or earned as follows:
      1. Penalties collected for failure to pay ad valorem taxes attributable to the Board of Education or independent school district shall be paid into the county treasury in the same manner and at the same time the tax is collected and distributed to the county, and they shall remain the property of the county;
      2. Interest earned by the tax commissioner on taxes collected but not yet disbursed shall be distributed pro rata based on each taxing jurisdiction's share of the total amount upon which the interest was computed; and
      3. Except as otherwise provided in subparagraph (A) of this paragraph, penalties collected for failure to return property for ad valorem taxation or failure to pay ad valorem taxes, and interest collected on delinquent ad valorem taxes, shall be distributed pro rata based on each taxing jurisdiction's share of the total tax on which the penalty or interest was computed.

        (Ga. L. 1937-38, Ex. Sess., p. 77, § 38; Code 1933, § 91A-239.1, enacted by Ga. L. 1979, p. 5, § 10; Ga. L. 1980, p. 10, § 3; Ga. L. 1981, p. 1857, § 5; Ga. L. 1986, p. 1322, § 1; Ga. L. 1998, p. 1120, § 1; Ga. L. 1999, p. 81, § 48; Ga. L. 2015, p. 1219, § 4/HB 202; Ga. L. 2016, p. 574, § 4/HB 960.)

The 2015 amendment, effective January 1, 2016, substituted "such person shall pay" for "he shall pay" in subsection (a) and the introductory language of paragraph (b)(1); and substituted "at the time such penalty is assessed" for "on or before the time prescribed by law" in the first sentence of the introductory language of paragraph (b)(1).

The 2016 amendment, effective July 1, 2016, substituted the present provisions of the introductory paragraph of paragraph (b)(1) for the former provisions, which read: "In any instance in which any person willfully fails, on or after July 1, 1981, to pay, within 90 days of the date when due, any ad valorem tax owed the state or any local government, such person shall pay, in the absence of a specific statutory civil penalty for the failure, a penalty of 10 percent of the amount of tax due and not paid at the time such penalty is assessed, together with interest as specified by law. This 10 percent penalty shall not, however, apply in the case of:"; substituted the present provisions of subparagraph (b)(3)(A) for the former provisions, which read: "Penalties collected for failure to return property for ad valorem taxation or for failure to pay ad valorem taxes, and interest earned by the tax commissioner on taxes collected but not yet disbursed, shall be paid into the county treasury in the same manner and at the same time the tax is collected and distributed to the county, and they shall remain the property of the county; and"; added subparagraph (b)(3)(B); redesignated former subparagraph (b)(3)(B) as present subparagraph (b)(3)(C); and substituted the present provisions of subparagraph (b)(3)(C) for the former provision, which read: "Interest collected on delinquent ad valorem taxes shall be distributed pro rata based on each taxing jurisdiction's share of the total tax on which the interest was computed." See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 574, § 6(b)/HB 960, not codified by the General Assembly, provides: "The new penalty and interest rates provided in Sections 2, 3, and 4 of this Act shall apply to penalties and interest accrued on or after the effective date of this Act." This Act became effective July 1, 2016.

JUDICIAL DECISIONS

Cited in Averett v. Troup County, 219 Ga. App. 74 , 464 S.E.2d 32 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Penalty provided in subsection (b) of O.C.G.A. § 48-2-44 is automatic and mandatory, and must be imposed whenever conditions set forth are satisfied. 1981 Op. Att'y Gen. No. 81-86.

Penalty and execution fee cumulative. - If circumstances set forth in each section are met, the penalty provided by subsection (b) of O.C.G.A. § 48-2-44 and the execution fee provided by O.C.G.A. § 48-5-161(c) are cumulative in nature. 1982 Op. Att'y Gen. No. U82-37.

Penalty provided in subsection (b) of O.C.G.A. § 48-2-44 applies to all state and local ad valorem property taxes, except when the original tax due is $500.00 or less and is on homestead property as defined in O.C.G.A. Art. 2, Ch. 5, T. 48. The penalty applies to no other taxes. 1981 Op. Att'y Gen. No. 81-86.

Applicability of penalty provisions. - Penalty and fees provided in O.C.G.A. §§ 48-2-44 and 48-5-161 would apply to unpaid ad valorem taxes which were assessed in 1981, 1982, and 1983 as follows: When the statutory prerequisites of O.C.G.A. § 48-2-44 have been met, a penalty of 10 percent of the amount of tax due and not timely paid would apply to ad valorem taxes which were unpaid after July 1, 1981. In addition, a 10 percent execution fee would apply to ad valorem tax executions issued on or after July 1, 1982 and before March 15, 1983. In keeping with the reasoning employed in Ops. Att'y Gen. 81-76 and 82-72, only those executions issued on or after March 15, 1983, the effective date of O.C.G.A. § 48-5-161 , as amended by Ga. L. 1983, p. 575, would not be subject to a 10 percent execution fee, but the amount collected on these executions would include all costs, commissions, interest, and penalties as provided by law. 1984 Op. Att'y Gen. No. U84-25.

Local school systems are entitled to a proportionate share of funds raised through imposition of the penalty specified in subsection (b) of O.C.G.A. § 48-2-44 . 1983 Op. Att'y Gen. No. 83-20.

Subsection (b) of O.C.G.A. § 48-2-44 does not penalize nonpayment of taxes which became due more than 90 days prior to July 1, 1981, because that subsection connects failure to pay on or after July 1, 1981, with a requirement that the tax be paid within 90 days of the due date. 1981 Op. Att'y Gen. No. 81-86.

Part-payments between due date and penalty date (90 days after due date) do not affect the penalty because the penalty provided in subsection (b) of O.C.G.A. § 48-2-44 is calculated based upon the amount of tax not paid when due. 1981 Op. Att'y Gen. No. 81-86.

Protection from penalty for taxes owed on homestead. - Municipality of Thunderbolt may not collect the penalty imposed by O.C.G.A. § 48-2-44 for failure to pay taxes of $500.00 or less on homestead property. 1987 Op. Att'y Gen. No. U87-15.

Accruing interest on unpaid estate taxes. - Unpaid tax begins bearing interest from the date the return was filed or as of the last date provided for filing the return, if no return was submitted; this interest continued to accrue until settlement, unless an execution was issued pursuant to former Code 1933, § 92-3404 (see now O.C.G.A. § 48-12-6). 1970 Op. Att'y Gen. No. 70-139.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 738 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1712 et seq.

ALR. - Business situs of intangibles in state other than domicile of owner as excluding tax at domicile, 79 A.L.R. 344 .

Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 96 A.L.R. 925 ; 147 A.L.R. 142 .

Penalty for nonpayment of taxes when due as affected by lack of notice to taxpayer, 102 A.L.R. 405 .

Constitutionality of legislation prescribing rate of interest or penalty for nonpayment of taxes, or the conditions liability in that regard, operative only in certain political subdivisions, 111 A.L.R. 1354 .

Doubt as to liability for, or as to person to whom to pay, tax, as affecting liability for penalties and interest, 137 A.L.R. 306 .

48-2-44.1. Failure to follow electronic filing requirements; waivers for undue hardships; justification for failure to follow.

  1. When this title requires that any return pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax be electronically transmitted or filed, or provides that the commissioner may by rule or regulation require that any return pertaining to sales tax, use tax, withholding tax, or motor fuel distributor tax be electronically transmitted or filed, and a taxpayer fails to electronically transmit or file such return, the taxpayer shall be deemed to have failed to make the required filing; provided, however, that any such taxpayer whose electronic filing was first transmitted on or before the due date of the return, including any extensions, and was rejected shall be allowed to perfect the electronic filing under rules consistent with those applied by the Internal Revenue Service with respect to rejections of returns which are required to be electronically transmitted or filed. Such deemed failure to make the required filing shall also result in the forfeiture of the compensation of dealers for reporting and paying tax provided in Code Section 48-8-50 since such Code section provides such compensation only if such return is timely filed. The penalty imposed on the taxpayer for such failure shall be the greater of $25.00 for each such return or 5 percent of the tax due on each such return before application of any payments or credits. Such $25.00 penalty or 5 percent penalty amount shall be consistent with the penalty imposed on the failure to file a withholding tax return as provided in Code Section 48-7-126.
  2. The commissioner may grant waivers of the requirements of this Code section in cases of undue hardship.
  3. No penalties shall be assessed pursuant to this Code section upon a showing by the taxpayer or the tax return preparer that the failure was due to reasonable cause and not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law. (Code 1981, § 48-2-44.1 , enacted by Ga. L. 2009, p. 648, § 2/HB 334.)

Administrative Rules and Regulations. - Electronic funds transfer, credit card payments, and electronic filing, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fiscal Operations Division, Substantive Regulations, § 560-3-2-.26.

48-2-45. Service of notice of assessment.

    1. In all cases in which the commissioner is required by law to provide an opportunity to appeal, the assessment of a tax or license fee shall become final if no written appeal is filed by the taxpayer with the commissioner within 30 days of the date of the notice of assessment.
    2. For the purposes of this subsection, the notice shall be deemed to have been given if written notice is sent by registered or certified or first-class mail or by statutory overnight delivery and addressed to the taxpayer at his or her last known address, as shown on the records of the department.
  2. A notice of assessment by the commissioner or his or her delegate of any tax or license fee shall be sufficiently served upon the person assessed if it is sent by registered or certified or first-class mail or by statutory overnight delivery to the person at his or her address as shown on the records of the department.
  3. If no return receipt is on file or if notice is returned, the notice shall be by personal service; except that, if the notice mailed by registered, certified, or first-class mail or statutory overnight delivery, as provided in this Code section, is returned as "refused" or "unclaimed," the notice shall be sufficiently served.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 29; Ga. L. 1961, p. 435, § 1; Code 1933, § 91A-240, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 6; Ga. L. 1981, p. 1903, § 2; Ga. L. 1983, p. 1834, § 2; Ga. L. 1989, p. 1400, § 1; Ga. L. 1993, p. 961, § 1; Ga. L. 2000, p. 1589, § 13.)

Editor's notes. - Ga. L. 1989, p. 1400, § 2, not codified by the General Assembly, provides that the amendments to this Code section shall apply with respect to notices mailed after January 1, 1989.

Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

OPINIONS OF THE ATTORNEY GENERAL

Applicability of section to sales taxes. - It is manifest that Ga. L. 1937-38, Ex. Sess., p. 77, § 29 (see now O.C.G.A. § 48-2-45 ) is applicable only to those cases when the law requires the commissioner to give the taxpayer an opportunity to protest the assessment. Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Ch. 8, T. 48) does not contain any requirement that the taxpayer be given an opportunity to protest; therefore, the General Assembly did not intend that the procedure embodied in Ga. L. 1937-38, Ex. Sess., p. 77, § 29 should be applicable to sales taxes. 1954-56 Op. Att'y Gen. p. 833.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 669 et seq.

C.J.S. - 84 C.J.S., Taxation, § 480, 610.

ALR. - Sufficiency of compliance with statute providing for service by mail of notice in tax procedure, 155 A.L.R. 1279 .

48-2-46. Procedures for protests.

Any taxpayer may contest any proposed assessment or license fee made or determined by the commissioner by filing with the commissioner a written protest at any time within 30 days from the date of notice of the proposed assessment or license fee or within such other time limit as may be specified within the notice of proposed assessment or license fee, if a different time limit is specified. All protests shall be prepared in the form and contain such information as the commissioner shall reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies and his reasons for disputing the finding of the commissioner. The filing of a written protest, a petition for redetermination of a deficiency, or a written request by the taxpayer for additional time for filing such a petition shall toll the period of limitations for making an assessment until the petition is denied by the commissioner or the request is withdrawn in writing by the taxpayer. In the event the taxpayer desires a conference or hearing, the fact of such desire must be set out in the protest. The commissioner shall grant a conference before his officers or agents as he may designate at a time he shall specify and shall make such reasonable rules governing the conduct of conferences as he may deem proper. The discretion given in this Code section to the commissioner shall be reasonably exercised on all occasions.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 30; Code 1933, § 91A-241, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 7; Ga. L. 1993, p. 961, § 2.)

Law reviews. - For article discussing general administrative procedures of the department as they relate to the assessment and collection of income taxes, see 27 Mercer L. Rev. 309 (1975).

JUDICIAL DECISIONS

Federal rights protected. - Georgia's remedies for contesting tax assessments and collection practices are sufficient to protect taxpayers' federal rights under U.S. Const., amend. 14. Ayers v. Polk County, 697 F.2d 1375 (11th Cir. 1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 681, 696.

C.J.S. - 53 C.J.S., Licenses, § 108. 84 C.J.S., Taxation, § 584 et seq.

ALR. - When may payment of tax or assessment be regarded as involuntary or made under duress, 64 A.L.R. 9 ; 84 A.L.R. 294 .

Injunction as proper remedy against tax on exempt property, 84 A.L.R. 1315 .

Grounds stated in protest against payment of property tax as a limitation of grounds upon which recovery back of tax may be claimed, 113 A.L.R. 1479 .

Right to refund or recovery back of taxes paid on property not owned by taxpayer, 165 A.L.R. 879 .

Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576.

Standing of one taxpayer to complain of underassessment or nonassessment of property of another for state and local taxation, 9 A.L.R.4th 428.

48-2-47. Final assessments and license fees.

In all cases in which a protest is lawfully filed by a taxpayer, the commissioner shall consider the information contained in the protest and information submitted by the taxpayer in conference or hearing before the commissioner or his officers or agents. The commissioner shall proceed to make a final assessment or to fix a final license fee and shall notify the taxpayer of the amount of the assessment or fee, subject to the right of appeal as provided by law.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 31; Code 1933, § 91A-242, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 843.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

Power to remit, release, or compromise tax claim, 99 A.L.R. 1062 ; 28 A.L.R.2d 1425.

Grounds stated in protest against payment of property tax as a limitation of grounds upon which recovery back of tax may be claimed, 113 A.L.R. 1479 .

48-2-48. Deficiency assessments; interest.

If the commissioner ascertains that the return of any taxpayer (or dealer pursuant to Article 1 of Chapter 8 of this title) contains mistaken, false, or fraudulent statements or that it contains statements or omissions of data which are otherwise incorrect or misleading, and that as a result thereof improper or inadequate assessments of taxes have been made, the commissioner may determine and fix the amount of the taxes due from the taxpayer or dealer and shall proceed to collect the state tax due pursuant to the determination. In any case in which property assessments are made by the commissioner under the law for purposes of local taxation, the commissioner shall certify amounts of any property omitted from previous assessments to the proper local tax authorities for taxation in the local tax districts. All taxes collected under this Code section shall bear interest at the rate specified in Code Section 48-2-40, unless otherwise provided by law, from the date the commissioner advises the taxpayer in writing of the amount of the taxes due, until paid. The interest shall be assessed and collected as a part of the tax.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 32; Code 1933, § 91A-243, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 710 et seq., 748.

C.J.S. - 84 C.J.S., Taxation, §§ 851, 852.

ALR. - Retroactive effect of statutes relating to interest on or penalties in respect of delinquent taxes, 77 A.L.R. 1034 .

Constitutionality of legislation prescribing rate of interest or penalty for nonpayment of taxes, or the conditions liability in that regard, operative only in certain political subdivisions, 111 A.L.R. 1354 .

48-2-49. Periods of limitation for assessment of taxes.

  1. Except as otherwise provided in this Code section or this title, the amount of any tax imposed by this title may be assessed at any time.
  2. Except as otherwise provided by subsection (c) of this Code section or by this title, in the case where a return or report is filed, the amount of any tax imposed by this title shall be assessed within three years after the return or report was filed. For purposes of this subsection, a return or report filed before the last day prescribed by law for the filing thereof shall be considered as filed on such last day. If an extension of time for filing a return or report is granted and the return or report is filed on or before the extended date, the return or report shall be considered as filed on the extended due date.
  3. Except as otherwise provided by this title, in the case of a false or fraudulent return or report filed with the intent to evade tax or a failure to file a return or report, the amount of any tax imposed by this title may be assessed at any time.
  4. Where, before the expiration of the time prescribed in this Code section for the assessment of any tax imposed by this title, both the commissioner and the person subject to assessment have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the agreed upon period. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the previously agreed upon period. The commissioner is authorized in any such agreement to extend similarly the period within which a claim for refund may be filed.
  5. If a claim for refund of taxes paid for any taxable period is filed within the last six months of the period during which the commissioner may assess the amount of taxes, the assessment period is extended for a period of six months beginning on the day the claim for refund is filed.
  6. No action without assessment shall be brought for the collection of any tax after the expiration of the period for assessment.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 33; Code 1933, § 91A-244, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1350, § 1.)

JUDICIAL DECISIONS

Former provision conferred authority on state, not county. - Prior to the enactment of Ga. L. 1985, p. 1350 (see now O.C.G.A. § 48-2-49 ), the law was not intended to have any applicability to reassessments which were made by the county board of tax assessors and conferred authority only upon the state revenue commissioner. Fayette County Bd. of Tax Assessors v. Georgia Utils. Co., 186 Ga. App. 723 , 368 S.E.2d 326 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 326 (1988).

Effect of 1985 amendment. - Superior court erred in construing O.C.G.A. § 48-2-49 , as rewritten in 1985, as constituting the implicit grant of authority to a county board of tax appeals to make reassessments of 1985 taxes on realty, and erred in failing to construe § 48-2-49 in pari materia with the other provisions of Ga. L. 1985, p. 1350 et seq. Fayette County Bd. of Tax Assessors v. Georgia Utils. Co., 186 Ga. App. 723 , 368 S.E.2d 326 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 326 (1988).

Statute of limitations inapplicable. - Three year statute of limitation under O.C.G.A. § 48-2-49(b) was inapplicable to bar a county tax assessment for back taxes and penalties against a company that did not report the company's tangible personal property even though the company filed tax returns in those years. It was as if no return was filed because the tax assessors discovered the property after conducting an audit, and the assessors thereby acquired full authority to tax the property at that point within the seven year limitation period of O.C.G.A. § 48-3-21 . Hormel Food Corp. v. DeKalb County Bd. of Tax Assessors, 264 Ga. App. 10 , 589 S.E.2d 836 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Time within which to make assessment after return is filed. - Former Code 1933, § 92-3303 (see now O.C.G.A. § 48-7-82 ) is a safeguard which gives the state an additional year in which to make the state's original audit and assessment. The General Assembly no doubt reasoned that if time permitted the commissioner to examine the return and make proper assessment thereon within the two-year period, the commissioner should not be given additional time to reopen the assessment and correct the commissioner's own errors. If, however, a large volume of returns filed prevents the commissioner from completing the commissioner's work within the two-year period, the commissioner is granted an additional year in which to perform the commissioner's duty. 1945-47 Op. Att'y Gen. p. 569.

When commissioner makes assessment on return which fully discloses all items relating to tax liability, the commissioner is precluded from redetermining such assessment unless the commissioner does so within two years from the last day on which the return could have been filed without becoming delinquent. 1945-47 Op. Att'y Gen. p. 569.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 501.

C.J.S. - 85 C.J.S., Taxation, § 1049 et seq.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 154 A.L.R. 1052 ; 12 A.L.R.2d 815.

Suspension of running of period of limitation under 26 U.S.C.A. § 6503 for federal tax assessment or collection, 160 A.L.R. Fed. 1

48-2-50. Review of assessments; certifications.

  1. The commissioner's assessments shall not be reviewed except by the procedure provided in this chapter or Chapter 13A of Title 50. No trial court shall have jurisdiction of proceedings to question the assessments, except as provided in this chapter or Chapter 13A of Title 50.
  2. When the commissioner is required by law to certify to any county or municipal government of this state all or any part of an assessment or tax against any taxpayer and the taxpayer disputes the correctness of the assessment or tax as determined by the commissioner, the commissioner is directed to certify to the county and municipal government the value of the property of the taxpayer or the tax admitted by him in his return to be due, or both such value and such tax due. After a final determination of the balance of the assessment or tax in dispute, the commissioner shall make a supplemental certification to the county and municipal government of the amount of the balance of the assessment or tax as finally determined. It shall be the duty of the taxpayer to pay as required by law any taxes assessed by the state, county, or municipal governments, both upon the original value as shown in his return and upon the supplemental value determined as provided in this chapter.

    (Ga. L. 1937-38, Ex. Sess., p. 77, § 44; Ga. L. 1943, p. 204, § 2; Code 1933, § 91A-254, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2012, p. 318, § 4/HB 100.)

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Law reviews. - For article discussing remedies for tax illegally assessed under the former Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. L. 1951, p. 360, § 1 et seq., see 9 Ga. St. B.J. 45 (1972). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

RESEARCH REFERENCES

ALR. - Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576; 9 A.L.R.4th 428.

48-2-51. Jeopardy assessments; collection; bond.

  1. If the commissioner reasonably finds that a taxpayer gives evidence of intention to leave the state, to remove his property from the state, to conceal himself or his property, to discontinue business, or to do any other act tending to prejudice or render wholly or partly ineffective proceedings to compute, assess, or collect any state tax, whereby it becomes advisable that such proceedings be brought without delay, the commissioner shall declare the taxable period for such taxpayer terminated forthwith and shall give notice of such finding and demand immediate payment of such tax as may be due. The commissioner may immediately make an arbitrary assessment and may proceed under the assessment to collect the tax or require the taxpayer to file with him a bond satisfactory to the commissioner as security for payment of the tax.
    1. As used in this subsection, the term "illegal drug" means marijuana as defined in paragraph (16) of Code Section 16-13-21, as amended; a controlled substance as defined in paragraph (4) of Code Section 16-13-21, as amended; or a dangerous drug as defined in Code Section 16-13-71, as amended. The term illegal drug shall not include any drug when used pursuant to a valid medical prescription or when used as otherwise authorized by state or federal law.
    2. When an assessment for taxes based upon the possession, sale, or distribution of an illegal drug is made by the commissioner, such assessment shall be considered a jeopardy assessment for collection as provided in this Code section. The commissioner shall assess such tax and applicable penalties based on personal knowledge or information available to the commissioner; mail to the taxpayer at the taxpayer's last known address or serve in person a written notice of the amount of tax and penalty; demand its immediate payment; and, if payment is not immediately made, collect the tax and penalty by any method prescribed in this chapter.
    3. The tax and penalties assessed by the commissioner are presumed to be valid and correctly determined and assessed. With respect to any administrative or civil proceedings regarding the assessment or collection under this subsection of any taxes, interest, or penalties imposed by this title, the burden shall be upon the taxpayer to show their incorrectness or invalidity.  Any statement filed by the commissioner with the court, or any other certificate by the commissioner of the amount of tax and penalties determined or assessed, shall be admissible in evidence and shall be prima-facie evidence of the facts contained in such statement or certificate.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 39; Code 1933, § 91A-248, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 2041, § 1.)

Cross references. - Attachment proceedings, T. 18, C. 3.

Attachment of property by commissioner, § 48-2-55 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "or federal" was substituted for "of federal" in the last sentence of paragraph (b)(1).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 530 et seq.

48-2-52. Personal liability of corporate officer or employee for tax delinquency.

  1. Any officer or employee of any corporation, any member, manager, or employee of any limited liability company, or any partner or employee of any limited liability partnership who has control or supervision of collecting from purchasers or others amounts required under this title or of collecting from employees any taxes required under this title, and of accounting for and paying over the amounts or taxes to the commissioner, and who willfully fails to collect the amounts or taxes or truthfully to account for and pay over the amounts or taxes to the commissioner, or who willfully attempts to evade or defeat any obligation imposed under this title, shall be personally liable for an amount equal to the amount evaded, not collected, not accounted for, or not paid over.
  2. The liability imposed by this Code section shall be paid upon notice and demand by the commissioner or his delegate and shall be assessed and collected in the same manner as the tax in connection with which the act or failure to act under this Code section occurs or has occurred.

    (Ga. L. 1960, p. 210, §§ 1, 2; Code 1933, § 91A-251, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 6; Ga. L. 2001, p. 984, § 1.)

Law reviews. - For article, "2014 Georgia Corporation and Business Organization Case Law Developments," see 20 Ga. St. B. J. 26 (April 2015). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 294 (2001).

JUDICIAL DECISIONS

Dealers are within scope of section. - Since an officer or employee may also be a dealer, as defined in Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3 ), it is clear that a dealer can violate Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52 ), though by definition only if the dealer is also an officer or employee in charge. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

"Willful" construed. - "Willful" as here used does not carry with it connotations of bad motives, fraud, or an intent to deprive the state of the state's tax claim. All that this statute requires is that the preference in favor of other creditors be made voluntarily with knowledge of the existence of the valid tax claim. Blackmon v. Mazo, 125 Ga. App. 193 , 186 S.E.2d 889 (1971).

Subsequent conduct relevant in determining willfulness. - While a defendant's subsequent attempts at payment of sales taxes cannot eradicate past willful failure to report and remit sales taxes, subsequent conduct may be relevant in determining whether such failure was willful in the first instance. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

When liability for sales taxes attaches. - Liability attaches upon the failure to pay the sales taxes imposed under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) at the time such taxes are due. Liability attaches upon the defendant's failure, if willful, to report or remit taxes, and not upon the defendant's receipt of notice and demand for payment. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

Right to recoup taxes forfeited. - Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant's sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13 , by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim the department had against the officer, the department forfeited any right the department had to recoup from the officer the payment the department made to the owner. Ga. Dep't of Revenue v. Moore, 317 Ga. App. 31 , 730 S.E.2d 671 (2012).

Assessment prima facie correct under Art. 2, Ch. 8. - An assessment made under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52 ) in the same manner as against the corporation is entitled to be considered or deemed to be prima facie correct as under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) in general. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Duty to state evidence or findings as to liability. - Statute merely states the conditions under which a corporate employee is liable and imposes no requirement on the commissioner to state the findings which the commissioner may have made or the evidence on which any findings are based, except as may be incorporated by reference by the language empowering the commissioner to assess and collect the tax under this statute. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Finding as to whether second responsible party was necessary in refund action was required. - In an assessment action under O.C.G.A. § 48-2-52 , the Georgia Court of Appeals erred by concluding that because the Georgia Department of Revenue voluntarily refunded a tax payment made by a majority owner of a restaurant, the department could not seek payment from a second responsible party as the voluntary payment doctrine applied to contracts, not tax indebtedness; it was necessary to remand the case to see if the second responsible party was a necessary party to the majority owner's refund action. Ga. Dep't of Revenue v. Moore, 294 Ga. 20 , 751 S.E.2d 57 (2013).

Assessment prima facie correct on appeal. - When a party assessed under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52 ) has invoked the appeal procedure under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ) to contest the validity of the assessment in the superior court, thereby opening the door to a de novo judicial investigation, the assessment is one which must be regarded as prima facie correct. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Burden of proof on appeal from assessment. - An assessment pursuant to this statute is deemed to be "prima facie correct," and when the assessed party invokes the appeal procedure to the superior court to contest the validity of the assessment, which is a de novo proceeding, the party comes into court in the status of a plaintiff who has the burden of proof, while the commissioner occupies the status of a defendant, who by transmitting the record showing the fact of the assessment, has provided sufficient answer to entitle the defendant to the defendant's day in court on the merits to rebut whatever proof the other party may offer to support the plaintiff's contention that the plaintiff is not liable for the tax deficiency. Blackmon v. Ross, 123 Ga. App. 89 , 179 S.E.2d 548 (1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 771.

48-2-53. Compelled production of evidence.

If any person required by law to make any return, supply any information, or exhibit any books or records, whether with reference to his own returns or not, refuses to do so upon written request of the commissioner or his designated agent, the superior court for the county in which the person resides shall have jurisdiction by appropriate process to compel the person to testify and to cause the proper person to produce the books, papers, or other data. All of the laws of this state regarding the taking of depositions and interrogatories of both nonresidents and residents of this state shall be available to the commissioner.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 36; Ga. L. 1937-38, Ex. Sess., p. 156, § 9; Code 1933, § 91A-247, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Discovery of documents and other written material, § 9-11-34 .

48-2-54. Action by commissioner to collect unpaid tax.

In the event any taxpayer fails to pay any tax due, the commissioner shall notify the taxpayer and his surety or sureties by mailing a letter to their post office addresses last known to the commissioner. If, after 30 days of mailing the notice, the amount due remains unpaid, the commissioner shall bring an action to collect the amount due including, but not limited to, penalties, interest, and costs. It shall not be necessary to make the defaulting taxpayer a party to any action that may be brought against his surety or sureties.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 40; Code 1933, § 91A-249, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 712, 713, 755.

ALR. - Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-2-54.1. Authorization to charge taxpayer's account.

The commissioner is authorized to charge to the taxpayer's account any costs or fees which are charged to the commissioner by the United States Treasury Financial Management System for offsetting federal refund claims against any tax liability which is owed by a taxpayer to the state and for which the commissioner has the responsibility for collection.

(Code 1981, § 48-2-54.1 , enacted by Ga. L. 2003, p. 442, § 2.)

48-2-55. Attachment and garnishment; levy.

  1. All taxes are a personal debt of the person required by this title to file the returns or to pay the taxes imposed by this title.
    1. The commissioner or his authorized representative may attach the property of a delinquent taxpayer on any ground provided by Code Section 18-3-1 or on the ground that the taxpayer is liquidating his property in an effort to avoid payment of the tax.
    2. The commissioner or the commissioner's authorized representative may use garnishment to collect any tax, fee, license, penalty, interest, or collection costs due the state which are imposed by this title or which the commissioner or the department is responsible for collecting under any other law. Garnishment may be issued by the commissioner or the commissioner's authorized representative against any person whom the commissioner believes to be indebted to the defendant or who has property, money, or effects in such person's hands belonging to the defendant. The summons of garnishment shall be served by the commissioner or the commissioner's authorized representative, shall be served at least 15 days before the sitting of the court to which the summons is made returnable, and shall be returned to either the superior court or the state court of the county in which the garnishee is served. The commissioner or the commissioner's authorized representative shall enter on the execution the names of the persons garnished and shall return the execution to the appropriate court. All subsequent proceedings shall be the same as provided by law regarding garnishments in other cases when judgment has been obtained or execution issued. In addition to any other methods of service, the summons of garnishment may be served by the commissioner or the commissioner's authorized representative to the garnishee by registered or certified mail or statutory overnight delivery, return receipt requested. Either the return receipt indicating receipt by the garnishee or the envelope bearing the official notification from the United States Postal Service of the garnishee's refusal to accept delivery of such registered or certified mail or statutory overnight delivery shall be filed with the clerk of the court in which the garnishment is pending. If statutory overnight delivery was accomplished through a commercial firm as provided under paragraph (1) of subsection (b) of Code Section 9-10-12, the return receipt indicating receipt by the garnishee or the envelope bearing the official notification of such commercial firm of the garnishee's refusal to accept delivery shall be filed with the clerk of the court in which garnishment is pending. If a garnishee refuses to accept service of a summons of garnishment by registered or certified mail or statutory overnight delivery, the summons of garnishment shall be served by the commissioner or the commissioner's authorized representative under any other method of lawful service and the garnishee shall be personally liable to the commissioner for a sum equal to the actual costs incurred to serve the summons of garnishment. This liability shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as other taxes administered by the commissioner.
    1. In case of neglect or refusal by a taxpayer to pay any taxes, fees, licenses, penalties, interest, or collection costs due the state, the commissioner or his authorized representative may levy upon all property and rights to property belonging to the taxpayer, except such as are exempt by law, for the payment of the amount due, together with interest on the amount, any penalty for nonpayment, and such further amount as shall be sufficient for the fees, costs, and expenses of the levy.  As used in this subsection, the term "property and rights to property" includes, but is not limited to, any account in or with a financial institution.
    2. A levy upon an account in or with a financial institution shall be a constructive levy and shall be effective at the time of personal service upon the financial institution as evidenced by an entry of service upon the levy by the commissioner or his authorized representative, or by an acknowledgment of service made by a proper official of the financial institution indicating the date and time of service.  The commissioner or his authorized representative may, in lieu of personal service or service by mail, serve a levy upon a financial institution, and a financial institution may acknowledge service of a levy by telephonic facsimile transmission or by other means of instantaneous electronic transmission.  The financial institution shall remit to the commissioner or his authorized representative as provided in this subsection not later than 15 days after personal service or acknowledgment of service by mail or facsimile or other instantaneous electronic transmission. Notwithstanding any other law to the contrary, a financial institution receiving a levy shall remit the full amount of its depositor's accounts that are subject to levy, to the extent of the amount claimed upon the levy, without deduction; provided, however, nothing contained in this subsection shall be deemed to diminish the right of a financial institution to exercise its right of setoff.
    1. The commissioner or his or her authorized representative may levy and conduct judicial sales in the manner provided by law for sales by sheriffs and constables.
      1. In the event the levy is upon personal property, the sale of such property shall be advertised ten days before the date of sale. Advertisements of sales shall designate the time, place, and manner of the sale, shall give a reasonable description of the property to be sold, shall be posted in three public places in the county, and shall be inserted at least one time in the newspaper in which sheriff's sales in the county are advertised. The commissioner may prescribe by regulation methods for providing notice of sale in addition to the provisions of this subparagraph.
      2. The commissioner or his or her authorized representative may conduct the sale of such personal property via public auction, public Internet auction, or via sealed bids. If the sale is conducted via public auction, the sale shall be held between the hours of 10:00 A.M. and 4:00 P.M. eastern standard time or eastern daylight time, whichever is applicable. The sale shall be conducted within the county in which the property levied on is situated, except that if it appears to the commissioner that substantially higher bids may be obtained for the property if the sale is held at a place outside such county, he may order that the sale be held in such other place. If the location of the sale is in a county other than the county in which the levy was made, notice of the sale as required by this Code section shall be made in both counties. The commissioner may prescribe by regulation the manner or other conditions for sales by public auction, public Internet auction, or sealed bids, including whether payment in full is required at the time of acceptance of the bid, under what circumstances the sale may be adjourned, and whether, and under what circumstances, multiple items of property may be sold separately, in groups, or in the aggregate.
      3. For each sale of personal property conducted pursuant to this paragraph, the commissioner or his or her authorized representative shall determine a minimum bid price of the sale, and, in the absence of a bid equal to or greater than the minimum bid price, the commissioner shall retain possession of the property. In determining the minimum bid price, the commissioner or his or her authorized representative shall take into account the expense of making the levy and sale. In his discretion, the commissioner or his or her representative may delay disclosure of the minimum bid price until the receipt of the highest bid.
    3. In the event the levy is upon real property, the commissioner or his or her authorized representative, after making the levy, shall return the levy on the execution to the sheriff of the county in which the property is located. After the return, the sheriff shall proceed to advertise and sell the property as required by law.
  5. 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 taxpayer.
    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 surrender such property or rights or discharge such obligation to the commissioner or his authorized representative, except such part of the property or rights as is subject, at the time of such levy, 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 the tax, interest, and penalties for the collection of which such levy has been made, together with costs and interest at the rate specified in Code Section 48-2-40 from the date of such levy.  The liability imposed in this subsection shall be paid upon notice and demand by the commissioner or his delegate and shall be assessed and collected in the same manner as other taxes administered by the commissioner.  Any amount other than costs recovered under this subsection shall be credited against the subject taxpayer'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 service of levy by the commissioner or his authorized representative, surrenders such property or rights to property or discharges such obligation to the commissioner or his authorized representative shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property or rights to property arising from such surrender or payment.

      (Ga. L. 1931, Ex. Sess., p. 24, § 44; Code 1933, § 92-3311; Ga. L. 1937-38, Ex. Sess., p. 77, § 41; Ga. L. 1951, p. 614, § 3; Ga. L. 1952, p. 300, § 1; Code 1933, § 91A-250, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 12; Ga. L. 1981, p. 1857, § 8; Ga. L. 1983, p. 1834, § 3; Ga. L. 1985, p. 931, § 1; Ga. L. 1990, p. 1875, § 1; Ga. L. 1991, p. 713, § 1; Ga. L. 1993, p. 961, §§ 3, 4; Ga. L. 2009, p. 816, § 5/HB 485; Ga. L. 2012, p. 735, § 2/HB 846.)

Cross references. - Judicial sales, § 9-13-140 et seq.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, "acknowledgment" was substituted for "acknowledgement" in two places in paragraph (c)(2).

Editor's notes. - Ga. L. 2009, p. 816, § 1/HB 485, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Improved Taxpayer Customer Service Act of 2009.'"

JUDICIAL DECISIONS

Requirement for assessment before tax due and personal debt created. - Payment of tax imposed is not conditioned upon assessment by the commissioner. State v. Fuller, 90 Ga. App. 349 , 83 S.E.2d 69 (1954).

No assessment proceeding is required if the return is accepted by the commissioner as correct. The tax is due and payable as a personal debt without assessment. Assessment is an action taken only with regard to collection of tax exceeding that returned by the taxpayer. State v. Fuller, 90 Ga. App. 349 , 83 S.E.2d 69 (1954).

Notice not required as to personal property. - Summary judgment was properly granted to a county tax commissioner in a taxpayer's action alleging violation of various statutory and constitutional provisions in the commissioner's levying upon the taxpayer's bank account to collect county taxes owed because neither O.C.G.A. § 48-2-55 nor O.C.G.A. §§ 48-3-3 and 48-3-9 required the commissioner to give the taxpayer notice of the levy prior to levying upon the personal property. Anderson v. Ford, 261 Ga. App. 34 , 581 S.E.2d 623 (2003).

County ad valorem taxes paid from surplus. - Trial court properly ordered that county ad valorem taxes could be paid from surplus proceeds obtained from a foreclosure sale of the subject property given that: (1) the taxes were chargeable as a taxpayer's personal debt or as a lien, extending not only to the subject property, but also to all property the taxpayer owned, and the foreclosure notice did not limit the commissioner's authority as to how to collect the taxes owed; and (2) the security deed in turn provided that upon a foreclosure sale of the property, the lender bank would apply any surplus proceeds to the person or persons legally entitled to the proceeds, which also included the tax commissioner. Mulligan v. Sec. Bank of Bibb County, 280 Ga. App. 248 , 633 S.E.2d 629 (2006).

Claim in bankruptcy. - Chapter 13 debtor was liable for property taxes assessed against the property despite the fact that the debtor's lender was granted relief from stay. Under O.C.G.A. §§ 48-2-55 and 48-5-10 , the debtor remained personally liable for the taxes because the debtor was the title holder of the property on the first day of each tax year for which an unsecured priority claim was made. Waddy v. Fulton County Tax Comm'r (In re Waddy), Bankr. (Bankr. N.D. Ga. Sept. 23, 2010).

OPINIONS OF THE ATTORNEY GENERAL

General state law on garnishments issued by state revenue commissioner governs over local legislation on garnishments. 1982 Op. Att'y Gen. No. 82-85.

Construed with § 9-13-60 . - Subsection (c) of O.C.G.A. § 48-2-55 , pertaining to tax levies, authorizes the Commissioner of the Department of Revenue and the Commissioner's agents to levy upon a delinquent taxpayer's equitable interest in real property encumbered by a deed to secure debt, without first satisfying the requirements of O.C.G.A. § 9-13-60 . 1990 Op. Att'y Gen. No. 90-19.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 4. 72 Am. Jur. 2d, State and Local Taxation, §§ 780 et seq., 794 et seq., 803 et seq.

C.J.S. - 38 C.J.S., Garnishment, §§ 1 et seq., 15, 17. 84 C.J.S., Taxation, §§ 667 et seq., 730 et seq., 841, 877 et seq.

ALR. - Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-2-56. Liens for taxes; priority.

  1. Except as otherwise provided in this Code section, liens for all taxes due the state or any county or municipality in the state shall arise as of the time the taxes become due and unpaid and all tax liens shall cover all property in which the taxpayer has any interest from the date the lien arises until such taxes are paid.
  2. Except as otherwise provided in this Code section, liens for taxes are superior to all other liens and shall be paid before any other debt, lien, or claim of any kind. Liens for taxes shall rank among themselves as follows:
    1. Taxes due the state;
    2. Taxes due counties of the state;
    3. Taxes due school and other special tax districts of the state; and
    4. Taxes due municipal corporations of the state.
  3. The lien for taxes imposed by Article 1 of Chapter 9 of this title, relating to motor fuel taxes, shall not have priority as against:
    1. Any bona fide mortgagee, holder, or transferee of a deed to secure debt; or
    2. Any pledgee, judgment creditor, or purchaser of or from persons liable for the tax imposed by Article 1 of Chapter 9 of this title

      where the rights of such mortgagee, holder, or transferee of a deed to secure debt, pledgee, judgment creditor, or purchaser have attached prior to the time the lien has been filed by the commissioner in the office of the clerk of superior court of the county in which the principal place of business is located.

    1. Liens for any ad valorem taxes shall cover the property of taxpayers liable to tax from the time fixed by law for valuation of the property in each year until such taxes are paid and shall cover the property of tax collectors or tax commissioners and their sureties from the time of giving bond until all the taxes for which they are responsible are paid.
    2. The lien for any ad valorem tax shall not be superior to the title and operation of a security deed when the tax represents an assessment upon property of the taxpayer other than property specifically covered by the title and operation of the security deed.
    3. When real property located within this state is transferred between the date on which any ad valorem tax lien on the property vests and the date on which the tax evidenced by the tax lien becomes due and payable, the ad valorem tax lien on the transferred property shall not extend to cover any other real property of the transferor.
  5. The lien for taxes imposed by the provisions of Article 2 of Chapter 7 of this title, relating to certain income taxes, shall:
    1. Arise and attach to all property of the taxpayer as of the time a tax execution for these taxes is filed with the clerk of superior court of the county of the last known address of the taxpayer appearing on the records of the department at the time the state tax execution is filed; and
    2. Not be superior to the lien of a prior recorded instrument securing a bona fide debt.

      Before the lien provided for in this subsection shall attach to real property, an execution shall be filed with the clerk of superior court in the county where the real property is located.

  6. The lien for taxes imposed by the provisions of Article 5 of Chapter 7 of this title, relating to withholding taxes, shall:
    1. Arise and attach to all property of the defaulting employer or other person required to deduct and withhold on the date of the assessment of the taxes by operation of law or by action of the commissioner;
    2. Not be superior to the lien of a prior recorded instrument securing a bona fide debt; and
    3. Not attach to the interest of a subsequent bona fide purchaser nor be superior to the lien of a lender for value recorded prior to the time the execution for the tax has been filed in the office of the clerk of superior court of the county of the last known address of the taxpayer appearing on the records of the department at the time the state tax execution is filed.

      Before the lien provided for in this subsection shall attach to real property, an execution shall be filed with the clerk of superior court in the county where the real property is located.

    1. The lien of a specific or occupation tax shall not be superior to the title and operation of a security deed recorded prior to the time the execution for the tax has been filed in the office of the clerk of superior court of the county of the last known address of the taxpayer appearing on the records of the department at the time the state tax execution is filed.
    2. As used in this subsection, the term "specific or occupation tax" means all state, county, and municipal taxes and all state licenses and fees except:
      1. The taxes imposed by Article 1 of Chapter 9 of this title;
      2. Ad valorem taxes;
      3. The taxes imposed by Article 2 of Chapter 7 of this title; and
      4. The taxes imposed by Article 5 of Chapter 7 of this title.

        The term includes, but is not limited to, sales and use taxes, corporate net worth taxes, estate taxes, real estate transfer taxes, taxes on financial institutions, alcohol and tobacco taxes, road taxes on motor carriers, excise taxes, license fees, tax liabilities of corporate officers and business successors, and tax collections of a person who is a dealer under Chapter 8 of this title relating to sales and use taxation.

  8. Liens for taxes existing prior to July 1, 1983, shall not be changed by this Code section. On and after July 1, 1983, this Code section shall govern the time of creation of all tax liens and the priority of all tax liens.
  9. All executions, liens, releases, cancellations, or other related documents issued by the department to be filed with a superior court clerk shall be presented and filed electronically pursuant to Code Section 48-3-42 and the appropriate filing fees shall be paid by the department as provided in subsection (f) of Code Section 15-6-77.

    (Ga. L. 1873, p. 42, § 2; Code 1873, § 1973; Code 1882, § 1973; Civil Code 1895, § 2791; Civil Code 1910, § 3333; Code 1933, § 92-5708; Ga. L. 1937-38, Ex. Sess., p. 77, § 42; Ga. L. 1937-38, Ex. Sess., p. 156, § 10; Ga. L. 1953, Nov.-Dec. Sess., p. 168, §§ 2, 3; Ga. L. 1968, p. 360, § 15; Ga. L. 1978, p. 1778, § 1; Code 1933, § 91A-252, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 13; Ga. L. 1983, p. 1834, § 4; Ga. L. 1984, p. 22, § 48; Ga. L. 1988, p. 13, § 48; Ga. L. 1993, p. 768, § 1; Ga. L. 2017, p. 723, § 2/HB 337; Ga. L. 2018, p. 1, § 1/HB 661.)

The 2017 amendment, effective January 1, 2018, in the ending undesignated paragraph of subsection (c), in the middle, deleted "notice of" preceding "the lien has been filed", inserted "clerk of", and deleted "or in the county where property of the person liable for payment of the motor fuel tax is located" following "is located" at the end; rewrote subsections (e), (f), and (g); and added subsection (i).

The 2018 amendment, effective February 20, 2018, deleted "within the state" following "property of the taxpayer" in paragraph (e)(1); substituted the present provisions of paragraph (e)(2) for the former provisions, which read: "Not attach to the interest of a prior bona fide purchaser where a certificate of clearance is required and has been obtained or where a certificate of clearance is not required pursuant to Code Section 44-1-18, nor be superior to the lien of a prior recorded instrument securing a bona fide debt."; added the undesignated paragraph in subsection (e); deleted "attach to the interest of a prior bona fide purchaser where a certificate of clearance is required and has been obtained or where a certificate of clearance is not required pursuant to Code Section 44-1-18, nor" following "Not" in paragraph (f)(2); in paragraph (f)(3), deleted "where a certificate of clearance is required and has been obtained or where a certificate of clearance is not required pursuant to Code Section 44-1-18," following "bona fide purchaser" in the first sentence; and added the undesignated paragraph in subsection (f).

Cross references. - Registration of federal tax liens, § 44-14-570 et seq.

Priority of claims against decedents' estates, § 53-7-40 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, a semicolon was deleted following "title" in paragraph (c)(2) and a comma was inserted following "subsection" in paragraph (g)(2).

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For annual survey of state and local tax law, see 35 Mercer L. Rev. 281 (1983). For annual survey of real property law, see 56 Mercer L. Rev. 395 (2004). For note on the 1993 amendment of this Code section, see 10 Ga. St. U. L. Rev. 218 (1993). For comment on Brown v. Nash, 216 Ga. 303 , 116 S.E.2d 227 (1960), see 12 Mercer L. Rev. 425 (1961).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Construed with Ch. 9 of Title 48. - Holding in In re Tuggle, 22 Bankr. 439 (Bankr. N.D. Ga. 1982) "that when liens for taxes other than ad valorem taxes attach to the property of the taxpayer, they are superior to all other liens filed thereafter but not those recorded prior in time," applies only to liens for taxes imposed under the provisions of O.C.G.A. § 48-9-1 et seq., which chapter is concerned with motor fuel taxes. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Tax liability as personal debt. - Taxes due a county or municipality come within the generally accepted meaning of "personal debts," the collection of which is enforceable by appropriate judicial action. Woodall v. First Nat'l Bank, 118 Ga. App. 440 , 164 S.E.2d 361 (1968).

Conditions of tax commissioner's bond. - Official bond of a tax commissioner covers the commissioner's official duties and obligations as tax commissioner and no other obligations. Sanders v. Georgia Farm Bureau Mut. Ins. Co., 109 Ga. App. 772 , 137 S.E.2d 389 (1964).

Cited in Roberts v. Ford Motor Credit Co., 160 Ga. App. 827 , 288 S.E.2d 238 (1982); In re Alliance Transp., Inc., 47 Bankr. 743 (Bankr. N.D. Ga. 1985); Ellenberg v. J.M. Tull Metal (In re McTyre Grading & Pipe, Inc.), 180 Bankr. 308 (Bankr. N.D. Ga. 1995); DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

When Lien Attaches

Lien for sales and use taxes. - Lien for sales and use taxes attaches on the day on which the dealer is required to make the dealer's return and remittance to the commissioner. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

Lien for property taxes. - Lien for state and county taxes attaches to property at the time fixed by law for valuation of the property in each year. Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931).

Effect of failure to record lien. - Recording a fieri facias issued by the commissioner on the general execution docket is not a condition precedent to attachment of a lien for sales taxes. The only effect of failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

When a lender takes notes and bills of sale to secure a debt, but security instruments are not recorded until after the tax liens have been entered on the execution docket, the property covered under the security instruments was property of the debtor at the time the debtor became liable for the tax and the fact that the lender foreclosed on the property and purchased the property at the foreclosure sale does not divest the tax lien, and it is proper for the state to levy the execution upon the foreclosed property then in the possession of the lender. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Taxes Covered by Lien

What taxes covered by lien. - Words "liens for taxes," as employed in former Civil Code 1910, §§ 1140, 3329, and 3333 (see now O.C.G.A. §§ 44-4-320, 48-2-56 , and 48-5-28 ), were broad and sufficient to include taxes provided for by the subsequent statute for support of the state and counties and municipal corporations located in the state, although such tax may not be ad valorem or based on property. Atlanta Trust Co. v. Atlanta Realty Corp., 177 Ga. 581 , 170 S.E. 791 (1933).

Applicability of section to sales taxes. - Provisions of former Code 1933, §§ 92-5707 and 92-5708 (see now O.C.G.A. §§ 48-5-28 and 48-2-56 ) deal with situations where the lien for taxes represents an assessment upon property of such owner other than that property specifically covered by the security instrument, and since sales tax is not a property tax and is not assessed against the property of the owner, these provisions are not applicable to sales taxes. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Property Subject to Lien

Taxes due state are not only against owner but also against property, regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind. Bibb Nat'l Bank v. Colson, 162 Ga. 471 , 134 S.E. 85 (1926); Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931).

Trial court properly ordered that county ad valorem taxes could be paid from surplus proceeds obtained from a foreclosure sale of the subject property, given that: (1) the taxes were chargeable as a taxpayer's personal debt or as a lien, extending not only to the subject property, but also to all property the taxpayer owned, and the foreclosure notice did not limit the commissioner's authority as to how to collect the taxes owed; and (2) the security deed in turn provided that upon a foreclosure sale of the property, the lender bank would apply any surplus proceeds to the person or persons legally entitled to the proceeds, which also included the tax commissioner. Mulligan v. Sec. Bank of Bibb County, 280 Ga. App. 248 , 633 S.E.2d 629 (2006).

Property not returned or assessed for taxation is nevertheless subject to levy and sale for taxes accruing upon other property which was returned or assessed for such purpose. The fact that unreturned property may be required to pay its own taxes at some time in the future is not a defense against enforcement of a valid lien against the property for taxes due upon other property. Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505 , 170 S.E. 504 (1933).

Sale under common-law execution does not divest municipality's lien for its due and unpaid taxes. LaGrange Grocery Co. v. City of LaGrange, 31 Ga. App. 97 , 119 S.E. 536 (1923).

Farm products which are themselves exempt from taxation may nevertheless be levied on and sold for taxes due upon other property of the same owner. Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505 , 170 S.E. 504 (1933).

Property possessed and used by obligee under bond for title. - Lien for all taxes is binding upon all property in a municipality of a surviving obligee in the bond for title and the estate of the deceased obligee, represented by the surviving obligee as administrator, such obligees being holders of the bond for title and possessing and using the property at the time of accrual of the tax. Graves v. Walker, 182 Ga. 644 , 186 S.E. 820 (1936).

Effect on lien of subsequent transfer or incumbrance. - Sale of land by the sheriff in November of a year under a general fi. fa. does not divest the lien of the state and county for the year's taxes of the defendant in fi. fa. Wilson v. Boyd, 84 Ga. 34 , 10 S.E. 499 (1889).

When an owner of land conveys the land by warranty deed as security for debt, and in the succeeding year fails to return the land at the time the owner returns the owner's other property for state and county taxation for that year, and after default in payment execution is issued against the owner for state and county taxes on the basis of the owner's return of other property, the lien for such taxes will attach not only to the property included in the return but also to the land which the owner has conveyed as security for the debt. Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931).

Ownership of property at the time of the tax sale is entirely immaterial since a tax lien attaches to property subject to taxation from the time fixed by law for valuation of such property. Furthermore, taxes due the state are not only against the owner but against the property also, regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Tax commissioner, who was an ex-officio sheriff, under O.C.G.A. § 48-5-137 , could be subject to a money rule petition filed by the holder of county tax executions for refusing to pay those executions from the excess proceeds of tax sales of property; the holder could collect on the holder's execution from any property in which the taxpayer had an interest, which included the excess proceeds from the tax sale, before any payments to the taxpayer, under O.C.G.A. § 48-2-56(a) and (b), so it was error for the commissioner to refuse to pay the holder's claims. Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

Levy on proceeds of mortgage foreclosure divests lien on foreclosed property. - Rule that the sale of property under a mortgage fi. fa. does not divest the lien for taxes is not applicable if the tax fi. fas. are placed in the hands of the levying officer for the purpose of claiming the proceeds of such sale. Patton v. Camp, 120 Ga. 936 , 48 S.E. 361 (1904).

Lien transferred to proceeds of sale by administrator. - When under order of court an administrator sells lands subject to tax liens the lien is thereby divested and transferred to the proceeds of the sale. Herrington v. Tolbert, 110 Ga. 528 , 35 S.E. 687 (1900).

Parties cannot by contract defeat the government's right to collect taxes for which property would otherwise be liable. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Mortgagees have no right to prorate lien amongst debtor's properties. - If different parties hold mortgages on different pieces of a debtor's property, neither can claim a right to have a tax execution prorated between the tracts. The lien covers both but may be enforced against either. Patton v. Camp, 120 Ga. 936 , 48 S.E. 361 (1904).

Failure to exercise right to redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Rank and Priority of Liens

Federal tax liens have priority over later assessed state tax liens, but federal liens are subordinate to prior filed liens of judgment creditors. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

State lien attaching and becoming choate has priority over subsequent federal lien. - Because Georgia's lien for tax withholding penalties attached and became choate prior in time to any Internal Revenue Service lien, the Georgia lien had priority; because the subject of the lien was not real property, the last sentence of subsection (f) of O.C.G.A. § 48-2-56 did not apply. Ellenberg v. J.M. Tull Metals (In re McIntyre Grading & Pipe, Inc.), 193 Bankr. 983 (Bankr. N.D. Ga. 1996).

Intrastate tax lien priorities. - Ad valorem taxes did not become choate until the county's tax digest was approved by the State Revenue Commission pursuant to O.C.G.A. § 48-5-342 ; however, intrastate tax lien priorities do not depend on choateness, but are determined by state statute, specifically subsection (b) of O.C.G.A. § 48-2-56 , which delineates the priority of tax liens and makes state tax liens superior to county tax liens regardless of date. Ellenberg v. J.M. Tull Metals (In re McIntyre Grading & Pipe, Inc.), 193 Bankr. 983 (Bankr. N.D. Ga. 1996).

Priority of tax liens not dependent on filing. - Priority of liens for taxes, other than real property ad valorem taxes, does not depend on when or if those liens are filed since tax liens are superior to all other liens against property. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Priority based on status of taxing entity. - In passing O.C.G.A. § 48-2-56 , the Georgia General Assembly provided specific directions on how tax liens shall be ranked, and by adopting the statute, the legislature intended to assign priority to tax liens based upon the status of the taxing entity, regardless of the date the lien was created. Vesta Holdings I, LLC v. Tax Comm'r, 259 Ga. App. 717 , 578 S.E.2d 293 (2003).

No right to excess funds generated by tax sale. - In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Circular priorities involving tax and judgment liens and security deeds under Georgia law shall be established according to the following rules: (1) liens for taxes shall be paid prior to all other liens against property; (2) security deeds shall be paid prior to liens for state taxes if the tax liens are not for ad valorem taxes against the property which is the subject of the security deeds at issue; and (3) judgment lien holders shall be subordinated to the preceding claims. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Tax lien relegated to lower position upon landowner's death. - Statutory first or superior lien on real estate for taxes as provided by O.C.G.A. § 48-2-56 is relegated to a lower position by former O.C.G.A. § 53-7-91 (see now O.C.G.A. § 53-7-40 ) when death of the landowner intervenes. State Revenue Comm'r v. Fleming, 172 Ga. App. 887 , 324 S.E.2d 821 (1984).

Liens of judgment creditors. - Lien for municipal taxes which a city has upon property of a taxpayer is superior to the lien of a judgment creditor. This is especially true if execution has been issued against a defaulting taxpayer and entered upon proper execution docket before the creditor's judgment was obtained. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383 , 73 S.E.2d 205 (1952).

State's lien upon property of a distributor under former Code 1933, Ch. 92-14 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) for excise taxes collected by the distributor on sale or use of motor fuel and kerosene did not have priority over lien of judgment creditor, when rights of such creditor attached prior to filing of notice of state's lien in the office of the superior court; and if a surety upon such distributor's bond to state became subrogated to rights of state by payment of such taxes to state, the surety took the position of the state and acquired no greater rights with respect thereto than the state had at the time the surety became subrogated. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383 , 73 S.E.2d 205 (1952).

Lien of a special assessment is equal to that of general municipal taxes, and sale to enforce the latter leaves the other standing against the property. Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 (1940).

Lien against property owners for the proportionate costs of paving streets has the rank of a tax lien and its dignity takes rank, and consequently takes priority over a prior mortgage. City of Brunswick v. Gordon Realty Co., 163 Ga. 636 , 136 S.E. 898 (1927).

Rights of prior mortgagee. - Lien may be enforced even as against a mortgage holder whose mortgage is prior to the assessment. Verdery v. Dotterer, 69 Ga. 194 (1882).

Bona fide purchasers. - Liens for state, county, and municipal taxes are superior to all other liens and such liens follow property into hands of bona fide purchasers. Freeman v. Mayor of Atlanta, 66 Ga. 617 (1881); Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934).

Bona fide purchaser may avoid unrecorded tax liens. - In Georgia, a bona fide purchaser may avoid tax liens on property which attached prior to the purchaser's purchase of that property but were recorded subsequent thereto. Abney v. Cox Enters., Inc. (In re Fulton Air Serv., Inc.), 37 Bankr. 358 (Bankr. N.D. Ga. 1984).

Depositors in dissolved financial institution. - Priorities of payment established in Ga. L. 1927, p. 195, § 5 (see now O.C.G.A. § 7-1-202 ), which allow payment to depositors before payments of state tax, supersede the provisions of former Code 1910, §§ 1140, 1141, and 3333 (see now O.C.G.A. §§ 48-2-56 and 48-5-28 ), which gave taxes priority over other debts. Felton v. McArthur, 173 Ga. 465 , 160 S.E. 419 (1931).

Priority of lien on property of tax collector. - When, in an equitable proceeding between parties with claims to proceeds of performance bonds deposited with the state by a surety for a county tax collector, no claimant having obtained any judgment prior to the equitable proceeding, and when the county intervened in such equitable proceeding with the county's claim for loss sustained by default of the county's tax collector prior to the equitable proceeding, the county was entitled in equity, by virtue of superior lien given the county by the General Assembly, to priority in payment from bond proceeds. Lamar County Advisory Bd. v. McCalley, 181 Ga. 329 , 182 S.E. 6 (1935).

OPINIONS OF THE ATTORNEY GENERAL

What taxes covered by lien. - Words "liens . . . taxes" used in this statute have been broadly construed by the Supreme Court to include taxes, provided for by subsequent statute, for support of the state and counties and municipal corporations located in the state. This includes taxes that are not ad valorem or based on property, and sales and use taxes. 1960-61 Op. Att'y Gen. p. 529.

Effect on lien of subsequent conveyance. - Since lien attaches as of the valuation date, liability of property for taxes for the year for which the lien attached would not be affected by conveyance of the property during such year to a municipality. 1963-65 Op. Att'y Gen. p. 652.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 780 et seq., 794 et seq.

C.J.S. - 85 C.J.S., Taxation, § 976 et seq.

ALR. - Effect of receiver's failure to discharge tax liens, 39 A.L.R. 1415 .

Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378 ; 65 A.L.R. 677 .

Priority as between lien of taxes and lien of special assessments, 65 A.L.R. 1379 .

Priority as between lien for inheritance or succession or income tax and lien for general taxes, 119 A.L.R. 1330 .

Constitutionality of statute giving to lien for alteration of property pursuant to public requirement, mechanics' lien or similar lien, preference over pre-existing mortgage or other lien, 121 A.L.R. 616 ; 141 A.L.R. 66 .

Constitutionality of statute impairing or postponing lien for taxes, 136 A.L.R. 328 .

Priority of lien of sales or consumers' tax, 136 A.L.R. 1015 .

Priority between tax or assessment lien and mortgage or other nontax lien held by state or municipality, 159 A.L.R. 832 .

State's prerogative right of preference at common law, 167 A.L.R. 640 .

Superiority of special or local assessment lien over earlier private lien or mortgage, where statute creating such special lien is silent as to superiority, 75 A.L.R.2d 1121.

Validity, construction, and effect of statutory provision for tax lien on property not belonging to taxpayer but used in his business, 84 A.L.R.2d 1090.

48-2-57. Effect of judicial sale on state tax lien.

A sale of property under legal process shall not divest the state of its tax liens.

(Civil Code 1895, § 884; Civil Code 1910, § 1141; Code 1933, § 92-5709; Code 1933, § 91A-260, enacted by Ga. L. 1978, p. 309, § 2.)

History of section. - This Code section is derived from the decision in Atlanta & R. Air-Line R.R. v. State, 63 Ga. 483 (1879).

JUDICIAL DECISIONS

Effect of bona fide purchase on unrecorded state tax lien. - There is no statutory protection afforded the state's unrecorded liens for withholding taxes and sales and use taxes when the bona fide purchaser takes the property in a sale not under legal process. In re Fulton Air Serv., 254 Ga. 649 , 333 S.E.2d 581 (1985).

Purchaser at sheriff's sale may not avoid the state's unrecorded tax liens. In re Fulton Air Serv., 254 Ga. 649 , 333 S.E.2d 581 (1985).

Ownership of property at time of tax sale is immaterial since the lien for state and county taxes attaches to property subject to taxation from the time fixed by law for valuation of such property. Furthermore, taxes due the state are not only against the owner but against the property also, regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Lien for municipal taxes not divested. - By analogy to the rule of this statute, sale under common-law execution does not divest the lien of a municipality for taxes. LaGrange Grocery Co. v. City of LaGrange, 31 Ga. App. 97 , 119 S.E. 536 (1923).

Lien for county taxes not divested. - Sale of property under execution issued from a court of competent jurisdiction does not divest the liens of the state or county for taxes. Phoenix Mut. Life Ins. Co. v. Appling County, 164 Ga. 861 , 139 S.E. 674 (1927).

Payment of taxes on property sold at receiver's sale. - Although a sale of property under legal process will not divest the state of the state's lien for taxes nor a municipality of the municipality's lien for taxes, it is the duty of a court of equity to direct the court's receiver to pay the taxes accruing on the property of an insolvent corporation while in the hands of the receiver, upon a timely application for that purpose made by the purchaser of such property at the receiver's sale. Empire Cotton Oil Co. v. Park, 147 Ga. 618 , 95 S.E. 216 (1918).

When perishable property or property too expensive to keep was sold pursuant to former Civil Code 1910, §§ 6068 and 6069 (see now O.C.G.A. §§ 9-13-163 and 9-13-164 ), the short order sale divested liens on the property and they attach to proceeds of such sale. This rule will not affect property covered by a tax lien of the state since, under former Civil Code 1910, § 1140 (see now O.C.G.A. § 48-5-28 ), such property was always subject to such lien and since a sale of such property under legal process did not divest the state of the state's tax liens. State Revenue Comm'n v. Rich, 49 Ga. App. 271 , 175 S.E. 394 (1934).

Lien on property sold by estate administrator transferred to proceeds of sale. - When taxes have accrued upon lands belonging to the estate of an intestate while in the hands of the intestate's administrator to be administered, and by proper order of the probate court one sells the lands, the tax lien thereon is divested and transferred to the fund realized from the sale. This fund should be distributed according to the priorities established by law. Herrington v. Tolbert, 110 Ga. 528 , 35 S.E. 687 (1900).

Cited in State Revenue Comm'r v. Fleming, 172 Ga. App. 887 , 324 S.E.2d 821 (1984).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 788.

C.J.S. - 85 C.J.S., Taxation, § 968 et seq.

48-2-58. Release of property subject to state tax lien.

  1. The commissioner, upon the taxpayer's providing security sufficient to protect the state's interest and with the consent of the Attorney General, may release some or all of the property of a taxpayer which is subject to a state tax lien when the legality of the assessment which is the basis of the lien is being litigated.
  2. The commissioner may release or subordinate all or any portion of the property subject to a state tax lien if the commissioner determines that the tax, interest, and penalties are sufficiently secured by a lien on other property or through other security or that the release, partial release, or subordination of such lien will not endanger or jeopardize the collection of amounts due.

    (Ga. L. 1975, p. 423, § 1; Code 1933, § 91A-253, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1993, p. 961, § 5.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 971 et seq.

48-2-59. Appeals; payment of taxes admittedly owed; bond; costs.

  1. Except with respect to claims for refunds, either party may appeal from any order, ruling, or finding of the commissioner to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the superior court of the county of the residence of the taxpayer, except that:
    1. If the taxpayer is a public utility or nonresident, the appeal of either party shall be to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the superior court of the county in which is located the taxpayer's principal place of doing business or in which the taxpayer's chief or highest corporate officer residing in this state maintains such officer's office; or
    2. If the taxpayer is a nonresident individual or a foreign corporation having no place of doing business and no officer or employee residing and maintaining such officer's office in this state, the taxpayer shall have the right to appeal to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the Superior Court of Fulton County or to the superior court of the county in which the commissioner in office at the time the action is filed resides.
  2. The taxpayer shall commence an appeal by filing a petition with the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or the superior court within 30 days from the date of decision by the commissioner or at any time after the department records a state tax execution pursuant to Code Section 48-3-42.
  3. Before the superior court shall have jurisdiction to entertain an appeal filed by any aggrieved taxpayer, the taxpayer shall file with the clerk of the superior court a written statement whereby the taxpayer agrees to pay on the date or dates the taxes become due all taxes for which the taxpayer has admitted liability. Additionally, the taxpayer shall file with the clerk of the superior court within 30 days from the date of decision by the commissioner, except when the value of the appellant's title or interest in real property owned in this state is in excess of the amount of the tax in dispute, a surety bond or other security in an amount satisfactory to the clerk, conditioned to pay any tax over and above that for which the taxpayer has admitted liability and which is found to be due by a final judgment of the court, together with interest and costs. It shall be ground for dismissal of the appeal if the taxpayer fails to pay all taxes admittedly owed upon the due date or dates as provided by law. This subsection shall not apply to appeals filed with the Georgia Tax Tribunal as provided in Chapter 13A of Title 50.
    1. If the final judgment of the court places upon the taxpayer any tax liability which has not already been paid and if the tax or any part of the tax has:
      1. Not become due on the date of the final judgment of the court, then the taxpayer shall pay the amount of the unpaid tax liability on the due date or dates as provided by law; or
      2. Already become due at the time of final judgment of the court, the taxpayer shall immediately pay the tax or as much of the tax as has already become due, with interest.
    2. In the event the final judgment of the court is adverse to the taxpayer, the taxpayer shall pay the court costs regardless of whether the tax or any part of the tax has or has not become due at the time of the final judgment of the court.
    3. This subsection shall not apply to appeals filed with the Georgia Tax Tribunal as provided in Chapter 13A of Title 50.

      (Ga. L. 1937-38, Ex. Sess., p. 77, § 45; Ga. L. 1943, p. 204, § 3; Code 1933, § 91A-255, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 15; Ga. L. 1991, p. 716, § 1; Ga. L. 2012, p. 318, § 5/HB 100; Ga. L. 2017, p. 723, § 3/HB 337.)

The 2017 amendment, effective January 1, 2018, added "or at any time after the department records a state tax execution pursuant to Code Section 48-3-42" at the end of subsection (b).

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Law reviews. - For article discussing remedies for tax illegally assessed under the Georgia Retailers' and Consumers' Sales and Use Tax Act, Ga. L. 1951, p. 360, § 1 et seq., see 9 Ga. St. B. J. 45 (1972). For article discussing and comparing principal means by which a Georgia taxpayer may obtain judicial review of his state tax liability with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012).

JUDICIAL DECISIONS

Bond requirement of this statute is constitutional. Lee v. Chilivis, 234 Ga. 255 , 215 S.E.2d 256 (1975).

Applicability. - Ga. L. 1943, p. 204, § 3 (see now O.C.G.A. § 48-2-59 ) relates to individual assessments and tax digest revisions made by the commissioner pursuant to Ga. L. 1937-38, Ex. Sess., p. 77, § 1 et seq. (see now O.C.G.A. Ch. 2, T. 48). It is not applicable to the commissioner's denial of liquor license pursuant to Ga. L. 1937-38, Ex. Sess., p. 103, § 8 (see now O.C.G.A. § 3-2-3 ). Blackmon v. Alexander, 233 Ga. 832 , 213 S.E.2d 842 (1975).

State could not hold out what plainly appeared to be a "clear and certain" postdeprivation remedy and then declare, only after the disputed taxes had been paid, that no such remedy existed. Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547 , 130 L. Ed. 2 d 454 (1994).

Extending time for appeal. - Assessment by the commissioner pursuant to Ga. L. 1937-38, Ex. Sess., p. 77, § 39 (see now O.C.G.A. § 48-2-51 ) may not be cancelled or abated and a new assessment issued after the time for appeal has expired solely for the purpose of extending the time for appeal. Undercofler v. VFW Post 4625, 110 Ga. App. 711 , 139 S.E.2d 776 (1964), later appeal, 112 Ga. App. 27 , 143 S.E.2d 684 (1965).

Modification of commissioner's original order. - When the commissioner modifies original executive order in a material manner so as to be tantamount to a new determination, the modification has the effect of superseding or vacating an earlier judgment with respect to computation of time allowable for appeal under this statute. Nikas v. Oxford, 103 Ga. App. 721 , 120 S.E.2d 677 (1961).

When commissioner fails to certify record to superior court within 30 days after appeal, the taxpayer should not be penalized because of the commissioner's neglect, and the taxpayer's appeal should not be dismissed. State Bd. of Equalization v. Pineland Tel. Coop., 135 Ga. App. 796 , 219 S.E.2d 1 (1975).

Burden of proof on appeal. - An assessment pursuant to Ga. L. 1960, p. 210, §§ 1, 2 (see now O.C.G.A. § 48-2-52 ) is deemed to be prima facie correct, and when an assessed party appeals to the superior court in order to contest the validity of the assessment, which is a de novo proceeding, one comes into court as a plaintiff and has the burden of proof, while the commissioner occupies the status of the defendant, who by transmitting the record showing the fact of assessment, has provided sufficient answer to entitle the defendant to rebut offers of proof by the plaintiff. Blackmon v. Ross, 123 Ga. App. 89 , 179 S.E.2d 548 (1970).

Presumption on appeal as to validity of assessment. - When party assessed under Ga. L. 1960, p. 210, §§ 1, 2 (see now O.C.G.A. § 48-2-52 ) has appealed under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ) to contest the validity of the assessment, thereby opening the door to a de novo judicial investigation, the assessment must be regarded as prima facie correct. Hawes v. Le Craw, 121 Ga. App. 532 , 174 S.E.2d 382 (1970).

Effect of judgment rendered against named commissioner after leaving office. - Since cases arising in the administration of state revenue laws appear in the name of its successive agents, designated as commissioners, as provided by Ga. L. 1937-38, Ex. Sess., p. 77, § 8 (see now O.C.G.A. § 48-2-9 ), a verdict and judgment against a named commissioner in the commissioner's representative capacity, rendered after the commissioner is no longer in office, is not binding on the state. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956).

When an appeal was taken to the superior court by the taxpayer against the commissioner, and judgment is rendered approximately nine months after that commissioner had been succeeded in office by another person, nothing having been done prior to the rendition of the judgment to substitute the name of the latter as agent of the state in lieu of the former, such judgment is a nullity, and no further proceedings can be had in the cause until the parties have been made, when the case must be tried de novo. Williams v. Lawler Hosiery Mills, Inc., 212 Ga. 617 , 94 S.E.2d 699 (1956).

Res judicata on appeal or other review. - Taxpayer has available at least three remedial procedures for use in disputing the correctness of an assessment rendered against the taxpayer by the commissioner. The taxpayer may proceed by: (1) appeal under Ga. L. 1937-38. Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59 ); (2) contesting the assessment and collection after issuance and levy of execution by filing affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ); or (3) paying taxes illegally exacted and bringing an action for refund. By following any of these procedures through adjudication on the merits, the question becomes res judicata. Undercofler v. Ernhardt, 111 Ga. App. 598 , 142 S.E.2d 317 (1965); Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

Right of appeal as complete and adequate remedy at law. - Since the right of appeal provided for in this statute is a full, complete, and adequate remedy provided by law, the trial court properly dismissed the action seeking to enjoin the commissioner from holding a hearing on the revocation of a liquor license. Rozier v. Redwine, 211 Ga. 208 , 85 S.E.2d 34 (1954).

Taxpayer's right to proceed in equity when no appeal taken. - When taxpayer fails to complain of valuations or uniformity, as prescribed by law for settling such matters, and tax digest conforming with the commissioner's direction has been approved by the commissioner, and no appeal therefrom has been taken under this statute, it is not permissible for either the taxpayer or the county to attack in a court of equity either the individual assessment or the commissioner's order approving the tax digest. Grafton v. Turner, 227 Ga. 809 , 183 S.E.2d 458 (1971).

Jurisdiction of federal court. - O.C.G.A. §§ 9-4-1 , 9-5-1 , 40-2-8 , 40-3-6 , 40-3-21 , and 48-2-60 provided the plaintiff challenging the automobile "title transfer fee" (O.C.G.A. § 40-3-21 .1) [repealed] with "plain, speedy and efficient" pre-tax and post-tax remedies by which a taxpayer might challenge the constitutional validity of a state tax, and so satisfied the criteria of the Tax Injunction Act, 18 U.S.C. § 1341, so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Cited in Strickland v. W.E. Ross & Sons, 251 Ga. 324 , 304 S.E.2d 719 (1983); Kariuki v. DeKalb County, 253 Ga. 713 , 324 S.E.2d 450 (1985); Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Appeal costs. - Taxpayers appealing from decisions of the state revenue commissioner pursuant to O.C.G.A. § 48-2-59 need only comply with the specific requirements of that section with regard to court costs; taxpayers need not pay the advance court cost deposit set forth in O.C.G.A. §§ 9-15-4 and 15-6-77 . 1985 Op. Att'y Gen. No. U85-17.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 405 et seq. 72 Am. Jur. 2d, State and Local Taxation, §§ 617, 673, 674, 701, 702, 707.

C.J.S. - 84 C.J.S., Taxation, § 859 et seq.

ALR. - Right of public officer or board to appeal from a judicial decision affecting his or its order or decision, 117 A.L.R. 216 .

Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576; 9 A.L.R.4th 428.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.

48-2-60. Compromise settlements; penalty refunds.

  1. No action or other judicial proceeding for the enforcement of this chapter or for the collection of state taxes shall be settled except by agreement, compromise, or judgment in open court.
  2. No compromise or agreed judgment shall be entered in any such action or other judicial proceeding until there has been filed with the commissioner a verified statement setting forth the facts and showing the reasons why a compromise or agreed judgment should be entered and certifying that no agreement or settlement other than the one stated in the proposed judgment has been directly or indirectly entered into by the commissioner or by anyone for the commissioner and that the proposed judgment is, in the opinion of the Attorney General, for the best interest of the state.
  3. When any penalty is paid without the commencement of an action to recover on the penalty and the commissioner, within three years after the date of the payment, determines that the circumstances giving rise to the penalty were reasonably beyond the control of the taxpayer, the commissioner may authorize a refund of all or any part of the penalty so paid and any interest paid on the penalty.

    (Ga. L. 1931, p. 7, § 85; Ga. L. 1931, Ex. Sess., p. 24, § 58; Code 1933, § 92-3007; Ga. L. 1937-38, Ex. Sess., p. 77, § 9; Ga. L. 1978, p. 1469, § 1; Code 1933, § 91A-256, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 16.)

Law reviews. - For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

JUDICIAL DECISIONS

State is not bound by any unauthorized settlement, and if the taxpayer is party to an unlawful conspiracy to settle, the taxpayer remains liable for the full debt less the amount paid on good faith. Oxford v. Jessup, 101 Ga. App. 612 , 115 S.E.2d 434 (1960).

OPINIONS OF THE ATTORNEY GENERAL

Refund of penalties paid prior to January 1, 1980 not authorized. - Subsection (c) of this statute does not authorize the state revenue commissioner to refund penalties paid prior to January 1, 1980. 1980 Op. Att'y Gen. No. 80-48.

Construction with penalty provisions. - Former Code 1933, § 92-3211 (see now O.C.G.A. § 48-7-57 ), which imposed a penalty for failure to file a return, was not by necessary implication or otherwise inconsistent with or repugnant to former Code 1933, § 92-3007 (see now O.C.G.A. § 48-2-60 ), and penalties fixed under former Code 1933, § 92-3211 may be compromised under former Code 1933, § 92-3007. 1954-56 Op. Att'y Gen. p. 764.

Word "compromise" in former Code 1933, § 92-3007 (see now O.C.G.A. § 48-2-60 ) meant that when the penalty had been fixed in accordance with former Code 1933, § 92-3211 (see now O.C.G.A. § 48-7-57 ) and added to the tax, it may be collected in whole or in part or not at all according to the circumstances of the particular case. When, in the judgment of the commissioner, after the penalty had been duly and legally assessed, concessions from the taxpayer of value to the state can be secured by waiving the penalty, then a compromise within the meaning of former Code 1933, § 92-3007 had been effected. 1954-56 Op. Att'y Gen. p. 764.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 734 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 1046 et seq., 1073 et seq.

ALR. - Constitutionality and construction of statute providing for or authorizing waiver or reduction of penalty or interest in respect of taxes in default, 68 A.L.R. 431 ; 79 A.L.R. 999 .

Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 96 A.L.R. 925 ; 147 A.L.R. 142 .

Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Voluntary payment doctrine as bar to recovery of payment of generally unlawful tax, 1 A.L.R.6th 229.

48-2-61. Effect of actions taken to avoid payment of taxes; liability.

  1. All deeds of gift, mortgages, sales, transfers of titles to motor vehicles, and assignments of property of any kind made to avoid payment of taxes and all judgments procured for the purpose of avoiding payment of taxes shall be null and void.
  2. The person holding such property or the person to whom such conveyance has been made and the property also, wherever found and no matter in whose possession it may be, shall be liable for taxes.

    (Laws 1804, Cobb's 1851 Digest, p. 1050; Code 1863, §§ 743, 744; Code 1868, §§ 810, 811; Code 1873, §§ 813, 814; Code 1882, §§ 813, 814; Civil Code 1895, §§ 885, 886; Civil Code 1910, §§ 1142, 1143; Code 1933, §§ 92-5710, 92-5711; Code 1933, § 91A-261, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1997, p. 419, § 33.)

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 215 (1997).

JUDICIAL DECISIONS

Effect as between parties to contract voided hereunder. - Statute condemns transactions of the character mentioned, which transactions are made to avoid payment of taxes and are asserted to prevent collection of taxes, but does not void such contracts as between individual parties thereto. Smith v. Johnson, 187 Ga. 584 , 1 S.E.2d 650 (1939).

Execution valid against land even if issued against one who is no longer owner. - An execution issued by the tax collector for the unpaid taxes against the land, which has not been returned by any one, describing it as the property of the persons who last returned it, is valid against the land, although such persons may no longer be the owners of the land, and may not have owned the land at the time the law fixes the liability for taxes. Stokes v. State, 46 Ga. 412 , 12 Am. R. 588 (1872).

OPINIONS OF THE ATTORNEY GENERAL

Effect on tax lien of transfer to bona fide purchaser for value. - Ad valorem tax lien attaches to property, and a mobile home is no exception; the lien follows the property even into the hands of a bona fide purchaser for value. Attempted transfer of a mobile home to evade the tax is void. 1970 Op. Att'y Gen. No. U70-208.

Mere fact that property is transferred to another who resides beyond tax jurisdiction on tax day will not be effective when the transfer is made to defeat collection of taxes. 1967 Op. Att'y Gen. No. 67-24.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 6.

ALR. - Taking mortgage in name of, or assigning it to, third person to evade taxation, as affecting its validity and enforceability, 21 A.L.R. 396 .

Constitutionality, construction, application and effect of specific provisions of state corporate income tax law in respect to tax evasion, 92 A.L.R. 1073 .

Assignment of right to future earnings, commissions, or benefits as affecting income tax of assignor, 131 A.L.R. 661 ; 151 A.L.R. 1401 .

Validity, construction, and effect of a provision of a trust instrument or will which attempts to withdraw property or interest otherwise passing thereunder, in event that it be held subject to tax, 154 A.L.R. 1222 .

Construction, application, and effect, with respect to withholding, social security, and unemployment compensation taxes, of statutes imposing penalties for tax evasion or default, 22 A.L.R.3d 8.

48-2-62. Penalties for tax return preparers; prohibition on continuing to prepare returns; refunds.

  1. As used in this Code section, the term:
    1. "Tax return preparer" means any person who prepares for compensation, or who employs one or more persons to prepare for compensation, any return of tax imposed under Chapter 7, 7A, or 8 of this title or any claim for refund of such tax. The preparation of a substantial portion of a return or claim for refund shall be treated as if it were the preparation of such return or claim for refund. A person shall not be considered a tax return preparer merely because the person does any of the following:
      1. Furnishes typing, reproducing, or other mechanical assistance;
      2. Prepares a return or claim for refund of the employer, or an officer or employee of the employer, by whom the person is regularly and continuously employed;
      3. Prepares as a fiduciary a return or claim for refund for any person; or
      4. Prepares a claim for refund for a taxpayer in response to a notice of proposed assessment issued to the taxpayer.
    2. "Understatement of liability" means an understatement of the net amount payable for a tax imposed under Chapter 7, 7A, or 8 of this title or an overstatement of the net amount creditable or refundable from such tax. For purposes of this paragraph, the amount determined as an underpayment of estimated income tax under the relevant provisions of this chapter is not considered an understatement of liability.
    1. Any tax return preparer who prepares any return or claim for refund for which any part of an understatement of liability is due because of a position described in paragraph (2) of this subsection shall pay a penalty not to exceed $500.00 for each such return or claim for refund.
    2. A position is described in this subsection if:
      1. The tax return preparer knew or reasonably should have known of the position;
      2. There was not a reasonable basis for the position; and
      3. The position was frivolous or not adequately disclosed in the return or claim for refund or in a statement attached to the return or claim for refund.
    3. No penalty shall be imposed under this subsection if it is shown that there is reasonable cause for the understatement of liability and the tax return preparer acted in good faith.
  3. Any tax return preparer who prepares any return or claim for refund for which any part of an understatement of liability is due because of conduct described in this subsection shall pay a penalty for each such return or claim for refund in an amount equal to the greater of $5,000.00 or 50 percent of the income derived, or to be derived, by the tax return preparer for the return or claim for refund. Conduct described in this subsection is conduct by the tax return preparer which is:
    1. A willful attempt in any manner to understate the liability for tax on the return or claim for refund; and
    2. A reckless or intentional disregard of the law.
  4. If at any time there is a final administrative determination or a final judicial decision that there was no understatement of liability in the case of the taxpayer's underlying return or claim for refund for which a penalty under subsection (b) or (c) of this Code section has been assessed against the tax return preparer, such assessment shall be canceled; and if any portion of such penalty has been paid, the amount so paid shall be refunded to the tax return preparer as an overpayment of tax without regard to any period of limitations which, but for this subsection, would apply to the making of such refund.
  5. Other assessable penalties on the preparation for other persons of returns of tax imposed under Chapter 7, 7A, or 8 of this title shall be as follows:
    1. Any tax return preparer who prepares any return or claim for refund and is required by regulations prescribed by the commissioner to sign such return or claim for refund but who fails to sign such return shall pay a penalty of $50.00 for such failure, unless it is shown that such failure is due to reasonable cause and not due to willful neglect or that the practice conformed to accepted industry standards. The maximum penalty imposed under this paragraph on any tax return preparer during any calendar year shall not exceed $25,000.00;
      1. Any tax return preparer who prepares any return or claim for refund and fails to furnish the preparer's identifying number on such return or claim for refund shall pay a penalty of $50.00 for such failure, unless it is shown that such failure:
        1. Is due to reasonable cause and not due to willful neglect; or
        2. Failed to conform to accepted industry standards.
      2. The maximum penalty imposed under this paragraph on any tax return preparer during any calendar year shall not exceed $25,000.00; and
    3. Any tax return preparer who fraudulently endorses or otherwise negotiates directly or through an agent any check made for the taxes imposed under Chapter 7, 7A, or 8 of this title which is issued to a taxpayer other than the tax return preparer shall pay a penalty of $500.00 for each such check. This paragraph shall not apply to the deposit by a bank, within the meaning of Section 581 of the Internal Revenue Code of 1986, of the full amount of the check in the taxpayer's account in such bank for the benefit of the taxpayer.
    1. A civil action in the name of the State of Georgia may be commenced at the request of the commissioner to enjoin any tax return preparer, or employer having knowledge of an employee tax return preparer, who is doing business in this state and engaging in conduct described in this subsection from further engaging in preparing tax returns. This action may be brought by the department in the superior court of the county of the tax return preparer's residence or principal place of business or in which the taxpayer for whose tax return the action is brought resides. The court may exercise its jurisdiction over the action separate and apart from any other action brought by the State of Georgia against the tax return preparer or any taxpayer.
    2. In an action under this subsection, the court may issue an injunction prohibiting a person from acting as a tax return preparer if the court finds that the individual has:
      1. Engaged in any pattern of conduct subject to civil penalty under subsection (b), (c), or (e) of this Code section; or
      2. Guaranteed the payment of any tax refund or the allowance of any tax credit.
  7. Any claim for refund of any penalty paid under this Code section shall be filed in accordance with rules and regulations promulgated by the commissioner. Any penalty under subsection (b) or (e) of this Code section shall be assessed within three years after the return or claim for refund was filed, and no proceeding in court without assessment for the collection of such tax shall begin after the expiration of such period. In the case of any penalty under subsection (c) of this Code section, the penalty may be assessed, or a proceeding in court for the collection of the penalty may be begun without assessment, at any time. Except as provided in subsection (d) of this Code section, any claim for refund of an overpayment of any penalty assessed under subsection (b), (c), or (e) of this Code section shall be filed within three years from the time the penalty was paid.
  8. Except as otherwise provided by this Code section, proceedings to assess, collect, or seek a refund of any penalty imposed under this Code section shall be conducted in the same manner and subject to the same rights of appeal as assessments, collections, and claims for refund of the related taxes under Chapter 7, 7A, or 8 of this title, as the case may be. (Code 1981, § 48-2-62 , enacted by Ga. L. 2009, p. 671, § 1/HB 444.)

ARTICLE 3 ENFORCEMENT

RESEARCH REFERENCES

ALR. - What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.

48-2-80. Judicial enforcement of taxes imposed by other states.

The courts of this state shall recognize and enforce liabilities for taxes lawfully imposed by other states which extend like comity to this state.

(Ga. L. 1937-38, Ex. Sess., p. 77, § 47; Code 1933, § 91A-262, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, §§ 60, 61, 62.

ALR. - Reciprocity as affecting comity, 87 A.L.R. 973 .

48-2-81. Duties of law enforcement officers and tax officials as to collecting taxes and prosecuting violators; payment of portion of fines to informants.

It shall be the duty of all sheriffs, deputies, and constables to enforce the collection of all taxes that may be due the state under any law. It shall be the duty of all tax collectors, tax commissioners, sheriffs, and constables to make sure that all persons violating any of the tax laws of this state are prosecuted for all such violations. One-fourth of the fines imposed upon persons convicted of violating any tax law of this state upon the information of any citizen of this state shall be paid to the informant by order of the court.

(Ga. L. 1927, p. 56, § 14; Code 1933, § 92-2103; Ga. L. 1935, p. 11, § 14; Code 1933, § 91A-6010, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 70.

ALR. - Right, in absence of express statute, of one governmental unit, or officers thereof, to compensation for collecting or disbursing special taxes or assessments levied by or owed to another governmental unit, 114 A.L.R. 1098 .

48-2-82. Contraband articles - Seizure; disposition; exceptions.

    1. Any contraband article and any vessel, vehicle, aircraft, or other conveyance which has been or is being used in violation of any provision of this title or of the revenue laws of this state, and any vessel, vehicle, aircraft, or other conveyance in, upon, or by means of which any violation has taken or is taking place shall be seized by any law enforcement officer or revenue officer of this state without a warrant and shall be delivered forthwith to the commissioner.
    2. After any such delivery, the commissioner shall post a notice of the seizure for a period of ten days in a prominent place in the courthouse of the county in which the seizure occurred. The notice shall state that a decision as to seizure and forfeiture will be made by the commissioner at the expiration of the ten-day period; and the notice shall act as a bar against any person subsequently asserting a claim of any interest existing in the article at the time of seizure.
    3. Upon determining that an article is contraband and that the seizure and forfeiture of the article is in accordance with this Code section, the commissioner shall direct the disposition or destruction of the article as he may reasonably deem appropriate. Any sale of such articles shall be to the highest bidder for cash and the proceeds of the sale shall be delivered to the Office of the State Treasurer.
  2. No vessel, vehicle, aircraft, or other conveyance used in the transaction of business as a common carrier shall be forfeited under this Code section unless it shall appear that, in the case of a railway car or engine, the owner or, in the case of any other such vessel, vehicle, aircraft, or other conveyance, the owner or the master of such vessel or the owner or conductor, driver, pilot, or other person in charge of such vehicle, aircraft, or other conveyance was at the time of the alleged illegal act a consenting party or privy thereto.
  3. No vessel, vehicle, aircraft, or other conveyance shall be forfeited under this Code section by reason of any act or omission shown by the owner of the conveyance to have been committed or omitted by any person other than the owner while the vessel, vehicle, aircraft, or other conveyance was unlawfully in the possession of a person who acquired possession of the conveyance in violation of the criminal laws applicable to the location of acquisition, whether of the United States or of any state of the United States.

    (Ga. L. 1956, p. 786, § 2; Code 1933, § 91A-257, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

RESEARCH REFERENCES

C.J.S. - 79 C.J.S., Searches and Seizures, § 217 et seq.

48-2-83. Contraband articles - Affidavit to test legality of forfeiture.

The owner of any property subject to forfeiture under this title may test the legality of the forfeiture by filing in the superior court of the county in which the property was seized within ten days after the seizure an affidavit of illegality against the commissioner in the manner and form prescribed by law for testing the legality of tax fi. fas.

(Ga. L. 1956, p. 786, § 9; Code 1933, § 91A-258, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 79 C.J.S., Searches and Seizures, §§ 250 et seq., 276 et seq. 84 C.J.S., Taxation, §§ 783, 826 et seq.

48-2-84. Unlawful activities as to revenue stamps; possession or transportation of contraband; penalty.

  1. It shall be unlawful for any person to:
    1. With intent to defraud and without authorization, make, falsify, forge, alter, or counterfeit any revenue stamp or marking prima facie evidencing the payment of any tax imposed by the revenue laws of this state;
    2. With knowledge, pass, publish, utter, or give currency to any unauthorized, false, forged, altered, or counterfeit revenue stamp or marking prima facie evidencing the payment of any tax imposed by the revenue laws of this state;
    3. Make, possess, or have custody or control of any contraband article;
    4. Transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, aircraft, or other conveyance;
    5. Conceal or possess any contraband article in or upon any vessel, vehicle, aircraft, or other conveyance or upon the person of anyone in or upon any vessel, vehicle, aircraft, or other conveyance; or
    6. Use any vessel, vehicle, aircraft, or other conveyance for the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
  2. Any person who violates this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not less than one year nor more than three years, or both.

    (Ga. L. 1956, p. 786, §§ 3-8; Code 1933, §§ 91A-9904, 91A-9905, enacted by Ga. L. 1978, p. 309, § 2.)

ARTICLE 4 FACILITATING BUSINESS RAPID RESPONSE TO STATE DECLARED DISASTERS

Editor's notes. - The former article, consisting of Code Sections 48-2-100 through 48-2-108, relating to "The Federal Retiree Refund Act of 1995," was based on Ga. L. 1995, p. 1, § 1; Ga. L. 1999, p. 81, § 48, and was repealed by Ga. L. 1995, p. 1, § 1, effective December 31, 1999.

48-2-100. Short title; definitions; legislative findings; certain exemptions for out-of-state businesses and employees conducting operations related to declared state of emergency; post-emergency application of state laws and requirements.

  1. This Code section shall be known and may be cited as the "Facilitating Business Rapid Response to State Declared Disasters Act of 2014."
  2. For purposes of this Code section, the term:
    1. "Affected state" means a state where a declared state of disaster or emergency exists.
    2. "'Declared state of disaster or emergency" means a disaster or emergency event for which the Governor's state of emergency declaration has been issued or for which a presidential declaration of a federal major disaster or emergency has been issued.
    3. "Disaster or emergency period" means a period that begins ten days prior to the first day of the Governor's declaration or the president's declaration, whichever occurs first, and extends for a period of 60 calendar days after the end of the declared disaster or emergency period.
    4. "Infrastructure" means property and equipment owned or used by communications networks; cable, video, or broadband networks; gas and electric distribution systems; water pipelines; railways; public roads and bridges; and related support facilities that service multiple customers, including but not limited to real and personal property such as buildings, offices, lines, poles, pipes, structures, and equipment.
    5. "Out-of-state business" means a business entity that has no presence in this state and conducts no business in this state whose services are requested by a registered business in this state or by the state or a local government in this state for purposes of performing disaster or emergency related work in this state. This shall also include a business entity that is affiliated with a registered business in this state solely through common ownership if the affiliate has no registrations or required registrations or tax filings or required tax filings or nexus in this state prior to the declared state of disaster or emergency.
    6. "Out-of-state employee" means an employee who does not work in this state that is temporarily working in this state during the disaster or emergency period to perform disaster or emergency related work in this state to repair, renovate, install, build, or render services or other business activities that relate to infrastructure that has been damaged or destroyed during a declared state of disaster or emergency.
    7. "Registered business" means a business entity that owns or operates infrastructure in this state and is currently registered or is required to be registered to do business in this state prior to the declared state of disaster or emergency.
  3. The General Assembly finds that:
    1. When storms, floods, fires, earthquakes, hurricanes, or other natural disasters or emergencies occur, many businesses assign resources and personnel to the affected state from other states throughout the United States on a temporary basis to expedite the enormous and overwhelming task of cleaning, restoring, and repairing damaged equipment, property, and infrastructure.
    2. Most often this disaster or emergency relief effort involves the need for out-of-state businesses, including out-of-state affiliates of businesses registered in the affected state, to bring in resources, property, and personnel to perform disaster related activity in the affected state. In some instances, personnel may be located in the affected state for extended periods of time to perform such activities.
    3. During such time of operating in the affected state on a temporary basis solely for purposes of helping the affected state recover from the disaster or emergency, these businesses and employees should not be burdened by any requirements for certain tax liabilities incurred as a result of such activities in the affected state for a temporary period.
    4. The affected state's nexus and residency thresholds for tax liability are intended for businesses and individuals in such state conducting business operations or who intend to reside in the state and should not be applied to businesses and individuals coming into the state on a temporary basis to provide help and assistance in response to a declared state of disaster or emergency.
    5. To ensure that businesses and individuals focus on quick response to the needs of this state and its citizens during a declared state of disaster or emergency, it is appropriate for the General Assembly to deem that such disaster or emergency relief activity for a reasonable period of time during and after the disaster or emergency period shall not establish any liability for purposes of certain state and local taxes, licensing, and regulatory requirements imposed in this state.
    1. An out-of-state business whose presence is solely that of conducting operations within this state for purposes of performing work or services on infrastructure related to a declared state of disaster or emergency during the disaster or emergency period shall not be considered to have established a level of presence that would require that business to register, file, and remit certain state or local taxes or that would require that business to be subject to any licensing or registration requirements in this state. This exemption includes any state or local business licensing or registration requirements, any state or local employer income tax withholding, unemployment insurance, any state or local occupational licensing fees, public service commission or secretary of state licensing and regulatory requirements, and any state or local tax on or measured by, in whole or in part, net or gross income or receipts or net worth, including the filing required for a combined group of which the out-of-state business may be a part. For the apportionment of income pursuant to Chapter 7 of this title, the performance by an out-of-state business of any work in accordance with this Code section shall not increase the amount of income apportioned to this state.
    2. Any out-of-state employee shall not be considered to have established residency or a presence in this state that would require that employee to file and pay income taxes, to be subjected to income tax withholdings, or to be subject to any licensing or registration requirements in this state.
  5. Out-of-state businesses and out-of-state employees shall be required to pay transaction taxes and fees including but not limited to fuel taxes or sales and use taxes on materials or services subject to sales and use taxes in this state, hotel taxes, and car rental taxes or fees that the out-of-state business or out-of-state employee purchases for use or consumption in the affected state during the disaster or emergency period, unless such taxes are otherwise exempted pursuant to Chapter 8 of this title.
  6. Any out-of-state business or out-of-state employee that remains in this state after the disaster or emergency period shall become subject to the state's normal requirements for establishing presence, residency, or doing business and shall comply with all state and local registration, licensing, and filing requirements.
    1. Any out-of-state business that enters this state to perform qualified work during a disaster or emergency period shall provide to the department and to the Georgia Emergency Management and Homeland Security Agency a statement that it is in this state for purposes of responding to the disaster or emergency, which statement shall include the business's name, state of domicile, principal business address, federal tax identification number, date of entry, and contact information.
    2. A registered business in this state shall provide the information required in paragraph (1) of this subsection to the department and to the Georgia Emergency Management and Homeland Security Agency for any affiliate that enters this state that is an out-of-state business. The notification shall also include contact information for the registered business in this state.
  8. The Georgia Emergency Management and Homeland Security Agency and the department shall promulgate regulations as necessary to comply with the requirements of this Code section. (Code 1981, § 48-2-100 , enacted by Ga. L. 2014, p. 201, § 1/HB 782; Ga. L. 2016, p. 91, § 20/SB 416; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in paragraphs (g)(1) and (g)(2) and subsection (h).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (g)(1).

ARTICLE 5 REFUNDS FOR ELIGIBLE RECIPIENTS

Editor's notes. - Code Section 48-2-115 provided that this article was repealed on December 31, 2000.

48-2-110 through 48-2-115.

Repealed by Ga. L. 1995, p. 902, § 1, effective December 31, 2000.

Editor's notes. - This article, consisting of Code Sections 48-2-110 through 48-2-115, relating to refunds for eligible recipients, was based on Ga. L. 1995, p. 902, § 1.

CHAPTER 3 TAX EXECUTIONS

Article 1

General Provisions.

Article 2

Uniform System for Filing State Tax Executions.

Cross references. - Executions generally, § 9-13-1 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-74 and 92-76 are included in the annotations for this chapter.

Execution not against person or in rem against an estate is void. - Tax execution issued merely against the estate of a named person, not being an execution in rem and being against no person as a defendant in fieri facias, is void. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

When defendant life tenant dies and execution never levied, fieri facias not a cloud on remainderman's title. - When property is held by a life tenant, and taxes are assessed against the life tenant and executions issued in personam only, a sale under the levy of such execution would pass only the life estate. The executions not having been levied, and the life tenant having died, and the remainderman having succeeded to the fee in the property, the fieri facias in question did not constitute clouds upon the title. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

RESEARCH REFERENCES

ALR. - Constitutionality and construction of statute providing for or authorizing waiver or reduction of penalty or interest in respect of taxes in default, 79 A.L.R. 999 .

Right of one who pays taxes for which another is bound, to subrogation to the right of the taxing power, 106 A.L.R. 1212 .

Constitutionality of statute which provides for summary entry of judgment upon certificate or finding by taxing body or officer, 149 A.L.R. 312 .

ARTICLE 1 GENERAL PROVISIONS

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Ga. L. 2017, p. 723, § 9/HB 337, effective January 1, 2018, designated the existing provisions of this chapter as Article 1 and enacted Article 2 thereof.

48-3-1. Execution for collection of money due the state; affidavit of illegality.

Reserved. Repealed by Ga. L. 2017, p. 723, § 4/HB 337, effective January 1, 2018.

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Ga. L. 2017, p. 723, § 4/HB 337 provides for the repeal and reservation of this Code section, effective January 1, 2018.

This Code section was based on Ga. L. 1889, p. 29, § 7; Civil Code 1895, § 789; Civil Code 1910, § 1041; Ga. L. 1916, p. 34, § 1; Ga. L. 1927, p. 136, § 1; Ga. L. 1931, p. 7, § 80; Ga. L. 1931, Ex. Sess., p. 24, § 39; Code 1933, §§ 92-2706, 92-3306, 92-7301; Ga. L. 1937, p. 109, § 19; Ga. L. 1951, p. 360, § 19; Ga. L. 1952, p. 334, § 2; Code 1933, § 91A-301, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 5; Ga. L. 1997, p. 734, § 3; Ga. L. 2012, p. 318, § 6/HB 100.

Law reviews. - For article discussing and comparing the principal means by which the Georgia taxpayer may obtain judicial review of his state tax liability with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975).

JUDICIAL DECISIONS

Procedure affords due process of law. - Inasmuch as this statute provides for affidavit of illegality to challenge tax execution and hearing thereon, it does not violate Ga. Const. 1877, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I) or the due process clause of U.S. Const., amend. 14. Hicks v. Stewart Oil Co., 182 Ga. 654 , 186 S.E. 802 (1936).

Right to jury trial on affidavit of illegality. - Statute does not violate Ga. Const. 1877, Art. VI, Sec. XVIII, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. XI) or U.S. Const., amend. 14 as regards the right to trial by jury. Hicks v. Stewart Oil Co., 182 Ga. 654 , 186 S.E. 802 (1936).

There is no right to a jury trial in the proceedings held in superior court on the affidavit of illegality. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Right to jury trial in tax collection proceedings. - As a general rule there is no right under general constitutional provisions to a jury trial in statutory or summary proceedings for collection of taxes. Hicks v. Stewart Oil Co., 182 Ga. 654 , 186 S.E. 802 (1936).

Affidavit of illegality is the "petition" of taxpayer seeking redress from what it considers an illegal tax assessment sought to be collected by the department. Dalton Carpet Indus., Inc. v. Chilivis, 137 Ga. App. 266 , 223 S.E.2d 460 (1976).

Alternatives to filing affidavit of illegality. - Right of taxpayer to test legality of tax which is allegedly due by filing an affidavit of illegality is one of four available procedures under which the taxpayer can contest the taxpayer's liability for state taxes. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Res judicata effect of adjudication on merits. - Taxpayer had available at least three remedial procedures for use in disputing correctness of assessment rendered against the taxpayer by the commissioner. The taxpayer may proceed by: (1) appeal under Ga. L. 1943, p. 204, § 3 (see now O.C.G.A. § 48-2-59 ); (2) contesting assessment and collection after issuance and levy of execution by filing an affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ); or (3) paying taxes illegally exacted and bringing an action for refund. By following any of these procedures through adjudication on the merits, the question became res judicata. Undercofler v. Ernhardt, 111 Ga. App. 598 , 142 S.E.2d 317 (1965); Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164 , 210 S.E.2d 377 (1974).

Availability of injunctive relief. - Injunction will lie, at the instance of any taxpayer who has not estopped oneself, to enjoin sale of the taxpayer's property for collection of an unauthorized tax, since an affidavit of illegality is not a proper remedy to contest the illegality of an execution in the nature of a tax execution, unless authorized by statute; but if one complains of illegality of taxing statute or collection procedure thereunder on an attempted levy of execution issued by the commissioner, foregoing rules and decisions are inapplicable, since under this statute the taxpayer has an adequate remedy at law by affidavit of illegality. Carreker v. Green & Milam, Inc., 183 Ga. 864 , 189 S.E. 836 (1937).

Procedure when taxpayer admittedly owes part of tax complained of. - One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that one owes part of tax covered by such executions, must pay or offer to pay amounts admitted to be due in order to obtain relief sought. This rule also applies to those seeking relief from excessive levies by municipal authorities. Lowe v. City of Atlanta, 191 Ga. 76 , 11 S.E.2d 891 (1940), later appeal, 194 Ga. 317 , 21 S.E.2d 171 (1942).

Presumption is that necessary bond was filed unless record affirmatively shows that such bond was not filed. Williams v. Boykin, 94 Ga. App. 246 , 94 S.E.2d 148 (1956).

When affidavit of illegality is filed with clerk rather than with levying officer, and it does not appear that such procedure harmed the plaintiff in fieri facias, this mere irregularity will not void an affidavit of illegality. Williams v. Boykin, 94 Ga. App. 246 , 94 S.E.2d 148 (1956).

Notice to plaintiff in fieri facias of affidavit of illegality. - There is no provision in the law requiring the sheriff to notify the plaintiff in fieri facias that an affidavit of illegality has been filed to a levy, nor does failure of the defendant in fieri facias to serve the plaintiff in fieri facias void an affidavit of illegality. Williams v. Boykin, 94 Ga. App. 246 , 94 S.E.2d 148 (1956).

Cited in Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986).

OPINIONS OF THE ATTORNEY GENERAL

Duty to issue executions against public utilities. - Although the language of former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ) did not describe a mandatory or compelling duty and merely empowered the commissioner to issue execution, a fieri facias against a public utility other than a railroad should also be issued; this strict concept of mandatory duty in the case of all other utilities was strengthened in light of former Code 1933, §§ 92-2305, 92-2306, 92-2307, and 92-2308 (see now O.C.G.A. § 48-5-424 ). 1963-65 Op. Att'y Gen. p. 348.

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 35 et seq., 182 et seq., 526.

C.J.S. - 85 C.J.S., Taxation, § 1284 et seq.

ALR. - Character of action or proceeding in which purchaser at invalid sale for taxes or local improvement assessment may secure reimbursement from owner; and provisions of decree or judgment to relief, 86 A.L.R. 1208 .

Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Persons in possession of real property as affected by decree foreclosing tax lien, upon service by publication, or in a proceeding against unknown owners, 128 A.L.R. 114 .

Enforcement against tax-exempt property of tax on nonexempt property or on owner of tax-exempt property, 159 A.L.R. 461 .

48-3-2. Executions against foreign corporations.

An execution against an agent of a foreign corporation or other foreign company shall be against the chief agent or his successor and shall authorize the executing officer to levy on all property of the agency and to seize its money, notes, and other effects.

(Orig. Code 1863, § 807; Code 1868, § 886; Code 1873, § 883; Code 1882, § 883; Civil Code 1895, § 881; Civil Code 1910, § 1138; Code 1933, § 92-7307; Code 1933, § 91A-305, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 94.

C.J.S. - 84 C.J.S., Taxation, § 218 et seq.

48-3-3. Executions by tax collectors and commissioners.

  1. As used in this Code section, the term:
    1. "New owner" means the most recent subsequent owner who has purchased such property during the year after January 1, but on or before the due date of that tax bill year and whose deed has been duly recorded in the records of the clerk of the superior court for that county.
    2. "Owner of record" means the owner whose name appears in the deed record as the owner as of January 1 of that tax bill year.
  2. The tax collector or tax commissioner shall issue executions for nonpayment of taxes collectable by the tax collector or tax commissioner at any time after 30 days have elapsed since giving notice as provided in subsection (c) of this Code section. The executions shall be directed to all and singular sheriffs and constables of this state.
  3. As soon as the last day for the payment of taxes has arrived, the tax collector or tax commissioner shall notify in writing the taxpayer of the fact that the taxes have not been paid and that, unless paid, an execution shall be issued; provided, however, that notice shall not be required for taxes due on personal property and executions may be issued on the day next following the day when taxes are due.
  4. No execution shall be issued against any person who is not the owner of record of the property on the day that the taxes become delinquent if, within 90 days from the due date, such person has provided satisfactory proof to the tax collector or tax commissioner that the property has been transferred by recorded deed and the liability for the payment of ad valorem taxes has been assigned to the vested transferee by written agreement or contract. In such cases, the execution shall be issued against the person who is the new owner of the property on the date that the taxes became delinquent only after such new owner has been sent a notice of the delinquent tax bill, and such notice shall state that the tax collector or tax commissioner intends to issue a tax execution in the new owner's name against such delinquent property if the bill and all applicable interest and other charges are not paid within 30 days of the date of the notice. Such notice shall be mailed by first-class mail to the address of record as shown on the real estate transfer tax declaration form in the records of the clerk of the superior court and to the address shown on the closing documents if presented or to the property location if the address differs from that shown on the real estate transfer tax declaration form. If an execution has already been issued against the owner of record, such execution shall be affirmatively cleared and vacated of record by the tax collector or tax commissioner upon receiving satisfactory proof as provided in this subsection.
      1. Whenever technologically feasible, the tax collector or tax commissioner, at the time tax bills or any subsequent delinquent notices are mailed, shall also mail such bills or notices to any new owner that at that time appear in the records of the county board of tax assessors. The bills or notices shall be mailed to the address of record as found in the county board of tax assessors' records.
        1. In the discretion of the tax commissioner, a taxpayer shall have the option of receiving tax bills or subsequent delinquent notices via electronic transmission in lieu of, or in addition to, receiving a paper bill via first-class mail. The tax bill shall be transmitted to the taxpayer via e-mail, with delivery or read receipt requested, in portable document format using all e-mail addresses provided by the taxpayer, and the date shown on such transmission shall serve as a postmark. In any instance where such transmission proves undeliverable, the tax commissioner shall mail such tax bill or subsequent delinquent notice to the address of record as found in the county board of tax assessors' records.
        2. The commissioner shall develop and make available to tax commissioners a suitable form for use by taxpayers in exercising the option to receive tax bills or subsequent delinquent notices via electronic transmission.
    2. A new owner shall not be required to pay the interest specified in Code Section 48-2-40, or the penalty specified in Code Section 48-2-44, until 60 days after the tax collector or tax commissioner has forwarded a tax bill to the new owner in accordance with paragraph (1) of this subsection. This paragraph shall apply only to the tax bill applicable to the year in which the property was purchased.
  6. The real estate transfer tax declaration form shall provide for and indicate the correct tax map parcel identification number before being accepted by the clerk of the superior court for recordation.

    (Orig. Code 1863, § 810; Code 1868, § 889; Code 1873, § 886; Code 1882, § 886; Civil Code 1895, § 894; Civil Code 1910, § 1151; Code 1933, § 92-7401; Code 1933, § 91A-307, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1363, § 1; Ga. L. 1990, p. 1337, § 1; Ga. L. 1994, p. 358, § 1; Ga. L. 2005, p. 138, § 2/HB 116; Ga. L. 2006, p. 72, § 48/SB 465; Ga. L. 2006, p. 739, § 1/SB 525; Ga. L. 2007, p. 172, § 1/HB 380; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2015, p. 1219, § 5/HB 202; Ga. L. 2017, p. 738, § 1/HB 375; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of subsection (e) for the former provisions, which read: "(e)(1) Whenever technologically feasible, the tax collector or tax commissioner, at the time tax bills or any subsequent delinquent notices are mailed, shall also mail such bills or notices to any new owner that at that time appear in the records of the county board of assessors. The bills or notices shall be mailed to the address of record as found in the county board of assessors' records.

"(2) A new purchaser of property shall not be required to pay the interest specified in Code Section 48-2-40, or the penalty specified in Code Section 48-2-44, until 60 days after the tax collector or tax commissioner has forwarded a tax bill to the new purchaser in accordance with paragraph (1) of this subsection. This paragraph shall apply only to the tax bill applicable to the year in which the property was purchased."

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, substituted "before" for "after" in the middle of paragraph (a)(1); substituted "this state" for "the state" near the end of the last sentence of subsection (b); and, in subsection (d), in the first sentence, substituted "owner of record" for "record owner" near the beginning, substituted "such person" for "that person" near the middle, in the second sentence, deleted "record" preceding "owner of the property" near the beginning, inserted "the" preceding "taxes became delinquent" near the middle, substituted "tax bill, and such notice shall state" for "tax bill and" in the middle, and in the third sentence, substituted "by first-class mail" for "first class" near the beginning. The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "such person" for "that person" near the middle of the first sentence of subsection (d).

Editor's notes. - Ga. L. 1988, p. 1363, § 3, not codified by the General Assembly, provided that this Code section applies with respect to executions transferred on or after July 1, 1988.

JUDICIAL DECISIONS

It is proper to issue one fieri facias for both state and county taxes. Citizens & S. Bank v. State, 151 Ga. 696 , 108 S.E. 161 (1921).

Jurisdictional facts must appear on face. - Since a tax execution is not founded upon the judgment of any court, but is a purely summary process, it is essential to the validity of such an execution that all the necessary jurisdictional facts authorizing its issuance should appear upon its face. Equitable Bldg. & Loan Ass'n v. State, 115 Ga. 746 , 42 S.E. 87 (1902).

Notice not required as to personal property. - Summary judgment was properly granted to a county tax commissioner in a taxpayer's action alleging violation of various statutory and constitutional provisions in the commissioner's levying upon the taxpayer's bank account to collect county taxes owed because neither O.C.G.A. § 48-3-3 nor O.C.G.A. §§ 48-2-55 and 48-3-9 required the commissioner to give the taxpayer notice of the levy prior to levying upon the personal property. Anderson v. Ford, 261 Ga. App. 34 , 581 S.E.2d 623 (2003).

Writings insufficient as executions. - When the executions are improperly directed "to any lawful officer," yet were executed by the proper officer, the levy and sale by that officer is not void because of the misdirection in the execution. Byars v. Curry, 75 Ga. 515 (1885).

Writing purporting to be an execution, but which merely commands the levying officers to whom it is directed to take of the property of a named corporation a specified sum as "now due and owing to this state and county for taxes, back taxes to 1899, as well as all lawful costs," is void. Equitable Bldg. & Loan Ass'n v. State, 115 Ga. 746 , 42 S.E. 87 (1902).

Tax execution which omits the direction to any particular officer or officers, but commands a levy to be made upon the property of the defendant, was irregular but not void, and can be amended by adding a direction as provided by law. Winn v. Butts, 127 Ga. 385 , 56 S.E. 406 (1907).

Executions levied by deputy need not be signed by sheriff. - When tax executions are levied by a deputy sheriff, entry of levy upon executions need not be signed by the sheriff or by someone legally authorized to sign the sheriff's name for the sheriff. Durham v. Smith, 186 Ga. 565 , 198 S.E. 734 (1938).

When tax collector for convenience causes executions against tax defaulters to be printed, bearing the collector's official signature in print, but leaves blank spaces in which to write the names of persons against whom and the amount for which each should be issued, and places them in the collector's office and the clerk fills out such executions appropriately against individual tax defaulters, and with knowledge and consent of tax collector they are delivered to sheriff for enforcement, such action is a sufficient issuance of such executions, and they and the levy thereof by the sheriff are not void on ground that the printed papers were not signed by hand of tax collector or by someone in the collector's presence at the collector's request. Federal Land Bank v. Moultrie Banking Co., 178 Ga. 150 , 172 S.E. 455 (1934).

Effect of tax execution issued against one other than owner of nonreturned property. - When owner fails to return land, there is no provision of law whereby the owner's title can be divested by levy and sale as property of another person under a tax execution issued against such other person. Nelson v. Brown, 174 Ga. 150 , 162 S.E. 276 (1932).

No authority to issue execution for occupation tax against one illegally operating stock exchange. - One illegally conducting a stock exchange is not properly to be regarded as a tax defaulter against whom a tax collector has authority to issue an execution with a view to compelling payment of the occupation tax upon dealers in "futures." Jones v. Stewart, 117 Ga. 977 , 44 S.E. 879 (1903).

Sufficiency of notice. - County undertook sufficient efforts to provide a taxpayer with reasonable notice of the tax sale on the taxpayer's property as the county checked the local deeds and records, and then contacted an outside locating agency for assistance; the taxpayer's failure to notify the county of a change of name and address played a significant role in the taxpayer's failure to receive actual notice of the tax sale. Cuvillier v. Rockdale County, 390 F.3d 1336 (11th Cir. 2004).

Tax commissioner immune to action for damages for failure to give notice. - Property owner's claim for damages based on a county tax commissioner's failure to properly send notices required by O.C.G.A. §§ 9-13-13 , 48-3-3 , 48-3-9(a) , and 48-4-1 , was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and 48-5-137 did not render the tax commissioner liable as an ex-officio sheriff because the notices did not constitute a "false return" or legal neglect to make a "proper return". Raw Properties, Inc. v. Lawson, 335 Ga. App. 802 , 783 S.E.2d 161 (2016).

Cited in Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Persons authorized to make levy. - Officer making the levy can be a sheriff, or if there is a local Act making the tax collector an ex officio sheriff for the purpose of levy and sale under tax execution, it can be the tax collector. 1969 Op. Att'y Gen. No. 69-250.

Justice of the peace plays no part in actual collection of back taxes either county or state. 1969 Op. Att'y Gen. No. 69-263.

Duty of levying officer upon receipt of execution. - Upon delivery of execution, levying officer must proceed to seize and sell enough property to satisfy execution; if less than the whole of a particular piece of property would be sufficient to satisfy execution and property is reasonably capable of subdivision for purposes of sale, it is the duty of the levying officer to subdivide the property and sell no more of that property than is necessary to satisfy execution. 1967 Op. Att'y Gen. No. 67-369.

Entry of levy. - Officer making the levy shall enter the levy on the tax fieri facias and in such entry shall plainly describe the property levied on. 1969 Op. Att'y Gen. No. 69-250.

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 32.

C.J.S. - 85 C.J.S., Taxation, § 1284 et seq.

48-3-3.1. Immediate payment or bond where person or property may leave jurisdiction or property's value may be prejudiced.

If the tax collector or tax commissioner reasonably finds that a taxpayer gives evidence of intention to leave the state, to remove his or her property from the state, to conceal himself or herself or his or her property, to discontinue business, or to do any other act tending to prejudice or render wholly or partly ineffective proceedings to compute, assess, or collect any ad valorem tax, whereby it becomes advisable that such proceedings be brought without delay, the tax collector or tax commissioner shall give notice of such finding and demand immediate payment of such tax as may be due. The tax collector or tax commissioner may immediately make an assessment based on the most recently accepted assessment or on a tax assessor's assisted assessment and may proceed under the assessment to collect the tax or require the taxpayer to file with him or her a bond satisfactory to the tax collector or tax commissioner as security for payment of the tax. Taxes assessed under this Code section for any tax year for which millage rates applicable to the property have not been established at the time of the assessment shall be based upon the millage rates in effect for the immediately preceding year.

(Code 1981, § 48-3-3.1 , enacted by Ga. L. 1994, p. 561, § 1.)

48-3-4. Selection of property to be levied.

A defendant against whom an execution has been issued by a tax collector or tax commissioner may select the property upon which the fi. fa. shall be levied. It shall be within the discretion and power of the tax collector or tax commissioner, however, to have the proper officer levy the execution on any other property the tax collector or tax commissioner may select whenever he deems it necessary to secure the prompt collection of the tax fi. fa.

(Ga. L. 1876, p. 128, § 1; Code 1882, § 891; Civil Code 1895, § 898; Civil Code 1910, § 1158; Code 1933, § 92-7404; Code 1933, § 91A-308, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Selection of property constitutes waiver of defects in execution and levy. - When a defendant in fieri facias for taxes selects to the levying officer the property to be levied on, this will constitute a waiver of defects in the return, and the levy. Byars v. Curry, 75 Ga. 515 (1885); National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887); Lumpkin v. Cureton, 119 Ga. 64 , 45 S.E. 729 (1903).

Former Civil Code 1910, § 6028 (see now O.C.G.A. § 9-13-50 ) did not apply to cases when tax executions were levied upon the property of the defendant in fieri facias. Former Civil Code 1910, § 1158 (see now O.C.G.A. § 48-3-4 ) applied in such cases. Davis v. Moore, 154 Ga. 152 , 113 S.E. 174 (1922).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 98.

C.J.S. - 33 C.J.S., Executions, § 139 et seq.

ALR. - Enforcement against tax-exempt property of tax on nonexempt property or on owner of tax-exempt property, 159 A.L.R. 461 .

48-3-5. Geographical scope of tax executions.

If there is not sufficient property in the county in which the taxpayer resides to satisfy the tax execution, property of the taxpayer situated in any other county shall be subject to levy and sale.

(Laws 1804, Cobb's 1851 Digest, p. 1050; Code 1863, § 822; Code 1868, § 901; Code 1873, § 899; Code 1882, § 899; Civil Code 1895, § 911; Civil Code 1910, § 1174; Code 1933, § 92-7405; Code 1933, § 91A-309, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 94, 102.

48-3-6. Leviers of executions; aggregating multiple executions.

  1. Executions may be levied by the officers to whom such executions are directed or by other officers who are authorized by law to act in their place.
  2. Any levying officer to whom there have been directed two or more executions against a defendant or to whom there have been directed two or more in rem executions against the same unreturned property may aggregate such executions and may make a levy for the total amount due as in the case of single execution.

    (Orig. Code 1863, § 811; Code 1868, § 891; Code 1873, § 888; Ga. L. 1876, p. 30, § 1; Code 1882, § 888; Civil Code 1895, § 905; Civil Code 1910, § 1165; Code 1933, § 92-7406; Code 1933, § 91A-310, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1243, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, commas were deleted preceding and following the phrase "or to whom . . . unreturned property" in subsection (b).

JUDICIAL DECISIONS

Tax fieri facias should indicate levying officer. - Tax fieri facias which has been levied should show by whom it was levied in order to be used in evidence to support a sheriff's deed thereunder. Jones v. Easley, 53 Ga. 454 (1873).

Executions levied by deputy need not be signed by sheriff. - When tax executions are levied by a deputy sheriff, entry of levy upon executions need not be signed by the sheriff or by someone legally authorized to sign the sheriff's name for the sheriff. Durham v. Smith, 186 Ga. 565 , 198 S.E. 734 (1938).

Effect of misdirection of execution. - When the executions are improperly directed "to any lawful officer to execute and return," yet were executed by the proper officer, the levy and sale by that officer is not void because of the misdirection in the execution. Byars v. Curry, 75 Ga. 515 (1885).

Officer may levy on land without return of "no personalty." - In order for a constable to make a legal levy upon land under a fieri facias issued for state and county taxes, it is not necessary that the constable should make an entry or return of no personal property to be found. Watson v. Swann, 83 Ga. 198 , 9 S.E. 612 (1889).

Sale of land previously sold under fieri facias. - It is not a fraud for the sheriff to sell for taxes, upon due levy and return to the sheriff by a constable, the same land which the constable had previously sold under a general fieri facias against the same defendant; nor is it a fraud for anyone to purchase at the tax sale though having full notice of the prior sale. Wilson v. Boyd, 84 Ga. 34 , 10 S.E. 499 (1889).

Purchaser not affected by fraud of selling officer. - Purchaser at a tax sale duly made under a legal levy, who is neither implicated in nor aware of any fraud contemplated by the selling officer, is not affected thereby. Boyd v. Wilson, 86 Ga. 379 , 12 S.E. 744 (1890).

OPINIONS OF THE ATTORNEY GENERAL

Justice of the peace plays no part in actual collection of back taxes either county or state. 1969 Op. Att'y Gen. No. 69-263.

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 184.

C.J.S. - 33 C.J.S., Executions, § 135.

48-3-7. Issuance of alias tax execution to replace lost original; conversion of executions into electronic form.

  1. Except as provided in subsection (b) of this Code section, when a properly issued tax execution is lost or destroyed, an alias tax execution may be issued upon the filing by the party having the right to control the original execution of a statement under oath of the loss or destruction of such original execution with the judge of the probate court of the county in which the original execution was issued. The judge shall endorse the word "alias" on the alias tax execution. The alias tax execution shall have all the legal force and effect of the lost or destroyed original tax execution.
  2. When a tax execution which was regularly issued by an officer of the state as authorized by law is lost or destroyed, the state officer or the successor to the state officer by whom the same was issued may at any time issue an alias tax execution in lieu of the lost original tax execution. The alias tax execution shall be dated the same date as the original tax execution and the officer shall endorse the word "alias" on the alias tax execution. The alias tax execution shall have all the legal force and effect of the lost or destroyed original tax execution.
  3. The commissioner or his or her duly appointed representative shall be authorized to convert regularly issued original or alias tax executions into electronic form for indexing, storage, archival, retrieval, or transmittal purposes, and any tax execution so converted, whether or not subsequently reduced to paper or other tangible medium, shall be treated as a regularly issued original for all purposes, and the commissioner shall not thereafter be required to maintain an original of such tax execution. Tax executions so converted, when reduced to paper or other tangible medium, shall fully reflect any and all entries or notations made on such tax executions.

    (Laws 1804, Cobb's 1851 Digest, p. 1059; Ga. L. 1857, p. 104, §§ 47, 48; Code 1863, §§ 3892, 3895; Code 1868, §§ 3912, 3915; Code 1873, §§ 3988, 3991; Code 1882, §§ 3988, 3991; Ga. L. 1882-83, p. 108, §§ 1, 2; Civil Code 1895, §§ 892, 893; Ga. L. 1904, p. 55, § 1; Civil Code 1910, §§ 1149, 1150; Code 1933, § 92-7407; Code 1933, § 91A-311, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1243, § 3; Ga. L. 2012, p. 735, § 3/HB 846.)

JUDICIAL DECISIONS

Permissible use of alias execution. - Statute provides for the issuing of an alias tax fi. fa., in place of the lost or destroyed original, for the purpose of enforcement by levy and sale, at the instance of the party entitled to control the original, and not for the purposes of being used in evidence as an established copy of the original under which a sale has been made. Carr v. Georgia Loan & Trust Co., 108 Ga. 757 , 33 S.E. 190 (1899).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 89 et seq.

C.J.S. - 33 C.J.S., Executions, § 116.

48-3-8. Interest on executions.

All executions issued for taxes due the state or any county or municipality of the state, whether issued on assessments for permanent improvements of streets or sewers of a municipality or otherwise, shall bear interest at the rate specified in Code Section 48-2-40 from the time fixed by law for issuing the execution.

(Ga. L. 1889, p. 31, § 1; Ga. L. 1890-91, p. 50, § 1; Civil Code 1895, §§ 731, 887; Civil Code 1910, §§ 878, 1144; Code 1933, § 92-7601; Ga. L. 1975, p. 811, § 1; Code 1933, § 91A-323, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 7; Ga. L. 1982, p. 847, §§ 1, 2.)

JUDICIAL DECISIONS

Interest under this statute is not in the nature of a penalty. Sparks v. Lowndes County, 98 Ga. 284 , 25 S.E. 426 (1896). See also, Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Executions bear interest, taxes do not. - Statute, properly construed, does not declare that taxes shall bear interest, but that only an execution for taxes shall bear interest. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907); McWilliams v. Jacobs, 128 Ga. 375 , 57 S.E. 509 (1907).

Statute is applicable to executions issued on assessments by municipal corporations for improvements. Bacon v. Mayor of Savannah, 105 Ga. 62 , 31 S.E. 127 (1898).

Statute imposes interest on executions for both taxes and assessments, and does not discriminate between them. Steele v. City of Waycross, 187 Ga. 382 , 200 S.E. 704 (1938).

Effect of tender of taxes due before execution issued. - If a taxpayer tenders the amount of taxes due from the taxpayer before an execution is actually issued, no interest on the tax can be lawfully required of the taxpayer. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Effect of injunction sought by taxpayer. - If a taxpayer causes an injunction to issue to prevent the collection of a tax and, under the final decree, liability for the tax is established, the taxpayer is not relieved from interest on the tax execution pending the proceedings in which the taxpayer obtained the injunction. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Taxpayer not excused from interest when the taxpayer acquiesces in injunction obtained by another against taxation. - When a taxpayer is enjoined from returning given property for taxation and from paying taxes on the same, and the tax officer is also enjoined from levying and collecting any taxes upon such property, at the instance of a third party, the taxpayer is not relieved from the payment of interest on the tax execution subsequently issued, when it appears that the taxpayer was a mere complacent defendant, interposing no obstacle to the injunction, in no way seeking to obtain permission of the court to pay any amount as admitted to be due as taxes and, so far as the record discloses, acquiescing in the contention of the plaintiff that no tax is due thereon. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

One seeking to enjoin enforcement of execution, on ground that usury has been computed thereon, must first offer to pay an amount admitted or shown to be due, before the court of equity would intervene in one's behalf. Sharpe v. City of Waycross, 185 Ga. 208 , 194 S.E. 522 (1937).

Special law which differed from this statute by imposing interest directly on an assessment when not paid within 30 days was a practical provision for making local improvement that did not permit escape from interest by voluntary payment of principal after delinquency but before issue of execution. Steele v. City of Waycross, 187 Ga. 382 , 200 S.E. 704 (1938).

Executions against railroad companies bear interest, even as to taxes accruing while in receivership. Sparks v. Lowndes County, 98 Ga. 284 , 25 S.E. 426 (1896).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 72.

C.J.S. - 85 C.J.S., Taxation, § 1198 et seq.

ALR. - Forfeiture or sale of land to state or political subdivision for nonpayment of taxes as suspending right to enforce special assessment or improvement lien or running of limitation in that regard, 113 A.L.R. 920 .

48-3-9. Notice of levy to owner of security deed or mortgage; lists; fees.

  1. Whenever any real estate is levied upon by the sheriff for taxes, it shall be the sheriff's duty before proceeding to advertise the property for sale as provided by law to give 20 days' written notice of the levy to the record owner of the property and the record owner of each security deed and mortgage affecting such property as provided in subsection (b) of this Code section. The period of 20 days shall begin to run from the time the notice is personally delivered or, when delivered by registered or certified mail or statutory overnight delivery as provided in this Code section, from the date of its mailing. The notice shall contain a description of the land levied upon, the name of the owner of the land, the year or years for which the taxes were assessed, and a statement of the amount of the taxes due, together with the accrued cost. The notice shall be delivered to the owner and any secured parties entitled to notice either in person or by registered or certified mail or statutory overnight delivery, with return receipt requested, at the address given on the list. The sheriff shall keep a copy of the notice on which he or she shall enter the date the notice was delivered and how, where, and to whom the notice was delivered.
  2. In order to entitle any owner of a security deed or mortgage to notice as provided in subsection (a) of this Code section, the name and address of such owner must be stated: (1) on the face of a properly recorded security deed or mortgage from the owner of the property; or (2) on the face of a properly recorded transfer of such a security deed or mortgage.

    (Ga. L. 1925, p. 252, § 1; Code 1933, § 92-7408; Code 1933, § 91A-312, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 1184, § 1; Ga. L. 1997, p. 727, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2010, p. 878, § 48/HB 1387.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to subsection (a) is applicable with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Constitutionality. - Notice to persons outside the county under subsection (b) of O.C.G.A. §§ 48-3-9 and § 48-4-46(b) and (c) is not in accord with the requirements of due process because an owner of a security deed or mortgage who lives outside the county in which the land is located will only receive published notice of the foreclosure of the right to redeem. Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988).

To whom notice given. - Law provides that notice shall be given to holder of security deed conveying wealth of sale of property under tax fi. fa., but there is no provision as to vendee of bill of sale of personalty to secure debt. Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934).

Notice as to personal property. - Summary judgment was properly granted to a county tax commissioner in a taxpayer's action alleging violation of various statutory and constitutional provisions in the commissioner's levying upon the taxpayer's bank account to collect county taxes owed because neither O.C.G.A. § 48-3-9 nor O.C.G.A. §§ 48-2-55 and 48-3-3 required the commissioner to give the taxpayer notice of the levy prior to levying upon the personal property. Anderson v. Ford, 261 Ga. App. 34 , 581 S.E.2d 623 (2003).

Notice of levy no substitute for valid writ of execution. - When no valid levy occurs because of a defect in the writ of execution, the actual notice provided by the notice of levy issued pursuant to O.C.G.A. § 48-3-9 cannot serve as a seizure of the property so as to cure the defect in the writ of execution. Powers v. CDSaxton Props., LLC, 285 Ga. 303 , 676 S.E.2d 186 (2009).

Constructive levy. - Property tax sale was not void because the evidence established that the sheriff had effectuated a levy on the property, pursuant to O.C.G.A. § 9-13-12 , prior to issuing the required notices, advertisements, and sale of the property; a constructive levy of the property was made by tacking the Notice of Execution and Tax Levy issued by the sheriff onto the property itself and the tacked notice also was issued to the tenant in possession and to the owner at the address of record. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901 , 625 S.E.2d 46 (2005).

Tax sale invalid. - As a county tax commissioner's fieri facias on a parcel of property was defective because no entry of levy was made thereon as required by O.C.G.A. § 9-13-12 , and the notice of levy issued under O.C.G.A. § 48-3-9 was not a substitute for a properly-executed fieri facias, the commissioner's subsequent tax sale of the property was invalid. Powers v. CDSaxton Props., LLC, 285 Ga. 303 , 676 S.E.2d 186 (2009).

Tax execution sale proper. - Trial court properly granted summary judgment to the purchaser of real estate in a quiet title action that involved the taxpayer's home and the taxpayer's failure to pay the property taxes on the property as the property was properly levied upon and no question of fact remained that the sheriff officially seized the property. Further, the affidavits of the civil process coordinator at the time of the tax sale, and the coordinator's successor, were properly admitted into evidence as such affidavits fell within the business records exception to the rule against hearsay. Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008).

Collection of expenses of execution and levy. - City was not authorized to collect the expenses of execution and levy until the levy was made; hence, because the city failed to show that it was authorized to collect a $75.00 fee for expenses incurred in connection with the tax execution prior to a levy, the trial court properly found in favor of a taxpayer as to the issue. Mayor of City of Fort Valley v. Grills, 282 Ga. App. 397 , 638 S.E.2d 830 (2006).

Tax commissioner immune to action for damages for failure to give notice. - Property owner's claim for damages based on a county tax commissioner's failure to properly send notices required by O.C.G.A. §§ 9-13-13 , 48-3-3 , 48-3-9(a) , and 48-4-1 was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and 48-5-137 did not render the tax commissioner liable as an ex-officio sheriff because the notices did not constitute a "false return" or legal neglect to make a "proper return". Raw Properties, Inc. v. Lawson, 335 Ga. App. 802 , 783 S.E.2d 161 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 195.

C.J.S. - 33 C.J.S., Executions, §§ 131 et seq., 143, 144, 209 et seq. 85 C.J.S., Taxation, § 1175.

ALR. - Failure of advertisement in judicial proceeding for sale of land for delinquent taxes or foreclosure of tax lien, to describe lands affected, as contrary to due process of law or other constitutional objection, 107 A.L.R. 285 .

Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

One in adverse possession as within class of persons entitled to redeem from tax sale, 164 A.L.R. 1285 .

Who are entitled to notice, or are necessary parties, in order to perfect tax title, 169 A.L.R. 686 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-3-10. Form of notice.

The form of the notice required by Code Section 48-3-9 to be given by the sheriff to the record owner of the property and the owner of each security deed or mortgage complying with Code Section 48-3-9 shall be in substance as follows: DELINQUENT TAXES Sheriff's Notice to Owner of Warranty Deed, Security Deed, or Mortgage Notice is hereby given to _____________ as the owner of a certain _____________, recorded in the office of the clerk of the superior court in book ________ at page ________ of the County of ________, State of Georgia, that there are now due and unpaid taxes for the year ________ amounting to $________ with accrued cost of $________ for which a tax execution has been issued and levy has been made upon the following described land owned by ________ and embraced within ________ and that the property will be advertised for sale unless the taxes are paid within 20 days from the delivery of this notice as provided by law. (Description of land levied upon.) ________________ Sheriff ________________ Address ________________ Date

(Ga. L. 1925, p. 252, § 2; Code 1933, § 92-7409; Code 1933, § 91A-313, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 1184, § 2.)

JUDICIAL DECISIONS

Cited in Anderson v. Ford, 261 Ga. App. 34 , 581 S.E.2d 623 (2003).

RESEARCH REFERENCES

ALR. - Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

48-3-11. Form of list of security deeds and mortgages.

Reserved. Repealed by Ga. L. 1997, p. 727, § 2, effective April 14, 1997.

Editor's notes. - This Code section was based on Ga. L. 1925, p. 252, § 2; Code 1933, § 92-7410; Code 1933, § 91A-314, enacted by Ga. L. 1978, p. 309, § 2.

48-3-12. Issuance of garnishments by tax collectors and tax commissioners; proceedings.

  1. When any tax collector or tax commissioner can find no property belonging to a defendant on which to levy any tax execution in his hands, he shall make an entry to that effect on the execution. The tax collector or tax commissioner then may issue summons of garnishment against any person whom he believes to be indebted to the defendant or who has property, money, or effects in his hands belonging to the defendant. The summons of garnishment shall be served by the tax collector, tax commissioner, the sheriff, the sheriff's deputy, or any constable of the county in which the garnishee resides. The summons shall be served at least 15 days before the sitting of the court to which the summons is made returnable and shall be returned to either the superior court or the state court of the county in which the tax collector or tax commissioner holds office.
  2. The tax collector or tax commissioner shall enter on the execution the names of the persons garnished and shall return the execution to the appropriate court. All subsequent proceedings shall be the same as provided by law regarding garnishments in other cases when judgment has been obtained or execution issued.

    (Ga. L. 1855-56, p. 137, §§ 1, 2; Code 1863, §§ 5112, 5113; Code 1868, §§ 3499, 3500; Code 1873, §§ 3557, 3558; Code 1882, §§ 3557, 3558; Civil Code 1895, §§ 895, 896; Civil Code 1910, §§ 1154, 1155; Code 1933, §§ 92-7501, 92-7502; Code 1933, § 91A-315, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 6; Ga. L. 1984, p. 948, § 1.)

JUDICIAL DECISIONS

Entry of nulla bona as jurisdictional requirement. - Issuance of summons of garnishment is conditional upon entry of nulla bona upon tax execution. If affidavits in garnishment and attached copies of executions fail to show this jurisdictional fact, then the trial court is without jurisdiction of the subject matter of the litigation. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Summons of garnishment can issue in but three classes of cases: (1) when there is an action pending in circumstances delimited by statute; (2) when judgment has been rendered by court having jurisdiction; and (3) when tax collector has issued execution, has it in the collector's hands, and, being unable to find any property of the defendant, makes entry of nulla bona thereon. To entitle the plaintiff to benefit the plaintiff claims, the plaintiff must show that the plaintiff's case is one clearly contemplated by statute. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Garnishment proceedings are purely statutory and cannot be extended to cases not enumerated in statutes. Courts have no power to enlarge the remedy or hold under it property not made subject to the summons. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Summons of garnishment issued upon any ground not authorized by statute is without authority of law, and judgment based upon it is binding upon no one. Undercofler v. Brosnan, 113 Ga. App. 475 , 148 S.E.2d 470 (1966).

Effect of garnishment on persons or property out of state. - Garnishment issued under statute has no effect on persons or property out of the jurisdiction of the state at the time of issuance. Western R.R. v. Thornton & Acee, 60 Ga. 300 (1878).

Garnishment cannot be based on transferred execution. - When a tax execution has been transferred to a private person, such transferee cannot base upon it a garnishment proceeding against a debtor of the defendant in execution. Davis v. Millen, 111 Ga. 451 , 36 S.E. 803 (1900).

OPINIONS OF THE ATTORNEY GENERAL

General state law on garnishments issued by state revenue commissioner governs over local legislation on garnishments. 1982 Op. Att'y Gen. No. 82-85.

Role of justice of the peace. - Justice of the peace plays no part in actual collection of back taxes either county or state. 1969 Op. Att'y Gen. No. 69-263.

RESEARCH REFERENCES

Am. Jur. 2d. - 6 Am. Jur. 2d, Attachment and Garnishment, § 35.

C.J.S. - 38 C.J.S., Garnishment, § 173 et seq. 85 C.J.S., Taxation, §§ 1161, 1162.

ALR. - Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-3-13. Petition to reduce execution to judgment - Procedures.

  1. When an execution for state taxes remains unsatisfied and an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period and the commissioner has reason to believe that the defendant in fi. fa. may have or may come into ownership of assets outside this state, the commissioner may petition the superior court of the county in which the defendant in fi. fa. maintains in this state a known residence, place of business, or agent to receive service for a rule to show cause why the unsatisfied tax execution should not be reduced to a final judgment of the superior court.
  2. The petition shall name the defendant in fi. fa. as respondent in the action, shall set forth the jurisdiction of the superior court, and shall allege that an execution for state taxes has been duly issued by the commissioner or his deputy on behalf of this state, that an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period, and that the commissioner has reason to believe that the respondent may have or may come into ownership of assets outside this state. The petition shall demand that process issue to cause the respondent to appear and answer why the tax execution should not be reduced to a final judgment of the court; that the tax execution including, but stated separately, interest and penalties be reduced to a final judgment of the court; and, in the event that the final judgment is entered, that costs of the action be assessed against the respondent. A true copy of the tax execution shall be attached as an exhibit to the petition and the petition shall be verified under oath by the commissioner to the best of his knowledge and belief.
  3. When an execution for local taxes remains unsatisfied and an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period and the tax collector or tax commissioner has reason to believe that the defendant in fi. fa. may have or may come into ownership of assets outside this state, the commissioner may petition the superior court of the county in which the defendant in fi. fa. maintains in this state a known residence, place of business, or agent to receive service for a rule to show cause why the unsatisfied tax execution should not be reduced to a final judgment of the superior court.
  4. The petition shall name the defendant in fi. fa. as respondent in the action, shall set forth the jurisdiction of the superior court, and shall allege that an execution for local taxes has been duly issued by the tax collector or tax commissioner on behalf of the named county, that an entry of nulla bona has been duly entered on the execution within the immediately preceding 30 day period, and that the tax collector or tax commissioner has reason to believe that the respondent may have or may come into ownership of assets outside this state. The petition shall demand that process issue to cause the respondent to appear and answer why the tax execution should not be reduced to a final judgment of the court; that the tax execution including, but stated separately, interest and penalties be reduced to a final judgment of the court; and, in the event that the final judgment is entered, that costs of the action be assessed against the respondent. A true copy of the tax execution shall be attached as an exhibit to the petition and the petition shall be verified under oath by the tax collector or tax commissioner to the best of his knowledge and belief.

    (Ga. L. 1957, p. 619, §§ 1, 2; Code 1933, § 91A-316, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 665, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, a comma was inserted following "named county" in the first sentence of subsection (d).

Pursuant to Code Section 28-9-5, in 1988, "that" was substituted for "than" preceding "an execution for" near the beginning of subsection (b).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1174, 1175.

ALR. - Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576; 9 A.L.R.4th 428.

48-3-14. Petition to reduce execution to judgment - Procedures for nonresident.

  1. When a defendant in fi. fa. under Code Section 48-3-13 maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the sworn petition shall so allege and, in addition to the allegations prescribed in subsection (b) of Code Section 48-3-13, it shall further allege facts sufficient to show that the respondent personally or by employees or agents engaged in an act or activity within this state giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued and that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law. The action shall be brought in the superior court of the county in which the respondent formerly maintained a known residence, place of business, or agent to receive service at the time the liability or obligation arose, if such was the case, or, otherwise, in the superior court of any county in which the act or activity giving rise to the tax liability or obligation took place. The petition shall demand service of process by publication as provided in subsection (b) of this Code section.
  2. When it appears from the sworn petition that the respondent engaged personally or by employees or agents in an act or activity within this state giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued, that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law, and that the respondent maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the superior court in which the action is pending shall order service to be perfected by publication in the paper in which sheriff's advertisements are printed. The notice shall be published once each calendar week for four consecutive weeks and shall be substantially as follows:
  3. If the residence or place of business of the respondent in another state is known, the commissioner shall send by registered or certified mail or statutory overnight delivery to the respondent at the known address a copy of the petition and order of service by publication and a copy of the newspaper in which each of the four notices is published with the notice plainly marked. When the Secretary of State of this state is appointed agent by law to receive service for a nonresident, a copy of the petition, of the order of service by publication, and of the newspaper in which each of the four notices is published with the notice plainly marked shall also be sent by the commissioner by registered or certified mail or statutory overnight delivery to the Secretary of State. The copy of the petition and order of service by publication shall be mailed within ten days after the issuance of the order. Each copy of the newspaper shall be mailed within ten days after its publication. Thereupon, the commissioner shall file with the clerk of the superior court in which the action is pending a certificate of compliance with this subsection, which certificate shall be a part of the record of service in the case.
  4. When a defendant in fi. fa. under Code Section 48-3-13 maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the sworn petition shall so allege and, in addition to the allegations prescribed in subsection (c) of Code Section 48-3-13, it shall further allege facts sufficient to show that the respondent personally or by employees or agents engaged in an act or activity within the named county giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued and that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law. The action shall be brought in the superior court of the county in which the respondent formerly maintained a known residence, place of business, or agent to receive service at the time the liability or obligation arose, if such was the case, or, otherwise, in the superior court of the county in which the act or activity giving rise to the tax liability or obligation took place. The petition shall demand service of process by publication as provided in subsection (e) of this Code section.
  5. When it appears from the sworn petition that the respondent engaged personally or by employees or agents in an act or activity within the named county giving rise to the liability or obligation for the payment or collection of the tax for which the tax execution was issued, that the act or activity was not insubstantial in its quality or nature in relation to the fair administration of law, and that the respondent maintains no known residence, place of business, or agent to receive service in this state other than the Secretary of State, the superior court in which the action is pending shall order service to be perfected by publication in the paper in which sheriff 's advertisements are printed. The notice shall be published once each calendar week for four consecutive weeks and shall be substantially as follows:
  6. If the residence or place of business of the respondent in another state is known, the tax collector or tax commissioner shall send by registered or certified mail or statutory overnight delivery to the respondent at the known address a copy of the petition and order of service by publication and a copy of the newspaper in which each of the four notices is published with the notice plainly marked. When the Secretary of State of this state is appointed agent by law to receive service for a nonresident, a copy of the petition, of the order of service by publication, and of the newspaper in which each of the four notices is published with the notice plainly marked shall also be sent by the commissioner by registered or certified mail or statutory overnight delivery to the Secretary of State. The copy of the petition and order of service by publication shall be mailed within ten days after the issuance of the order. Each copy of the newspaper shall be mailed within ten days after its publication. Thereupon, the tax collector or tax commissioner shall file with the clerk of the superior court in which the action is pending a certificate of compliance with this subsection, which certificate shall be a part of the record of service in the case.

    (Ga. L. 1957, p. 619, §§ 3-5; Code 1933, § 91A-317, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 665, § 2; Ga. L. 1999, p. 81, § 48; Ga. L. 2000, p. 1589, § 3.)

IN THE SUPERIOR COURT OF __________ COUNTY

STATE OF GEORGIA

The State of Georgia ) ex rel. __________, ) commissioner of revenue, ) Action for judgment Petitioner ) on state tax ) fi. fa. v. ) No. ________ ) A.B., ) Respondent )

NOTICE BY PUBLICATION

TO: A.B., Respondent Foreign address (if known) This court, under date of __________, has found that service by publication upon you in the above case is necessary because of your nonresidence and has ordered this service by publication. Accordingly, you are ordered to be and appear in this court within 60 days from the above date to show cause why tax fi. fa. no. __________, in favor of the State of Georgia, recorded in book __________, page __________ of the execution docket of __________ County, Georgia, should not be reduced to a judgment of this court. Witness the Hon. __________, judge of this court. This __________ day of __________, ________. _____________ Clerk

IN THE SUPERIOR COURT OF __________ COUNTY

STATE OF GEORGIA

Tax collector or tax ) commissioner of ) __________ County, ) Action for judgment Petitioner ) on local tax ) fi. fa. v. ) No. ________ ) A.B., ) Respondent )

NOTICE BY PUBLICATION

TO: A.B., Respondent Foreign address (if known) This court, under date of __________, has found that service by publication upon you in the above case is necessary because of your nonresidence and has ordered this service by publication. Accordingly, you are ordered to be and appear in this court within 60 days from the above date to show cause why tax fi. fa. no. __________, in favor of __________ County, Georgia, recorded in book ______, page ______ of the execution docket of __________ County, Georgia, should not be reduced to a judgment of this court. Witness the Hon. __________, judge of this court. This ______ day of __________, ________. _____________ Clerk

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 145 et seq., 218 et seq. 85 C.J.S., Taxation, §§ 1251, 1282.

ALR. - Persons in possession of real property as affected by decree foreclosing tax lien, upon service by publication, or in a proceeding against unknown owners, 128 A.L.R. 114 .

Effect of misnomer of landowner or delinquent taxpayer in notice, advertisement, etc., of tax foreclosure or sale, 43 A.L.R.2d 967.

Validity of notice of tax sale or of tax sale proceeding which fails to state tax year or kind or type of taxes covered by tax assessments, 43 A.L.R.2d 988.

48-3-15. Petition to reduce execution to judgment - Demand for jury trial; issues.

Upon the trial of the action provided for in Code Section 48-3-13 or 48-3-14, which shall be without a jury unless a written demand for jury trial is filed in the case by either party, the respondent may take issue with the sufficiency in law, in fact, or both, of the petition including, but not limited to, jurisdiction over the person of the respondent. The respondent also may attack the tax execution involved in the petition in the manner of an affidavit of illegality and bond as provided by law.

(Ga. L. 1957, p. 619, § 6; Code 1933, § 91A-318, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 3.

C.J.S. - 85 C.J.S., Taxation, §§ 1269, 1270.

48-3-16. Petition to reduce execution to judgment - Procedures when respondent fails to appear.

If the respondent in an action provided for in Code Section 48-3-13 or 48-3-14 does not appear in answer to the rule, the superior court shall ascertain for itself that service of the rule has been perfected in accordance with Code Section 48-3-13 or 48-3-14 and shall enter a finding to that effect. The superior court shall further order that the tax execution described in the petition, with the tax, penalties, and interest being stated separately, be reduced to a judgment of the court and that all costs of the action, including, but not limited to, advertising costs as per the sworn statement of the costs submitted by the commissioner, be added to the judgment and charged against the respondent. A copy of the finding and order shall be sent by registered or certified mail or statutory overnight delivery by the clerk of the court to the respondent at the foreign address shown in the published notice and to the Secretary of State of this state when he is appointed as agent of the nonresident to receive service. The clerk of the court shall enter this action on the original order of the court.

(Ga. L. 1957, p. 619, § 7; Code 1933, § 91A-319, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1276 et seq.

48-3-17. Petition to reduce execution to judgment - Grace period before final judgment; effect of respondent's appearance or failure to appear.

The order provided for in Code Section 48-3-16 shall not become final until the expiration of 30 days after its entry, during which time the respondent may appear and assert the defenses he could have asserted prior to the entry of the order; and the court shall so state in its order. If the respondent does not take advantage of this additional period within which to make a defense, the clerk of the superior court shall so note on the original order and the judgment shall be final. If the respondent does appear, the original order shall be vacated and the action shall proceed as if the order had never been entered.

(Ga. L. 1957, p. 619, § 8; Code 1933, § 91A-320, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 51.

C.J.S. - 85 C.J.S., Taxation, § 1221 et seq.

ALR. - Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

48-3-18. Deputies acting for named officers; Secretary of State relieved from mailing papers to respondent.

When action is required to be taken by the commissioner, it shall be sufficient compliance with this chapter if the action is done by his deputy or his attorney. When action is required of the clerk of the superior court, it shall be sufficient compliance with this chapter if the action is done by his deputy. When the various papers and processes required to be mailed to the Secretary of State are received by him and it appears to him that a copy of the paper or process has been mailed by the commissioner to a known address of the respondent, a second mailing shall not be required of the Secretary of State to the same address; but he shall keep the copy received by him on file as a source of information for any inquiry from the respondent, for whom the Secretary of State is attorney in fact, concerning the respondent's tax liabilities and obligations incident to his taxable acts or activities within this state. When action is required of the Secretary of State, it shall be sufficient compliance with this chapter if the action is done by his deputy.

(Ga. L. 1957, p. 619, § 9; Code 1933, § 91A-321, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 399.

48-3-19. Transfer of executions.

  1. As used in this Code section, the term:
    1. "Delinquent taxpayer" means the person or persons against whom an execution has been issued or the successor in title to the property for which the execution has been issued.
    2. "Due diligence" means the performance of a diligent search to ascertain the actual location of the record owner of the property. The following actions shall satisfy the diligent search requirements of this Code section: sending notice by first-class mail, certified mail, or statutory overnight delivery, as required by law. If the notice is returned undelivered, the following actions shall satisfy the diligent search requirements of this Code section: checking telephone directories for the county wherein the property is located; checking the records of the tax commissioner of the county wherein the property is located; or checking the real estate records of the clerk of the superior court of the county wherein the property is located.
    3. "Execution" means an execution issued for the collection of any ad valorem taxes, special assessments, fees, penalties, interest, or collection costs due the state or any political subdivision thereof.
    4. "Transferee" means a person to whom an execution is transferred.
    5. "Transferor" means the official holding the tax executions and authorized to collect or transfer such tax executions.
    1. Whenever any person other than the person against whom an execution has been issued pays an execution issued for state, county, or municipal taxes or special assessments, the officer whose duty is to enforce the execution may transfer the execution to the party so paying the full value of the execution. No officer whose duty it is to enforce an execution issued for state, county, or municipal taxes or special assessments shall be required to make any transfer or transfers of such execution or executions. The transferee shall have the same rights as to enforcing the execution and priority of payment as might have been exercised or claimed by the tax official. The person to whom the execution is transferred shall, within 30 days of the transfer, cause the execution to be entered on the general execution docket of the superior court of the county in which the execution was issued. In default of the required entry or entries, the execution shall lose its lien upon any property which has been transferred in good faith and for a valuable consideration before the entry and without notice of the existence of the execution.
      1. It shall be unlawful for any tax official covered by this subsection to pay a tax execution in order to obtain a transfer of the execution under this Code section. It shall be unlawful for any employee of a tax official covered by this subsection to pay a tax execution in order to obtain a transfer of the execution under this Code section. The tax officials covered by this subsection are:
        1. County tax receivers, tax collectors, and tax commissioners;
        2. Members of county boards of tax assessors;
        3. Members of county boards of equalization; and
        4. County tax appraisers.
      2. Any execution transferred in violation of subparagraph (A) of this paragraph shall be void and unenforceable by the person obtaining the execution and such person's successors in interest.
      3. Any tax official or employee of a tax official violating subparagraph (A) of this paragraph shall be guilty of a misdemeanor.
    1. Within 60 days following the transfer, the transferee shall notify the delinquent taxpayer of the transfer of the tax execution by first-class mail. The notice shall include:

      (A) The name, mailing address, and telephone number for the transferee's business office;

      (B) The amount necessary to satisfy such execution; and

      (C) Other information as deemed appropriate by the transferee.

    2. In the event that any such notice by first-class mail is returned undelivered, the transferee shall be required to perform due diligence in an effort to obtain the delinquent taxpayer's correct address or any new owner's correct address and resend the notice by first-class mail.
  4. An execution which has been transferred shall bear interest as specified in Code Section 48-3-20 on the amount paid for such execution from the date of the transfer. In addition, the transferee may charge and collect recording fees actually expended in recording the transferred execution on the general execution docket of any county in which the transfer is recorded and such other penalties as are provided for in this title.
    1. Whenever an execution has been transferred to any transferee, the transferee shall not be authorized to submit the execution to the appropriate levying officer until 12 months after the date of such transfer or 24 months after the tax giving rise to the execution was originally due, whichever is earlier. A transferee shall not have the right to advertise and sell property under a tax execution. Such right shall remain solely with the appropriate levying official, such as the sheriff or marshal.
    2. A transferee with multiple outstanding executions against the same property shall not be subject to the time period requirements of paragraph (1) of this subsection with respect to all such executions if at least one of the executions meets such requirements of paragraph (1) of this subsection.
  6. Until the execution is paid in full or satisfied, on or before November 15 of each year after the calendar year in which the transfer occurred, the transferee shall send notice by regular mail to the delinquent taxpayer and the record owner of the property advising that the tax execution is still outstanding. The notice must provide the transferee's most updated contact information, including mailing address and telephone number.
  7. Any transferee that pays the tax official more than $2 million in any calendar year for the transfer of executions shall maintain a reasonably accessible office within 50 miles of the courthouse wherein the superior court of the county wherein the transferred executions were issued is located. Said office shall be open to the public for at least eight hours per day for five days a week, official state holidays excepted. (Code 1981, § 48-3-19 , enacted by Ga. L. 2006, p. 770, § 3/SB 585; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, in the last sentence of paragraph (a)(2), revised punctuation and deleted "due diligence shall include" preceding "checking telephone directories".

Editor's notes. - Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

Law reviews. - For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006). For comment, "Making Debt Pay: Examining the Use of Property Tax Delinquency as a Revenue Source," see 62 Emory L.J. 217 (2012).

48-3-20. Interest on transferred executions.

All tax executions, when recorded as prescribed by law and which have been transferred to third persons, shall bear interest at the rate specified in Code Section 48-2-40 from the date of transfer.

(Ga. L. 1887, p. 21, § 1; Civil Code 1895, § 889; Civil Code 1910, § 1146; Code 1933, § 92-7603; Code 1933, § 91A-325, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 8.)

JUDICIAL DECISIONS

Former Civil Code 1910, § 1146 (see now O.C.G.A. § 48-3-20 ) must be construed with former Civil Code 1910, § 1144 (see now O.C.G.A. § 48-3-8 ). Palmer v. Phinizy, 151 Ga. 589 , 107 S.E. 852 (1921).

Failure to award interest. - When a trial court found a tax commissioner improperly refused to pay a tax execution holder's executions, but did not find that the commissioner had good cause for the refusal and did not award the holder 20 percent interest, pursuant to O.C.G.A. § 15-13-3(a) , the matter had to be remanded for a determination of the good cause issue and to consider the holder's entitlement to one percent interest per month, pursuant to O.C.G.A. §§ 48-3-20 and 48-2-40 . Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

48-3-21. Statute of limitations for tax executions.

Except for executions issued by the commissioner, all county, municipal, or other tax executions, before or after legal transfer and record, shall be enforced within seven years from:

  1. The date of issue; or
  2. The time of the last entry upon the tax execution by the officer authorized to execute and return the execution if the execution and entry are properly entered or reentered upon the execution docket or books in which executions issued on judgments and entries on executions issued on judgments are required to be entered or reentered.

    (Ga. L. 1887, p. 23, § 1; Civil Code 1895, § 890; Civil Code 1910, § 1147; Code 1933, § 92-7701; Ga. L. 1965, p. 316, § 1; Code 1933, § 91A-326, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 7; Ga. L. 2017, p. 723, § 5/HB 337; Ga. L. 2018, p. 1, § 2/HB 661.)

The 2017 amendment, effective January 1, 2018, deleted "state," preceding "county" near the beginning of the introductory paragraph.

The 2018 amendment, effective February 20, 2018, substituted "Except for executions issued by the commissioner, all" for "All" at the beginning of this Code section.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

JUDICIAL DECISIONS

Failure to timely issue execution results in bar. - Former Civil Code 1910, §§ 1147 and 1148 (see now O.C.G.A. §§ 48-3-21 and 48-3-22 ), when construed together, provide a statute of limitation against the right of the state and the state's subordinate public corporations to enforce a lien for taxes. Such a lien is barred not only by a failure to have the proper entries made on the tax execution and recorded, but also by a failure to issue the tax execution within seven years from the date that such execution may be lawfully issued. Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Construction with other provisions. - Construing together former Code 1933, § 92-7701 (see now O.C.G.A. § 48-3-21 ) and former Code 1933, §§ 92-7702 and 110-1001 (see now O.C.G.A. §§ 48-3-22 and 9-12-60 , respectively), it was the intention of the General Assembly to provide in effect that the mere entry of a tax execution itself on general execution docket within the seven-year period would prevent dormancy. Darby v. De Loach, 190 Ga. 499 , 9 S.E.2d 626 (1940).

Former Code 1933, §§ 67-2501 and 67-2503 (see now O.C.G.A. § 44-2-2 ), which declared effective from date of filing "deeds, mortgages, and liens of all kinds," as against third persons acting in good faith and without notice, had no application to claims for taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Use of the word "shall" makes enforcement of tax fi. fas. within the period therein specified mandatory, rather than merely permissive. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Requirement as to actual entry of execution on docket. - Merely depositing execution in office of the clerk and having entry of filing made thereon is ineffective, unless the execution is actually entered on the docket. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Date from which period of limitation is measured. - Claims for taxes should be enforced within seven years from the date due and date when executions could have been issued therefor, unless within such time an execution is issued and entered on the general execution docket as in the case of judgments. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Effect of running of period of limitation. - When execution for collection of taxes is barred by this statute, the taxpayer is no longer bound for taxes, and the taxpayer can maintain an action to enjoin enforcement of execution and for its cancellation. The taxpayer is not estopped from doing so because the taxpayer owned the property for the entire year for which taxes involved were due, failed to make a return of the property for such year, and had not paid nor offered to pay taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Right to revive dormant judgments inapplicable to tax executions. - Provisions of former Code 1933, Ch. 110-10 (see now O.C.G.A. Art. 3, Ch. 12, T. 9), relating to dormant judgments and providing a procedure for their revival, have no application to an action purportedly attempting to revive a dormant tax execution under former Code 1933, §§ 92-7701 and 92-7702 (see now O.C.G.A. §§ 48-3-21 and 48-3-22 ), which might properly be called the Dormant Tax Judgment Act. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Seven-year statute of limitations applied. - Seven-year statute of limitation under O.C.G.A. § 48-3-21 was applicable to a county tax assessment for back taxes and penalties against a company that did not report the company's tangible personal property even though the company filed tax returns in those years. The tax assessors discovered the property after conducting an audit, so the assessors acquired full authority to tax the property at that point under the seven-year limitation period in O.C.G.A. § 48-3-21 , and not under the three-year limitation period in O.C.G.A. § 48-3-49(b). Hormel Food Corp. v. DeKalb County Bd. of Tax Assessors, 264 Ga. App. 10 , 589 S.E.2d 836 (2003).

Running of seven-year period causes execution to be dead, not merely dormant. - Unless there is a bona fide effort to enforce a tax fi. fa. by a levy or an attempted levy with entry thereon, and unless the fi. fa., together with such entry or entries, is recorded on the general execution docket of the county of the residence of the defendant in fi. fa. within seven years from the date of the assessment, and unless thereafter there be a new levy or attempted levy with proper entries and recordation within seven years thereof, and subsequently within each seven-year period, such fi. fa. is not merely dormant but is dead, and nothing more can be done to enforce it by the taxing authority. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Statute does not run when proceedings stayed by injunction of federal court. - Statute of limitations does not run against the state during the time that the comptroller general (now commissioner) is enjoined by a federal court from issuing any executions for taxes on the stock in dispute. Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Period of limitation unaffected by contractual lien setting different period. - In cases of tax fi. fa. there is no contractual lien, fixing a period of limitation different from that provided by this statute, to fall back on, so as to prevent the bar of the execution. Lewis v. Moultrie Banking Co., 36 Ga. App. 347 , 136 S.E. 554 , cert. denied, 36 Ga. App. 825 , S.E. (1927) (see O.C.G.A. § 48-3-21 ).

One subrogated to state's rights may enforce lien despite bar to action for money had and received. - An action brought to enforce the lien of the state and county for taxes, to which one becomes subrogated is not barred by this statute, although it would be barred as an action for money had and received. Thomas v. Lester, 166 Ga. 274 , 142 S.E. 870 (1928).

Cited in Collins v. Tranakos, 222 Ga. App. 485 , 474 S.E.2d 622 (1996).

OPINIONS OF THE ATTORNEY GENERAL

Construction with other provisions. - Ga. L. 1937-38, Ex. Sess., p. 156, § 8 (see O.C.G.A. § 48-6-22(6)) (now repealed) was not in conflict with nor repugnant to former Code 1933, § 92-7201 (see now O.C.G.A. § 48-3-21 ). 1952-53 Op. Att'y Gen. p. 198.

Date from which period of limitation is measured. - Statute of limitations on taxes imposed under former Code 1933, § 92-2301 (see now O.C.G.A. Art. 9, Ch. 5, T. 48) was seven years from the date that execution thereon issued, or could have been issued. If returns were not made, state had no way of knowing that the taxes were due, and for this reason the statute of limitations did not commence running until execution issued. 1952-53 Op. Att'y Gen. p. 198.

Actions to recover insurance taxes under Ga. L. 1960, p. 289, § 1 (see now O.C.G.A. Ch. 8, T. 33) must be brought within seven years from the date that the execution may be lawfully issued. 1969 Op. Att'y Gen. No. 69-396.

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, §§ 69, 85 et seq. 85 C.J.S., Taxation, § 1109 et seq.

ALR. - Forfeiture or sale of land to state or political subdivision for nonpayment of taxes as suspending right to enforce special assessment or improvement lien or running of limitation in that regard, 113 A.L.R. 920 .

When statute of limitation commences to run against action to recover tax, 131 A.L.R. 822 .

48-3-21.1. Statute of limitations for enforcement of executions for ad valorem taxes of less than $5.00; execution; restriction on adding together taxes to exceed limit.

  1. This Code section shall apply only to real property ad valorem taxes which are due in an amount of less than $5.00.
  2. Any execution for ad valorem taxes in an amount of less than $5.00 shall be enforced within one year after the execution is issued or the taxes become due, whichever is earlier.
  3. A tax execution which has become barred under this Code section shall not be subject to revival; and the taxpayer shall not be personally liable for such taxes after the execution becomes barred.
  4. Amounts of taxes due on more than one piece of real property or for more than one tax year shall not be added together so as to exceed the $5.00 limit if each of these amounts is individually less than $5.00.

    (Code 1933, § 91A-326.1, enacted by Ga. L. 1981, p. 791, § 1; Ga. L. 1998, p. 575, § 1.)

Editor's notes. - Ga. L. 1998, p. 575, § 2, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all executions for ad valorem taxes issued on or after July 1, 1998.

48-3-22. Statutory limitations applicable to tax executions.

All laws in reference to a period of limitation as to ordinary executions for any purpose or to the length of time or circumstances under which ordinary executions lose their lien in whole or in part are applicable to tax executions.

(Ga. L. 1887, p. 23, § 2; Civil Code 1895, § 891; Civil Code 1910, § 1148; Code 1933, § 92-7702; Code 1933, § 91A-327, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Construction with other provisions. - Construing together former Code 1933, § 92-7702 (see now O.C.G.A. § 48-3-22 ) and former Code 1933, §§ 92-7701 and 110-1001 (see now O.C.G.A. §§ 48-3-21 and 9-12-60 , respectively), it was the intention of the General Assembly to provide in effect that the mere entry of a tax execution itself on the general execution docket within the seven-year period would prevent dormancy. Darby v. De Loach, 190 Ga. 499 , 9 S.E.2d 626 (1940).

Former Code 1933, §§ 67-2501 and 67-2503 (see now O.C.G.A. § 44-2-2 ), which declare effective from the date of filing "deeds, mortgages, and liens of all kinds," as against third persons acting in good faith and without notice, have no application to claims for taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Requirement as to actual entry of execution on docket. - Merely depositing the execution in the office of the clerk and having an entry of filing made thereon is ineffective, unless the execution is actually entered on the docket. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Date from which period of limitation is measured. - Claims for taxes should be enforced within seven years from the date due and date when executions could have been issued therefor, unless within such time an execution is issued and entered on the general execution docket, as in the case of judgments. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Effect of running of period of limitation. - When execution for collection of taxes is barred by former Code 1933, § 92-7701 (see now O.C.G.A. § 48-3-21 ), the taxpayer is no longer bound for the taxes, and the taxpayer can maintain an action to enjoin enforcement of the execution and for its cancellation. The taxpayer is not estopped from doing so because the taxpayer owned the property for the entire year for which the taxes involved were due, failed to make a return of the property for such year, and had not paid nor offered to pay the taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Right to revive dormant judgments inapplicable to tax executions. - Provisions of former Code 1933, Ch. 110-10 (see now O.C.G.A. Art. 3, Ch. 12, T. 9) relating to dormant judgments and providing a procedure for their revival have no application to an action purportedly attempting to revive a dormant tax execution under former Code 1933, §§ 92-7701 and 92-7702 (see now O.C.G.A. §§ 48-3-21 and 48-3-22 ), which might properly be called the Dormant Tax Judgment Act. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Running of seven-year period causes execution to be dead, not merely dormant. - Unless there is a bona fide effort to enforce a tax fi. fa. by a levy or an attempted levy with entry thereon, and unless the fi. fa., together with such entry or entries, is recorded on the general execution docket of the county of the residence of the defendant in fi. fa. within seven years from the date of the assessment, and unless thereafter there be a new levy or attempted levy with proper entries and recordation within seven years thereof, and subsequently within each seven-year period, such fi. fa. is not merely dormant but is dead, and nothing more can be done to enforce it by the taxing authority. Oxford v. Generator Exch., Inc., 99 Ga. App. 290 , 108 S.E.2d 174 (1959).

Loss of lien for failure to intervene in equity. - Former Code 1933, § 37-410 (see now O.C.G.A. § 23-2-97 ), relating to intervention in equity by claimants of assets, provides for circumstances under which all creditors may by inaction lose their rights, including creditors holding executions. It is therefore applicable to tax executions. Suttles v. J.B. Withers Cigar Co., 194 Ga. 617 , 22 S.E.2d 129 (1942), overruled on other grounds, Johnson v. Mayor of City of Carrollton, 249 Ga. 173 , 288 S.E.2d 565 (1982) (holding service by publication on known claimants whose whereabouts are known unconstitutional).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, §§ 69, 85 et seq.

48-3-23. Nulla bona; tolling of statute of limitations.

Reserved. Repealed by Ga. L. 2017, p. 723, § 6/HB 337, effective January 1, 2018.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

This Code section was based on Ga. L. 1957, p. 619, § 10; Code 1933, § 91A-322, enacted by Ga. L. 1978, p. 309, § 2.

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 484.

C.J.S. - 33 C.J.S., Executions, § 88.

ALR. - Applicability of general statute of limitations to real-estate tax lien foreclosure action, 59 A.L.R.2d 1144.

48-3-23.1. Authorization for commissioner to develop standards which will provide a mechanism to discharge debts or obligations barred by the statute of limitations.

In order to preserve public funds and to limit efforts to collect debts or obligations barred by the statute of limitations, the commissioner is authorized to develop appropriate standards that comply with the policies prescribed by the state accounting officer which will provide a mechanism to administratively discharge any debt or obligation in favor of the department when the collection of any obligation or charge, regardless of amount, is barred by the applicable statute of limitations. Certificates identifying such uncollectable accounts shall be forwarded to the state accounting officer in a manner and at such times as are reflected in the standards developed by the state accounting officer and the department.

(Code 1981, § 48-3-23.1 , enacted by Ga. L. 1997, p. 734, § 4; Ga. L. 2005, p. 694, § 40/HB 293.)

48-3-24. Interposition of claims; oath; bond; trial.

When any execution is issued against a tax collector, tax commissioner, or taxpayer for taxes due the state or a county of the state and the sheriff or other officer levies the execution on property claimed by a person not a party to the execution, the claimant shall make the same oath as required in other claim cases and give bond and security for the amounts claimed in the execution plus costs. The same proceedings shall be had on the claim as are provided for the trial of the right of property, except that the trial shall be held in the county in which the levy was made. If the property is found to be subject to the execution, the liability of the claimant and his sureties shall be in all respects the same as the liability on an appeal bond.

(Laws 1810, Cobb's 1851 Digest, p. 1056; Laws 1840, Cobb's 1851 Digest, p. 1072; Code 1863, §§ 818, 3657; Code 1868, §§ 898, 3682; Code 1873, §§ 896, 3732; Code 1882, §§ 896, 3732; Civil Code 1895, §§ 899, 900; Civil Code 1910, §§ 1159, 1160; Code 1933, § 92-7801; Code 1933, § 91A-328, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

For discussion of distinction between claims under ordinary judgments and under tax fi. fa., see Lingo v. Harris, 73 Ga. 28 (1884).

What claimant may contest. - Claimant may set up invalidity of the fi. fa. on the trial of the claim case. Claimant may also contest the validity of a levy on the contention that it is an arbitrary and unreasonable division. Harris Orchard Co. v. Tharpe, 177 Ga. 547 , 170 S.E. 811 (1933).

Filing claims to property levied on under city tax execution. - No provision for filing a claim to property levied on under a city tax execution is contained in this statute, and before such a claim can be recognized, provision therefor must have been made in the charter of the municipality concerned. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

Claim under this statute is not available when the property is subject to the fi. fa. levied thereon. Jordan v. Baggett, 37 Ga. App. 537 , 140 S.E. 902 (1927).

Right of claimant to proceed in equity. - When the petitioner has an adequate and complete remedy at law by filing of a claim in the event of an attempted sale of the property, the petitioner is not entitled to an injunction. Racine Iron Co. v. McCommons, 111 Ga. 536 , 36 S.E. 866 , 51 L.R.A. 134 (1900); Herrington v. Ashford, 157 Ga. 810 , 122 S.E. 197 (1924); Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

Statute makes no provision for filing of a claim in a case of a levy of a city tax execution; it refers exclusively to state and county taxes. Therefore, in a suit to enjoin enforcement of a tax execution issued by a city and levied upon property in which the plaintiff, not the defendant in fi. fa., alleged an interest, the plaintiff did not have an adequate remedy at law, and the petition stated a cause of action. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

When the petition alleges that the petitioner did not know of the tax sale until several months thereafter, and had been repeatedly advised by the defendant in execution that the taxes had been paid, there is sufficient reason for failure of the petitioner to pursue its remedy at law under this statute. Therefore, the petitioner can seek relief in equity. Bibb County v. Elkan, 184 Ga. 520 , 192 S.E. 7 (1937).

No claims in forma pauperis. - Claim cannot be interposed in forma pauperis to property levied on under a tax execution issued by a municipal corporation. Such claims must be made under the provisions of former Civil Code 1882, § 896 (see now O.C.G.A § 48-3-24 ), and did not fall within former Code 1882, § 3733 (see now O.C.G.A. § 9-13-92 ). Lingo v. Harris, 73 Ga. 28 (1884).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, §§ 60, 328 et seq. 85 C.J.S., Taxation, §§ 1144, 1145, 1164.

48-3-25. Remittance of money collected on process.

When an officer collects money on process issued pursuant to this chapter or on any other process issued by the commissioner, the officer shall immediately remit the money to the commissioner by some safe and speedy method. Upon failure to do so, the officer shall be liable as he would be to other plaintiffs in execution.

(Orig. Code 1863, § 808; Code 1868, § 887; Code 1873, § 884; Code 1882, § 884; Civil Code 1895, § 882; Civil Code 1910, § 1139; Code 1933, § 92-7308; Code 1933, § 91A-306, enacted by Ga. L. 1978, p. 309, § 2.)

48-3-26. Judicial interference in tax levies.

No action seeking replevin shall lie nor shall any judicial interference be had in any levy or execution for taxes under this title. The injured party, however, shall be left to his proper remedy in any court having jurisdiction.

(Laws 1804, Cobb's 1851 Digest, p. 1051; Code 1863, § 5115; Code 1868, § 3618; Code 1873, § 3668; Code 1882, § 3668; Civil Code 1895, § 903; Civil Code 1910, § 1163; Code 1933, § 92-7901; Code 1933, § 91A-329, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Statute states the general rule, to which there are some exceptions: (a) an unconstitutional exaction, because what is then called a tax is no tax; (b) when the law does not impose the tax or authorize the execution, for the same reason; (c) when the defendants do not occupy the official positions alleged in the executions; and (d) when execution issued for taxes which had been properly returned and taxes paid. There are doubtless other exceptions. Mayo v. Renfroe, 66 Ga. 408 (1881); Harris Orchard Co. v. Tharpe, 177 Ga. 547 , 170 S.E. 811 (1933).

While the rule enunciated in this statute is subject to a number of exceptions in equity, these exceptions are exceptions only to the rule stated, and are not exceptions to general equitable principles and maxims. Whiddon v. State Revenue Comm'n, 184 Ga. 453 , 191 S.E. 438 (1937).

Prohibition applies only to taxes properly laid, and not to taxes laid without authority of law. Vanover v. Davis, 27 Ga. 354 (1859).

Duty of courts to stop unconstitutional tax collection proceedings. - When any ministerial officer of the state is attempting to collect money out of a person, natural or artificial, under the forms of law, but without any constitutional law to authorize the process the officer uses and calls an execution for taxes, it is the duty of the courts, on a proper case made, to arrest the proceeding in some of the modes known to the law, and to afford relief to the party complaining. Wright v. Southwestern R.R., 64 Ga. 783 (1880).

Rule not applied in favor of tax collector seeking reimbursement from taxpayers. - Tax collector who has settled the collector's tax digest with the state and county may use the executions the collector has issued against delinquent taxpayers to reimburse the collector by collecting from the taxpayers their unpaid taxes, but the collector is not entitled to the immunity from judicial interference which the law provides for the state, and the collector can only collect such tax as is legally due. State ex rel. Gilbert, 51 Ga. 252 (1874).

Fact that tax proceeds are appropriated to a specific object or purpose does not authorize judicial interference. Yancey v. New Manchester Mfg. Co., 33 Ga. 622 (1863).

No interference on account of informalities or irregularities in collection. - When there is a valid law imposing tax for the state there will be no judicial interference in the collection on account of informalities or irregularities in the return or assessment. Decker v. McGowan, 59 Ga. 805 (1877); Georgia Mut. Loan Ass'n v. McGowan, 59 Ga. 811 (1877); Burke v. Speer, 59 Ga. 353 (1877).

Execution issued by the tax collector in due form cannot be properly resisted by interposing an affidavit of illegality. Georgia Trading Co. v. Marion County, 114 Ga. 397 , 40 S.E. 250 (1901).

Writ of prohibition does not lie against a tax collector who is alleged to be proceeding to levy an illegal tax. The parties complaining must pay the tax, and then pursue their remedy against the tax collector as an individual. J.A. & W.H. Cody v. Lennard, 45 Ga. 85 (1872).

Mandamus will not lie as a remedy to compel a sheriff to accept an affidavit of illegality filed to an execution issued by the comptroller general (now commissioner) against a tax collector in default and the collector's bondsmen for the reason that the sheriff must make the sheriff's return to court under this statute and the comptroller-general (now commissioner) is not a court. Webb v. Newsom, 138 Ga. 342 , 75 S.E. 106 (1912).

Availability of injunctive relief. - General rule is that no injunction will lie to interfere with collection of taxes. Before enjoining taxation, the law and the facts must be such as to clearly require such action. Candler v. Gilbert, 180 Ga. 679 , 180 S.E. 723 (1935); Kent v. Murphey, 207 Ga. 707 , 64 S.E.2d 49 (1951).

In a suit to enjoin enforcement of a tax execution issued by a city and levied upon property in which the plaintiff, not the defendant in fi. fa., alleged an interest, the plaintiff did not have an adequate remedy at law, and the petition stated a cause of action. Wilson v. City of Eatonton, 180 Ga. 598 , 180 S.E. 227 (1935).

General rule is that no injunction will lie to interfere with the collection of taxes. Derrick v. Campbell, 219 Ga. 795 , 136 S.E.2d 381 (1964).

Injunction against excessive levy. - Injunction, when properly invoked, is an available remedy to restrain the collection of an unlawful exaction in the form of a tax based upon an excessive levy, and one need not await the levy of a tax execution before seeking such relief, and need not pay or tender any part of a tax under a levy wholly void. Williams v. Hutchins, 212 Ga. 594 , 94 S.E.2d 412 (1956).

Powers of court of equity as to tax collection. - Statute means that court of equity will not interfere with tax officials leaving injured party to the party's statutory remedies, such as claim and illegality. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

Power to levy and collect taxes is exclusively a legislative function, and unless authorized by statute, a court of equity is without the power to foreclose a lien for taxes and order a sale of the property. No such power having been conferred by statute on a court of equity in this state, the court erred in decreeing that land be sold by the sheriff for the payment of state and county taxes. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

Injunction against tax sale. - When the petitioner has an adequate and complete remedy at law by the filing of a claim in the event of an attempted sale of the property, the petitioner is not entitled to an injunction. Kirk v. Bray, 181 Ga. 814 , 184 S.E. 733 (1935).

When purported tax fi. fa. is of an origin unauthorized by law, the taxpayer is entitled to an injunction to prevent sale of property. Vincent v. Poole, 181 Ga. 718 , 184 S.E. 269 (1936).

Statute does not apply to municipal taxes. Elder v. Atlanta-Southern Dental College, 183 Ga. 634 , 189 S.E. 254 (1936).

Judicial interference with collection of taxes. - While judicial interference with collection of state taxes is prohibited, there is no prohibition against judicial interference with collection of municipal taxes. Dodson Printers' Supply Co. v. Upham, 179 Ga. 353 , 175 S.E. 920 (1934).

When purposes for which taxes are levied seem lawful, and the general system of taxation and the amount of money to be raised thereby appear proper in view of the city's obligations, the courts should be slow to stop the wheels of municipal government, and throw the municipality's affairs into anarchy. Kent v. Murphey, 207 Ga. 707 , 64 S.E.2d 49 (1951).

Payment of taxes as prerequisite to granting judicial relief. - One seeking relief from excessive tax levies, but admitting either expressly or by necessary implication that one owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought. Derrick v. Campbell, 219 Ga. 795 , 136 S.E.2d 381 (1964).

Defense against execution issued for taxes collected but not accounted for. - An execution issued by the comptroller general (now commissioner) against a tax collector and the collector's sureties, for money alleged in the execution to have been collected by the tax collector and not accounted for, cannot be arrested by an affidavit of illegality. Perkins v. State, 101 Ga. 291 , 28 S.E. 840 (1897).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1204 et seq.

48-3-27. Obstructing levying officers; penalty.

  1. It is unlawful for any person knowingly and willfully to obstruct or hinder:
    1. The commissioner or his or her authorized representatives in the levy of a state tax execution; or
    2. Any sheriff, ex officio sheriff, tax commissioner, or municipal levy officer in the levy of a state, county, or municipal tax execution.
  2. Any person who violates this Code section shall be guilty of a misdemeanor.

    (Code 1933, § 91A-9905.1, enacted by Ga. L. 1981, p. 1857, § 45; Ga. L. 2015, p. 1219, § 6/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of subsection (a) for the former provisions, which read: "It is unlawful for any person knowingly and willfully to obstruct or hinder the commissioner or his authorized representatives in the levy of a state tax execution."

48-3-28. Release of state tax execution upon full satisfaction.

The department shall file a release of any state tax execution as soon as reasonably possible after a tax execution has been fully satisfied. All such releases shall be filed in all offices of the clerks of superior court where the executions were originally filed.

(Code 1981, § 48-3-28 , enacted by Ga. L. 1983, p. 1834, § 8; Ga. L. 2017, p. 723, § 7/HB 337; Ga. L. 2018, p. 1, § 3/HB 661.)

The 2017 amendment, effective January 1, 2018, in this Code section, substituted "lien docket in the office of the clerk of superior court" for "execution docket" near the beginning, and added ", except as otherwise provided in this chapter" at the end.

The 2018 amendment, effective February 20, 2018, substituted the present provisions of this Code section for the former provisions, which read: "An entry of satisfaction shall be made on the lien docket in the office of the clerk of superior court as soon as reasonably possible after a tax execution has been fully satisfied, except as otherwise provided in this chapter."

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

48-3-29. Publication of information regarding executions; withdrawal.

Repealed by Ga. L. 2017, p. 723, § 8/HB 337, effective January 1, 2018.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

This Code section was based on Ga. L. 2003, p. 442, § 1.

Ga. L. 2018, p. 1112, § 48(1)/SB 365, part of an Act to revise, modernize, and correct the Code, repealed the reservation of this Code section, effective May 8, 2018.

ARTICLE 2 UNIFORM SYSTEM FOR FILING STATE TAX EXECUTIONS

Effective date. - This article became effective January 1, 2018.

Editor's notes. - Ga. L. 2017, p. 723, § 1/HB 337, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State Tax Execution Modernization Act.'"

Ga. L. 2017, p. 723, § 9/HB 337, which amended this chapter, purported to amend this title but actually amended the chapter.

48-3-40. Purpose; application; definitions.

  1. The purpose of this article is to provide a uniform state-wide system for filing notices of state tax executions issued by the commissioner that are in favor of or enforced by the department.
  2. This article shall only be applicable to state tax executions and to the liens of state tax executions as against real and personal property which arise pursuant to Code Section 48-2-56 for tax liabilities administered by the department.
  3. As used in this article, the term:
    1. "Authority" means the Georgia Superior Court Clerks' Cooperative Authority.
    2. "Delinquent taxpayer" means a person owing an unpaid tax liability for which an execution has been filed by the department, unless such execution is released, withdrawn, or expired.
    3. "Execution" means either a state tax execution or a renewed state tax execution, as applicable.
    4. "Last known address of the delinquent taxpayer" means the address of the delinquent taxpayer appearing on the records of the department at the time the state tax execution is filed with the superior court clerk.
    5. "Renewed state tax execution" means any tax execution properly filed by the department prior to January 1, 2018, that is refiled upon implementation of this article.
    6. "State tax execution" means any execution issued by the department for the collection of any tax, fee, license, penalty, interest, or collection costs due the state. (Code 1981, § 48-3-40 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, substituted "means" for "shall mean" in paragraphs (c)(1) and (c)(3); deleted former paragraph (c)(2), which read: " 'Certificate of clearance' shall mean a document issued by the department affirming that a proper search has been conducted by the department and has yielded no active liens associated with an individual or entity."; redesignated former paragraph (c)(3) as present paragraph (c)(2); substituted the present provisions of paragraph (c)(2) for the former provisions, which read: " 'Delinquent taxpayer' means a person owing an unpaid tax liability that is collectable by the department."; redesignated former paragraphs (c)(4) through (c)(7) as present paragraphs (c)(3) through (c)(6), respectively; deleted former paragraph (c)(8), which read: " 'URPERA' shall mean the Uniform Real Property Electronic Recording Act found at Code Section 44-2-35, et seq."; and deleted former paragraph (c)(9), which read: " 'URPERA rules' shall mean the rules adopted by the Georgia Superior Court Clerks' Cooperative Authority pursuant to the Uniform Real Property Electronic Recording Act."

48-3-41. When executions issue.

The department may issue an execution for the collection of any tax, fee, license, penalty, interest, or collection costs due the state once a lien has arisen pursuant to Code Section 48-2-56.

(Code 1981, § 48-3-41 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, deleted the former second sentence, which read: "An execution shall be a lien in favor of the department upon all property and right to property, whether real or personal, within the State of Georgia, belonging to the delinquent taxpayer named on the execution."

48-3-42. Filing; effective dates; electronic filings; continuing effectiveness.

  1. On or after January 1, 2018, the execution shall be effective as provided by law when such execution is filed by the department with the appropriate superior court clerk.
  2. All executions or writs of fieri facias issued by the department filed or recorded on the general execution docket or lien docket of any county shall be invalid as of December 31, 2017. Any such execution or writs of fieri facias which the department does not show as satisfied, issued in error, or otherwise withdrawn and which was last recorded or rerecorded on the general execution docket within seven years before January 1, 2018, may be renewed for a period of ten years upon the department's filing a renewed state tax execution with the clerk of superior court between January 1, 2018, and February 20, 2018. For priority purposes, a filed renewed state tax execution shall retain its original date of filing. All renewed state tax execution documents shall reflect the original date of filing.
  3. On or after January 1, 2018, any execution and any related releases, cancellations, or other documents submitted by the department for filing with the clerk of superior court shall be submitted for filing electronically.
  4. An execution filed or renewed after January 1, 2018, pursuant to this Code section shall be a lien against and attach to all existing and after-acquired property of the delinquent taxpayer, both real and personal, tangible and intangible, with the same force and effect as any recorded judgment on the lien docket of the superior court clerk.
  5. An execution electronically transmitted to the authority pursuant to this Code section shall be deemed filed and perfected upon its receipt by the authority for transmission to the applicable clerk of superior court. The authority shall provide to the department confirmation of receipt of an execution. Absent evidence of such confirmation there shall be no presumption of filing. Executions filed shall have priority as provided by law.
  6. The lien of an execution filed pursuant to this Code section shall continue in effect until released or withdrawn by the department or until the execution has expired.
  7. The department shall file an execution within five years of the date of a final assessment. An execution filed or renewed after January 1, 2018, shall expire ten years from the date of filing and shall not be subject to renewal by nulla bona or otherwise. The periods of limitation set forth in this subsection shall be tolled and suspended for:
    1. The duration of an installment agreement between the taxpayer and the commissioner for any tax liabilities contained within an execution plus an additional 90 days;
    2. If a timely proceeding in court for the imposition or collection of a tax is commenced, the duration of the period until the liability for the tax or a judgment against the taxpayer arising from such liability is satisfied or becomes unenforceable;
    3. The duration of any enforcement action to collect the liability contained within an execution initiated prior to the expiration of the period of limitations and released after such period of limitations;
    4. In a case under Title 11 of the United States Code, the running of the period of limitations provided in this Code section shall be suspended and tolled for the period during which the commissioner is prohibited from collecting any tax liability and six months thereafter; or
    5. The period during which a taxpayer's offer-in-compromise is under consideration by the commissioner.
  8. All executions filed by the department on or after February 20, 2018, shall only attach to real property in the county in which the execution has been filed. After February 20, 2018, no execution previously filed by the department shall be considered to have state-wide attachment to all real property within the state and shall only attach to real property in the county in which the execution has been filed. (Code 1981, § 48-3-42 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, in subsection (b), substituted "between" for "on or after" and added ", and the effective date of this Act" in the second sentence and deleted "on the general execution docket or lien docket" at the end of the third sentence; inserted "or renewed" in subsection (d) and in the second sentence of subsection (g); deleted "located in any county and in all counties within the State of Georgia," following "tangible and intangible," in subsection (d); inserted "or withdrawn" in subsection (f); in the introductory paragraph of subsection (g), added the first sentence, added "by nulla bona or otherwise" at the end of the second sentence, and substituted "The periods of limitation set forth in this subsection" for "Said expiration period" at the beginning of the third sentence; and added subsection (h).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2018, "February 20, 2018" was substituted for "the effective date of this Act" at the end of the second sentence in subsection (b) and near the beginning of the second sentence of subsection (h) and "February 20, 2018," was substituted for "the effective date of this Act" in the middle of the first sentence of subsection (h).

48-3-43. Availability of information via electronic means; public records; unlawful use of data; regulatory authority.

  1. The department shall maintain information on executions in its information management system in a form that permits information related to executions to be readily accessible in an electronic form via the Internet and available to the public. The following shall be available within such system at no charge to the public:
    1. Search by delinquent taxpayer name, execution number, last four digits of the taxpayer's social security number, or, when applicable, federal employee identification number;
    2. Search by identification number assigned to the execution by the department;
    3. The basis for an execution, including, but not limited to, the amount of the taxes, penalties, interest, and fees owed, and the tax periods and relevant assessment dates of the taxes owed;
    4. The place, date, and time of the filing of the execution;
    5. The status of the execution as defined in subsection (b) of this Code section;
    6. The present balance of the execution;
    7. Provision of official electronic copies of an execution; and
    8. Notwithstanding Code Sections 48-2-15 and 48-7-60, provision and issuance of official payoff information as to any execution.
  2. An execution shall hold one of the following official statuses on the department information system and such status shall be available, except as provided below, and on the electronic printable forms of state tax executions:
    1. Active - The execution is perfected and enforceable;
    2. Withdrawn - The execution was issued in error and is not enforceable. Within two business days from the date the department discovers an error in the filing of an execution, it shall change the status of the execution to withdrawn. Such execution shall be treated as though it was never filed;
    3. Released - The execution has been released and is no longer enforceable. Within 15 business days from the department's receipt of payment in full of an execution, the department shall change the status of the execution to released. The department may release an unpaid execution that the department determines is not legally or practically collectable;
    4. Refiled - If an execution is released in error, the department may file a new execution for any outstanding, finally determined tax liability to bear an active status as of the date of the new recording; and
    5. Expired - The execution has expired pursuant to Code Section 48-3-42 and is unenforceable.
  3. The department shall provide to the authority such electronic linking data elements as may be required by the authority to link filed executions found in the authority's state-wide uniform automated information system for real and personal property records to the matching data related to the execution in the department's information management system.
  4. The department's information management system as provided for in this Code section shall constitute a public record and the department shall redact information in accordance with Code Section 9-11-7.1.
  5. The department's information management system as provided for in this Code section shall not be used for survey, marketing, or solicitation purposes. Survey, marketing, or solicitation purposes shall not include any action by the department or its authorized agents to collect a debt on an execution. The Attorney General is hereby authorized to bring an action at law or in equity to address the unlawful use of such information for a survey, marketing, or solicitation purpose and to recover the costs of such action, including reasonable attorney's fees.
  6. The commissioner may adopt reasonable rules and regulations providing for the maintenance, reliability, accessibility, and use of the department's information management system. Such rules and regulations may address, among other matters, the authenticity of the electronic printable executions and issues related to periods during which the information system may be unavailable for use due to routine maintenance or other activities. (Code 1981, § 48-3-43 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, added "and" at the end of paragraph (a)(7); deleted former paragraph (a)(8), which read: "Provision and issuance of official statements of lien pursuant to Code Section 44-1-18;"; deleted former paragraph (a)(9), which read: "Provision and issuance of official certificates of clearance pursuant to Code Section 44-1-18;"; deleted former paragraph (a)(10), which read: "Search by identification number assigned to certificates of clearance; and"; redesignated former paragraph (a)(11) as present paragraph (a)(8) and rewrote present paragraph (a)(8); and deleted "or canceled" following "released" in the first sentence of paragraph (b)(3).

Cross references. - Revision of automated information system for state tax execution data, § 15-6-97.3 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, a semicolon was substituted for a period at the end of paragraph (a)(9).

48-3-44. "Released" executions.

An execution bearing a "Released" status on the department's information management system shall constitute a complete release of the execution by the department and the department shall also timely file the release of the lien in the office of the clerk of superior court where the execution was filed as required by Code Section 48-3-28.

(Code 1981, § 48-3-44 , enacted by Ga. L. 2017, p. 723, § 9/HB 337; Ga. L. 2018, p. 1, § 4/HB 661.)

The 2018 amendment, effective February 20, 2018, deleted the subsection (a) designation, deleted "of" following "department and", inserted "department shall also timely file the release of the", added "as required by Code Section 48-3-28" at the end, and deleted former subsection (b), which read: "A certificate of clearance issued by the department shall be deemed an effective release of an execution. The department shall provide to the delinquent taxpayer, within 30 days of the date of payment, a notice of the release of the execution and shall cause a release of the execution to be filed with the applicable superior court clerk."

CHAPTER 4 TAX SALES

Article 1

Sales under Tax Executions.

Article 2

Purchase by Counties.

Article 3

Redemption of Property Sold for Taxes.

Article 4

Land Bank Authorities.

Article 5

Ad Valorem Tax Foreclosures.

Article 6

Land Banks.

JUDICIAL DECISIONS

Sale under execution in personam against one not true owner is void. - As a general rule, property may not be sold under a tax execution issued in personam against one who has neither title nor possession, and no right to represent the owner; such a sale is void as to the true owner, and does not operate to divest the owner's title. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Effect of void execution sale. - When a municipal assessment execution sale is void, the purchaser obtains no title as against the true owner. Williams v. Aycock, 52 Ga. App. 386 , 183 S.E. 628 (1936), cert. dismissed, 183 Ga. 800 , 189 S.E. 841 (1937).

Owner of property which is subject to void sale has right to maintain action for trespass. - One whose property is sold at a marshal's sale, which is void because based on an excessive levy, holds the legal title to the premises, and can maintain an action for trespass against one committing a trespass against one's title and right to possession. Williams v. Aycock, 52 Ga. App. 386 , 183 S.E. 628 (1936), cert. dismissed, 183 Ga. 800 , 189 S.E. 841 (1937).

Execution in personam against decedent long after death does not divest true owner of title. - When tax execution under which one claims title is not in rem against specific property, but is in personam against deceased former owner, to enforce collection of taxes assessed long after death, the sale does not divest the title of the true owners. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Land may be advertised in names of heirs even if returned in name of decedent's executor. - When land is returned for taxes in the individual name of the person who is the executor, and the executions were issued against the person as an individual, when the returns are in fact made by such person as the agent of the heirs and devisees of the decedent who owned the land, it is not illegal for the property to be advertised for sale as belonging to the heirs of the decedent, and for the deed so to recite. Quarterman v. Perry, 190 Ga. 275 , 9 S.E.2d 61 (1940).

Levy on transferee void if original owner's remaining property sufficient to satisfy execution. - If one purchases about two-thirds of certain land, subject to paving assessment, and execution is levied on the entire lot, including the purchaser's property, the levy being grossly excessive, since the property remaining in the original owner was more than sufficient to satisfy the execution, the marshal's sale of premises so levied on is void and passes no title to the purchaser. Williams v. Aycock, 52 Ga. App. 386 , 183 S.E. 628 (1936), cert. dismissed, 183 Ga. 800 , 189 S.E. 841 (1937).

High bidder not entitled to mandamus to compel execution of deed if bid not accepted. - Party who makes a bid at a marshal's sale of property advertised for sale under a tax fieri facias is not entitled to mandamus to compel the execution of a deed to the plaintiff, when it does not appear that the bid was accepted, even though there was no higher bid made at the sale as a bid is a mere offer until accepted, and until the property is knocked down to the bidder there is no completed contract. Elder v. Bonded Mtg. Corp., 180 Ga. 607 , 180 S.E. 134 (1935).

RESEARCH REFERENCES

ALR. - Tax title as affected by fact that tax had been paid before sale, 26 A.L.R. 622 .

Tax deed and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 30 A.L.R. 8 ; 88 A.L.R. 264 .

Holder of invalid tax title as within occupying claimant's act, 44 A.L.R. 479 .

Assessment for local improvements as taxes within statute providing for payment of taxes out of proceeds of judicial sale, 73 A.L.R. 1227 .

Quantum of estate acquired by purchaser at tax sale of property which is subject to successive estates or different interests, 75 A.L.R. 416 .

Right of holder of tax title or certificate of sale to reimbursement by taxing authorities where sale proves invalid, 77 A.L.R. 824 ; 116 A.L.R. 1408 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs as affecting its validity, 97 A.L.R. 842 ; 147 A.L.R. 1141 .

Rights and remedies of purchaser at tax sale as affected by delay in payment of bid, 104 A.L.R. 823 .

Statutory enactment or repeal subsequent to tax sale or issuance of tax certificates as affecting rights of holders of tax certificates or purchasers at tax sale, 111 A.L.R. 237 .

What informalities, irregularities, or defects in respect to the execution of a tax deed prevent the running of the statute of limitations or period of adverse possession, 113 A.L.R. 1343 .

Right of holder of tax title or certificate of sale to reimbursement by taxing authorities where tax sale proves invalid, 116 A.L.R. 1408 .

Effect of failure to make report, return, or record of tax sale within time prescribed by statute, 117 A.L.R. 726 .

Right of holder of bond or other instrument representing or based upon assessment for benefits or improvement, to purchase at tax sale, or acquire tax title and hold same in his own right as against owner of land, 123 A.L.R. 398 .

Constitutionality, construction, and application of statute giving former owner right to purchase tax-acquired property while in public ownership, 126 A.L.R. 649 .

Measure of recovery for improvements made by purchaser of invalid tax title, 129 A.L.R. 1354 .

Lien for tax imposed by one taxing unit as affected by lien or sale for tax imposed by another taxing unit of same state, 135 A.L.R. 1464 .

Right of mortgagee or other lienor to acquire and hold tax title in his own right as against persons owning other interests in or liens upon property, 140 A.L.R. 294 .

Personal liability of tax official or his bond to purchaser at tax sale, 149 A.L.R. 220 .

Discretion of court to refuse confirmation of, or to set aside, tax sale, where all proceedings are in compliance with statutory requirements, 152 A.L.R. 887 .

Acquisition by state or other governmental body of title to land, otherwise than at tax sale, as affecting prior tax lien on land, or validity of sale for such taxes, 158 A.L.R. 563 .

Respective rights and estates of persons claiming real property through sales from different agencies to enforce taxes or assessments, as between which there is parity of lien, 167 A.L.R. 1001 .

Easement or servitude or restrictive covenant as affected by sale for taxes, 168 A.L.R. 529 .

Who are entitled to notice, or are necessary parties, in order to perfect tax title, 169 A.L.R. 686 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Tax sale as freeing property from possibility of further assessments for benefits to land, 11 A.L.R.2d 1133.

Effect of misnomer of landowner or delinquent taxpayer in notice, advertisement, etc., of tax foreclosure or sale, 43 A.L.R.2d 967.

Validity of notice of tax sale or of tax sale proceeding which fails to state tax year or kind or type of taxes covered by tax assessments, 43 A.L.R.2d 988.

Tax sales or forfeitures by or to governmental units as interrupting adverse possession, 50 A.L.R.2d 600.

Property owner's liability for unpaid taxes following acquisition of property by another at tax sale, 100 A.L.R.3d 593.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

Doctrine of marshaling assets or sale in inverse order of alienation as applicable to tax sale, 131 A.L.R.4th 79.

Easement, servitude, or covenant as affected by sale for taxes, 7 A.L.R.5th 187.

ARTICLE 1 SALES UNDER TAX EXECUTIONS

48-4-1. Procedures for sales under tax levies and executions.

    1. Except as otherwise provided in this title, when a levy is made upon real or personal property, the property shall be advertised and sold in the same manner as provided for executions and judicial sales. Except as otherwise provided in this title, the sale of real or personal property under a tax execution shall be made in the same manner as provided for judicial sales; provided, however, that in addition to such other notice as may be required by law, in any sale under a tax execution made pursuant to this chapter, the defendant shall be given ten days' written notice of such sale by registered or certified mail or statutory overnight delivery. The notice required by this Code section shall be sent:
      1. In cases of executions issued by a county officer for ad valorem taxes, to the defendant's last known address as listed in the records of the tax commissioner of the county that issued the tax execution;
      2. In cases of executions issued by a municipal officer for ad valorem taxes, to the defendant's last known address as listed in the records of the municipal officer of the municipality that issued the tax execution; or
      3. In cases of executions issued by a state officer, to the defendant's last known address as listed in the records of the department headed by the issuing officer.
    2. A copy of the notice provided for in paragraph (1) of this subsection shall also be sent by the same tax officer sending the notice to the defendant to the appropriate tax official of the state, county, or municipality which also has issued an execution with respect to such property.
  2. If two or more executions have been levied against a defendant, or if two or more in rem executions have been levied against the same unreturned property, such executions may be aggregated and a single sale may be conducted for the total amount due as in the case of a single execution, and the 12 month period of redemption provided by Code Section 48-4-40 shall commence as to all such executions on the date of such sale, provided that at least one of the executions meets the provisions of this Code section.
  3. In advertisements for sales under tax executions, the property being sold may alternatively be described by tax parcel identification number and current street address, if any, together with a reference to the recording information for any deed conveying title to such property, without the necessity of using a full and complete description of the property.

    (Orig. Code 1863, §§ 811, 813; Code 1868, §§ 891, 893; Code 1873, §§ 888, 890; Ga. L. 1876, p. 30, § 1; Code 1882, §§ 888, 890; Civil Code 1895, §§ 905, 907; Civil Code 1910, §§ 1165, 1167; Code 1933, §§ 92-8101, 92-8102; Code 1933, § 91A-401, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 884, § 3-34; Ga. L. 1985, p. 1243, § 4; Ga. L. 1988, p. 1957, § 1; Ga. L. 1990, p. 1875, § 2; Ga. L. 2000, p. 1408, § 2; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 1481, § 2; Ga. L. 2006, p. 770, § 4/SB 585.)

Cross references. - Judicial sales generally, § 9-13-140 et seq.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

Law reviews. - For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016).

JUDICIAL DECISIONS

Sales to which section applicable. - Statute applies as well to sales made under execution issued by the comptroller general (now commissioner) as to sales made under execution issued by the tax collector of any county. Bedgood & Royal v. McLain, 89 Ga. 793 , 15 S.E. 670 (1892).

Statute does not apply to sales by the marshal of a town or city. Ansley v. Wilson, 50 Ga. 418 (1873).

Sales under executions for municipal taxes must strictly comply with requirements. - Prior to the adoption of the Code, the utmost particularity was required in respect to sales under executions for taxes, and the law had to be complied with in every respect. Such still is the case as to sales under executions for municipal taxes. Byars v. Curry, 75 Ga. 515 (1885).

Standing to attack tax sale. - Holder of title to property who had been given notice of the tax sale and the opportunity to pay the tax and avoid the tax sale could not attack the sale on the ground of lack of notice to another party. GE Capital Mtg. Servs. Inc. v. Clack, 271 Ga. 82 , 515 S.E.2d 619 (1999).

Sales of realty under tax fieri facias and judgment may not be combined. - Real estate when sold under a tax fieri facias being redeemable, and when sold under a judgment being irredeemable, there is such incompatibility in these incidents that they cannot combine and both follow from a single sale made by one and the same act, though sufficient authority for making a sale of either class be in the officer's hands. Clower v. Fleming, 81 Ga. 247 , 7 S.E. 278 (1888).

Effect of combined sale of real estate under fieri facias and judgment. - Sale made under such circumstances will not be void, but will assume the characteristics of a tax sale. Clower v. Fleming, 81 Ga. 247 , 7 S.E. 278 (1888).

Officer conducting judicial sale must keep sale open until competent bid is received or until the officer is satisfied that such a bid will not be offered. Upon failure of the purchaser to comply with a high bid, the sheriff does not have the authority to convey the property to the next highest bidder, but may resell the property within legal hours on the same day without readvertisement. Wachovia Mtg. Co. v. DeKalb County, 241 Ga. 416 , 246 S.E.2d 183 (1978).

Property sold under tax execution should be knocked off to highest bidder; on failure of the highest bidder to comply with the bid, the sheriff has no authority to convey the property to the next highest bidder. Citizens Bank v. Lamar County, 187 Ga. 123 , 200 S.E. 257 (1938).

Effect of "waiver" by highest bidder in favor of next highest bidder. - When land levied on as property of a named person, under tax execution against such person, was offered for sale by the sheriff on the regular sales day and the county was outbid by the bank and it was knocked off to the bank, and when the bank did not on the day of the sale pay the purchase price or receive a deed, but sometime thereafter "waived" the bank's bid in favor of the county in order that the sheriff might make a deed to the county upon the county's bid, which action was also assented to by the defendant in the fieri facias, the transaction did not constitute a judicial sale of the land to the county, and a deed conveying land to the county was void as against the holder of an outstanding security deed executed by the defendant in fieri facias before accrual of taxes. Citizens Bank v. Lamar County, 187 Ga. 123 , 200 S.E. 257 (1938).

When sale deemed complete for purposes of measuring period of redemption. - For purposes of determining the right to redeem land which has been sold at a tax sale, the sale is not to be considered complete until payment of purchase money by bidder. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

When the purchaser at a tax sale was represented at the sale by the county tax collector who, instead of paying the amount of the bid to the sheriff, merely paid the sheriff's costs and the advertising fee and, in an adjustment of the collector's account as a tax collector, settled with the county commissioners by deducting the taxes from credits to which the sheriff was entitled, there was no such payment of the purchase money as to cause the period of redemption to commence. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Right of redemption following bankruptcy. - LLC that purchased a debtor's home at a tax sale held pursuant to O.C.G.A. § 48-4-1 was entitled to an order lifting the stay that was imposed when the debtor declared Chapter 13 bankruptcy so the LLC could foreclose the deed the LLC received; although the debtor had the right under O.C.G.A. § 48-4-40 to redeem title to the home at the time the debtor declared bankruptcy because the time for doing so had not expired under state law, the debtor lost that right when the debtor failed to pay the LLC the amount it spent to purchase the tax deed, and the debtor's attempt to pay that amount in increments through the debtor's plan failed because the home was not property of the debtor's bankruptcy estate under 11 U.S.C.S. § 541. Harvest Assets, LLC v. Edwards (In re Edwards), Bankr. (Bankr. N.D. Ga. Nov. 13, 2014).

Tax sale of property proper. - Trial court properly granted summary judgment to the purchaser of real estate in a quiet title action that involved the taxpayer's home and the taxpayer's failure to pay the property taxes on the property as the property was properly levied upon and no question of fact remained that the sheriff officially seized the property. Further, the affidavits of the civil process coordinator at the time of the tax sale, and the coordinator's successor, were properly admitted into evidence as such affidavits fell within the business records exception to the rule against hearsay. Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008).

In a purchaser's quiet title action against the executor of a testatrix's estate, the trial court did not err in adopting the report of a special master and in decreeing that fee simple title to the land was vested in the purchaser because the purchaser acquired title to the property by virtue of a tax sale and deed, which was conducted in accordance with O.C.G.A. § 48-4-1 et seq.; a title search showed the testatrix's nephew as holding record title to the property, but out of caution, both the nephew and the executor were served with notice of the tax sale, the tax commissioner met with the executor prior to the sale and offered to accept payment for the back taxes, but the executor failed to do so, and the property was sold to the purchaser, with the overage going to the nephew, and the executor did not timely seek to exercise a right of redemption under O.C.G.A. § 48-4-40 . Mann v. Blalock, 286 Ga. 541 , 690 S.E.2d 375 (2010).

Trial court did not err in granting summary judgment to the county as the nuisance abatement statute did not preclude the county from using a nonjudicial tax foreclosure sale, instead of a judicial in rem tax foreclosure sale, to sell the property because, both methods were available for collecting real property ad valorem taxes; judicial in rem tax foreclosure procedures were an alternative to nonjudicial tax foreclosure procedures, rather than a replacement for them; and the nuisance abatement statute did not require the county to use a judicial in rem tax foreclosure sale when collecting on a nuisance abatement lien. Derby Props., LLC v. Watson, Ga. App. , 816 S.E.2d 766 (2018).

Effect of tax sale under an execution issued against one other than property owner. - When an owner fails to return land, there is no provision of law whereby the owner's title can be divested by levy and sale of the property as property of another person under a tax execution issued against such other person. Nelson v. Brown, 174 Ga. 150 , 162 S.E. 276 (1932).

As a general rule, no property can be sold under a tax execution in personam as the property of the defendant therein, if the defendant has neither title nor possession, nor any right to represent the person who has the property; and a sale under these circumstances would be void as to the true owner. James v. Riley, 181 Ga. 454 , 182 S.E. 604 (1935).

Entitlement to excess funds after tax sale. - Trial court erred by granting summary judgment to the property owner because the trial court erred by holding that the security deed holder lost the holder's right to excess funds that arose from the tax sale as the relevant date under O.C.G.A. § 44-14-80 when considering who was entitled to the excess funds from the tax sale was the tax sale date, not the fund distribution date. Worthwhile Investments, LLC v. Higgins, 337 Ga. App. 183 , 787 S.E.2d 245 (2016).

Tax commissioner immune to action for damages for failure to give notice. - Property owner's claim for damages based on a county tax commissioner's failure to properly send notices required by O.C.G.A. §§ 9-13-13 , 48-3-3 , 48-3-9(a) , and 48-4-1 was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and 48-5-137 did not render the tax commissioner liable as an ex-officio sheriff because the notices did not constitute a "false return" or legal neglect to make a "proper return". Raw Properties, Inc. v. Lawson, 335 Ga. App. 802 , 783 S.E.2d 161 (2016).

Cited in Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005); DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 255 et seq. 72 Am. Jur. 2d, State and Local Taxation, § 807.

C.J.S. - 85 C.J.S., Taxation, § 1221 et seq.

ALR. - Doctrine of marshaling assets or sale in inverse order of alienation as applicable to tax sale, 88 A.L.R. 1216 ; 131 A.L.R.4th 79.

Construction, application, and effect of statutory provision requiring seizure and possession of property before sale for delinquent taxes, 105 A.L.R. 635 .

Right of officer conducting sale under execution or distress warrant to refuse to accept best bid because inadequate, 110 A.L.R. 1077 .

What amounts to a sale at retail within tax statutes or ordinances, 139 A.L.R. 372 .

Necessity of consent of court to tax sale of property in custody of court or of receiver or trustee appointed by it, 3 A.L.R.2d 893.

Property owner's liability for unpaid taxes following acquisition of property by another at tax sale, 100 A.L.R.3d 593.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-4-2. Assessment and disposition of unreturned property.

When property which has not actually been returned by anyone is assessed for taxes, the tax collector or tax commissioner shall issue an execution against the property as soon as it is assessed for the amount due and costs. The sheriff shall advertise the property for sale in the newspaper in which sheriff's sales are advertised once a week for four weeks before the day of sale. If the taxes are not paid by the day of the sale, the property shall be sold, but only if renting or hiring the property will not bring the requisite amount. Surplus from a sale after the payment of the taxes and costs shall be paid over to the county governing authority as a part of the educational fund, together with a statement of the property and account of sales, subject to the claim of the true owner within four years.

(Orig. Code 1863, § 819; Code 1868, § 899; Code 1873, § 897; Code 1882, § 897; Civil Code 1895, § 908; Civil Code 1910, § 1168; Code 1933, § 92-8103; Code 1933, § 91A-402, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1984, p. 660, § 1.)

Law reviews. - For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For comment on Bell v. Summerlin, 188 Ga. 648 , 4 S.E.2d 831 (1939), see 2 Ga. B. J. 54 (1940).

JUDICIAL DECISIONS

When section inapplicable. - Statute is, by the statute's express terms, inapplicable to tax sales by a sheriff when the property is returned for taxes by the defendant in execution, and when the fieri facias is not against the specific property levied upon, but against the whole property of the defendant named therein. Lumpkin v. Cureton, 119 Ga. 64 , 45 S.E. 729 (1903).

What execution must show. - When the tax collector seeks to sell land which is unreturned, the execution should not only show that the land has been assessed for taxes, has been unreturned, but that the owner is unknown; for, in order to authorize the issuance of an execution for the collection of taxes in rem, it is necessary to show that the owner thereof is unknown. Leonard v. Pilkinton, 99 Ga. 738 , 27 S.E. 753 (1896).

Effect of misdescription as to state of improvement of land. - As the tax collector, whether unreturned land be wild or improved, has power to issue execution against the land for taxes, it would seem that a sale is not void because of a misdescription of the land as wild when in fact the land was improved. Gardner v. Donaldson, 80 Ga. 71 , 7 S.E. 163 (1887).

No authority to issue execution in rem when owner in possession. - Tax collector has no authority of law to issue a tax execution against land in rem if its owner is in possession thereof at the time when it becomes the officer's duty to make a return for the owner. Norris v. Coley, 100 Ga. 547 , 28 S.E. 222 (1897).

Effect of tax deed obtained under in rem proceedings. - If tax deeds represent in rem assessments, levies, and sales, a purchaser under such deed or deeds acquires a good title as against the whole world. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

When execution against life tenant deemed in rem. - Purchaser at a sale under a tax execution in personam against a life tenant acquires only the life estate but when (a) the life tenant is in possession, (b) the whole property is levied upon, and (c) execution embraces only the taxes upon the specific property, the purchaser acquires title to the fee, and the whole property, including the remainder estate, as well as the life estate, passes. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).

Misapplication of surplus. - It may be that the persons having charge of the disbursement of the educational fund might maintain an action against the ordinary (now county governing authority) for a misapplication of the surplus, if not barred. Summers v. Christian, 72 Ga. 193 (1883).

OPINIONS OF THE ATTORNEY GENERAL

Tax executions in rem are issuable only if property is unreturned and owner is unknown. 1972 Op. Att'y Gen. No. U72-80.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1221 et seq.

ALR. - Failure of advertisement in judicial proceeding for sale of land for delinquent taxes or foreclosure of tax lien, to describe lands affected, as contrary to due process of law or other constitutional objection, 107 A.L.R. 285 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs, as affecting its validity, 147 A.L.R. 1141 .

Constitutionality of statutes authorizing tax sale or resale for less than the amount of the taxes due, 155 A.L.R. 1177 .

What constitutes "execution" of tax deed beginning or ending period for redemption from tax sale, 166 A.L.R. 853 .

48-4-3. Duties of levying officers.

The tax collector or tax commissioner may place his executions in the hands of any constable of the county, who shall be authorized to collect or levy the executions in any part of the county. The constable or other levying officer to whom the tax collector or tax commissioner delivers the tax executions for collection shall proceed promptly to enforce by levy and sale the collection of the executions. The levying or collecting officer shall make prompt settlements with the tax collector or tax commissioner and in no event shall be allowed longer than 90 days from the time the executions are placed in his hands within which to make final settlement with the tax collector or tax commissioner and return to the tax collector or tax commissioner the tax collected and the uncollected executions with proper entries on the executions. Any constable or other levying officer who fails or refuses to make a final return or settlement within the time provided in this Code section shall forfeit all costs due him on the executions and shall be subject to be ruled before any court of competent jurisdiction and made to account as required by this Code section.

(Orig. Code 1863, § 812; Code 1868, § 892; Code 1873, § 889; Code 1882, § 889; Civil Code 1895, § 906; Ga. L. 1899, p. 26, § 1; Civil Code 1910, § 1166; Code 1933, § 92-8104; Code 1933, § 91A-403, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Marshal of the municipal court of Columbus has authority to conduct tax sales. Percy Wilson Mtg. & Fin. Corp. v. Sizemore, 167 Ga. App. 211 , 305 S.E.2d 903 (1983).

Constable not treated as officer of a particular court or district. - Constable is not treated as the officer of a particular justice's court or limited to making a levy within the constable's district, but the tax collector may place the fieri facias in the hands of any one constable of the county, who shall be authorized to collect or levy the same in any part of the county. Winn v. Butts, 127 Ga. 385 , 56 S.E. 406 (1907).

Order in which parcels of realty levied on. - Before levy upon property in a house and lot, indivisible, and of great value, to pay city taxes, the marshal of the city should exhaust smaller and less valuable parcels assessed by the city at more than enough to pay double the tax fieri facias levied. But if the sale be postponed at the instance of, and assented to by, the defendant in fieri facias the defendant cannot attack the levy as excessive. Jones v. Johnson, 60 Ga. 260 (1878).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 620, 621, 769 et seq.

ALR. - Payment of tax or redemption from tax sale by public officer for benefit of owner, 66 A.L.R. 1035 .

Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-4-4. Purchase by one obligated to pay.

One who is obligated to pay a tax on property cannot strengthen his title by purchasing the property at a tax sale. Each such purchase shall be treated as payment for the tax due.

(Civil Code 1895, § 904; Civil Code 1910, § 1164; Code 1933, § 92-8105; Code 1933, § 91A-404, enacted by Ga. L. 1978, p. 309, § 2.)

History of section. - This Code section is derived from the decision in Burns v. Lewis, 86 Ga. 591 , 13 S.E. 123 (1891).

JUDICIAL DECISIONS

Effect of purchase or redemption by person liable for taxes. - One who is bound to pay the tax on property cannot strengthen one's title by purchasing at a tax sale; such purchase shall be treated as payment of the tax due. The same rule applies when, after a sale for taxes, the property is redeemed by the person liable therefor. Holliday v. Guill, 196 Ga. 723 , 27 S.E.2d 398 (1943).

Purchase by heir at law deemed purchase by one obligated for tax. - As between the plaintiff in execution and the administrator, it is the duty of the administrator to pay the taxes during the course of administration; but the title to the realty having vested in the heirs at law subject only to administration for the payment of debts and distribution, such duty as to payment of taxes extends, at least morally or equitably, to the heirs at law, since the administrator is a mere trustee holding the land for their benefit. Therefore, the claimant, as an heir at law, cannot strengthen the claimant's title against the plaintiff in execution by purchasing the property at a tax sale; nor can the claimant do so indirectly by purchasing from another who had purchased at such a sale. This is true even though the claimant purchases from the other person after the period of redemption has expired. Veal v. Veal, 192 Ga. 503 , 15 S.E.2d 725 (1941).

Statute inapplicable when taxpayer purchases from sale purchaser or transferee. - Statute inapplicable when the purchaser at the tax sale conveys the property to another, although the latter buys the property for the use of the taxpayer, to whom the purchaser agrees to convey it upon the payment to the purchaser by the taxpayer of the amount which the purchaser is out upon the purchase, when such amount has not been paid. Miller v. Jennings, 168 Ga. 101 , 147 S.E. 32 (1929).

Effect of conspiracy intended to defeat outstanding security interest. - When one other than the owner of realty sold for taxes holds an option to acquire from the purchaser at a tax sale the tax title thereto for the benefit of the owner, as per a conspiracy to defeat an outstanding security deed, after the legal period for redemption from such tax sale has expired, the holder of the outstanding security deed to such realty, who by grace of the holder of the tax title is accorded the privilege of redeeming the realty from the tax sale, is entitled to relief in a court of equity. Horton v. Johnson, 192 Ga. 338 , 15 S.E.2d 605 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 842.

C.J.S. - 33 C.J.S., Executions, §§ 346, 347. 85 C.J.S., Taxation, § 1293.

ALR. - Right of delinquent taxpayer or other person having an original interest in the property to purchase at, or acquire and hold, as against taxing unit, title derived from or through, tax sale, 136 A.L.R. 1145 .

48-4-5. Payment of excess.

  1. If there are any excess funds after paying taxes, costs, and all expenses of a sale made by the tax commissioner, tax collector, or sheriff, or other officer holding excess funds, the officer selling the property shall give written notice of such 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. The notice 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.
  2. The tax commissioner, tax collector, sheriff, or other officer may file, when deemed necessary, an interpleader action in superior court for the payment of the amount of such excess funds. Such excess funds shall be 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. The cost of litigation of such an interpleader action, including reasonable attorney's fees, shall be paid from the excess funds upon order of the court.
  3. After five years have elapsed from the tax sale date, the tax commissioner, tax collector, sheriff, or other officer holding excess funds shall pay over to the department any excess unclaimed funds and for which no action or proceeding is pending in a claim for payment. Once excess funds are placed in the possession of the department, only a court order from an interpleader action filed in the county where the tax sale occurred, by the claimant for the funds, shall serve as justification for release of the funds.

    (Orig. Code 1863, § 814; Code 1868, § 894; Code 1873, § 892; Code 1882, § 892; Civil Code 1895, § 912; Civil Code 1910, § 1175; Code 1933, § 92-8106; Code 1933, § 91A-405, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2002, p. 1481, § 3; Ga. L. 2006, p. 770, § 5/SB 585; Ga. L. 2010, p. 878, § 48/HB 1387.)

Editor's notes. - Ga. L. 2006, p. 770, § 8, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

Law reviews. - For annual survey on real property, see 65 Mercer L. Rev. 233 (2013).

JUDICIAL DECISIONS

Responsibility of holding excess funds in the levying officer. - Language of O.C.G.A. § 48-4-5 directing that excess funds be paid over to the "person authorized to receive the excess" should be consistently construed. Thus, regardless of who owns the tax execution, the sheriff holds excess tax sale funds as the fiduciary of the record property owner and is not authorized to release such funds to the transferee of the tax execution. Alexander Inv. Group, Inc. v. Jarvis, 263 Ga. 489 , 435 S.E.2d 609 (1993).

As against the lienee, the lienor has no right to the excess from a sale of the encumbered property under tax fieri facias, even were the security returned for taxation and assessed in the name of the lienor, since under this statute the excess from any tax sale is to be paid to the person authorized to receive the excess. Particularly is this true if the lienor has contracted to keep the taxes on the property paid; the fact that the property was improperly returned for taxation in the name of the husband of the lienor and the tax assessed against the property in his name would not render the husband the person authorized to receive such excess from the tax sale. Simmons v. May, 53 Ga. App. 454 , 186 S.E. 441 (1936).

Effect of nonpayment of excess on right of redemption. - Fact that "excess" was never paid to the sheriff or settled in any manner furnishes an additional reason why the tax sale was not complete, relative to the owner's right to redeem. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Accrual of interest on surplus. - When a sheriff sells land as the property of an unrepresented estate for taxes and, after payment of the taxes and cost, a surplus remains in the sheriff's hands, the sheriff's term of office expires and the sheriff thereafter dies, and a number of years ensue before there is any administration upon the estate of the person whose property has thus been sold, in a suit by the administrator upon such estate upon the official bond of the sheriff, interest should be counted from the date of the qualification of the administrator. Morrison v. Slaton, 148 Ga. 294 , 96 S.E. 422 (1918).

Transfer of entitlement to excess funds allowed. - As a matter of law, a defendant in fieri facias can effect a transfer of the defendant's entitlement to the excess funds generated in a tax sale under O.C.G.A. § 48-4-5 . Barrett v. Marathon Inv. Corp., 268 Ga. App. 196 , 601 S.E.2d 516 (2004).

State of title held by purchaser or purchaser's grantee pending period of redemption. - Trial court properly granted summary judgment to an association, and the association's employee and a board member, on the claims by a property purchaser against them for extortion and removal of liens arising out of the purchaser's failure to pay association fees after purchasing seven properties in a subdivision through a tax sale resulting from unpaid property taxes; while it was true that the purchaser did not obtain a fee simple absolute title, and that title could be restored to specified predecessors through redemption or before the purchaser gave notice pursuant to O.C.G.A. § 48-4-45 , the purchaser did receive title sufficient to trigger automatic membership in the association and was thus required to pay its assessed fees. Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005).

Second unauthorized tax sale did not affect fee simple title of buyer at first tax sale. - Although a county did not have the recognized statutory option of conducting a second tax sale in order to satisfy the remainder of the tax deficiency owed, and while the assignee who took the property as a result of the second tax sale might be entitled to a refund of the purchase price, the special master's recommendation to issue a decree of fee simple title in the underlying property to the buyer at the first tax sale was upheld on appeal. DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903 , 655 S.E.2d 586 (2008).

Tax deed purchaser responsible for taxes after tax sale. - Tax deed purchaser, not the church, a defendant in fi. fa., was obligated to pay ad valorem taxes that accrued after the tax sale and before redemption, and the tax commissioner could not use the excess funds to satisfy the buyer's tax obligation that occurred after the tax sale. Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 321 Ga. App. 778 , 742 S.E.2d 742 (2013).

No right to excess funds generated by tax sale. - Trial court did not err in granting a tax commissioner summary judgment in a lienholder's action under O.C.G.A. § 15-13-3 to recover excess funds from a tax sale because at the time of the tax sale, at the time the tax commissioner notified the record owner of the property and record lienholders of the excess tax sale funds, and at the time the tax commissioner paid the excess tax sale funds to the record owner of the property, the lienholder had no recorded lien or interest in the property; after the tax commissioner fulfilled the obligation under O.C.G.A. § 48-4-5(a) to give notice to the record property owner and lienholders, the property owner submitted the only claim to the tax commissioner for the excess tax sale funds, and the lienholder failed to show that more was required of the tax commissioner before the funds were disbursed. Brina Bay Holdings, LLC v. Echols, 314 Ga. App. 242 , 723 S.E.2d 533 (2012), overruled on other grounds, DLT List, Inc. v. M7ven Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Entitlement to excess funds after tax sale. - Trial court erred by granting summary judgment to the property owner because the trial court erred by holding that the security deed holder lost the holder's right to excess funds that arose from the tax sale as the relevant date under O.C.G.A. § 44-14-80 when considering who was entitled to the excess funds from the tax sale was the tax sale date, not the fund distribution date. Worthwhile Investments, LLC v. Higgins, 337 Ga. App. 183 , 787 S.E.2d 245 (2016).

Trial court erred by awarding excess funds from a tax sale to a redeeming creditor because although the creditor had an interest in the property at the time of the tax sale that gave the creditor a statutory right of redemption, it was undisputed that the creditor's security deed had now been fully satisfied, and the creditor no longer retained any priority lien on the property; thus, the administrator of the original owner's estate was the party entitled to receipt of the funds. Bridges v. Collins-Hooten, 339 Ga. App. 756 , 792 S.E.2d 721 (2016).

Lender who had purchased a tax deed had a defeasible fee in the property, which became a fee simple interest when the property was not redeemed; excess proceeds from the tax sale were to be distributed first to the lender and then to any other recorded lien holder; the lender's first-priority security lien was not merged into the tax deed purchase. However, the lender failed to show the amount owed, requiring reversal of the judgment in the lender's favor. Performance Food Group, Inc. v. Davis, 346 Ga. App. 487 , 816 S.E.2d 468 (2018).

Recovery of excess proceeds from tax commissioner. - Holding company was entitled to recover from the tax commissioner the amounts necessary to pay the tax executions from the excess proceeds of the tax sales before any payments to the owners of record at the time of the tax sale. As the holder of the tax liens, the holding company had the right to be paid "before any other debt, lien, or claim of any kind" could be claimed by the parties entitled to receive them, including those who hold other liens against the property. Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

Interpleader and attorney fees awarded to tax director. - Trial court properly allowed the Georgia Tax Director to interplead in the tax sale action regarding disbursement of excess funds and award the director attorney fees because O.C.G.A. § 48-4-5(b) permitted interpleader as well as a reasonable attorney fee and the fee was not conditioned upon litigation. Bridges v. Collins-Hooten, 339 Ga. App. 756 , 792 S.E.2d 721 (2016).

Original owner not redeemer was entitled to excess proceeds of tax sale. - Pursuant to O.C.G.A. § 48-4-5(a) , a county tax commissioner was properly ordered to disburse excess tax-sale funds totaling $105,188 to the original owner of the property and not the redeemer of the property from a tax sale purchaser; the redemption price would be the first priority lien, here the only lien, against the property going forward. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

To the extent that Wester v. United Capital Finance of Atlanta, LLC, 282 Ga. App. 392 , 638 S.E.2d 779 (2006), and United Capital Finance of Atlanta v. American Investment Assoc., 302 Ga. App. 400 , 691 S.E.2d 272 (2010), held that the redeeming creditor at a tax sale had a first priority claim on the excess tax funds for the amount paid to redeem the property, those cases are overruled. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

County's immunity from suit. - Pursuant to O.C.G.A. § 36-1-4 and Ga. Const. 1983, Art. I, Sec. II, Para. IX(e), a county was immune from a lender's suit because the lender pointed to no statute creating a waiver of immunity or any factual scenario warranting a waiver with respect to the lender's claim that the county failed to give it notice of the availability of excess funds following a tax sale as required by O.C.G.A. § 48-4-5 . Bartow County v. S. Dev., III, L.P., 325 Ga. App. 879 , 756 S.E.2d 11 (2014).

Cited in Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 812.

C.J.S. - 33 C.J.S., Executions, § 429. 85 C.J.S., Taxation, §§ 1312, 1313.

ALR. - Tax deed and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 30 A.L.R. 8 ; 88 A.L.R. 264 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs as affecting its validity, 97 A.L.R. 842 ; 147 A.L.R. 1141 .

48-4-6. Validity of deed made at tax sale.

The deed or bill of sale made by the sheriff to the purchaser at a tax sale shall be just as valid as if made under an ordinary execution issuing from the superior court.

(Orig. Code 1863, § 815; Code 1868, § 895; Code 1873, § 893; Code 1882, § 893; Civil Code 1895, § 913; Civil Code 1910, § 1176; Code 1933, § 92-8107; Code 1933, § 91A-406, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Inapplicable to sales for municipal taxes. - Statute has no application to deeds made by a municipal officer founded on sales for municipal taxes. Ansley v. Wilson, 50 Ga. 418 (1873); Johnson v. Phillips & Co., 89 Ga. 286 , 15 S.E. 368 (1892).

Recitals in deed as to manner of sale presumed correct. - Recitals in a deed in regard to the conduct of the selling officer, the levying officer, with respect to advertisements and the like are presumptively correct. Livingston v. Hudson, 85 Ga. 835 , 12 S.E. 17 (1890); Bennett v. Southern Pine Co., 123 Ga. 618 , 51 S.E. 654 (1905).

Admissibility in evidence. - Statute does not give tax titles a higher status than belongs to a deed made by the sheriff under the judgment of a court, and such a deed, unsupported by the execution on which it is based is generally not admissible in evidence. Sabattie v. Baggs, 55 Ga. 572 (1876).

Cited in Whitaker Acres, Inc. v. Schrenk, 170 Ga. App. 238 , 316 S.E.2d 537 (1984).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, § 464 et seq. 85 C.J.S., Taxation, § 1468 et seq.

ALR. - Necessity of actual possession to give title by adverse possession under invalid tax title, 22 A.L.R. 550 .

Right of holder of tax title or certificate of sale to reimbursement by taxing authorities where sale proves invalid, 77 A.L.R. 824 ; 116 A.L.R. 1408 .

Tax deeds and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 88 A.L.R. 264 .

Time limitation for attack on tax title as affected by defective description of property in the assessment or the tax deed, 133 A.L.R. 570 .

Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

Rights and remedies of owner against holder of invalid tax title respecting rents and profits or use and occupation, 173 A.L.R. 1179 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

48-4-7. Authority of levying officer to put purchaser in possession of land.

The officer selling property at a tax sale shall have the authority to put purchasers in possession of land sold under tax fi. fas., as in other cases.

(Orig. Code 1863, § 816; Code 1868, § 896; Code 1873, § 894; Code 1882, § 894; Civil Code 1895, § 914; Civil Code 1910, § 1177; Code 1933, § 92-8108; Code 1933, § 91A-407, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

No right to possession pending redemption. - Purchaser of land at a tax sale is not entitled to be placed in possession until after the time for redemption has expired. Elrod v. Groves, 116 Ga. 468 , 42 S.E. 731 (1902).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 403 et seq. 72 Am. Jur. 2d, State and Local Taxation, § 853.

C.J.S. - 33 C.J.S., Executions, §§ 496, 497. 85 C.J.S., Taxation, § 1480 et seq.

ARTICLE 2 PURCHASE BY COUNTIES

48-4-20. Authority of counties to buy property sold under tax executions.

  1. The governing authority of any county may purchase and hold in its official capacity any real property offered for sale by virtue of tax executions, except that the governing authority may bid on the real property only when other bids do not cover the amount of the tax executions and costs.
  2. The governing authority of the county shall not bid more for the property than the amount of taxes and costs. The governing authority, upon bidding on any property, shall draw its warrant on the county treasurer to pay to the levying officers the costs due on the tax executions and costs accrued in effecting the sales. The governing authority of the county shall not be required to pay the proportionate part of the taxes due the state, any school district, or any other political subdivision or authority of counties by virtue of the tax sale until the real property is redeemed in the manner provided in this chapter or is resold by the governing authority of the county.
  3. The 12 months' redemption period allowed under this chapter for the redemption of realty sold under a tax execution shall begin to run from the date of the sale; provided, however, that the redemption period for any realty sold under a tax execution before April 22, 1981, shall expire on December 31, 1988.

    (Ga. L. 1892, p. 252, § 1; Civil Code 1895, § 915; Civil Code 1910, § 1178; Code 1933, § 92-8201; Ga. L. 1937, p. 446, § 1; Code 1933, § 91A-420, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 9; Ga. L. 1988, p. 1957, § 2.)

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979).

JUDICIAL DECISIONS

Effect of redemption on vesting title. - Purchaser at tax sale acquires defeasible title, under which the purchaser is entitled to a deed from the officer selling the property, and can convey the purchaser's own defeasible title to another person, subject only to the right of redemption. If the amount required for redemption is paid or sufficiently tendered, such payment or tender revests title in the owner, but otherwise, at the expiration of the redemption period, title becomes absolute in the purchaser or the purchaser's grantee. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Availability of injunctive relief to preserve right of redemption. - An injunction will lie in favor of the owner of land bought by the county at a tax sale in order to prevent the county from reselling the land before the time claimed by the owner as expiration of the owner's redemption period, when it is alleged that the county is threatening to sell the land in small tracts to numerous purchasers while the right of redemption still exists, which if done would subject the owner to a multiplicity of suits with such purchasers. Newsom v. Dade County, 177 Ga. 612 , 171 S.E. 145 (1933).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1336 et seq.

ALR. - Right of public officer to purchase tax certificates or tax titles, 5 A.L.R. 969 .

Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs, as affecting its validity, 147 A.L.R. 1141 .

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

48-4-21. Right of redemption; disposition of unredeemed property by county governing authority.

  1. When real property sold under and by virtue of tax executions is successfully bid on by the governing authority of a county, the owner of such property shall have the privilege of redeeming it as in other cases.
  2. The governing authority of the county may dispose of real property purchased under a tax execution, and remaining unredeemed, as provided in this title.

    (Ga. L. 1892, p. 252, §§ 2, 3; Civil Code 1895, §§ 916, 917; Civil Code 1910, §§ 1179, 1180; Code 1933, §§ 92-8202, 92-8203; Code 1933, §§ 91A-421, 91A-422, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Effect of redemption on vesting of title. - Purchaser at tax sale acquires defeasible title under which the purchaser is entitled to a deed from the officer selling the property, and can convey the purchaser's own defeasible title to another person, subject only to the right of redemption. If the amount required for redemption is paid or sufficiently tendered, such payment or tender revests title in the owner, but otherwise, at the expiration of the redemption period, title becomes absolute in the purchaser or the purchaser's grantee. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 522 et seq. 72 Am. Jur. 2d, State and Local Taxation, §§ 900 et seq., 916.

C.J.S. - 85 C.J.S., Taxation, §§ 1343 et seq.

ALR. - Right of public officer to purchase tax certificates or tax titles, 5 A.L.R. 969 .

Right of person under disability to redeem from tax sale, 65 A.L.R. 582 ; 159 A.L.R. 1467 .

Necessity and sufficiency of statement in notice of application for tax deed, or notice to redeem from tax sale, as regards time for redemption, 82 A.L.R. 502 .

Judgment as lien on judgment debtor's equity of redemption in land sold for taxes, 91 A.L.R. 647 .

Unexpired right of redemption as affecting status of purchaser at judicial or execution sale as sole unconditional owner within insurance policy, 91 A.L.R. 1439 .

Refusal of tender, made under protest, of amount required for redemption from tax sale, 142 A.L.R. 1198 .

One in adverse possession as within class of persons entitled to redeem from tax sale, 164 A.L.R. 1285 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

Necessity and sufficiency of tender of payment by one seeking to redeem property from mortgage foreclosure, 80 A.L.R.2d 1317.

48-4-22. Authority of counties to buy property sold under tax executions; finality of tax execution sales; issuance of "Bill of Sale for Personal Property."

  1. The governing authority of any county may purchase and hold in its official capacity any personal property offered for sale by virtue of tax executions, except that the governing authority may bid on the personal property only when other bids do not cover the amount of tax executions, accrued interest, penalties, and costs.
  2. The governing authority of the county shall not bid more for the property than the amount of taxes, accrued interest, penalties, and costs. The governing authority, upon bidding on any property, shall draw its warrant on the county treasurer to pay to the levying officers the costs due on the tax executions and costs accrued in effecting tax sales. The governing authority of the county shall not be required to pay the proportionate part of the taxes due the state, any school district, or any other political subdivision or authority of counties by virtue of the tax sale until the personal property is resold by the governing authority of the county in the manner provided by law.
  3. When personal property is sold under tax executions at a tax sale, the sale is final.
  4. The officer authorized to conduct tax sales shall issue a "Bill of Sale for Personal Property" to the purchaser at the tax sale, and it shall be substantially as follows: (Code 1981, § 48-4-22 , enacted by Ga. L. 1984, p. 904, § 1.)

STATE OF GEORGIA

__________ COUNTY

BILL OF SALE FOR PERSONAL PROPERTY

This assignment made _____________, between the tax commissioner and ex officio sheriff of __________________ County, and _____________, as purchaser, Witnesseth: That, Whereas, in obedience to writ(s) of fieri facias issued against _____________, the taxpayer and defendant in fi. fa., for unpaid state, county, and applicable school taxes for the years _____________, said tax commissioner and ex officio sheriff of _____________ County did on _____________, seize, levy, and serve notice on the within described personal property and, after the same being duly advertised agreeable to law, expose the said property within the legal hours of sale, at public outcry before the courthouse door in _____________ County, Georgia, on the day and year first above written, when and where the same was knocked down to the named purchaser for the highest and best bid amount shown below, said purchaser being the highest and best bidder. Now, therefore, in consideration of the sum of $_____________, receipt of which is hereby acknowledged, the tax commissioner and ex officio sheriff of _____________ County does assign, bargain, and sell, so far as the office of ex officio sheriff authorizes him, unto the said purchaser, heirs, and assigns, ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ To have and to hold the said described personal property, together with all the rights and also all the estate, right, title, interest, claim, or demand of the said taxpayer and defendant in fi. fa., heirs, and assigns, legal, equitable, or otherwise whatsoever, in and to the same, unto the said purchaser, heirs, and assigns. In witness whereof, the said tax commissioner and ex officio sheriff of _____________ County has set his hand and affixed his seal hereto on the day and year first above written. ________________________ Tax commissioner and ex officio sheriff of ______ County, Georgia Signed, sealed, and delivered in the presence of: ________________________ Unofficial witness ________________________ Notary public

48-4-23. County tax commissioners and certain employees prohibited from purchasing property offered for sale under tax executions or tax foreclosure proceedings; criminal penalties.

  1. A tax commissioner and any person employed in the office of the tax commissioner working on behalf of the tax commissioner shall not, directly or indirectly, acquire an interest in, buy, or profit from any real property sold at public auction by the county for which such tax commissioner or employee thereof serves for delinquent taxes, except that such tax commissioner or employee thereof may purchase property sold at public auction for delinquent taxes if such tax commissioner or employee has any ownership interest in the property and had an ownership interest in the property at the time the taxes became delinquent.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and shall, upon conviction thereof, be punished by imprisonment for a period of not more than one year, by a fine not to exceed $1,000.00, or both.
  3. Any sale, transfer, or acquisition of interest in any real property in violation of this Code section shall be void. (Code 1981, § 48-4-23 , enacted by Ga. L. 2007, p. 111, § 1/HB 222.)

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required. - Violation of O.C.G.A. § 48-4-23 is not an offense designated as one that requires fingerprinting. 2009 Op. Att'y Gen. No. 2009-1.

ARTICLE 3 REDEMPTION OF PROPERTY SOLD FOR TAXES

JUDICIAL DECISIONS

Redemption provisions to be liberally construed. - Former Code 1933, ch. 92-83 (see now O.C.G.A. Art. 3, Ch. 4, T. 48) was to be construed liberally and most favorably to persons allowed by the statute to redeem. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936).

RESEARCH REFERENCES

ALR. - Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

Constitutionality of provision for service by publication of notice of proceeding by purchaser at tax sale to foreclose delinquent owner's right of redemption, or of other proceeding to perfect tax purchaser's title, 145 A.L.R. 597 .

Constitutionality, construction, and application of statutes providing for partial or proportional redemption from tax sale of land, 145 A.L.R. 1328 .

Who entitled to rents and profits, or rental value, during the redemption period following tax sale, 147 A.L.R. 1084 .

What constitutes "execution" of tax deed beginning or ending period for redemption from tax sale, 166 A.L.R. 853 .

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

Necessity and sufficiency of tender of payment by one seeking to redeem property from mortgage foreclosure, 80 A.L.R.2d 1317.

48-4-40. Persons entitled to redeem land sold under tax execution; payment; time.

Whenever any real property is sold under or by virtue of an execution issued for the collection of state, county, municipal, or school taxes or for special assessments, the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property may redeem the property from the sale by the payment of the amount required for redemption, as fixed and provided in Code Section 48-4-42:

  1. At any time within 12 months from the date of the sale; and
  2. At any time after the sale until the right to redeem is foreclosed by the giving of the notice provided for in Code Section 48-4-45.

    (Orig. Code 1863, § 820; Code 1873, § 898; Code 1882, § 898; Civil Code 1895, § 909; Civil Code 1910, § 1169; Code 1933, § 92-8301; Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-430, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 9; Ga. L. 2016, p. 758, § 1/SB 379; Ga. L. 2016, p. 793, § 1/HB 51.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, deleted "the redemption price or" following "payment of" near the end of the introductory paragraph. The second 2016 amendment, effective July 1, 2016, made identical changes.

Law reviews. - For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Effect of subsequent executions. - It is not necessary for those seeking and entitled to redeem to tender the amount of tax fi. fas. issued subsequently to the sale. LaRoche v. Kinchlo, 154 Ga. 547 , 114 S.E. 706 (1922).

Sale under both tax fi. fa. and judgment. - Though there is incompatibility in selling land under both a tax fi. fa. and a fi. fa. founded on the judgment of a court at the same time, the sale is not void. The result is to annex to the sale as against both fi. fas. the statutory incident of redemption. The property is redeemable by refunding the whole amount paid by the purchaser, with the statutory premium thereon, but not by refunding a less amount measured by the taxes due. Clower v. Fleming, 81 Ga. 247 , 7 S.E. 278 (1888).

No redemption in case of drainage district assessment. - Right of redemption is not given when land is sold under execution issued for an assessment to meet interest or principal, or the cost of draining the land in a drainage district. Sigmon-Reinhardt Co. v. Atkins Nat'l Bank, 163 Ga. 136 , 135 S.E. 720 (1926).

Executor failed to exercise right of redemption. - In a purchaser's quiet title action against the executor of a testatrix's estate, the trial court did not err in adopting the report of a special master and in decreeing that fee simple title to the land was vested in the purchaser because the purchaser acquired title to the property by virtue of a tax sale and deed, which was conducted in accordance with O.C.G.A. § 48-4-1 et seq.; a title search showed the testatrix's nephew as holding record title to the property, but out of caution, both the nephew and the executor were served with notice of the tax sale, the tax commissioner met with the executor prior to the sale and offered to accept payment for the back taxes, but the executor failed to do so, and the property was sold to the purchaser, with the overage going to the nephew, and the executor did not timely seek to exercise a right of redemption under O.C.G.A. § 48-4-40 . Mann v. Blalock, 286 Ga. 541 , 690 S.E.2d 375 (2010).

Intervention to redeem when intervention previously denied on other grounds. - Judgment sustaining a general demurrer (now motion to dismiss) to an intervention seeking to cancel tax deeds, which intervention is on grounds that the levy was excessive and that an interest less than the fee was conveyed, will not bar subsequent intervention by an owner within the redemption period, seeking to redeem the property as provided by law. Forrester v. Lowe, 192 Ga. 469 , 15 S.E.2d 719 (1941).

Statute makes no exception in favor of minors for redeeming property sold under a tax execution. Dawson v. Dawson, 106 Ga. 45 , 32 S.E. 29 (1898).

Power to issue injunctions. - Superior courts are empowered to issue injunctions, Ga. Const. 1983, Art. VI, Sec. I, Para. IV; O.C.G.A. § 15-6-8 , and nothing in O.C.G.A. § 48-4-40(1) deprives them of that power in the arena of redemption of property following a tax sale. Am. Lien Fund, LLC v. Dixon, 286 Ga. 562 , 690 S.E.2d 415 (2010).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984); Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988); Tavakolian v. Agio Corp., 283 Ga. App. 881 , 642 S.E.2d 903 (2007); DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903 , 655 S.E.2d 586 (2008); DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

Persons Who May Redeem

Right to redeem. - As to excess tax sale funds, a redeeming creditor can only make a claim for the funds in the amount of the pre-tax sale lien that gave the creditor the right to redeem. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Corporations. - No construction, however liberal, which could be given this statute granting the privilege of redeeming land sold for taxes to the owner thereof, can inure to the benefit of a party, if the owner be a corporation, and it a mere stockholder therein. Carver Cotton Gin Co. v. Barrett & Caswell, 66 Ga. 526 (1881).

Wife, who is a beneficiary of a homestead estate sold under tax fi. fa. against the husband, can redeem the property. Lamar v. Sheppard, 80 Ga. 25 , 5 S.E. 247 (1887).

Trustee in bankruptcy, as a creditor of a bankrupt, can redeem land sold under tax fieri facias if the trustee desires. In re Rogers & Williams, 3 F. Supp. 116 (S.D. Ga. 1933).

Right of redemption following bankruptcy. - LLC that purchased a debtor's home at a tax sale held pursuant to O.C.G.A. § 48-4-1 was entitled to an order lifting the stay that was imposed when the debtor declared Chapter 13 bankruptcy so the LLC could foreclose the deed the LLC received; although the debtor had the right under O.C.G.A. § 48-4-40 to redeem title to the home at the time the debtor declared bankruptcy because the time for doing so had not expired under state law, the debtor lost that right when the debtor failed to pay the LLC the amount it spent to purchase the tax deed, and the debtor's attempt to pay that amount in increments through the debtor's plan failed because the home was not property of the debtor's bankruptcy estate under 11 U.S.C. § 541. Harvest Assets, LLC v. Edwards (In re Edwards), Bankr. (Bankr. N.D. Ga. Nov. 13, 2014).

Lienholders acquiring interest subsequent to tax sale. - O.C.G.A. § 48-4-45 does not provide that the interest must have been held at the time of the tax sale. The statute requires notice to lienholders who exist at the time of any attempted foreclosure of the right of redemption. Therefore, such lienholders are not barred from the right of redemption by reason of having acquired their interest subsequent to the tax sale. Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986).

Interest re-conveyed prior to redemption deadline. - Chapter 13 debtor had a right of redemption under Georgia state law as of the debtor's petition date as the debtor obtained an interest in the property when the property was re-conveyed to the debtor prior to the redemption deadline. Although the tax sale purchaser held legal title to the property, the bundle of rights retained by the debtor was property of the debtor's bankruptcy estate. In re Jimerson, 564 Bankr. 430 (Bankr. N.D. Ga. 2017).

Assignee of redeemer. - Order disbursing excess tax sale funds to the assignee of the redeemer was reversed because the assignee could not show justifiable or good faith reliance on case law that had been overturned and, therefore, had no vested rights to the excess funds or that the issue was moot because it had already spent the funds. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Redemption Period

When time begins to run against owner. - Year for redemption of property sold for taxes runs from the date of the sale and not from the time when the sheriff's deed is recorded. Boyd v. Wilson, 86 Ga. 379 , 12 S.E. 744 (1890).

When out of time redemption is permissible. - An appellant was entitled to fee simple title to a 50-acre tract as a predecessor in interest who purchased the property from the county after the county had purchased the property at a tax sale did not make an out-of-time redemption under former Code 1933, § 92-8301 (see now O.C.G.A. § 48-4-40(2) ) as the extension of the right to redeem was not enacted until after the death of the initial purchaser, who was the predecessor's parent; the notice requirement in O.C.G.A. § 48-4-45 also was not enacted at that time. Selph v. Williams, 284 Ga. 349 , 667 S.E.2d 40 (2008).

Tender after the time allowed by law for redemption under a tax sale is without efficacy, and an allegation thereof should be stricken on demurrer (now motion to dismiss). Allen v. Gates, 145 Ga. 652 , 89 S.E. 821 (1916).

Redemption after expiration of period with permission of purchaser. - Although the statute affords a positive right to redeem only within the specified period, the statute does not inhibit the purchaser from according redemption after the period has expired as a matter of grace. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936); Caffey v. Parris, 186 Ga. 303 , 197 S.E. 898 (1938).

Power of court of equity to allow redemption after expiration of period. - After statutory redemption period has expired, the right to redeem is gone, and there is no power even in a court of equity to authorize redemption of the property in such cases. Boroughs v. Lance, 213 Ga. 143 , 97 S.E.2d 357 (1957).

Court not precluded from acting after 12 months have passed. - The declaration in O.C.G.A. § 48-4-40(1) that one entitled to redeem the property may do so within 12 months did not preclude the trial court from acting after those 12 months had passed. The taxpayer seeking redemption sought an injunction preserving the parties' status quo well before the passage of 12 months. Am. Lien Fund, LLC v. Dixon, 286 Ga. 562 , 690 S.E.2d 415 (2010).

Interest acquired following redemption date. - Oral agreement to buy a homeowner's association's lien and indebtedness against real property was required to be in writing and signed by the party to be charged pursuant to O.C.G.A. § 13-5-30(4) ; because the buyer did not acquire an interest in the property until after the date of redemption, contrary to O.C.G.A. §§ 48-4-40 and 48-4-41 , the redemption was void. DRST Holdings, Ltd. v. Brown, 290 Ga. 317 , 720 S.E.2d 626 (2012).

Application to bankruptcy proceedings. - When Chapter 13 debtor proposed an extension plan prior to the date when the right of redemption would have expired under Georgia state law, without regard to an extension provided by 11 U.S.C. § 108, the debtor did not reside on that property, and the Chapter 13 plan would pay the redemption amount in full, plus interest, then the redemption amount could be paid over the length of the plan regardless of whether applicable state law required a lump sum payment. In re Jimerson, 564 Bankr. 430 (Bankr. N.D. Ga. 2017).

Tender and Payment

Requirements as to tender on offer to redeem. - Tender on an offer to redeem property from taxes not only must be in due time and manner, but be continuous, with a continuous offer to pay; and if such continuity is not otherwise shown, at least bringing money into court on filing suit is necessary in place of continuous offer by pleading. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Sale not complete until purchase money paid. - Relative to the right of the owner to redeem the land, the sale will not be considered as complete until payment of the purchase money by the bidder. The owner has 12 months from the time of such payment within which to tender the money to the purchaser for the purpose of redemption. Wood v. Henry, 107 Ga. 389 , 33 S.E. 410 (1899). See also Cason v. United Realty & Auction Co., 158 Ga. 584 , 123 S.E. 894 (1924).

Deposit with clerk of unendorsed draft as tender. - Under requirement either that continuous good tender be made or that actual money be paid into court, mere deposit with the clerk of a draft drawn on bank of another state, payable to order of the defendant and unendorsed, would not suffice as tender on an offer to redeem property from taxes; because the draft was not endorsed; because its payment could be stopped or refused, and because there was no showing that the plaintiff had funds sufficient for payment of the draft on deposit with the drawee bank. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

To whom tender made when purchaser at sale has conveyed property to another. - Tender on offer to redeem property from a tax sale was ineffective when it is made to the purchaser at a tax sale instead of to the purchaser's grantee, after the grantee had paid the full tax money and consideration to the purchaser, and the person offering to redeem knew of such status of the property. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Payment or tender of redemption amount as prerequisite to equitable relief. - Under maxim that "he who would have equity must do equity", not only must the party seeking equitable relief from a tax sale have paid or tendered sum due to the other party, but one must have done so before filing of suit, unless tender, or offer to restore be excused upon some equitable ground. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

No actual, present bona fide offer to pay redemption price. - Defendant's motion for summary judgment on the estates' claims pertaining to the redemption of the disputed property sold at a tax sale was properly granted because there was no evidence of record demonstrating an actual, present bona fide offer on behalf of the estates to pay the redemption price before the suit was filed as there was no evidence of any pre-suit communications on behalf of either estate that included an actual, present bona fide offer to pay the redemption price that had been provided by the defendant's attorney; and the administrator of the two estates did not have the money to pay the redemption price and had not obtained the probate court's approval to seek redemption of the property on the estates' behalf. Strong v. JWM Holdings, LLC, 341 Ga. App. 309 , 800 S.E.2d 380 (2017).

Effect of nonpayment of purchase money by bidder. - As to right of owner to redeem land which has been sold at tax sale, sale is not to be considered as complete until payment of purchase money by bidder. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Deduction of sale taxes from credits to which tax collector entitled as payment. - When a purchaser at a tax sale was represented at the sale by the county tax collector, who, instead of paying amount of bid to the sheriff, merely paid the sheriff's costs and advertising fee and, in an adjustment of the sheriff's account as tax collector, settled with the county commissioners by deducting the taxes from credits to which the sheriff was entitled, there was no such payment of purchase money as to cause period of redemption to commence. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Effect of failure to pay or settle excess proceeds of sale. - Fact that "excess" was never paid to the sheriff or settled in any manner furnishes grounds that the tax sale was not complete, relative to the owner's right to redeem. Zugar v. Scarbrough, 186 Ga. 310 , 197 S.E. 854 (1938).

Failure to allege payment or tender before filing action to redeem. - Allegation that within one year after a tax sale the redeemer tendered to one who had taken title under the purchaser at the tax sale the amount of the purchase price of the property at the sale plus ten percent interest thereon from date, is subject to special demurrer (now motion to dismiss) if it does not show the amount of the purchase price or of the tender. Forrester v. Lowe, 192 Ga. 469 , 15 S.E.2d 719 (1941).

When one seeking in a court of equity to redeem property sold for taxes admits stated amounts to have been paid for the property at the sale, but fails to allege payment or tender of such amounts before filing such action, the petition should be dismissed on demurrer (now motion to dismiss). Allen v. Gates, 145 Ga. 652 , 89 S.E. 821 (1916).

Trial court did not err in granting a purchaser's motion to dismiss a redemption company's action to enforce redemption of real property because both the company's pre-suit tender to the purchaser and the subsequent tender to the bank that held a security deed on the property long after adding the bank as a party to the redemption action failed to meet the legal requirement of O.C.G.A. § 48-4-40 that tender to the proper party be made prior to the filing of suit; tender should have been made to the bank, which had already been named as the grantee in a security deed by the purchaser of the tax deed before suit was filed. Cmty. Renewal & Redemption v. Nix, 288 Ga. 439 , 704 S.E.2d 759 (2011).

Allegation that person to whom tender was made refused it and stated that it was unnecessary to make any further tender of any kind, as the person would not surrender the property save at the end of litigation, is sufficient to show a waiver of further tender, but does not supply the deficiencies in the allegations that there had been an actual tender of amounts, alleged in an indefinite way, the plaintiffs relying on actual tender as well as waiver. Allen v. Gates, 145 Ga. 652 , 89 S.E. 821 (1916).

Successor in interest to the owner of property had successfully redeemed the property from the purchaser of a tax deed by tendering an adequate amount, O.C.G.A. § 48-4-40(2) , although it was refused by the purchaser; the court rejected the purchaser's claim that the purchaser acquired title by prescription under O.C.G.A. § 48-4-48 because the prescriptive period was not met and the purchaer's possession of the unfenced, uninhabited property was not sufficiently adverse. Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

After a tax deed holder had waived the requirement of tender by refusing to communicate with the successor in title to property sold at a tax sale, the fact that the successor in title had paid less than the amount required for redemption into the trial court's registry did not prevent the successor in title from redeeming the property when the successor stood ready, willing, and able to pay the redemption price. Mark Turner Props., Inc. v. Evans, 274 Ga. 547 , 554 S.E.2d 492 (2001).

Title to, and Rights in, Property Pending Redemption

Effect on title of redemption or failure to redeem. - Purchaser at tax sale acquires a defeasible title, under which the purchaser is entitled to a deed from the officer selling the property, and can convey the purchaser's own defeasible title to another person, subject only to the right of redemption. If the amount required for redemption is paid or sufficiently tendered, such payment or tender revests title in the owner, but otherwise, at the expiration of the redemption period, title becomes absolute in the purchaser or the purchaser's grantee. Durham v. Crawford, 196 Ga. 381 , 26 S.E.2d 778 (1943).

Upon tender by the owner for the purpose of redeeming the owner's property from a tax sale, the purchaser's inchoate, qualified, or defeasible estate terminates. Bowman v. Poole, 212 Ga. 261 , 91 S.E.2d 770 (1956).

When no redemption is made during the time in which redemption is authorized, the purchaser acquires under the tax deed an absolute and unconditional title to the land sold. Thereupon the owner and all other parties authorized by law to redeem lose their redemption rights and cease to have any interest in the land. Forrester v. Lowe, 192 Ga. 469 , 15 S.E.2d 719 (1941).

Recordation of interest not required. - O.C.G.A. § 48-4-40 does not require that a party's valid interest in property must be recorded in the county's deed books before the party is entitled to redeem the property. Freeman v. Eastern Sav. Bank, 271 Ga. 439 , 520 S.E.2d 902 (1999).

State of title held by sale purchaser or purchaser's grantee pending period of redemption. - Purchaser at a tax sale may convey the property before expiration of the redemption period, in which case the vendee acquires the inchoate or defeasible title which passed to the vendor under the tax sale, subject to the right of an owner to redeem within the time prescribed by this statute. Braswell v. Palmer, 191 Ga. 262 , 11 S.E.2d 889 (1940).

Trial court properly granted summary judgment to an association, and the association's employee and a board member, on the claims by a property purchaser against them for extortion and removal of liens arising out of the purchaser's failure to pay association fees after purchasing seven properties in a subdivision through a tax sale resulting from unpaid property taxes; while it was true that the purchaser did not obtain a fee simple absolute title, and that title could be restored to specified predecessors through redemption or before the purchaser gave notice pursuant to O.C.G.A. § 48-4-45 , the purchaser did receive title sufficient to trigger automatic membership in the association and was thus required to pay the association's assessed fees. Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005).

Trial court erred by granting summary judgment to appellee because the homeowners' association's assignment of a lien for unpaid association dues the association relied upon to show the association possessed a property interest that authorized the association's redemption of the property indicated a different name than the property owners and the appellee had already obtained the excess tax sale funds based on the association's asserted lien resulting from the redemption. Postell v. Trinitec Portfolio Svcs., LLC, 341 Ga. App. 283 , 799 S.E.2d 597 (2017).

Effect of redemption by cotenant on rights of other cotenants. - If cotenant redeemed property by payment of redemption money to the purchaser at tax sale, such redemption did not divest the other cotenant of title to that tenant's interest in the property. The effect of the redemption would be to restore title to the same owners who held the title before the tax sale. Andrews v. Walden, 208 Ga. 340 , 66 S.E.2d 801 (1951).

Right of possession pending redemption. - During the time allowed for redemption, a purchaser's title is inchoate and the purchaser does not have the right to be put in possession of the property. Elrod v. Owensboro Wagon Co., 128 Ga. 361 , 57 S.E. 712 (1907).

Rights concerning rents pending redemption. - Since rents accruing within 12 months after a tax sale may not be used to supplement cash tendered in a redemption, and a purchaser at a tax sale is not entitled to rents, issues, and profits accruing between the time of the purchaser's purchase and the redemption of the property, rent for the premises after the legal sale, not paid by the tenant purchaser, is recoverable up to the time the purchaser's deed became absolute. Beckham v. Lindsey, 22 Ga. App. 174 , 95 S.E. 745 (1918).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 522 et seq. 72 Am. Jur. 2d, State and Local Taxation, § 889 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1354 et seq.

ALR. - Constitutionality of statute extending period for redemption from judicial or tax sale, or sale upon mortgage foreclosure, 1 A.L.R. 143 ; 38 A.L.R. 229 ; 89 A.L.R. 966 .

Effect of purchase by cotenant in possession of common property at foreclosure sale thereof, 6 A.L.R. 297 ; 54 A.L.R. 874 ; 85 A.L.R. 1535 .

Effect of imprisonment to extend time for redemption from judicial, execution, or tax sale, 18 A.L.R. 531 .

Right after redemption from tax sale or forfeiture to maintain action for trespass committed between sale or forfeiture and redemption, 33 A.L.R. 302 .

Payment of tax or redemption from tax sale by public officer for benefit of owner, 66 A.L.R. 1035 .

Necessity and sufficiency of statement in notice of application for tax deed, or notice to redeem from tax sale, as regards time for redemption, 82 A.L.R. 502 .

Judgment as lien on judgment debtor's equity of redemption in land sold for taxes, 91 A.L.R. 647 .

Unexpired right of redemption as affecting status of purchaser at judicial or execution sale as sole conditional own within insurance policy, 91 A.L.R. 1439 .

Deed from purchaser of tax title to former owner or lienor as a conveyance of a new title or a redemption, as regards rights or liens of third persons subordinate to tax lien, 106 A.L.R. 887 .

Right of creditor or mortgagee to redeem from his own sale, 108 A.L.R. 993 .

Constitutionality of statutory provisions relating to current taxes of tax delinquent property, 113 A.L.R. 1092 .

Right and remedy of mortgagee who for protection of his security pays taxes on, or redeems from tax sale of, mortgaged property, 123 A.L.R. 1248 .

Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Right of true owner to recover proceeds of sale or lease of real property made by another in the belief that he was the owner of the property, 133 A.L.R. 1443 .

Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

What amounts to a sale at retail within tax statutes or ordinances, 139 A.L.R. 372 .

Refusal of tender, made under protest, of amount required for redemption from tax sale, 142 A.L.R. 1198 .

Retroactive application, to previous sales, of statutes reducing period of redemption from tax sales, as unconstitutional impairment of contract obligations, 147 A.L.R. 1123 .

Sufficiency of tax redemption notice which includes more than one tax assessment for which land was sold, or more than one tract of land, 155 A.L.R. 1198 .

Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

Right of person under disability to redeem from tax sale, 159 A.L.R. 1467 .

One in adverse possession as within class of persons entitled to redeem from tax sale, 164 A.L.R. 1285 .

What constitutes "execution" of tax deed beginning or ending period for redemption from tax sale, 166 A.L.R. 853 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Effect of certificate, statement (or refusal thereof), or error by tax collector or other public officer regarding unpaid taxes or assessments against specific property, 21 A.L.R.2d 1273.

Who may redeem, from a tax foreclosure or sale, property to which title or record ownership is held by corporation, 54 A.L.R.2d 1172.

Applicability of tax redemption statutes to separate mineral estates, 56 A.L.R.2d 621.

What judgment creditors, other than the one on whose execution the sale was made, may redeem from execution sale, 58 A.L.R.2d 467.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-4-41. Redemption by creditor without lien.

If the property is redeemed by a creditor of the defendant in fi. fa. who has no lien, the creditor shall have a claim against the property for the amount advanced by him in order to redeem the property if:

  1. There is any sale of the property after the redemption under a judgment in favor of the creditor; and
  2. The quitclaim deed is recorded as required by law.

    (Ga. L. 1898, p. 85, § 4; Civil Code 1910, § 1171; Code 1933, § 92-8303; Code 1933, § 91A-432, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Construction with other law. - O.C.G.A. § 48-4-41 provides that if property that has been sold at a tax sale is redeemed by a creditor of the defendant in fi. fa. who has no lien, the creditor has a claim against the property for the amounts advanced to redeem the property if there is any sale of the property after the redemption under a judgment in favor of the creditor. O.C.G.A. § 48-4-41 does not address, however, the priority of this claim and whether it constitutes a separate lien, which are matters addressed by O.C.G.A. § 48-4-43 . United Capital Fin. of Atlanta, LLC v. Am. Inv. Assocs., 302 Ga. App. 400 , 691 S.E.2d 272 (2010), overruled on other grounds, DLT List, Inc. v. M7ven Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

Interest acquired following redemption date. - Oral agreement to buy a homeowner's association's lien and indebtedness against real property was required to be in writing and signed by the party to be charged, pursuant to O.C.G.A. § 13-5-30(4) ; because the buyer did not acquire an interest in the property until after the date of redemption, contrary to O.C.G.A. §§ 48-4-40 and 48-4-41 , the redemption was void. DRST Holdings, Ltd. v. Brown, 290 Ga. 317 , 720 S.E.2d 626 (2012).

Failure to show property interest. - Trial court erred by granting summary judgment to appellee because the homeowners' association's assignment of a lien for unpaid association dues the association relied upon to show the association possessed a property interest that authorized the association's redemption of the property indicated a different name than the property owners and the appellee had already obtained the excess tax sale funds based on the association's asserted lien resulting from the redemption. Postell v. Trinitec Portfolio Svcs., LLC, 341 Ga. App. 283 , 799 S.E.2d 597 (2017).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 499.

C.J.S. - 85 C.J.S., Taxation, § 1359.

ALR. - Rights or interests covered by quitclaim deed, 44 A.L.R. 1266 ; 162 A.L.R. 556 .

Right of mortgagor or purchaser of equity of redemption to defeat lien of mortgage by acquisition of title at sale subsequent to mortgage for nonpayment of taxes, or of assessment for local improvement, 134 A.L.R. 289 .

48-4-42. Amount payable for redemption; additional costs.

  1. The amount required to be paid for redemption of property from any sale for taxes as provided in this chapter shall with respect to any sale made after July 1, 2002, be the amount paid for the property at the tax sale, as shown by the recitals in the tax deed, plus:
    1. Any taxes paid on the property by the purchaser after the sale for taxes;
    2. Any special assessments on the property; and
    3. A premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter.
  2. If redemption is not made until more than 30 days after the notice provided for in Code Section 48-4-45 has been given, there shall be added to the sums set forth in subsection (a) of this Code section the sheriff's cost in connection with serving the notice and the cost of publication of the notice, if any.
  3. With respect to any sale made after July 1, 2016, there shall be added to the sums set forth in subsections (a) and (b) of this Code section any sums:
    1. Paid from the date of the tax sale to the date of redemption to a property owners' association, as defined in Code Section 44-3-221, in accordance with Code Section 44-3-232;
    2. Paid to a condominium association, that is an association, as defined in Code Section 44-3-71, in accordance with Code Section 44-3-109; or
    3. Paid to a homeowners' association established by covenants restricting land to certain uses related to planned residential subdivisions.
  4. All of the amounts required to be paid by this Code section shall be paid in lawful money of the United States to the purchaser at the tax sale or to the purchaser's successors.

    (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-436, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 822, § 1; Ga. L. 1984, p. 1016, § 1; Ga. L. 1996, p. 1022, § 1; Ga. L. 1997, p. 458, § 1; Ga. L. 2002, p. 1481, § 4; Ga. L. 2016, p. 758, § 2/SB 379; Ga. L. 2016, p. 793, § 2/HB 51.)

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, substituted the present provisions of this Code section for the former provisions, which read: "The amount required to be paid for redemption of property from any sale for taxes as provided in this chapter, or the redemption price, shall with respect to any sale made after July 1, 2002, be the amount paid for the property at the tax sale, as shown by the recitals in the tax deed, plus any taxes paid on the property by the purchaser after the sale for taxes, plus any special assessments on the property, plus a premium of 20 percent of the amount for the first year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made and 10 percent for each year or fraction of a year thereafter. If redemption is not made until more than 30 days after the notice provided for in Code Section 48-4-45 has been given, there shall be added to the redemption price the sheriff's cost in connection with serving the notice and the cost of publication of the notice, if any. All of the amounts required to be paid by this Code section shall be paid in lawful money of the United States to the purchaser at the tax sale or to the purchaser's successors." The second 2016 amendment, effective July 1, 2016, made identical changes, except "that is an association," was not included in paragraph (c)(2).

Law reviews. - For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006).

JUDICIAL DECISIONS

Tender requirement does not violate due process. - Delinquent taxpayers could not maintain a suit to set aside a tax deed because the taxpayers failed to pay or tender the redemption amount required under O.C.G.A. § 48-4-47 . O.C.G.A. § 48-4-47 did not violate their due process rights, although the redemption amount of $112,416 dwarfed the original $2,000 in unpaid taxes due to the addition of taxes and penalties under O.C.G.A. § 48-4-42 . Saffo v. Foxworthy, Inc., 286 Ga. 284 , 687 S.E.2d 463 (2009), cert. denied, 560 U.S. 939, 130 S. Ct. 3360 , 176 L. Ed. 2 d 1246 (2010).

Retroactive application not unconstitutional. - Since a tax sale took place in 1995, application of the 1996 amendment that increased the amount of the annual premium from 10 percent to 20 percent was not unconstitutionally retroactive as neither the tax deed holder's rights to the property nor those of a successor in title had fully vested prior to the effective date of the amendment. Mark Turner Props., Inc. v. Evans, 274 Ga. 547 , 554 S.E.2d 492 (2001).

One purpose of the 10 percent penalty is to make the purchaser whole for the use of the purchaser's money during the time it is tied up in the property. Southerland v. Bradshaw, 255 Ga. 455 , 339 S.E.2d 579 (1986).

Purpose of requirement that payment be made to purchaser or heirs. - By the terms of this statute, a prerequisite to redemption is that amounts required for redemption must be paid to the purchaser, or the purchaser's heirs, successors, or assigns in lawful money of the United States. The intent and purpose of this payment is to fully compensate the owner for what the owner paid plus a penalty. This purpose is defeated if payment is made to just anyone in the chain for the owner at the time is alone entitled to such payment. Herrington v. Old S. Inv. Co., 222 Ga. 428 , 150 S.E.2d 623 (1966).

Computation of time period for which premium is due. - By establishing the reference points of O.C.G.A. § 48-4-42 as "each year or fraction of a year which has elapsed between the date of the sale and the date on which the redemption payment is made", the General Assembly has demonstrated its intention to compute the time period for which a 10 percent premium is due as a 12-month year running from the date of sale. Southerland v. Bradshaw, 255 Ga. 455 , 339 S.E.2d 579 (1986).

Effect of redemption. - Limited liability company (LLC) was entitled to fee simple title to property conveyed by a warranty deed after the LLC redeemed the property under O.C.G.A. § 48-4-42 as to a 1984 tax deed held by a corporation because title had not ripened in the corporation under O.C.G.A. § 48-4-48 as the corporation had not established adverse possession. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

Failure to pay or tender to proper party as bar to action to redeem. - When proper tender would have been to the holders under the security deed, failure to pay or tender to the holders the required amount for redemption is a bar to the prosecution of an action to redeem. Herrington v. Old S. Inv. Co., 222 Ga. 428 , 150 S.E.2d 623 (1966).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Agreement to redeem. - In taxpayers' claim against a purchaser's assignee for rescission of a redemption agreement, the facts did not support rescission. The assignee's attorney did not defraud them or conceal any facts, but advised them to hire an attorney, and any failure to advise them of their legal rights was an opinion as to a matter of law and not a material fact. Boyd v. JohnGalt Holdings, LLC, 294 Ga. 640 , 755 S.E.2d 675 (2014).

Failure to show property interest. - Trial court erred by granting summary judgment to appellee because the homeowners' association's assignment of a lien for unpaid association dues the association relied upon to show the association possessed a property interest that authorized the association's redemption of the property indicated a different name than the property owners and the appellee had already obtained the excess tax sale funds based on the association's asserted lien resulting from the redemption. Postell v. Trinitec Portfolio Svcs., LLC, 341 Ga. App. 283 , 799 S.E.2d 597 (2017).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984); Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986); Davis v. Harpagon Co., LLC, 281 Ga. 250 , 637 S.E.2d 1 (2006); Human v. Harpagon Co., LLC, 281 Ga. 372 , 637 S.E.2d 684 (2006); Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 533, 534. 72 Am. Jur. 2d, State and Local Taxation, § 723.

C.J.S. - 85 C.J.S., Taxation, § 1434 et seq.

ALR. - Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

48-4-43. Effect of redemption.

When property has been redeemed, the effect of the redemption shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale. If the redemption has been made by any creditor of the defendant or by any person having any interest in the property, the amount expended by the creditor or person interested shall constitute a first lien on the property and, if the quitclaim deed provided for in Code Section 48-4-44 is recorded as required by law, shall be repaid prior to any other claims upon the property.

(Ga. L. 1898, p. 85, § 3; Civil Code 1910, § 1170; Code 1933, § 92-8302; Code 1933, § 91A-431, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

"Lien" construed. - As used in this statute, "lien" comprehends also title under deeds for security of debt. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936).

Applicability after statutory redemption period expired. - Statute is equally applicable when property is redeemed after statutory period has expired. Union Cent. Life Ins. Co. v. Bank of Tignall, 182 Ga. 233 , 185 S.E. 108 (1936); Caffey v. Parris, 186 Ga. 303 , 197 S.E. 898 (1938).

Applicability of this section to property sold for federal taxes. - Statute does not apply only to tax sales by the state or some subdivision thereof. While provisions of federal statutes control as to manner in which property may be redeemed after sale for federal taxes, once the redemption has become effective, the effect of the redemption as to other liens on the property is determined by state statutes. Lowe v. City of Atlanta, 221 Ga. 477 , 145 S.E.2d 534 (1965).

Effect of redemption by cotenant on rights of other cotenants. - If cotenant redeemed property by payment of redemption money to purchaser at tax sale, such redemption does not divest other cotenant of title to that cotenant's interest in the property. The effect of the redemption would be to restore title to the same owners who held title before the tax sale. Andrews v. Walden, 208 Ga. 340 , 66 S.E.2d 801 (1951).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Purchase by trustee in breach treated as redemption. - When in consequence of a trustee's breach of duty an estate is sold for taxes, the trustee cannot, even after the expiration of the redemption period, acquire a title from the purchaser at the tax sale, good against the cestui que trust. In equity the reconveyance will be treated as a correction of the wrong, leaving the property impressed with the original trust. Bourquin v. Bourquin, 120 Ga. 115 , 47 S.E. 639 (1904).

When a trustee allowed trust property to be sold for taxes, but purchased the property individually after the time for redemption had passed, the effect was a revesting of the interest of the cestui que trust, who was then entitled to redeem the land at a subsequent tax sale. Bourquin v. Bourquin, 120 Ga. 115 , 47 S.E. 639 (1904).

Effect against sale purchaser with independent title. - When land is redeemed no better title is acquired than the person redeeming had before, and if the purchaser at the tax sale has an independent title, it is not divested by the redemption. Elrod v. Owensboro Wagon Co., 128 Ga. 361 , 57 S.E. 712 (1907). See also Morrison v. Whiteside, 116 Ga. 459 , 42 S.E. 729 (1902).

Effect of sale and redemption on restrictions as to use of property. - Whether or not a restriction of land to use as a park might ordinarily be extinguished by a valid sale of the land under a municipal execution for paving assessments, when the owner of the property at the time of sale under execution merely redeems the property, the effect of such redemption is to place title back into such owner, subject to the restriction. Caffey v. Parris, 186 Ga. 303 , 197 S.E. 898 (1938).

No right to excess funds generated by tax sale. - Trial court did not err in granting a tax commissioner summary judgment in a lienholder's action under O.C.G.A. § 15-13-3 to recover excess funds from a tax sale because at the time of the tax sale, at the time the tax commissioner notified the record owner of the property and record lienholders of the excess tax sale funds, and at the time the tax commissioner paid the excess tax sale funds to the record owner of the property, the lienholder had no recorded lien or interest in the property; after the tax commissioner fulfilled the obligation under O.C.G.A. § 48-4-5(a) to give notice to the record property owner and lienholders, the property owner submitted the only claim to the tax commissioner for the excess tax sale funds, and the lienholder failed to show that more was required of the tax commissioner before the funds were disbursed. Brina Bay Holdings, LLC v. Echols, 314 Ga. App. 242 , 723 S.E.2d 533 (2012), overruled on other grounds, DLT List, Inc. v. M7ven Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

To the extent that Wester v. United Capital Finance of Atlanta, LLC, 282 Ga. App. 392 , 638 S.E.2d 779 (2006), and United Capital Finance of Atlanta v. American Investment Assoc., 302 Ga. App. 400 , 691 S.E.2d 272 (2010), held that the redeeming creditor at a tax sale had a first priority claim on the excess tax funds for the amount paid to redeem the property, those cases are overruled. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 335 Ga. App. 318 , 779 S.E.2d 436 (2015).

Redeeming creditor of a tax-sale property does not have a priority lien against excess funds arising from that sale. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

In Wester v. United Capital Financial of Atlanta, LLC, 282 Ga. App. 392 (2006) and again in United Capital Financial of Atlanta v. American Investment Assoc., 302 Ga. App. 400 (2010), the Georgia Court of Appeals held that a creditor who redeems property following a tax sale has first priority to excess funds resulting from that tax sale, but properly overruled those decisions in DLT List, LLC. v. M7VEN Supportive Housing & Dev. Group, 335 Ga. App. 318 (2015) concluding that a redeeming creditor has no such priority. DLT List, LLC v. M7VEN Supportive Hous. & Dev. Group, 301 Ga. 131 , 800 S.E.2d 362 (2017).

As to excess tax sale funds, a redeeming creditor can only make a claim for the funds in the amount of the pre-tax sale lien that gave the creditor the right to redeem. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Order disbursing excess tax sale funds to the assignee of the redeemer was reversed because the assignee could not show justifiable or good faith reliance on case law that had been overturned and, therefore, had no vested rights to the excess funds or that the issue was moot because it had already spent the funds. SunTrust Bank v. Cowan, 344 Ga. App. 604 , 812 S.E.2d 13 (2018).

Cited in Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986); Pearlman v. Sec. Bank & Trust Co., 261 Ga. App. 270 , 582 S.E.2d 219 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 460 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1458 et seq.

ALR. - Judgment as lien on judgment debtor's equity of redemption in land sold for taxes, 91 A.L.R. 647 .

Deed from purchaser of tax title to former owner or lienor as a conveyance of a new title or a redemption, as regards rights or liens of third persons subordinate to tax lien, 106 A.L.R. 887 .

Right and remedy of mortgagee who for protection of his security pays taxes on, or redeems from tax sale of, mortgaged property, 123 A.L.R. 1248 .

Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

Rights and remedies of owner against holder of invalid tax title respecting rents and profits or use and occupation, 173 A.L.R. 1179 .

Applicability of tax redemption statutes to separate mineral estates, 56 A.L.R.2d 621.

48-4-44. Quitclaim deed by purchaser.

  1. In all cases where property is redeemed, the purchaser at the tax sale shall make a quitclaim deed to the defendant in fi. fa., which deed shall recite:
    1. The name of the person who has paid the redemption money; and
    2. The capacity in which or the claim of right or interest pursuant to which the redemption money was paid.
  2. The recitals required by subsection (a) of this Code section shall be prima-facie evidence of the facts stated.
  3. If the quitclaim deed provided for in subsection (a) of this Code section is presented to the purchaser at the time such person accepts the amount payable for the redemption in the form of cash or a certified check, the purchaser shall, at that time, sign the quitclaim deed if a notary public and an unofficial witness are present to witness such signature.
  4. If no quitclaim deed is presented at the time of the redemption or if sufficient witnesses are not present, it shall be the responsibility of the purchaser to prepare and properly execute such quitclaim deed as is required by law within seven days from the date of the redemption.
  5. It shall be the responsibility of the purchaser once the quitclaim deed is properly executed as required in subsection (d) of this Code section to present such deed for recordation to the clerk of the court within ten days of the redemption. The quitclaim deed shall be presented for recordation in the county where the tax sale originally occurred. The purchaser shall pay all recording costs and return the recorded quitclaim deed to the redeemer.

    (Ga. L. 1898, p. 85, § 5; Civil Code 1910, § 1172; Code 1933, § 92-8304; Code 1933, § 91A-433, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 770, § 6/SB 585.)

Editor's notes. - Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides: "The provisions of this Act shall apply to all executions transferred on or after July 1, 2006. Executions transferred prior to July 1, 2006, shall not be affected by this Act."

JUDICIAL DECISIONS

Section inapplicable to sale for drainage assessments. - When land is sold under execution issued for an assessment to meet interest, principal, or costs of draining the land in a drainage district, the vendee will not be required to execute and deliver a quitclaim deed. Sigmon-Reinhardt Co. v. Atkins Nat'l Bank, 163 Ga. 136 , 135 S.E. 720 (1926).

That purchaser does not yet have deed is no defense to demand for deed. - It is no defense to a demand for a deed to answer that the purchaser has not yet had the selling officer make a deed to the purchaser. Elrod v. Owensboro Wagon Co., 128 Ga. 361 , 57 S.E. 712 (1907).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Cited in Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986); Selph v. Williams, 284 Ga. 349 , 667 S.E.2d 40 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, §§ 461, 462.

C.J.S. - 85 C.J.S., Taxation, § 1468 et seq.

ALR. - Rights or interests covered by quitclaim deed, 44 A.L.R. 1266 ; 162 A.L.R. 556 .

Statutes providing for refund to purchaser at invalid tax sale as applicable where sale antedated the statute, 157 A.L.R. 399 .

48-4-45. Notice of foreclosure of right to redeem; time; persons entitled to notice.

  1. After 12 months from the date of a tax sale, the purchaser at the sale or his heirs, successors, or assigns may terminate, foreclose, divest, and forever bar the right to redeem the property from the sale by causing a notice or notices of the foreclosure, as provided for in this article:
    1. To be served upon all of the following persons who reside in the county in which the property is located:
      1. The defendant in the execution under or by virtue of which the sale was held;
      2. The occupant, if any, of the property; and
      3. All persons having of record in the county in which the land is located any right, title, or interest in, or lien upon the property;
    2. To be sent by registered or certified mail or statutory overnight delivery to each of the persons specified in subparagraphs (A), (B), and (C) of paragraph (1) of this subsection who resides outside the county in which the property is located, if the address of that person is reasonably ascertainable; and
    3. To be published, if that tax sale occurs on or after July 1, 1989, in the newspaper in which the sheriff's advertisements for the county are published in each county in which that property is located, which publication shall occur once a week for four consecutive weeks in the six-month period immediately prior to the week of the redemption deadline date specified in the notice.
  2. Nothing contained in this Code section shall be construed to require that any notice be sent to or served upon any person whose right, title, interest in, or lien upon the property does not appear of record in the county in which the land is located.
  3. The heirs of any deceased owner of any land entitled to notice pursuant to this Code section shall be served by the sheriff or notified as provided in this article.

    (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-434, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1391, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For annual survey of real property law, see 57 Mercer L. Rev. 331 (2005). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Notice requirements of O.C.G.A. § 48-4-45 must be complied with by one seeking redemption. Blizzard v. Moniz, 271 Ga. 50 , 518 S.E.2d 407 (1999).

Proper notice requires compliance with multiple provisions. - Under the plain language of O.C.G.A. § 48-4-45(a) , the right to redeem is foreclosed and forever barred only upon compliance with paragraphs (a)(1), (a)(2), and (a)(3); because those three paragraphs are set forth in the conjunctive, compliance with each paragraph is required. Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891 , 792 S.E.2d 680 (2016).

Lack of notice not affecting foreclosure of redemption. - Because the former owner's interest in property was foreclosed upon by the creditor prior to the issuance of the tax fi-fa, the former owner's interest did not appear of record in the county in which the property was located when the foreclosure of the right of redemption was begun and, accordingly, the lack of notice to the former owner did not affect the validity of the foreclosure. GE Capital Mtg. Servs. Inc. v. Clack, 271 Ga. 82 , 515 S.E.2d 619 (1999).

When notice requirement applicable. - Appellant was entitled to fee simple title to a 50-acre tract as a predecessor in interest who purchased the property from the county after the county had purchased the property at a tax sale did not make an out-of-time redemption under former Code 1933, § 92-8301 (see now O.C.G.A. § 48-4-40(2) ) as the extension of the right to redeem was not enacted until after the death of the initial purchaser, who was the predecessor's parent; the notice requirement in O.C.G.A. § 48-4-45 also was not enacted at that time. Selph v. Williams, 284 Ga. 349 , 667 S.E.2d 40 (2008).

Proof of publication of notice. - Tax sale purchaser's attachment of a copy of the newspaper notice to the summary judgment affidavit satisfied the purchaser's burden of showing on the record that the purchaser was entitled to judgment. GE Capital Mtg. Servs. Inc. v. Clack, 271 Ga. 82 , 515 S.E.2d 619 (1999).

Computation of time. - O.C.G.A. § 48-4-45 requires that 12 months shall have elapsed before the right to redeem property shall be foreclosed and before notice of the right to foreclose the right shall be served. Wallace v. President St., 263 Ga. 239 , 430 S.E.2d 1 (1993).

Lienholders acquiring interest subsequent to tax sales not barred from redemption. - O.C.G.A. § 48-4-45 does not provide that the interest must have been held at the time of the tax sale. The statute requires notice to lienholders who exist at the time of any attempted foreclosure of the right of redemption. Therefore, such lienholders are not barred from the right of redemption by reason of having acquired their interest subsequent to the tax sale. Leathers v. McClain, 255 Ga. 378 , 338 S.E.2d 666 (1986).

Power of court of equity to allow redemption after expiration of period. - After the statutory redemption has expired, the right to redeem is gone, and there is no power even in a court of equity to authorize redemption of the property in such cases. Boroughs v. Lance, 213 Ga. 143 , 97 S.E.2d 357 (1957).

Failure to exercise right of redemption. - Transferee by tax deeds of tax lien encumbered property, following a tax sale of the property, held fee simple title to the property unencumbered by any competing tax liens after notice and expiration of the redemption period. Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

Notice of barment. - There was no evidence in the record showing that the notice of barment was ever provided to the sheriff by the purchaser for service; consequently, there was no evidence that the sheriff violated the sheriff's duties regarding service of the notice of barment as alleged. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901 , 625 S.E.2d 46 (2005).

Right to notice not shown. - Because a tax sale listed the wrong owner of the property to be sold and the description of the property was inconsistent, such that it was unclear which property was being sold, the bidder's deed was defective, as was the quitclaim deed of the purchaser of the property from the bidder, and, accordingly, there was no merit to the purchaser's claim that it was due summary judgment on the issue of whether the owner's executrix had a right to redeem the property or whether the sale was barred under O.C.G.A. § 48-4-45 ; after the tax sale, the bidder quitclaimed the deed to the purchaser, which occurred prior to the sheriff's "administrative cancellation" of the tax sale due to procedural errors, and the purchaser's action to quiet title, pursuant to O.C.G.A. § 23-3-40 et seq., resulted in summary judgment to the executrix. Harpagon Co. v. Gelfond, 279 Ga. 59 , 608 S.E.2d 597 (2005).

In a challenge to the tax deed holder's acquisition of the subject property, a neighbor's complaint that, because of the neighbor's claim of adverse possession, the neighbor was entitled to statutory notice of foreclosure of the right to redeem the property, was rendered moot by the neighbor's abandonment of the adverse possession claim and the neighbor failed to show any other basis for a right to notice under O.C.G.A. § 48-4-45(a)(1). Ritchie v. Metro Tax Investors, Inc., 280 Ga. 79 , 623 S.E.2d 498 (2005).

Power company easement a nullity. - Easement the power company obtained from the landowner after the landowner had already lost the property to a tax sale became a nullity when the property was not redeemed after a buyer properly invoked the state barment statutes. Land USA, LLC v. Ga. Power Co., 297 Ga. 237 , 773 S.E.2d 236 (2015).

No record of successful completion of foreclosure of redemption rights. - Buyer's claim of foreclosure of all rights to redeem property purchased by the buyer at a tax sale failed because the county real estate records did not contain an entry memorializing successful completion of the foreclosure of the right of redemption as provided by O.C.G.A. § 48-4-46(d) ; a corporation thus only had notice that the buyer, as a later tax deed grantee, held an inchoate or defeasible title, which could have been perfected on foreclosure of all senior redemption rights. The corporation stood in the position of a good-faith purchaser for value without notice. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Reasonably diligent steps to locate property owner. - Summary judgment for a tax sale purchaser was affirmed as the purchaser took reasonably diligent steps to locate a property owner to notify the owner of the foreclosure of the owner's right to redeem the property as it: (1) attempted to learn from the owner's tenant how to contact the owner; (2) left letters under the condominium door; (3) contacted the management company; and (4) contacted the owner's mortgage company; the owner's claims that the purchaser should have searched a state court's docket and should have used a phone book to locate the owner were rejected. Hamilton v. Renewed Hope, Inc., 281 Ga. 393 , 637 S.E.2d 412 (2006).

Tax sale buyer complied with O.C.G.A. § 48-4-45(a) 's notice requirements when, after conducting a reasonable search, the buyer sent notice to the owner's known addresses via certified mail, as the buyer resided outside the county where the property was located, and published the required notices in a newspaper in the county where the property was located. Mancuso v. TDGA, LLC, 301 Ga. 671 , 802 S.E.2d 248 (2017), cert. denied, 200 L. Ed. 2 d 518, 86 U.S.L.W. 3485 (U.S. 2018).

Bankruptcy. - Tax sale purchaser creditor's motion for relief from the automatic stay under 11 U.S.C. § 362(d) was denied, and the debtor could not yet proceed to foreclose on the debtor's equity of redemption under the barment provisions of O.C.G.A. §§ 48-4-45 and 48-4-46 because the foreclosure was filed after the chapter 13 bankruptcy petition. Greyfield Res., Inc. v. Drummer (In re Drummer), 457 Bankr. 912 (Bankr. N.D. Ga. 2011).

Although the time period for the chapter 13 debtor to exercise the debtor's right of redemption as to the tax deed sale of the debtor's real property passed, under O.C.G.A. § 48-4-45 , the debtor could still pay the claim pursuant to 11 U.S.C. § 1322 as a claim under the debtor's chapter 13 plan. Francis v. Scorpion Group, LLC (In re Francis), 489 Bankr. 262 (Bankr. N.D. Ga. 2013).

When Chapter 13 debtor proposed extension plan prior to date when the right of redemption would have expired under Georgia state law, without regard to an extension provided by 11 U.S.C. § 108, the debtor did not reside on that property, and the Chapter 13 plan would pay the redemption amount in full, plus interest, then the redemption amount could be paid over the length of the plan regardless of whether applicable state law required a lump sum payment. In re Jimerson, 564 Bankr. 430 (Bankr. N.D. Ga. 2017).

Redemption untimely. - Judgment denying the redeemer's motion for relief was reversed because the plain terms of O.C.G.A. § 48-4-45(a) provided unambiguously that the right to redeem was foreclosed only after compliance with paragraphs (a)(1), (a)(2), and (a)(3) and the redeemer attempted to redeem the property before the buyer had complied with paragraph (a)(3); thus, the right to redeem was not yet foreclosed, and the buyer improperly rejected the redeemer's tender of the redemption price as untimely. Reliance Equities, LLC v. Lanier 5, LLC, 299 Ga. 891 , 792 S.E.2d 680 (2016).

Cited in Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988); Davis v. Harpagon Co., LLC, 281 Ga. 250 , 637 S.E.2d 1 (2006); Human v. Harpagon Co., LLC, 281 Ga. 372 , 637 S.E.2d 684 (2006); Davis v. Harpagon Co., LLC, 283 Ga. 539 , 661 S.E.2d 545 (2008); BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009); Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 458. 72 Am. Jur. 2d, State and Local Taxation, § 911 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1370 et seq.

ALR. - Who entitled to notice necessary to perfect tax title, 54 A.L.R. 756 ; 169 A.L.R. 686 .

Necessity and sufficiency of statement in notice of application for tax deed, or notice to redeem for tax sale, as regards time for redemption, 82 A.L.R. 502 .

Tax title or deed as subject to attack for want of notice of application for tax deed or of expiration of redemption period, where a statute makes tax deed conclusive evidence of matters preliminary to its issuance or limits attack thereon to specific grounds or exempts deed from attack for procedural irregularities or omissions, 134 A.L.R. 796 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

Recovery of sales taxes paid on bad debts, 38 A.L.R.6th 255.

48-4-46. Form of notice of foreclosure of right to redeem; service; time; return and record; waiver.

  1. The notice provided for in Code Section 48-4-45 shall be written or printed, or written in part and printed in part, and shall be in substantially the following form:       Take notice that:        The right to redeem the following described property, to wit:       ____________ will expire and be forever foreclosed and barred on and after the ________ day of ________, ________.        The tax deed to which this notice relates is dated the ________ day of ________, ________, and is recorded in the office of the Clerk of the Superior Court of ________ County, Georgia, in Deed Book ________ at page ________.        The property may be redeemed at any time before the ________ day of ________, ________, by payment of the redemption price as fixed and provided by law to the undersigned at the following address: ________________________.        Please be governed accordingly. ________________________
  2. The purchaser at the tax sale or his heirs, successors, or assigns, as the case may be, shall make out an original notice in substantially the form prescribed in subsection (a) of this Code section and one copy of the notice for each person to be served with the notice. The purchaser shall deliver the notice and the copies together with a list of the persons to be served to the sheriff of the county in which the land is located not less than 45 days before the date set in each notice for the expiration of the right to redeem. Within 15 days after delivery to him, the sheriff shall serve a copy of the notice personally or by deputy upon each of the persons included on the list furnished him who reside in the county. The sheriff shall make an entry of the service on the original copy of the notice. Leaving a copy of the notice at the residence of any person required to be served with the notice shall be a sufficient service of the notice.
  3. If the sheriff personally or by deputy makes an entry that he is unable for any reason to effect service upon any person required to be served, the person who requested that the service be made shall forthwith cause a copy of the notice to be published once a week for two consecutive weeks in the newspaper in which the sheriff's advertisements for the county are published, unless that notice is being published as provided in paragraph (3) of subsection (a) of Code Section 48-4-45. Either publication shall operate as and for all purposes shall be treated as service upon all persons as to whom the sheriff has made an entry that he has been unable to effect service.
  4. Each original notice together with the entry of the sheriff on the notice shall be returned to the person by whom the service was requested upon the payment of the sheriff's costs as provided by law. Any original notice together with the entries on the notice may be filed and recorded on the deed records in the office of the clerk of the superior court of the county in which the land is located.
  5. Service of notices as provided in this Code section may be waived in writing by any person required or entitled to be served with the notice.

    (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-435, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1989, p. 1391, § 2; Ga. L. 1999, p. 81, § 48.)

JUDICIAL DECISIONS

Constitutionality. - Notice to persons outside the county under O.C.G.A. § 48-3-9(b) and subsections (b) and (c) of O.C.G.A. § 48-4-46 are not in accord with the requirements of due process because an owner of a security deed or mortgage who lives outside the county in which the land is located will only receive published notice of the foreclosure of the right to redeem. Funderburke v. Kellet, 257 Ga. 822 , 364 S.E.2d 845 (1988).

It is not presumed that the General Assembly intended to enable a tax sale purchaser to forego any methods of notice of foreclosure of the right to redeem which might be required by the due process clause, and the words "for any reason" in O.C.G.A. § 48-4-46(c) are construed to mean that notice by publication is permissible only if a sheriff's inability to effect personal service satisfies the constitutional mandate of due process. Hamilton v. Renewed Hope, Inc., 277 Ga. 465 , 589 S.E.2d 81 (2003).

Responsibility of purchasers. - Purchasers of a business were required to establish a fund sufficient to cover unpaid taxes regardless of the existence of other claims superior to the state tax execution. Collins v. Lesters, Inc., 225 Ga. App. 405 , 484 S.E.2d 62 (1997).

No record of successful completion of foreclosure of redemption rights. - Buyer's claim of foreclosure of all rights to redeem property purchased by the buyer at a tax sale failed because the county real estate records did not contain an entry memorializing successful completion of the foreclosure of the right of redemption as provided by O.C.G.A. § 48-4-46(d) ; a corporation thus only had notice that the buyer, as a later tax deed grantee, held an inchoate or defeasible title, which could have been perfected on foreclosure of all senior redemption rights. The corporation stood in the position of a good-faith purchaser for value without notice. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Reasonable efforts at providing notice not established. - When the assignee of a party who purchased certain real property at a tax sale unsuccessfully tried to give the property's owner notice of the foreclosure of the assignee's right to redeem the property by personal service at the owner's address as found in tax and deed records for the subject property, publication could not be constitutionally used to give the owner notice of the foreclosure until further efforts were made to provide the owner notice, absent evidence that other channels of information to locate the owner were not reasonably available, or that use of those channels would have been impractical. Hamilton v. Renewed Hope, Inc., 277 Ga. 465 , 589 S.E.2d 81 (2003).

Reasonable efforts at providing notice established. - There was no evidence in the record showing that the notice of barment was ever provided to the sheriff by the purchaser for service; consequently, there was no evidence that the sheriff violated duties regarding service of the notice of barment as alleged. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901 , 625 S.E.2d 46 (2005).

Bankruptcy. - Tax sale purchaser creditor's motion for relief from the automatic stay under 11 U.S.C. § 362(d) was denied, and the debtor could not yet proceed to foreclose on debtor's equity of redemption under the barment provisions of O.C.G.A. §§ 48-4-45 and 48-4-46 because the foreclosure was filed after the chapter 13 bankruptcy petition. Greyfield Res., Inc. v. Drummer (In re Drummer), 457 Bankr. 912 (Bankr. N.D. Ga. 2011).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984); Dixon v. Conway, 262 Ga. 709 , 425 S.E.2d 651 (1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 458. 72 Am. Jur. 2d, State and Local Taxation, § 911 et seq.

ALR. - Tax title or deed as subject to attack for want of notice of application for tax deed or of expiration of redemption period, where a statute makes tax deed conclusive evidence of matters preliminary to its issuance or limits attack thereon to specific grounds or exempts deed from attack for procedural irregularities or omissions, 134 A.L.R. 796 .

Statutory limitation of period for attack on tax deed as affected by failure to comply with statutory requirement as to notice before tax deed, 5 A.L.R.2d 1021.

Right of interested party receiving due notice of tax sale or of right to redeem to assert failure or insufficiency of notice to other interested party, 45 A.L.R.4th 447.

48-4-47. Tender of redemption price before action to cancel tax deed.

  1. After notice to foreclose the right of redemption as provided for in this article has been given, no action shall be filed, allowed, sanctioned, or maintained for the purpose of setting aside, canceling, or in any way invalidating the tax deed referred to in the notice or the title conveyed by the tax deed unless and until the plaintiff in the action pays or legally tenders to the grantee in the deed or to his successors the full amount of the redemption price for the property, as provided for in this article.
  2. Subsection (a) of this Code section shall apply unless it clearly appears that:
    1. The tax or special assessment for the collection of which the execution under or by virtue of which the sale was held was not due at the time of the sale; or
    2. Service or notice was not given as required in this article.

      (Ga. L. 1937, p. 491, § 2; Code 1933, § 91A-437, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Tender requirement does not violate due process. - Delinquent taxpayers could not maintain a suit to set aside a tax deed because they failed to pay or tender the redemption amount required under O.C.G.A. § 48-4-47 . O.C.G.A. § 48-4-47 did not violate their due process rights, although the redemption amount of $112,416 dwarfed the original $2,000 in unpaid taxes due to the addition of taxes and penalties under O.C.G.A. § 48-4-42 . Saffo v. Foxworthy, Inc., 286 Ga. 284 , 687 S.E.2d 463 (2009), cert. denied, 560 U.S. 939, 130 S. Ct. 3360 , 176 L. Ed. 2 d 1246 (2010).

Effect of plaintiff's financial inability to make tender. - Plaintiff's financial inability to make the tender of the amount owed does not alter the requirements of this statute. Ayer v. Lamar County, 194 Ga. 712 , 22 S.E.2d 606 (1942).

Collateral attack on ownership of property. - Plaintiffs were barred from collaterally attacking the validity of the county's ownership of property at the time of the demolition of a home on the property since there was no tender of the redemption price to the county regarding the property and there was nothing in the record to indicate that taxes, which formed the basis for the tax sale of the property, were not due at the time of sale or that the county failed to provide proper notice or service of the county's bar of redemption. Hill v. Mayor of Savannah, 233 Ga. App. 742 , 505 S.E.2d 35 (1998).

Tender of redemption price not required since notice not given to redeeming party. - Trial court erred by finding that the failure of the plaintiff to tender the full amount of the redemption price for the property at issue before filing suit barred that action under the statute since the plaintiff claimed that the plaintiff did not receive the statutorily required notice. H & C Dev., Inc. v. Bershader, 248 Ga. App. 546 , 546 S.E.2d 907 (2001).

Exception to tender requirement found. - Because an exception to the tender requirement that the redemption price be tendered before the validity of a tax deed could be challenged applied, as it appeared that the tax or special assessment for the collection of which the execution under or by virtue of which the sale was held was not due at the time of the sale based on the property's tax-exempt status, the appeals court rejected a claim that trustees for the property lacked standing to contest the tax sale because they did not tender the amount of unpaid taxes for which the property was sold. Marathon Inv. Corp. v. Spinkston, 281 Ga. 888 , 644 S.E.2d 133 (2007).

Because there was evidence in the form of a taxpayer's averment that there were no taxes due at the time of a tax sale, relieving the taxpayer of the obligation to make a complete tender prior to seeking redemption of the taxpayer's property under O.C.G.A. § 48-4-47(b)(1), a trial court did not abuse the court's discretion in granting an interlocutory injunction to maintain the status quo, pending resolution of the issues presented. Am. Lien Fund, LLC v. Dixon, 286 Ga. 562 , 690 S.E.2d 415 (2010).

Failure to give notice of right to redemption. - O.C.G.A. § 48-4-47 was inapplicable in a redemption company's action against a purchaser to enforce redemption of real property because the purchaser had not given the statutorily required notice of foreclosure of the right to redemption at any time since the purchaser's purchase of the property by tax deed. Cmty. Renewal & Redemption v. Nix, 288 Ga. 439 , 704 S.E.2d 759 (2011).

Cited in Southerland v. Bradshaw, 252 Ga. 294 , 313 S.E.2d 92 (1984).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 723.

C.J.S. - 85 C.J.S., Taxation, § 1441 et seq.

ALR. - Necessity of recording tax deed to protect title as against interest derived from former owner, 65 A.L.R. 1015 .

Tax title or deed as subject to attack for want of notice of application for tax deed or of expiration of redemption period, where a statute makes tax deed conclusive evidence of matters preliminary to its issuance or limits attack thereon to specific grounds or exempts deed from attack for procedural irregularities or omissions, 134 A.L.R. 796 .

48-4-48. Ripening of tax deed title by prescription.

  1. A title under a tax deed properly executed at a valid and legal sale prior to July 1, 1989, shall ripen by prescription after a period of seven years from the date of execution of that deed.
  2. A title under a tax deed executed on or after July 1, 1989, but before July 1, 1996, shall ripen by prescription after a period of four years from the execution of that deed. A title under a tax deed properly executed on or after July 1, 1996, at a valid and legal sale shall ripen by prescription after a period of four years from the recordation of that deed in the land records in the county in which said land is located.
  3. A tax deed which has ripened by prescription pursuant to any provision of this Code section shall convey, when the defendant in fi. fa. is not laboring under any legal disability, a fee simple title to the property described in that deed, and that title shall vest absolutely in the grantee in the deed or in the grantee's heirs or assigns. In the event the defendant in fi. fa. is laboring under any legal disability, the prescriptive term specified in this Code section shall begin from the time the disabilities are removed or abated.
  4. Notice of foreclosure of the right to redeem property sold at a tax sale shall not be required to have been provided in order for the title to such property to have ripened under subsection (a) or (b) of this Code section.

    (Ga. L. 1949, p. 1132, § 1; Code 1933, § 91A-438, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1391, § 3; Ga. L. 1996, p. 783, § 1.)

Law reviews. - For annual survey article discussing real property law, see 51 Mercer L. Rev. 441 (1999). For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For annual survey of real property law, see 58 Mercer L. Rev. 367 (2006).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1949, p. 1132, § 2-A, are included in the annotations for this Code section.

Vesting of rights. - Decision to award a limited liability company fee simple title in real property did not violate the contract impairment clauses in U.S. Const. Art. I, Sec. 10 and Ga. Const. 1983, Art. I, Sec. I, Para. X as a corporation's rights to the property pursuant to a 1984 tax deed had not vested prior to the effective date of a 1989 amendment of O.C.G.A. § 48-4-48 , which operated retrospectively. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

If levy of tax execution is excessive, sale held under levy is void. Craig v. Arnold, 227 Ga. 333 , 180 S.E.2d 733 (1971) (decided under Ga. L. 1949, p. 1132, § 2-A).

Adverse possession by the tax deed grantee required. - Tax grantee's title did not ripen since the grantee never occupied the property nor committed any acts or exhibited any conduct which would amount to adverse possession of the property for the requisite period. Blizzard v. Moniz, 271 Ga. 50 , 518 S.E.2d 407 (1999).

Since a tax deed holder never occupied the property or engaged in any act evidencing ownership other than payment of taxes, the trial court erred in finding that the tax deed holder had prescriptive title and in refusing to allow a successor in title to redeem the property. O.C.G.A. § 48-4-48 was not a statute of repose operating to foreclose the right of redemption upon the mere passage of time. Mark Turner Props., Inc. v. Evans, 274 Ga. 547 , 554 S.E.2d 492 (2001).

Because a tax deed was executed after the effective date of the amendment to O.C.G.A. § 48-4-48 , the trial court erred in ruling that title vested in a county by the passage of time and in granting summary judgment to its purchaser; the case was remanded for further proceedings since there were questions, inter alia, on the purchaser's entitlement to a prescriptive title. Cmty. Renewal & Redemption, LLC v. Nix, 279 Ga. 840 , 621 S.E.2d 722 (2005).

Limited liability company (LLC) was entitled to fee simple title to property conveyed by a warranty deed after the LLC redeemed the property under O.C.G.A. § 48-4-42 as to a 1984 tax deed held by a corporation because title had not ripened in the corporation under O.C.G.A. § 48-4-48 as the corporation had not established adverse possession. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

In a quiet title action under O.C.G.A. § 23-3-60 , although a corporation with a 1984 tax deed to the property in dispute claimed that ripening of title had occurred under O.C.G.A. § 48-4-48 as the corporation held the tax deed for the required seven-year period under a former version of the statute, a 1989 amendment that applied expressly to tax deeds executed prior to July 1, 1989, required adverse possession by the tax deed grantee in order for title to ripen. BX Corp. v. Hickory Hill 1185, LLC, 285 Ga. 5 , 673 S.E.2d 205 (2009).

Successor in interest to the owner of property had successfully redeemed the property from the purchaser of a tax deed by tendering an adequate amount, O.C.G.A. § 48-4-40(2) , although it was refused by the purchaser; the court rejected the purchaser's claim that the purchaser acquired title by prescription under O.C.G.A. § 48-4-48 because the prescriptive period was not met and the purchaser's possession of the unfenced, uninhabited property was not sufficiently adverse. Nix v. 230 Kirkwood Homes, LLC, 300 Ga. 91 , 793 S.E.2d 402 (2016).

Insufficient showing of actual possession. - Trial court did not err when the court concluded that a buyer's tax deed did not ripen by prescription into a fee simple title because neither the buyer's payments of taxes nor occasional cleanup and mowing of areas were sufficiently notorious or exclusive as to constitute actual possession. Washington v. McKibbon Hotel Group, Inc., 284 Ga. 262 , 664 S.E.2d 201 (2008).

Exercise of right of redemption required. - It was incumbent upon parties claiming a right to redemption actually to exercise the right during the four-year period; the filing of a civil action alleging the existence of that unexercised right was not sufficient. Machen v. Wolande Mgt. Group, Inc., 271 Ga. 163 , 517 S.E.2d 58 (1999).

State of title held by purchaser or purchaser's grantee pending period of redemption. - Trial court properly granted summary judgment to an association, and the association's employee and a board member, on the claims by a property purchaser against them for extortion and removal of liens arising out of the purchaser's failure to pay association fees after the purchaser purchased seven properties in a subdivision through a tax sale resulting from unpaid property taxes; while it was true that the purchaser did not obtain a fee simple absolute title, and that title could be restored to specified predecessors through redemption or before the purchaser gave notice pursuant to O.C.G.A. § 48-4-45 , the purchaser did receive title sufficient to trigger automatic membership in the association and was thus required to pay the association's assessed fees. Croft v. Fairfield Plantation Prop. Owners Ass'n, 276 Ga. App. 311 , 623 S.E.2d 531 (2005).

Cited in Moultrie v. Wright, 266 Ga. 30 , 464 S.E.2d 194 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 30 Am. Jur. 2d, Executions, § 462.

ALR. - Necessity of actual possession to give title by adverse possession under invalid tax title, 22 A.L.R. 550 .

Necessity of recording tax deed to protect title as against interest derived from former owner, 65 A.L.R. 1015 .

Statute limiting period for attack on tax title as affecting remaindermen in respect of a tax sale during life tenancy, 124 A.L.R. 1145 .

Time limitation for attack on tax title as affected by defective description of property in the assessment or the tax deed, 133 A.L.R. 570 .

Payment, tender, or deposit of tax as condition of injunction against issuance of tax deed upon ground that it had become barred by lapse of time or that the property had been redeemed, 134 A.L.R. 543 .

ARTICLE 4 LAND BANK AUTHORITIES

48-4-60. Definitions.

As used in this article, the term:

  1. "Agreement" means:
    1. An interlocal cooperation agreement entered into by the parties pursuant to this article; or
    2. A resolution of a consolidated government establishing an authority pursuant to this article.
  2. "Authority" means the land bank authority established pursuant to this article.
  3. "Parties" means the parties to the agreement, which shall include one or more cities and the county containing such cities, or a consolidated government which has adopted a resolution establishing an authority.
  4. "Property" means real property, including any improvements thereon.
  5. "Tax delinquent property" means any property on which the taxes levied and assessed by any party remain in whole or in part unpaid on the date due and payable. (Code 1981, § 48-4-60 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1.)

48-4-61. Land bank authority established by interlocal cooperation agreement; powers; purpose; dissolution.

  1. One or more cities and the county containing such cities may enter into an interlocal cooperation agreement, or a consolidated government may adopt a resolution, for the purpose of establishing a land bank authority pursuant to this article.
  2. The authority shall be a public body corporate and politic with the power to sue and be sued, to accept and issue deeds in its name, including without limitation the acceptance of real property in accordance with the provisions of subsection (f) of Code Section 9-16-19, and to institute quia timet actions and shall have any other powers necessary and incidental to carry out the powers granted by this article.
  3. The authority shall be established to acquire the tax delinquent properties of the parties and any property deeded to it pursuant to paragraph (2.1) of subsection (u) of Code Section 16-13-49 in order to foster the public purpose of returning land which is in a nonrevenue-generating, nontax-producing status to an effective utilization status or of returning real property forfeited pursuant to Code Section 16-13-49 to such status in order to provide housing, new industry, and jobs for the citizens of the county. The authority shall have the powers provided in this article and those necessary and incidental to the exercise of such powers.
  4. Any authority established pursuant to this article may be dissolved by any party to the agreement or by resolution of a consolidated government or, where multiple cities are involved, any city may withdraw from the agreement which established the authority, or such authority may be dissolved by local Act of the General Assembly.
  5. An authority whose parties form a consolidated government after entering into an interlocal cooperation agreement shall thereafter operate under and be governed by the provisions of this article applicable to authorities of consolidated governments as if created by resolution of a consolidated government. The board governing such an authority shall be reconstituted by resolution of the consolidated governments in conformity with the provisions of subsection (a) of Code Section 48-4-62 prior to the first meeting of such board subsequent to the effective date of consolidation of the party governments.
  6. No land bank authority shall be created pursuant to this article on or after July 1, 2012. Except as otherwise provided in subsection (j) of Code Section 48-4-104 , any land bank created pursuant to this article prior to July 1, 2012, shall continue to be governed by this article. (Code 1981, § 48-4-61 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1; Ga. L. 2002, p. 1286, § 2; Ga. L. 2012, p. 1055, § 1/SB 284; Ga. L. 2015, p. 693, § 3-28/HB 233.)

The 2015 amendment, effective July 1, 2015, substituted "provisions of subsection (f) of Code Section 9-16-19" for "provisions of paragraph (2.1) of subsection (u) of Code Section 16-13-49" in subsection (b).

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015). For note on the 2002 amendment of this Code section, see 19 Ga. St. U. L. Rev. 92 (2002).

48-4-62. Board to govern authority; members; meetings; organization; staff.

  1. The authority shall be governed by a board composed in such a manner as to provide two members to represent each party: two appointed by the mayor of each party city and two appointed by the county commission of the party county. An authority established by resolution of a consolidated government shall be governed by a board composed of four members to be appointed by the governing authority of the consolidated government. Each member shall serve at the pleasure of the respective appointing authority for a term of four years and shall serve without compensation. The members shall be residents of the county and may be employees of the parties. Any vacancy shall be filled for the remainder of the unexpired term in the same manner as the original appointment.
  2. The board of the authority shall meet from time to time as required, and the presence of either (1) three members, if there are only two parties to the agreement or if the authority was created by a consolidated government or (2) 50 percent of the members then in office, if there are more than two parties to the agreement, shall constitute a quorum. Approval by a majority of the membership then in office shall be necessary for any action to be taken by the authority. All meetings shall be open to the public, except as otherwise provided by Chapter 14 of Title 50, and a written record shall be maintained of all meetings. A chairperson shall be elected from among the members, and he or she shall execute all deeds, leases, and contracts of the authority when authorized by the board.
  3. The authority may employ its own staff or may utilize employees of the parties, as determined by the agreement. (Code 1981, § 48-4-62 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1.)

48-4-63. Administration of properties.

  1. The authority shall hold in its own name, for the benefit of the parties, all properties conveyed to it by the parties, all tax delinquent properties acquired by it pursuant to this article, and all properties otherwise acquired.
  2. It shall be the duty of the authority to administer the properties acquired by it as follows:
    1. All property acquired by the authority shall be inventoried and appraised, and the inventory shall be maintained as a public record;
    2. The authority shall organize and classify the property on the basis of suitability for use;
    3. The authority shall maintain all property held by it in accordance with applicable laws and codes; and
    4. The authority shall have the power to manage, maintain, protect, rent, lease, repair, insure, alter, sell, trade, exchange, or otherwise dispose of any property on terms and conditions determined in the sole discretion of the authority. The authority may assemble tracts or parcels of property for public parks or other public purposes and to that end may exchange parcels and otherwise effectuate the purposes determined by agreement with any party.
  3. The acquisition and disposal of property by the authority shall not be governed or controlled by any regulations or laws of the parties unless specifically provided in the agreement, and transfers of property by parties to the authority shall be treated as transfers to a body politic as contemplated by subparagraph (a)(2)(A) of Code Section 36-9-3.
  4. Property held by the authority may be sold, traded, exchanged, or otherwise disposed of by the authority so long as the disposition is approved by a majority of the membership, as required in subsection (b) of Code Section 48-4-62 for any action by the authority, and approved as follows:
    1. If the property is located within a party city and the party county, approved by both authority members appointed by the mayor of such city and one of the authority members appointed by the county commission;
    2. If the property is located within the county party but outside all the party cities, approved by both authority members appointed by the county commission;
    3. If the property is located within a party city but outside the party county, approved by both authority members of such city; or
    4. If the property is located within the boundaries of a consolidated government, approved by a majority of the authority members. (Code 1981, § 48-4-63 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1; Ga. L. 2010, p. 878, § 48/HB 1387.)

48-4-64. Acquisition and disposal of property.

  1. If any party obtains a judgment for taxes against a tax delinquent property within the party county, any of the party cities, or the boundaries of the consolidated government and the property is ordered sold at a tax sale to satisfy the judgment, the authority may tender one bid at such sale, and such bid shall comprise the authority's commitment to pay not more than all costs of the sale and its assumption of liability for all taxes, accrued interest thereon, and penalties, and, if there is no other bid, the tax commissioner shall accept the authority's bid and make a deed of the property to the authority.
  2. In accordance with the provisions of Code Section 48-4-45, the authority shall have the right to foreclose the right to redeem property at any time after the 12 month redemption period has expired pursuant to Code Section 48-4-65. Notwithstanding the foregoing provisions of this subsection, the right of redemption shall automatically terminate and expire upon failure to redeem in accordance with Code Section 48-4-81 where the tax sale was conducted pursuant to Article 5 of this chapter.
  3. When a property is acquired by the authority, the authority shall have the power to extinguish all county and city or consolidated government taxes, including school district taxes, at the time it sells or otherwise disposes of property; provided, however, that, with respect to school district taxes, the authority shall first obtain the consent of the board of education governing the school district in which the property is located. In determining whether or not to extinguish taxes, the authority shall consider the public benefit to be gained by tax forgiveness with primary consideration given to purchasers who intend to build or rehabilitate low-income housing. The decision by the authority to extinguish taxes is subject to the vote requirements for dispositions of property under subsection (d) of Code Section 48-4-63.
  4. At the time that the authority sells or otherwise disposes of property as part of its land bank program, the proceeds from the sale, if any, shall be allocated as determined by the authority among the following priorities: (1) furtherance of authority operations; (2) recovery of authority expenses; and (3) distribution to the parties and the appropriate school district in proportion to and to the extent of their respective tax bills and costs. Any excess proceeds shall be distributed pursuant to the agreement of the parties or by resolution of the consolidated government in accordance with the public policy stated in this article.
  5. The authority shall have full discretion in determining the sale price of the property. The agreement of the parties shall provide for a distribution of property that favors neighborhood nonprofit entities obtaining the land for low-income housing and, secondarily, other entities intending to produce low-income or moderate-income housing. (Code 1981, § 48-4-64 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1992, p. 1355, § 1; Ga. L. 1995, p. 282, § 4; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1.)

48-4-65. Foreclosure of right of redemption to property conveyed to authority.

The authority may foreclose the right of redemption to the property conveyed to the authority pursuant to a tax sale conducted in accordance with Article 1 of this chapter in the following manner:

  1. The record title to the property shall be examined and a certificate of title shall be prepared for the benefit of the authority;
  2. The authority shall serve the prior owner whose interest was foreclosed upon and all persons having record title or interest in or lien upon the property with a notice of foreclosure of this right to redeem in conformance with Code Section 48-4-46;
  3. In the event persons entitled to service are located outside the county, they may be served by certified mail or statutory overnight delivery; or
  4. In the event the sheriff is unable to perfect service or certified mail or statutory overnight delivery attempts are returned unclaimed, the authority shall conduct a search for the person with an interest in the property conveyed to the authority, which search must, at a minimum, have included the following:
    1. An examination of the addresses given on the face of the instrument vesting interest or the addresses given to the clerk of the superior court by the transfer tax declaration form. The clerk of the superior court and the tax assessor of the county are required to share information contained in the transfer tax declaration form with one another in a timely manner;
    2. A search of the current telephone directory for the county in which the property is located;
    3. A letter of inquiry to the person who sold the property to the defendant in the tax sale at the address shown in the transfer tax declaration form or in the telephone directory;
    4. A letter of inquiry to the attorney handling the closing prior to the tax sale if provided on the deed forms;
    5. A sign being no less than four feet by six feet shall be erected on the property and maintained by the authority for a minimum of 30 days reading as follows: "THIS PROPERTY HAS BEEN CONVEYED TO THE __________________ LAND BANK AUTHORITY BY VIRTUE OF A SALE FOR UNPAID TAXES. PERSONS WITH INFORMATION REGARDING THE PRIOR OWNER OF THE PROPERTY ARE REQUESTED TO CALL __________________."; and
    6. If the authority has made the search as required by this paragraph and been unable to locate those persons required to be served under paragraph (2) of this Code section or, having located additional addresses of those persons through such search, attempted without success to serve those persons in either manner provided by paragraph (2) or (3) of this Code section, the authority shall make a written summary of the attempts made to serve the notice, in recordable form, and may authorize the foreclosure of the redemption rights of record. (Code 1981, § 48-4-65 , enacted by Ga. L. 1990, p. 1875, § 3; Ga. L. 1996, p. 824, § 1; Ga. L. 1997, p. 882, § 1; Ga. L. 2000, p. 1589, § 3.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, the subsection (a) designation was deleted.

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

ARTICLE 5 AD VALOREM TAX FORECLOSURES

Law reviews. - For note on the 1995 enactment of this article, see 12 Ga. St. U. L. Rev. 352 (1995).

48-4-75. Legislative findings.

The General Assembly finds that the nonpayment of ad valorem taxes by property owners effectively shifts a greater tax burden to property owners willing and able to pay their share of such taxes, that the failure to pay ad valorem taxes creates a significant barrier to neighborhood and urban revitalization, that significant tax delinquency creates barriers to marketability of the property, and that nonjudicial tax foreclosure procedures are inefficient, lengthy, and commonly result in title to real property which is neither marketable nor insurable. In addition, the General Assembly finds that tax delinquency in many instances results in properties which present health and safety hazards to the public. Consequently, the General Assembly further finds that the alternative to nonjudicial tax foreclosure procedures authorized by this article is an effective means of eliminating health and safety hazards by putting certain tax delinquent properties back on the tax rolls and into productive use.

(Code 1981, § 48-4-75 , enacted by Ga. L. 1995, p. 272, § 1.)

48-4-76. Judicial in rem tax foreclosures.

  1. In addition to any other rights and remedies provided under state law for the enforcement of tax liens by the State of Georgia and its counties and municipalities, such governmental entities may proceed with judicial in rem tax foreclosures for delinquent taxes in accordance with the provisions of this article by enactment of an ordinance or resolution of the governing authority of the county in which the property is located which ordinance or resolution shall be sufficient authority for use of the provisions of this article by such county and all municipalities within such county as to their respective taxes. In the event that the governing authority of a county does not so act, a municipality located in such county may, by enactment of its own ordinance or resolution, authorize the use of judicial in rem tax foreclosures for delinquent municipal taxes in accordance with the provision of this article. Any such ordinance or resolution may set forth criteria for selection of properties to be subject to the provisions of this article.
  2. Proceedings in accordance with this article are designed solely to enforce the lien for ad valorem taxes against the property subject to such taxation and shall not constitute an action for personal liability for such taxes of the owner or owners of such property.
  3. The rights and remedies set forth in this article are available solely to the governmental entities authorized by law to collect ad valorem taxes and shall not extend to any transferee of tax executions or tax liens.
  4. The enforcement proceedings authorized by this article may be initiated by a county, by a municipality, by one acting on behalf of the other pursuant to contract, or by joint action in a single proceeding. (Code 1981, § 48-4-76 , enacted by Ga. L. 1995, p. 272, § 1; Ga. L. 1996, p. 1280, § 1; Ga. L. 2004, p. 907, § 4.)

JUDICIAL DECISIONS

Tax foreclosure sale. - Trial court did not err in granting summary judgment to the county as the nuisance abatement statute did not preclude the county from using a nonjudicial tax foreclosure sale, instead of a judicial in rem tax foreclosure sale, to sell the property because both methods were available for collecting real property ad valorem taxes; judicial in rem tax foreclosure procedures were an alternative to nonjudicial tax foreclosure procedures, rather than a replacement for them; and the nuisance abatement statute did not require the county to use a judicial in rem tax foreclosure sale when collecting on a nuisance abatement lien. Derby Props., LLC v. Watson, Ga. App. , 816 S.E.2d 766 (2018).

48-4-77. Definitions.

As used in this article, the term:

  1. "Interested party" means:
    1. Those parties having an interest in the property as revealed by a certification of title to the property conducted in accordance with the title standards of the State Bar of Georgia;
    2. Those parties having filed a notice in accordance with Code Section 48-3-9; and
    3. Any other party having an interest in the property whose identity and address are reasonably ascertainable from the records of the petitioner or records maintained in the county courthouse or by the clerk of the court. "Interested party" shall not include the holder of the benefit or burden of any easement or right of way whose interest is properly recorded which interest shall remain unaffected.
  2. "Redemption amount" means the full amount of the delinquent ad valorem taxes, accrued interest at the rate specified in Code Section 48-2-40 , penalties determined in accordance with Code Section 48-2-44 , and costs incurred by the governmental entity in collecting such taxes including without limitation the cost of title examination and publication of notices. (Code 1981, § 48-4-77 , enacted by Ga. L. 1995, p. 272, § 1; Ga. L. 1999, p. 81, § 48.)

JUDICIAL DECISIONS

"Interested party." - Party whose interest in property derived from an unrecorded deed received from a party who was the holder of a deed to secure debt from the record owner of the property was not an "interested party" under paragraph (1) and the party had no right under O.C.G.A. § 9-11-24(a) to intervene in an in rem judicial tax foreclosure proceeding. Burruss v. Ferdinand, 245 Ga. App. 203 , 536 S.E.2d 555 (2000).

Definition of "interested party" in O.C.G.A. § 48-4-77(1)(A) for purposes of a tax foreclosure has no application to an action to redeem property after a tax sale; however, even if the definition was applicable, it was unlikely that the bank that held a security deed on real property would constitute an interested party as one having an interest in the property whose identity and address were reasonably ascertainable from the records maintained in the county courthouse or by the clerk of court. Cmty. Renewal & Redemption v. Nix, 288 Ga. 439 , 704 S.E.2d 759 (2011).

48-4-78. Identification of properties on which ad valorem taxes are delinquent; petition for tax foreclosure; contents of petition; notice.

  1. After an ad valorem tax lien, based upon a digest approved in accordance with the law, has become payable and is past due and thereby delinquent, a tax commissioner or other tax collector, as appropriate, may identify those properties on which to commence a tax foreclosure in accordance with this article. The tax commissioner or other tax collector, as appropriate, shall not commence tax foreclosure in accordance with this article for a period of 12 months following the date upon which the taxes initially became delinquent. Once enforcement proceedings have commenced in accordance with the provisions of this article, the enforcement proceedings may be amended to include any and all ad valorem taxes which become delinquent subsequent to the date of the initial ad valorem tax lien that was the original basis for the enforcement proceedings.
  2. The tax commissioner or other tax collector, as appropriate, shall file a petition with the superior court of the county in which the property is located, which petition shall have form and content substantially identical to that form as provided in subsection (g) of this Code section. When the subject property is located in more than one taxing jurisdiction, the entity filing the petition shall identify in the petition only those portions of such property lying within the jurisdiction of the taxing authority of the petitioner.
  3. The petition shall be filed against the property for which taxes are delinquent and shall provide:
    1. The identity of the petitioner and the name and address of the individual responsible for collecting the delinquent taxes;
    2. The property address;
    3. A description of the property;
    4. The tax identification number of the property;
    5. The calendar year or years for which the taxes are delinquent;
    6. The principal amount of the delinquent taxes together with interest and penalties; and
    7. The names and addresses of parties to whom copies of the petition are to be sent in accordance with subsection (d) of this Code section.
  4. The petitioner shall mail copies of the petition by certified mail or statutory overnight delivery, return receipt requested, to all interested parties whose identity and address are reasonably ascertainable. Copies of the petition shall also be mailed by first-class mail to the property address to the attention of the occupants of the property, if any, and shall be posted on the property.
  5. Simultaneous with the filing of the petition, the petitioner shall cause notice of the petition to be filed in the appropriate lis pendens docket in the county in which the property is located.
  6. Within 30 days of the filing of the petition, the petitioner shall cause a notice of the filing of the petition to be published on two separate dates in the official organ of the county in which the property is located. Such notice shall specify:
    1. The identity of the petitioner and the name and address of the individual responsible for collecting the delinquent taxes;
    2. The property address;
    3. A description of the property;
    4. The tax identification number of the property;
    5. The applicable period of tax delinquency;
    6. The principal amount of the delinquent taxes together with interest and penalties; and
    7. The date and place of the filing of the petition.
  7. The petition for ad valorem tax foreclosure shall be written or printed, or written in part and printed in part, and shall be in substantially the following form:
    6. (Code 1981, § 48-4-78 , enacted by Ga. L. 1995, p. 272, § 1; Ga. L. 2000, p. 1589, § 3; Ga. L. 2004, p. 907, § 5; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2010, p. 878, § 48/HB 1387.)

SUPERIOR COURT OF ______________ COUNTY

STATE OF GEORGIA

Petitioner: ) TAX COMMISSIONER/TAX COLLECTOR ) ________________________ ) ________________________ ) ________________________ ) (Name, Address, ) Telephone Number) ) v. ) Respondents: ) Case No.: _________________________________________ ________ ACRES OF LAND LYING ) AND BEING IN LAND LOT ) ____________, DISTRICT ____________, ) __________________ COUNTY, GEORGIA; ) AND ____________________________ ) ____________________________________ ) (Insert name and mailing address of owner of property.)

PETITION FOR AD VALOREM TAX FORECLOSURE

COMES NOW ( Petitioner ) and petitions this Court for an in rem tax foreclosure by showing this Court as follows:

________________________________________ is the owner of certain real property located at ________________________________________ (the "Property") having a tax identification number of ____________________________. (A legal description of the Property is attached hereto as Exhibit "A" and by this reference incorporated herein).

The ad valorem taxes assessed against the Property by City/County of __________ for the year(s) __________ in the amount of $__________ (amount includes principal amount of taxes owed and any accrued interest and penalties as of this date) have not been paid.

Attached hereto as Exhibit "B" is a list of the names and addresses of Interested Parties also receiving a copy of this Petition by certified mail or statutory overnight delivery, return receipt requested.

____________________________ and ____________________________ as occupants of the respondent Property shall be served by mailing the petition by first-class mail to the attention of the occupants at the above-listed Property address.

The Petition has also been posted on the Property in accordance with Code Section 48-4-78 of the Official Code of Georgia Annotated.

Simultaneously with the filing of this Petition, Petitioner has filed a lis pendens. WHEREFORE, Petitioner demands (1) a hearing in the Superior Court of ______________ County (the "Court") and (2) a judgment by the Court stating that (a) the taxes for the Property are delinquent and (b) that Notice has been given to all Interested Parties, and ordering that the Property may be sold at public outcry pursuant to Code Section ______________ of the Official Code of Georgia Annotated. TAX COMMISSIONER/TAX COLLECTOR City/County of __________________________________________________ By: _____________________________________________________________ Its: ____________________________________________________________

NOTICE TO RESPONDENTS AND ALL INTERESTED PARTIES

This Petition serves as notice to the Respondents and all Interested Parties that (1) each party is presumed to own or have a legal interest in the Property, (2) that foreclosure proceedings have been commenced because of the failure to pay the real property taxes cited above, and (3) foreclosure will result in the loss of ownership of the Property and all rights or interests of all Interested Parties. To avoid loss of ownership or any interest in the Property, payment of the full amount of taxes, penalties, interest, and costs must be paid to the ______________ office located at ____________________________ by ______________date. Respondents and all Interested Parties are also reminded that each of you may wish to contact an attorney to protect your rights. A Hearing on the above matter shall take place in the Superior Court of __________________ County no earlier than 30 days after the filing of this Petition. To determine the exact time and date of such hearing, please call Clerk of Superior Court of __________________ County. This ______________ day of ________________________, ____. ________________________________________________________________ Deputy Clerk Superior Court of _____________ County

EXHIBIT A

Description of the Property

______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Together with all rights, title, and interest running with the above-described property but not taxed under a separate tax reference number as delineated on the tax maps of the petitioner for the year(s) for the taxes being foreclosed.

EXHIBIT B

Names and Addresses of Interested Parties

______________________________________________________________________________ ______________________________________________________________________________ _____________________________________________________________________________

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For annual survey on real property, see 66 Mercer L. Rev. 151 (2014). For comment, "Making Debt Pay: Examining the Use of Property Tax Delinquency as a Revenue Source," see 62 Emory L.J. 217 (2012).

JUDICIAL DECISIONS

Substantial compliance not sufficient. - Petitions for ad valorem tax foreclosure of abatement liens against homeowners were denied because the petitions failed to comply with the clear and unambiguous requirements of O.C.G.A. § 48-4-78 because the petitions were filed against the owners of the properties rather than against the properties for which the taxes were delinquent. Porche v. Noriega, 325 Ga. App. 524 , 754 S.E.2d 112 (2014).

48-4-79. Judicial hearing on petition; orders; priority of claims; death of interested party.

  1. The petitioner shall request that a judicial hearing on the petition occur not earlier than 30 days following the filing of the petition. At such hearing any interested party shall have the right to be heard and to contest the delinquency of the taxes or the adequacy of the proceedings. If the superior court determines that the information set forth in the petition is accurate, the court shall render its judgment and order that:
    1. The taxes are delinquent;
    2. Proper notice has been given to all interested parties;
    3. The property as described in the petition be sold in accordance with the provisions of this article; and
    4. The sale shall become final and binding 60 days after the date of the sale in accordance with Code Section 48-4-81.
  2. The order of the superior court shall provide that the property be sold free and clear of all liens, claims, and encumbrances other than:
    1. Rights of redemption provided under federal law;
    2. Tax liens held by Georgia governmental entities other than the petitioner which are superior to the taxes identified in the petition by virtue of the provisions of subsection (b) of Code Section 48-2-56;
    3. Easements and rights of way of holders who are not interested parties under subparagraph (C) of paragraph (1) of Code Section 48-4-77; and
    4. Benefits or burdens of any real covenants filed of record as of the date of filing of the petition.
  3. If, upon production of evidence to the court by any party, it is determined by the court that any interested party died within the six-month period of time immediately preceding the filing of the petition, the court may postpone the hearing, for a period of up to six months, to allow the administrator or executor of the estate adequate time to close the estate. (Code 1981, § 48-4-79 , enacted by Ga. L. 1995, p. 272, § 1; Ga. L. 1999, p. 81, § 48.)

48-4-80. Redemption by owner or other interested party.

  1. At any point prior to the moment of the sale, any interested party may redeem the property from the sale by payment of the redemption amount. Payment shall be made to the petitioner. Following receipt of such payment, the petitioner shall file for dismissal of the proceedings.
  2. In the event of such payment by the owner of the subject property, the proceedings shall be dismissed and the rights and interests of all interested parties shall remain unaffected.
  3. In the event of such payment by any interested party other than the owner, the party accomplishing such payment shall possess a lien on the property for the full amount of such payment, which lien shall have the same priority as the lien for the delinquent taxes. Such lienholder shall have the right to enforce such lien as permitted to the holder of any lien under existing law. Such lienholder shall not otherwise succeed to the rights of the petitioner as described in this article. (Code 1981, § 48-4-80 , enacted by Ga. L. 1995, p. 272, § 1; Ga. L. 1999, p. 81, § 48.)

48-4-81. Sale procedures; time; minimum bid; finality; right of redemption by owner; execution of tax deed; report of sale.

  1. Following the hearing and order of the superior court in accordance with Code Section 48-4-79, a sale of the property shall be advertised and conducted on the date, time, place, and manner which are required by law of sheriffs' sales. Such sale shall not occur earlier than 45 days following the date of issuance of such order of the superior court.
  2. Except as otherwise authorized by law, the minimum bid price for the sale of the property shall be the redemption amount. In the absence of any higher bid, the petitioner may, but shall not be obligated to, tender its own bid in an amount equal to the minimum bid price and thereby become the purchaser at the sale.
  3. From and after the moment of the sale, the sale shall be final and binding, subject only to the right of the owner of the property to redeem the property from the sale upon payment into the superior court of the full amount of the minimum bid price of the sale. Such right of redemption of the owner shall exist for a period of 60 days from and after the date of the sale and shall be in accordance with the following provisions:
    1. Redemption by an owner in accordance with this subsection shall result in a dismissal of the proceedings. Immediately following such redemption by an owner, if the property was sold to a third party at the sale, the petitioner shall refund to such purchaser the full amount paid by such purchaser at the sale;
    2. For purposes of redemption under this subsection, "owner" shall mean the owner of record of fee simple interest in the property as of the date of filing of the petition, together with such owner's successors-in-interest by death or operation of law. This right of redemption shall not otherwise be transferable; and
    3. This right of redemption shall automatically terminate and expire upon failure to redeem in accordance with the provisions of this subsection within the 60 day period following the date of the sale.
  4. If the property is not redeemed by the owner in accordance with subsection (c) of this Code section, then within 90 days following the date of the sale, the petitioner shall cause to be executed on behalf of the petitioner and delivered to the foreclosure sale purchaser a deed for the property in substantially the form set forth in subsection (g) of this Code section, together with such real estate transfer tax declaration forms as may be required by law.
  5. Within 90 days following the date of the sale, the petitioner shall file a report of the sale with the superior court, which report shall identify whether a sale took place, the foreclosure sale price, and the identity of the purchaser.
  6. In the event that the foreclosure sale price exceeds the minimum bid amount at the foreclosure sale, the petitioner shall deposit into the registry of the superior court the amount of such surplus. Such surplus shall be distributed by the superior court to the interested parties, including the owner, as their interests appear and in the order of priority in which their interests exist.
  7. The form of the deed provided for in subsection (d) of this Code section shall be substantially as follows: (Code 1981, § 48-4-81 , enacted by Ga. L. 1995, p. 272, § 1.)

When recorded, please CROSS-REFERENCE: return to: Deed Book ______, page ______, ________________________ ______________ County, Georgia Records ________________________ ________________________ STATE OF GEORGIA COUNTY OF ______________

TAX DEED

This indenture (the "Deed") made this ____________ day of ____________________________, ______________, by and between ________________________, a ________________________ ("Grantor") and ________________________, a ________________________ ("Grantee").

WITNESSETH

WHEREAS, on the ____________ day of ____________________________, ________, during the legal hours of sale, Grantor did expose for sale at public outcry to the highest bidder for cash before the courthouse door in ____________ County, Georgia, the Property (as hereinafter defined) at which sale Grantee was the highest and best bidder for the sum of $______________ and the Property was then and there knocked off to Grantee for said sum. The sale was made by Grantor pursuant to and by virtue of the power and authority granted to it in that certain Order granted ____________________________, __________, Case No. ____________, Superior Court of ______________ County, Georgia (the "Order"). Said sale was made after advertising the time, place, and terms thereof in the ____________________________________, published in ____________________________, Georgia, in the aforesaid county, and being the publication in which Sheriff's advertisements for said county are now published, once a week for four consecutive weeks prior to said sale on the __________, __________, __________, and __________ of ____________, ____________, and said advertisement in all respects complied with the requirements of Code Section ______________ of the Official Code of Georgia Annotated. Notice of the time, place, and terms of the sale of the Property was given pursuant to Code Section ______________ of the Official Code of Georgia Annotated. Said sale was made for the purpose of paying the ad valorem taxes owed to ________________________________________, the interest and penalties on said indebtedness, the expenses of the sale including attorneys' fees, all of which were mature and payable because of failure of the owner to pay the ad valorem taxes owed. NOW, THEREFORE, Grantor, acting under and by virtue of the Order and pursuant to Code Section ________________________ of the Official Code of Georgia Annotated, for and in consideration of the facts hereinbefore recited, has bargained, sold, and conveyed and does hereby bargain, sell, and convey unto Grantee, its successors and assigns, the following described property (herein referred to as the "Property"); to wit: All that tract or parcel of land lying and being in Land Lot __________ of the __________ District, ____________ County, Georgia, and being more particularly described on Exhibit "A" attached hereto and by this reference made a part hereof. This Deed is given subject to all restrictions and easements, if any, to which the Deed is junior and inferior in terms of priority, and any and all tax liens which pursuant to subsection (b) of Code Section 48-2-56 of the Official Code of Georgia Annotated are superior to the rights conveyed herein relating to the Property. TO HAVE AND TO HOLD, the Property unto Grantee, its successors and assigns in fee simple. IN WITNESS WHEREOF, Grantor, has caused its duly authorized officer to sign and seal this Deed as of the day and year first above written. ________________________________________________________________ Signed, sealed, and delivered in the presence of: ________________________________________ Unofficial Witness By: ____________________________________________________ (SEAL) Its: ___________________________________________________________ ____________________________ Notary Public Commission Data: ____________________________ (NOTARIAL SEAL)

EXHIBIT A

Description of the Property

__________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ Together with all right, title, and interest running with the above-described property but not taxed under a separate tax reference number as delineated on the tax maps of the petitioner for the year(s) for the taxes being foreclosed.

JUDICIAL DECISIONS

Cited in Clarence L. Martin, P.C. v. Wallace, 248 Ga. App. 284 , 546 S.E.2d 55 (2001).

ARTICLE 6 LAND BANKS

48-4-100. Short title; applicability.

  1. This article shall be known and may be cited as the "Georgia Land Bank Act."
  2. Any land bank created prior to July 1, 2012, pursuant to Article 4 of this chapter shall not be affected by this article but shall be entitled to continue in existence and exercise all powers granted in such article. The board of any existing land bank may vote, in the manner provided in subsection (j) of Code Section 48-4-104 , to continue in existence under the provisions of this article, thus exercising the additional authorities and powers contained herein. (Code 1981, § 48-4-100 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-101. Findings and declarations.

The General Assembly finds and declares that:

  1. Georgia's communities are important to the social and economic vitality of this state. Whether urban, suburban, or rural, many communities are struggling to cope with dilapidated, abandoned, and tax delinquent properties;
  2. Citizens of Georgia are affected adversely by dilapidated, abandoned, and tax delinquent properties, including properties that have been abandoned due to mortgage foreclosure;
  3. Dilapidated, abandoned, and tax delinquent properties impose significant costs on neighborhoods and communities by lowering property values, increasing fire and police protection costs, decreasing tax revenues, and undermining community cohesion;
  4. There is an overriding public need to confront the problems caused by dilapidated, abandoned, and tax delinquent properties, and to return properties which are in nonrevenue-generating, nontax-producing status to an effective utilization status in order to provide affordable housing, new industry, and jobs for the citizens of this state through the creation of new tools that enable communities to turn abandoned spaces into vibrant places; and
  5. Land banks are one of the tools that can be utilized by communities to facilitate the return of dilapidated, abandoned, and tax delinquent properties to productive use. (Code 1981, § 48-4-101 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-102. Definitions.

As used in this article, the term:

  1. "Board of directors" or "board" means the board of directors of a land bank.
  2. "Consolidated government" means a unified government created pursuant to Article IX, Section III, Paragraph II of the Constitution of Georgia.
  3. "Intergovernmental contract" means a contract as authorized pursuant to Article IX, Section III, Paragraph I of the Constitution of Georgia and paragraph (5) of Code Section 36-34-2, and entered into by counties, consolidated governments, and municipal corporations pursuant to this article.
  4. "Land bank" means a public body corporate and politic established in accordance with the provisions of this article.
  5. "Land bank member" means the local governments that are parties to the intergovernmental contract or resolution creating a land bank and the local governments that join a land bank subsequent to its creation pursuant to the provisions of this article.
  6. "Real property" means all lands and the buildings thereon, all things permanently attached to land or to the buildings thereon, and any interest existing in, issuing out of, or dependent upon land or the buildings thereon.
  7. "School district" means any school district, independent school system, or other local school system in this state. (Code 1981, § 48-4-102 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-103. Creation; existence; board membership.

  1. Any county, municipal corporation, or consolidated government may elect to create a land bank in accordance with subsection (b) of this Code section by the adoption of a local law, ordinance, or resolution as appropriate to the applicable counties, consolidated governments, or municipal corporations, which action specifies the following:
    1. The name of the land bank;
    2. The number of members of the board of directors, which shall consist of an odd number of board members and be not less than five board members or more than 11 board members;
    3. The initial individuals to serve as board members and the length of terms for which they will serve; and
    4. The qualifications, manner of selection or appointment, and terms of office of board members.
  2. A land bank may be created pursuant to an intergovernmental contract by any of the following and any combination of the following methods:
    1. A county and one or more municipal corporations located wholly or partially within the county;
    2. Two or more counties and one or more municipal corporations located wholly or partially within the geographical boundaries of each county;
    3. A consolidated government and one or more municipal corporations located wholly or partially within the same county as the consolidated government; or
    4. Any consolidated government without a municipal corporation located wholly or partially within the same county as the consolidated government may create a land bank as follows:
      1. Through ordinance or resolution of the governing authority of the consolidated government;
      2. Through an intergovernmental contract with another consolidated government without a municipal corporation located wholly or partially within the same county as the consolidated government; or
      3. Through an intergovernmental contract with other counties, municipal corporations, or consolidated governments creating land banks pursuant to paragraph (1), (2), or (3) of this subsection.
  3. Any intergovernmental contract creating a land bank shall specify the matters identified in subsection (a) of this Code section.
  4. Subject to the limitations of subsection (b) of this Code section, any county or municipal corporation or consolidated government may elect to join any preexisting land bank by executing the intergovernmental contract or resolution that created the land bank and such other documentation as may be necessary.
  5. A land bank shall have the power to acquire real property only in those portions of the county located outside of the geographical boundaries of a nonparticipating municipal corporation located within the county; provided, however, that a land bank may acquire real property lying within such nonparticipating municipal corporation with the consent of such municipal corporation.
  6. A school district may participate in a land bank pursuant to an intergovernmental contract provided such contract specifies any members of the board of education serving on the board of the land bank and any actions of the land bank which are subject to approval by the board of education.
  7. A land bank shall be a public body corporate and politic and shall have permanent and perpetual duration until terminated and dissolved in accordance with the provisions of subsection (c) of Code Section 48-4-111 . (Code 1981, § 48-4-103 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-104. Initial size of board; continuation of land banks created before July 1, 2012; eligibility to serve; selection of chairperson and officers; governing rules and regulations; vacancies; compensation; meetings; quorum; adoption of bylaws; immunity from personal liability; voting.

  1. The initial size of a board shall be determined in accordance with paragraph (2) of subsection (a) of Code Section 48-4-103. Unless restricted by the actions or agreements specified in Code Section 48-4-103, and subject to the limits stated in this Code section, the size of the board may be adjusted in accordance with the bylaws of the land bank.
  2. In the event the board of a land bank created by a county and a municipal corporation or by a consolidated government before July 1, 2012, votes to continue in existence under the provisions of this article, the land bank members shall jointly nominate and approve at least one additional board member so that there is an odd number of board members. In the event the land bank members of such a preexisting land bank are unable to approve such additional board members, such preexisting land bank shall not exist under the provisions of this article unless and until a new intergovernmental contract is approved in accordance with this article.
  3. Notwithstanding any law to the contrary, an elected member of the municipal governing authority shall be eligible to serve as a board member, and the acceptance of the appointment shall neither terminate nor impair that public office. Any municipal employee shall be eligible to serve as a board member. Notwithstanding any law to the contrary, an elected member of the county governing authority shall be eligible to serve as a board member, and the acceptance of the appointment shall neither terminate nor impair that public office. Any county employee shall be eligible to serve as a board member. Notwithstanding any law to the contrary, an elected member of a consolidated government governing authority shall be eligible to serve as a board member, and the acceptance of the appointment shall neither terminate nor impair that public office. Any consolidated government employee shall be eligible to serve as a board member. A tax commissioner or tax collector, or both, may serve ex officio as a member of the land bank board if so authorized by the intergovernmental contract, local law, ordinance, or resolution that creates the land bank or by subsequent intergovernmental contracts with the land bank members.
  4. The members of the board shall select annually from among themselves a chairperson, vice chairperson, secretary, treasurer, and such other officers as the board may determine and shall establish their duties as may be regulated by the intergovernmental contract or by rules adopted by the board. When in actual conflict the intergovernmental contract shall control over the bylaws or rules adopted by the board.
    1. The board shall establish rules and regulations relative to the attendance and participation of board members in its regular and special meetings. The rules and regulations may prescribe a procedure whereby a board member who fails to comply with the rules and regulations of the board may be removed from office by no less than a majority vote of the remaining members of the board, and that board member's position shall be vacant as of the first day of the next calendar month.
    2. A land bank member may remove any board member appointed by that land bank member.
    3. Any board member removed under the provisions of this subsection shall be ineligible for reappointment to the board, unless the reappointment is confirmed by at least a two-thirds' vote of the governing authority of the appointing land bank member.
  6. A vacancy on the board shall be filled in the same manner as the original appointment.
  7. Board members shall serve without compensation. The board may reimburse a board member for expenses actually incurred in the performance of duties on behalf of the land bank.
  8. The board shall meet in regular session according to a schedule adopted by the board and also shall meet in special session as convened by the chairperson or upon written notice signed by a majority of the board members.
  9. A quorum of board membership shall be a simple majority of the entire board membership, and no action of the board shall be taken in the absence of a quorum. All actions of the board must be approved by the affirmative vote of a majority of the members of the board present and voting; provided, however, that no action of the board shall be authorized on the following matters unless approved by a majority of the entire board membership:
    1. Adoption of bylaws and other rules and regulations for conduct of the land bank's business;
    2. Hiring or firing of any employee or contractor of the land bank. Such function may by majority vote be delegated by the board to a specified officer or committee of the land bank under such terms and conditions and to the extent that the board may specify;
    3. Incurring of debt;
    4. Adoption or amendment of the annual budget; and
    5. Sale, lease, encumbrance, or alienation of real property, improvements, or personal property with a value of more than $50,000.00.
  10. A land bank created pursuant to Article 4 of this chapter may continue in existence in accordance with provisions of this article upon the unanimous consent of the board members, and contingent upon the appointment of at least one additional board member pursuant to subsection (b) of this Code section.
  11. A board member shall not be liable personally on obligations of the land bank, and the rights of creditors of a land bank shall be solely against the land bank.
  12. A board member shall be prohibited from voting by proxy. A board member may request a recorded vote on any resolution or action of the land bank. (Code 1981, § 48-4-104 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (i)(5).

48-4-105. Employment of executive director, legal counsel, technical experts, agents, and employees; contracts and agreements with localities for staffing services.

A land bank may employ an executive director, its own counsel and legal staff, and such technical experts, other agents, and employees, permanent or temporary, as it may require and may determine the qualifications and fix the compensation and benefits of those persons. A land bank may also enter into contracts and agreements with municipal corporations or counties or consolidated governments for staffing services to be provided to the land bank by agencies or departments thereof or for a land bank to provide such staffing services to agencies or departments thereof.

(Code 1981, § 48-4-105 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-106. Powers; limitation or withdrawal of power by land bank member under certain circumstances.

  1. A land bank shall constitute a public body, corporate and politic, and shall have all powers necessary or appropriate to carry out and effectuate the purposes and provisions of this article, including the following powers:
    1. To adopt, amend, and repeal bylaws for the regulation of its affairs and the conduct of its business;
    2. To sue and be sued in its own name and plead and be impleaded in all civil actions, including, but not limited to, actions to clear title to property of the land bank;
    3. To adopt a seal and to alter the same at pleasure;
    4. To acquire by purchase, lease, or otherwise and to hold, lease, and dispose of real or personal property of every kind and character, or any interest therein, in furtherance of the public purposes of the land bank;
    5. To acquire, accept, or retain equitable interests, security interests, or other interests in any real property, personal property, or fixtures by loan agreement, note, mortgage, deed to secure debt, trust deed, security agreement, assignment, pledge, conveyance, contract, lien, loan agreement, or other consensual transfer in order to secure credit extended by the land bank;
    6. To borrow from private lenders, from municipal corporations, counties, or consolidated governments, from the state, or from federal government funds, as may be necessary, for the operation and work of the land bank;
    7. To borrow money to further or carry out its public purpose and to execute notes, other obligations, leases, trust indentures, trust agreements, agreements for the sale of its notes or other obligations, loan agreements, mortgages, deeds to secure debt, trust deeds, security agreements, assignments, and such other agreements or instruments as may be necessary or desirable, in the judgment of the land bank, to evidence and to provide security for such borrowing;
    8. To issue notes or other obligations of the land bank and use the proceeds thereof for the purpose of paying all or any part of the cost of any land bank projects and otherwise to further or carry out the public purpose of the land bank and to pay all costs of the land bank incidental to, or necessary and appropriate to, furthering or carrying out such purpose;
    9. To make application directly or indirectly to any federal, state, county, or municipal government or agency or to any other source, whether public or private, for loans, grants, guarantees, or other financial assistance in furtherance of the land bank's public purpose and to accept and use the same upon such terms and conditions as are prescribed by such federal, state, county, or municipal government or agency or other source;
    10. To enter into agreements with the federal government or any agency thereof to use the facilities or services of the federal government or any agency thereof in order to further or carry out the public purposes of the land bank;
    11. A land bank shall have no authority to lend money to a nongovernmental entity; provided, however, that a land bank may administer funds in the form of a loan to a nongovernmental entity when such funds are received from federal, state, and local government entities for the purpose of making such loans; provided, further, that only such transactions which are fully consistent with the purpose of the land bank shall be permitted. In those transactions, a land bank may extend credit to any person, corporation, partnership, whether limited or general, or other entity for the costs of any land bank projects which credit may be evidenced or secured by loan agreements, notes, mortgages, deeds to secure debt, trust deeds, security agreements, assignments, or such other instruments, or by rentals, revenues, fees, or charges, upon such terms and conditions as the land bank shall determine to be reasonable in connection with such extension of credit, including provision for the establishment and maintenance of reserve funds, and, in the exercise of powers granted by this article in connection with any land bank projects the land bank shall have the right and power to require the inclusion in any such loan agreement, note, mortgage, deed to secure debt, trust deed, security agreement, assignment, or other instrument of such provisions or requirements for guaranty of any obligations, insurance, construction, use, operation, maintenance, and financing of a project, and such other terms and conditions, as the land bank may deem necessary or desirable;
    12. As security for repayment of any notes or other obligations of the land bank, to pledge, mortgage, convey, assign, hypothecate, or otherwise encumber any property of the land bank, including, but not limited to, real property, fixtures, personal property, and revenues or other funds, and to execute any lease, trust indenture, trust agreement, agreement for the sale of the land bank's notes or other obligations, loan agreement, mortgage, deed to secure debt, trust deed, security agreement, assignment, or other agreement or instrument as may be necessary or desirable, in the judgment of the land bank, to secure any such notes or other obligations, which instruments or agreements may provide for foreclosure or forced sale of any property of the land bank upon default in any obligation of the land bank, either in payment of principal, premium, if any, or interest or in the performance of any term or condition contained in any such agreement or instrument. The state, on behalf of itself and each county, municipal corporation, political subdivision, or taxing district therein, waives any right it or such county, municipal corporation, political subdivision, or taxing district may have to prevent the forced sale or foreclosure of any property of the land bank upon such default and agrees that any agreement or instrument encumbering such property may be foreclosed in accordance with law and the terms thereof;
    13. To receive and administer gifts, grants, and devises of money and property of any kind and to administer trusts;
    14. To use any real property, personal property, or fixtures or any interest therein or to rent or lease such property to or from others or make contracts with respect to the use thereof, or to sell, lease, exchange, transfer, assign, pledge, or otherwise dispose of or grant options for any such property in any manner as it deems to be in the best interests of the land bank and the public purpose thereof;
    15. To procure insurance or guarantees from the General Assembly or federal government of the payments of any debts or parts thereof incurred by the land bank and to pay premiums in connection therewith;
    16. To enter into contracts and other instruments necessary, incidental, or convenient to the performance of its duties and the exercise of its powers, including, but not limited to, intergovernmental contracts for the joint exercise of powers under this article. Intergovernmental contracts with municipal corporations, counties, or consolidated governments may include contracts for the performance of services by municipal corporations, counties, or consolidated governments on behalf of the land bank or by the land bank on behalf of municipal corporations, counties, or consolidated governments, whether or not such counties, consolidated governments, or municipal corporations are located inside or outside the geographical boundaries of the land bank members;
    17. To procure insurance against losses in connection with the real property, assets, or activities of the land bank;
    18. To accept and issue deeds in its name, including without limitation the acceptance of real property in accordance with the provisions of paragraph (2.1) of subsection (u) of Code Section 16-13-49;
    19. To finance by loan, grant, lease, or otherwise, refinance, construct, erect, assemble, purchase, acquire, own, repair, remodel, rehabilitate, modify, maintain, extend, improve, install, sell, equip, expand, add to, operate, or manage real property or rights or interests in property, and to pay the costs of any such project from the proceeds of loans by persons, corporations, partnerships, whether limited or general, or other entities, all of which the land bank is authorized to receive, accept, and use;
    20. To fix, charge, and collect rents, fees, and charges for the use of real property of the land bank and for services provided by the land bank;
    21. To grant or acquire a license, easement, lease, as lessor or lessee, or option with respect to real property of the land bank;
    22. To enter into partnerships, joint ventures, and other collaborative relationships with municipalities and other public and private entities for the ownership, management, development, and disposition of real property;
    23. To hold title to real property for purposes of establishing contracts with nonprofit community land trusts, including, but not limited to, long-term lease contracts;
    24. To organize and reorganize the executive, administrative, clerical, and other departments of the land bank and to fix the duties, powers, and compensation of all employees, agents, and consultants of the land bank; and
    25. To do all other things necessary or convenient to achieve the objectives and purposes of the land bank or other laws that relate to the purposes and responsibilities of the land bank.
  2. The exercise of a specific power by a land bank may be limited or withdrawn by a land bank member when the land bank is acting with respect to real property within the jurisdiction of such member. Procedures for the exercise of such limitation or withdrawal of power shall be provided in the intergovernmental contract. (Code 1981, § 48-4-106 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-107. Eminent domain.

A land bank shall neither possess nor exercise the power of eminent domain.

(Code 1981, § 48-4-107 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-108. Exemption of land bank property from state and local taxation; acquisition of real property interests; land bank prohibited from owning or holding real property located outside geographical boundaries.

  1. The real property of a land bank and its income and operations are exempt from all taxation by the state and by any of its political subdivisions, including, but not limited to, real property held by a land bank as lessor pursuant to long-term lease contracts with community land trusts.
  2. A land bank may acquire real property or interests in real property by gift, devise, transfer, exchange, foreclosure, purchase, or otherwise on terms and conditions and in a manner the board considers is in the best interest of the land bank.
    1. A land bank may acquire real property by purchase contracts, lease-purchase agreements, and may accept transfers from municipal corporations, counties, or consolidated governments upon such terms and conditions as agreed to by the land bank and the municipal corporation, county, or consolidated government.
    2. Notwithstanding any other law to the contrary, a municipal corporation, county, or consolidated government may transfer to a land bank real property and interests in real property of the municipal corporation, county, or consolidated government on such terms and conditions and according to such procedures as determined by the municipal corporation, county, or consolidated government, so long as the real property is located within the geographical boundaries of the land bank.
    3. The acquisition of property by the land bank shall not be governed or controlled by any regulations or laws relating to procurement or acquisition of property of the counties, consolidated governments, or municipal corporations that are members of the land bank unless specifically provided in the applicable intergovernmental contract or resolution, and transfers of property by municipal corporations, counties, or consolidated governments to the land bank shall be treated as transfers to a body politic as contemplated by subparagraph (a)(2)(A) of Code Section 36-9-3.
  4. A land bank shall maintain all of its real property in accordance with the laws and ordinances of the jurisdiction in which the real property is located.
    1. Except as otherwise provided in paragraph (2) of this subsection, a land bank shall not own or hold real property located outside the geographical boundaries of the land bank members.
    2. A land bank may be granted pursuant to an intergovernmental contract with a county, consolidated government, or municipal corporation the authority to manage and maintain real property located within the geographical boundaries of such county, consolidated government, or municipal corporation, but outside the geographical boundaries of the land bank members. (Code 1981, § 48-4-108 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-109. Land bank to hold acquired property in own name; public review and inspection of real property inventory; consideration necessary for property transactions; hierarchical ranking of priorities for use.

  1. A land bank shall hold in its own name all real property acquired by the land bank without regard to the identity of the transferor of the property.
  2. A land bank shall maintain and make available for public review and inspection an inventory of all real property held by the land bank.
  3. A land bank may convey, exchange, sell, transfer, lease as lessor, grant, and mortgage as mortgagor any and all interests in, upon, or to real property of the land bank in some form and by such method as determined by the board to be in the best interest of the land bank.
    1. A land bank shall determine the terms, conditions, form, and substance of consideration necessary to convey, exchange, sell, transfer, lease as lessor, grant, and mortgage as mortgagor any interests in, upon, or to real property.
    2. Consideration may take the form of monetary payments and secured financial obligations, covenants, and conditions related to the present and future use of the property, contractual commitments of the transferee, and such other forms of consideration as determined by the board to be in the best interest of the land bank.
    1. The board shall determine and state in the land bank policies and procedures the general terms and conditions for consideration to be received by the land bank for the transfer of real property and interests in real property.
    2. The disposition of property by the land bank shall not be governed or controlled by any regulations or laws of the participating land bank members unless specifically provided in the applicable intergovernmental contract.
  6. Land bank members may, in the resolution or intergovernmental contract creating a land bank, establish a hierarchical ranking of priorities for the use of real property conveyed by a land bank, or, if the resolution or intergovernmental contract creating the land bank is silent, the board of directors may establish a hierarchical ranking of priorities for the use of real property conveyed by a land bank, including but not limited to:
    1. Use for purely public spaces and places;
    2. Use for affordable housing;
    3. Use for retail, commercial, and industrial activities;
    4. Use as conservation areas;
    5. Use for land trusts or for other public entities; and
    6. Such other uses and in such hierarchical order as determined by the board of directors of the land bank.
    1. Subject to the requirements of paragraph (5) of subsection (i) of Code Section 48-4-104 , a county, municipal corporation, or consolidated government may, in the applicable intergovernmental contract or in the resolution creating a land bank, require that any particular form of disposition of real property, or any disposition of real property located within specified jurisdictions, be subject to specified voting and approval requirements of the board.
    2. Except and unless restricted or constrained as provided in paragraph (1) of this subsection, the board may delegate to officers and employees the authority to enter into and execute agreements, instruments of conveyance, and all other related documents pertaining to the conveyance of real property by the land bank. (Code 1981, § 48-4-109 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-110. Funding through grants and loans; receipt of payments for various activities; remission of real property tax; allocation of proceeds from sale of property.

  1. A land bank may receive funding through grants and loans from the land bank members, from any other municipal corporations, counties, or consolidated governments in the state, from the General Assembly, from the federal government, and from other public and private sources.
  2. A land bank may receive and retain payments for services rendered, for rents and leasehold payments received, for consideration for disposition of real and personal property, for proceeds of insurance coverage for losses incurred, for income from investments, and for any other asset and activity lawfully permitted to a land bank under this article.
  3. Up to 75 percent of the real property taxes collected on real property, exclusive of any state or school district ad valorem tax, conveyed by a land bank pursuant to the laws of this state shall be remitted to the land bank. The specific percentage of such taxes to be remitted, as to each land bank member, shall be set forth in the local law, ordinance, or resolution or in the intergovernmental contract of the land bank. Such allocation of property tax revenues shall commence with the first taxable year following the date of conveyance and shall continue for a period of five years. Such funds shall be remitted to the land bank in accordance with the administrative procedures established by the tax commissioner or tax collector of the county or counties in which the land bank is located. Such allocation of property tax revenues shall not occur if such taxes have been previously allocated to a tax allocation district, or to secure a debt of the municipal corporation or consolidated government, unless the tax allocation district, municipal corporation, county, or consolidated government enters into an agreement with the land bank for the remittance of such funds to the land bank.
  4. At the time that the land bank sells or otherwise disposes of property as part of its land bank program, the proceeds from the sale, if any, shall be allocated as determined by the land bank among the following priorities:
    1. Furtherance of land bank operations;
    2. Recovery of land bank expenses; and
    3. Remitter to the tax commissioner or tax collector for distribution to the appropriate taxing entity in proportion to and to the extent of their respective tax bills and costs. Any excess proceeds shall be distributed pursuant to any applicable intergovernmental contract or land bank rules, regulations, or bylaws in accordance with the public policy stated in this article. (Code 1981, § 48-4-110 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-111. Public meetings; conflicts of interest; dissolution.

  1. All meetings shall be open to the public, except as otherwise provided by Chapter 14 of Title 50, and a written record shall be maintained of all meetings. All records of a land bank shall be subject to Article 4 of Chapter 18 of Title 50, relating to open records.
  2. No board member or employee of a land bank shall acquire any interest, direct or indirect, in real property owned or to be acquired by the land bank, nor shall any board member assist any third party in negotiating against the land bank for property identified by the land bank for acquisition by the land bank. No board member or employee of a land bank shall have any interest, direct or indirect, in any contract or proposed contract for materials or services to be furnished or used by a land bank. The board may adopt supplemental rules and regulations addressing potential conflicts of interest and ethical guidelines for board members and land bank employees.
    1. A land bank may be dissolved as a public body corporate and politic 60 calendar days after an affirmative resolution approved by two-thirds of the membership of the board.
    2. Sixty calendar days' advance written notice of consideration of a resolution of dissolution shall be given to the governing authorities of the land bank members, shall be published in a local newspaper of general circulation.
    3. Upon dissolution of the land bank, all real property, personal property, and other assets of the land bank shall become the assets of the municipal corporation, county, or consolidated government in which the property is located, unless provided otherwise in any applicable intergovernmental contracts.
    4. Land banks created pursuant to paragraphs (2) through (4) of subsection (b) of Code Section 48-4-103 shall not automatically dissolve upon the withdrawal of one or more land bank members unless the intergovernmental contract so provides, except that no municipal corporation may maintain the existence of a land bank if the county in which the municipal corporation is located withdraws from the land bank, and no county may maintain the existence of a land bank if the single municipal corporation that is both located within that county and is a member of the land bank withdraws from the land bank. (Code 1981, § 48-4-111 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

48-4-112. Extinguishment of prior encumbrances, liens, and claims for real property taxes owed; remission to tax collector; tax collector authorized to assign, transfer, or sell to land bank certain ad valorem tax executions; content of notice of transfer; nonjudicial tax sale.

  1. Whenever any real property is acquired by a land bank and is encumbered by a lien or claim for real property taxes owed to one or more of the land bank members or to municipal corporations, counties, or consolidated governments that have an intergovernmental contract with the land bank, the land bank may, by resolution of the board, discharge and extinguish any and all such liens or claims. The decision by the board to extinguish such liens or claims is subject to the voting requirements contained in subsection (i) of Code Section 48-4-104. Unless provided otherwise in an applicable intergovernmental contract, whenever any real property is acquired by a land bank and is encumbered by a lien or claim for real property taxes owed to a school district, the land bank shall notify the school district of its intent to extinguish all such liens and claims in writing. If the school district fails to object in written form to the proposed extinguishment within 30 days of receipt of such notice to the land bank, the land bank shall have the power, by resolution of the board, to discharge and extinguish any and all such liens or claims. To the extent necessary and appropriate, the land bank shall file in appropriate public records evidence of the extinguishment and dissolution of such liens or claims.
  2. To the extent that a land bank receives payments of any kind attributable to liens or claims for real property taxes owed to a municipal corporation, county, consolidated government, or school district on property acquired by the land bank, the land bank shall remit the full amount of the payments to the tax commissioner or tax collector for distribution to the appropriate taxing entity.
    1. A tax commissioner or tax collector may assign, transfer, or sell to a land bank any ad valorem tax executions issued against a single property or ad valorem tax executions issued against multiple tracts of property in the geographical jurisdiction of the land bank in one or more transactions and upon such terms and conditions as are mutually acceptable to the tax commissioner and the land bank. Notwithstanding the notice requirements in subsection (c) of Code Section 48-3-19, when the land bank is the holder of a tax execution, the land bank shall provide notice of the transfer of the tax execution to the land bank in the following manner:
      1. Immediately upon acquisition of one or more tax executions, the land bank shall send notice of the tax execution transfer by certified mail, return receipt requested, to all interested parties whose identity and address are reasonably ascertainable. Copies of the notice of the tax execution transfer shall also be sent by first class mail to the property address to the attention of the occupants of the property, if any. In addition, notice shall be posted on the property; and
      2. Within 30 days of the tax execution transfer, the land bank shall cause a notice of the tax execution transfer to be published on two separate dates in the official organ of the county in which the property is located.
    2. The notice contained in subparagraphs (A) and (B) of paragraph (1) of this subsection shall specify:
      1. The name of the land bank and the contact information for the individual responsible for collecting the delinquent taxes;
      2. The property address;
      3. A description of the property;
      4. The tax identification number of the property;
      5. The applicable period of tax delinquency; and
      6. The principal amount of the delinquent taxes together with interest and penalties.
    3. The land bank may submit the execution to the levying officer 12 months after the date of transfer or 24 months after the tax giving rise to the execution was originally due, whichever is earlier.
    1. Notwithstanding any other provision of law, at a nonjudicial tax sale conducted pursuant to Article 1 of this chapter where the tax commissioner or tax collector or the land bank is the holder of the tax execution giving rise to the sale, a land bank may tender a bid in an amount equal to the total amount of all tax liens which were the basis of the execution and any accrued interest, penalties, and costs. In the event of such tender by the land bank, such bid comprises the land bank's commitment to pay not more than all costs of the sale and its assumption of liability for all taxes, accrued interest thereon, and penalties, and, if there is no other bid, the tax commissioner or tax collector shall accept the land bank's bid and make a deed of the property to the land bank.
    2. If there are third parties who bid on a given parcel and the land bank tenders the highest bid on that parcel, the land bank shall pay the tax commissioner or tax collector the full amount of the bid tendered by the land bank in order to obtain the parcel.
    1. A land bank may tender a bid at any sale ordered by the court pursuant to Article 5 of this chapter in an amount equal to the total amount of all tax liens which were the basis of the judgment and any accrued interest, penalties, and costs. In the event of such tender by the land bank, such bid shall comprise the land bank's commitment to pay not more than all costs of the sale and its assumption of liability for all taxes, accrued interest thereon, and penalties. If there is no other bid and the property is not redeemed by the owner in accordance with subsection (c) of Code Section 48-4-81 , the tax commissioner or tax collector shall accept the land bank's bid and make a deed of the property to the land bank.
    2. If there are third parties who bid on a given parcel and the land bank tenders the highest bid on that parcel, the land bank shall pay the tax commissioner or tax collector the full amount of the bid tendered by the land bank in order to obtain the parcel.
    3. Subject to the statutory 60 day redemption period required pursuant to subsection (c) of Code Section 48-4-81 , the land bank, as purchaser at such sale, shall take and thereafter have an absolute title to the property sold, free and discharged of all tax and municipal claims, liens, mortgages, charges, and estates of whatsoever kind except for those interests referenced in subsection (b) of Code Section 48-4-79 . In the event of purchase by a land bank, the conveying instrument described in subsection (g) of Code Section 48-4-81 shall note the conveyance to the land bank pursuant to this article.
    4. The deed to the land bank shall be executed and delivered to the land bank within 90 days of the sale pursuant to subsection (d) of Code Section 48-4-81.
    5. Notwithstanding any other provision of law, a land bank that is a transferee and holder of tax executions may file petitions of foreclosure pursuant to Article 5 of this chapter on real property located within a jurisdiction that has authorized the ad valorem tax foreclosure process contained in Article 5 of this chapter. In a petition of foreclosure pursuant to Article 5 of this chapter, a land bank is authorized to combine in a single petition multiple tracts of real property, and the court may order in a single final judgment that all or part of the real properties identified in the petition be sold to the land bank free and clear of all liens and encumbrances so long as the petition and accompanying affidavits provide:
      1. Identification of each tract of real property;
      2. The identities of all parties having an interest in each respective tract of property;
      3. The amount of the tax lien due and owing; and
      4. The nature of the notice of the proposed sale provided to such interested parties. (Code 1981, § 48-4-112 , enacted by Ga. L. 2012, p. 1055, § 2/SB 284.)

CHAPTER 5 AD VALOREM TAXATION OF PROPERTY

Article 1

General Provisions.

Article 2

Property Tax Exemptions

and Deferral.

Part 1

T AX EXEMPTIONS .

Part 2

T AX DEFERRAL FOR THE ELDERLY .

Article 3

County Tax Officials and Administration.

Part 1

T AX RECEIVERS .

Part 2

T AX COLLECTORS .

Part 3

C OMPENSATION .

Part 4

D ELINQUENT TAX OFFICIALS .

Part 5

C OUNTY TAX OFFICIALS .

Article 4

County Taxation.

Article 5

Uniform Property Tax Administration

and Equalization.

Part 1

E QUALIZATION OF ASSESSMENTS .

Part 2

C OUNTY BOARDS OF TAX ASSESSORS .

Part 3

S TATE LOANS TO COUNTIES .

Article 5A

Examination of County

Tax Digests.

Article 6

Municipal Taxation.

Article 7

Miscellaneous Local Administrative Provisions.

Article 8

School Taxation.

Article 9

Franchises.

Article 10

Ad Valorem Taxation of Motor

Vehicles and Mobile

Homes.

Part 1

G ENERAL PROVISIONS .

Part 2

M OTOR VEHICLES .

Part 3

M OBILE HOMES .

Part 4

H EAVY-DUTY CONSTRUCTION EQUIPMENT OWNED BY NONRESIDENTS .

Part 5

F ARM EQUIPMENT .

Part 6

A IRCRAFT HELD IN DEALER'S INVENTORY .

Part 7

W ATERCRAFT AND ALL-TERRAIN VEHICLES HELD IN INVENTORY FOR RESALE .

Article 10A

Ad Valorem Taxation of Heavy-duty Equipment Motor Vehicles.

Article 11

Ad Valorem Taxation of

Public Utilities.

Article 12

Ad Valorem Taxation of Airline Companies.

Article 13

Ad Valorem Taxation of Qualified Timberland Property.

Law reviews. - For article discussing taxation of foreign businesses in Georgia, see 27 Mercer L. Rev. 629 (1976). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For annual survey article on local government law, see 50 Mercer L. Rev. 263 (1998). For note on 1991 amendments to this chapter, see 8 Ga. St. U. L. Rev. 182 (1992).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-1, are included in the annotations for this chapter.

Commerce clause no bar to nondiscriminatory municipal ad valorem tax. - Commerce clause, U.S. Const., Art. I, Sec. VIII, Cl. III, does not exempt either tangible or intangible property from a nondiscriminatory ad valorem tax by a municipality. Parke, Davis & Co. v. City of Atlanta, 200 Ga. 296 , 36 S.E.2d 773 (1946) (decided under former Code 1933, Ch. 92-1).

RESEARCH REFERENCES

Overassessment of Income-Producing Property - Neighborhood Shopping Center, 3 POF2d 1.

Market Value of Single-Family Residence - Market Comparison Appraisal, 5 POF2d 411.

Valuation of Structure Based on Reproduction or Replacement Cost, 8 POF2d 399.

ALR. - Where wrecked vessel taxable, 8 A.L.R. 663 .

Payment of tax assessment which improperly describes property owned by taxpayer as good payment on that property, 23 A.L.R. 79 .

Assessment of corporate property at full value according to law when valuations generally are illegally fixed lower, 28 A.L.R. 983 ; 55 A.L.R. 503 .

Outstanding lease as affecting taxable value of property against owner, 30 A.L.R. 361 .

Validity and effect of condition of dedication that remaining property shall not be subject to assessments for improvements, 37 A.L.R. 1357 .

Inclusion in assessment for public improvement of amount to cover delinquencies as contrary to constitutional guaranties, 42 A.L.R. 1185 .

Place of taxation of dam, flowage rights, or water power, 64 A.L.R. 143 .

Deduction of fixed periodical percentage ("straight-line method") as proper method of determining depreciation for purposes of property or income taxes, 71 A.L.R. 971 .

Right to recover back taxes paid upon property assessed in wrong district, 94 A.L.R. 1223 .

What is a property tax as distinguished from excise, license, and other taxes, 103 A.L.R. 18 .

Situs as between different states or countries of tangible chattels for purposes of property taxation, 110 A.L.R. 707 .

Conditional sales in relation to taxation, 110 A.L.R. 1499 .

Doctrine of equitable conversion in relation to taxation, 112 A.L.R. 23 .

Tax on corporations as affected by fact that corporation is not actually engaged in or carrying on business for which it was incorporated, 124 A.L.R. 1109 .

Validity of so-called "sales tax", 128 A.L.R. 893 .

Situs for property taxation as between different governmental units within state of personal property or interests therein held by trustees, executors, or administrators, 129 A.L.R. 273 .

Books or records of title abstracts as subject of property taxes, 149 A.L.R. 1038 .

Price paid or received by taxpayer for property as evidence of its value for tax purposes, 160 A.L.R. 684 .

Specific tax imposed on goods in stock of dealer, as excise, or property tax, 173 A.L.R. 1316 .

Property destined for, or in course of, removal from state as subject to taxation therein, 11 A.L.R.2d 938.

Method of calculating value of stock of goods or the like for purposes of tangible personal property tax, 66 A.L.R.2d 833.

Requirement of full-value real property taxation assessments, 42 A.L.R.4th 676.

Oil and gas royalty as real or personal property, 56 A.L.R.4th 539.

ARTICLE 1 GENERAL PROVISIONS

48-5-1. Legislative intent.

The intent and purpose of the tax laws of this state are to have all property and subjects of taxation returned at the value which would be realized from the cash sale, but not the forced sale, of the property and subjects as such property and subjects are usually sold except as otherwise provided in this chapter.

(Ga. L. 1909, p. 36, § 22; Civil Code 1910, § 1004; Code 1933, § 92-5702; Ga. L. 1968, p. 358, § 1; Ga. L. 1975, p. 96, § 1; Ga. L. 1978, p. 1950, § 1; Code 1933, § 91A-1001, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1991, p. 1903, § 1.)

Editor's notes. - Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Administrative Rules and Regulations. - Taxation of standing timber, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-5.

Conservation use property, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-6.

Appraisal procedures manual, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-10.

Forest land protection, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-11.

Law reviews. - For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For annual survey on local government law, see 68 Mercer L. Rev. 199 (2016).

JUDICIAL DECISIONS

Fact that property may be rented for amount which is disproportionate to "fair market value" does not, in and of itself, entitle the owner to an assessment based on some other method of valuation. Williamson v. DeKalb County Bd. of Tax Assessors, 168 Ga. App. 47 , 308 S.E.2d 55 (1983).

No intent to limit manner of investigation into property value. - Statute merely states a rule to be applied by municipalities in arriving at the value at which taxable property shall be assessed for the purposes of taxation, and does not purport to limit investigations or the manner or agencies by which the municipal authorities shall inquire into such value of taxable property. Tietjen v. Mayor of Savannah, 161 Ga. 125 , 129 S.E. 653 (1925).

Land should be assessed at market value without entering into a determination of the value only of a life estate placed thereon. Loudermilk v. Cobb County Bd. of Tax Assessors, 155 Ga. App. 591 , 271 S.E.2d 723 (1980).

Market value of property, not the fractional interest is evaluated in determining the tax base. Loudermilk v. Cobb County Bd. of Tax Assessors, 155 Ga. App. 591 , 271 S.E.2d 723 (1980).

Arm's length, bona fide sale occurred. - Trial court erred by determining that the sheriff's sale of certain real property was not an arm's length, bona fide sale under O.C.G.A. § 48-5-2(3) because the sheriff's sale of the subject property was a distress sale and public auction; thus, it was an arm's length, bona fide sale under the plain terms of § 48-5-2 (.1). Park Solutions, LLC v. DeKalb County Bd. of Tax Assessors, 336 Ga. App. 832 , 783 S.E.2d 453 (2016).

Club membership appurtenant to property. - Although the taxpayers' memberships in a club were not subject to taxation, if a taxpayer relinquished that membership upon sale of the taxpayer's real estate, the buyer could apply for immediate membership, and such an application would normally be granted. Therefore, a county board of tax assessors would have violated Ga. Const. 1983, Art. VII, Sec. I, Para. III and O.C.G.A. § 48-5-1 if the board excluded the enhanced value of the properties attributable to the right to apply for such memberships from ad valorem taxation because it was part of the properties' fair market value. Morton v. Glynn County Bd. of Tax Assessors, 294 Ga. App. 901 , 670 S.E.2d 528 (2008).

Effect of life estate on rate of taxation. - Life estate is not a restrictive covenant or condition in a deed and does not affect the rate of taxation on the land. Loudermilk v. Cobb County Bd. of Tax Assessors, 155 Ga. App. 591 , 271 S.E.2d 723 (1980).

Life interest in an individual does not constitute a restriction dedicating the property to a particular use. Loudermilk v. Cobb County Bd. of Tax Assessors, 155 Ga. App. 591 , 271 S.E.2d 723 (1980).

Cited in Evans v. Board of Tax Assessors, 168 Ga. App. 792 , 310 S.E.2d 562 (1983); Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

RESEARCH REFERENCES

22B Am. Jur. Pleading and Practice Forms, State and Local Taxation, §§ 1, 6.

C.J.S. - 82 C.J.S., Statutes, § 402, 410 et seq. 84 C.J.S., Taxation, §§ 89 et seq., 145 et seq., 166 et seq., 230 et seq.

48-5-2. Definitions.

As used in this chapter, the term:

(.1) "Arm's length, bona fide sale" means a transaction which has occurred in good faith without fraud or deceit carried out by unrelated or unaffiliated parties, as by a willing buyer and a willing seller, each acting in his or her own self-interest, including but not limited to a distress sale, short sale, bank sale, or sale at public auction.

  1. "Current use value" of bona fide conservation use property means the amount a knowledgeable buyer would pay for the property with the intention of continuing the property in its existing use and in an arm's length, bona fide sale and shall be determined in accordance with the specifications and criteria provided for in subsection (b) of Code Section 48-5-269.
  2. "Current use value" of bona fide residential transitional property means the amount a knowledgeable buyer would pay for the property with the intention of continuing the property in its existing use and in an arm's length, bona fide sale.  The tax assessor shall consider the following criteria, as applicable, in determining the current use value of bona fide residential transitional property:
    1. The current use of such property;
    2. Annual productivity; and
    3. Sales data of comparable real property with and for the same existing use.
  3. "Fair market value of property" means the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm's length, bona fide sale. The income approach, if data are available, shall be utilized in determining the fair market value of income-producing property, and, if actual income and expense data are voluntarily supplied by the property owner, such data shall be considered in such determination. Notwithstanding any other provision of this chapter to the contrary, the transaction amount of the most recent arm's length, bona fide sale in any year shall be the maximum allowable fair market value for the next taxable year. With respect to the valuation of equipment, machinery, and fixtures when no ready market exists for the sale of the equipment, machinery, and fixtures, fair market value may be determined by resorting to any reasonable, relevant, and useful information available, including, but not limited to, the original cost of the property, any depreciation or obsolescence, and any increase in value by reason of inflation.  Each tax assessor shall have access to any public records of the taxpayer for the purpose of discovering such information.
    1. In determining the fair market value of a going business where its continued operation is reasonably anticipated, the tax assessor may value the equipment, machinery, and fixtures which are the property of the business as a whole where appropriate to reflect the accurate fair market value.
    2. The tax assessor shall apply the following criteria in determining the fair market value of real property:
      1. Existing zoning of property;
      2. Existing use of property, including any restrictions or limitations on the use of property resulting from state or federal law or rules or regulations adopted pursuant to the authority of state or federal law;
      3. Existing covenants or restrictions in deed dedicating the property to a particular use;
      4. Bank sales, other financial institution owned sales, or distressed sales, or any combination thereof, of comparable real property;
      5. Decreased value of the property based on limitations and restrictions resulting from the property being in a conservation easement;
      6. Rent limitations, higher operating costs resulting from regulatory requirements imposed on the property, and any other restrictions imposed upon the property in connection with the property being eligible for any income tax credits with respect to real property which are claimed and granted pursuant to either Section 42 of the Internal Revenue Code of 1986, as amended, or Chapter 7 of this title or receiving any other state or federal subsidies provided with respect to the use of the property as residential rental property; provided, however, that properties described in this division shall not be considered comparable real property for the assessment or appeal of assessment of properties not covered by this division;
      7. (I) In establishing the value of any property subject to rent restrictions under the sales comparison approach, any income tax credits described in division (vi) of this subparagraph that are attributable to a property may be considered in determining the fair market value of the property, provided that the tax assessor uses comparable sales of property which, at the time of the comparable sale, had unused income tax credits that were transferred in an arm's length, bona fide sale.

        (II) In establishing the value of any property subject to rent restrictions under the income approach, any income tax credits described in division (vi) of this subparagraph that are attributable to property may be considered in determining the fair market value of the property, provided that such income tax credits generate actual income to the record holder of title to the property; and

      8. Any other existing factors provided by law or by rule and regulation of the commissioner deemed pertinent in arriving at fair market value.

      (B.1) The tax assessor shall not consider any income tax credits with respect to real property which are claimed and granted pursuant to either Section 42 of the Internal Revenue Code of 1986, as amended, or Chapter 7 of this title in determining the fair market value of real property.

      (B.2) In determining the fair market value of real property, the tax assessor shall not include the value of any intangible assets used by a business, wherever located, including patents, trademarks, trade names, customer agreements, and merchandising agreements.

    3. Fair market value of "rehabilitated historic property" as such term is defined in subsection (a) of Code Section 48-5-7.2 means:
      1. For the first eight years in which the property is classified as "rehabilitated historic property," the value equal to the greater of the acquisition cost of the property or the appraised fair market value of the property as recorded in the county tax digest at the time preliminary certification on such property was received by the county board of tax assessors pursuant to subsection (c) of Code Section 48-5-7.2;
      2. For the ninth year in which the property is classified as "rehabilitated historic property," the value of the property as determined by division (i) of this subparagraph plus one-half of the difference between such value and the current fair market value exclusive of the provisions of this subparagraph; and
      3. For the tenth and following years, the fair market value of such property as determined by the provisions of this paragraph, excluding the provisions of this subparagraph.
    4. Fair market value of "landmark historic property" as such term is defined in subsection (a) of Code Section 48-5-7.3 means:
      1. For the first eight years in which the property is classified as "landmark historic property," the value equal to the greater of the acquisition cost of the property or the appraised fair market value of the property as recorded in the county tax digest at the time certification on such property was received by the county board of tax assessors pursuant to subsection (c) of Code Section 48-5-7.3;
      2. For the ninth year in which the property is classified as "landmark historic property," the value of the property as determined by division (i) of this subparagraph plus one-half of the difference between such value and the current fair market value exclusive of the provisions of this subparagraph; and
      3. For the tenth and following years, the fair market value of such property as determined by the provisions of this paragraph, excluding the provisions of this subparagraph.
    5. Timber shall be valued at its fair market value at the time of its harvest or sale in the manner specified in Code Section 48-5-7.5.
    6. Fair market value of "brownfield property" as such term is defined in subsection (a) of Code Section 48-5-7.6 means:
      1. Unless sooner disqualified pursuant to subsection (e) of Code Section 48-5-7.6, for the first ten years in which the property is classified as brownfield property, or as this period of preferential assessment may be extended pursuant to subsection (o) of Code Section 48-5-7.6, the value equal to the lesser of the acquisition cost of the property or the appraised fair market value of the property as recorded in the county tax digest at the time application was made to the Environmental Protection Division of the Department of Natural Resources for participation under Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended; and
      2. Unless sooner disqualified pursuant to subsection (e) of Code Section 48-5-7.6, for the eleventh and following years, or at the end of any extension of this period of preferential assessment pursuant to subsection (o) of Code Section 48-5-7.6, the fair market value of such property as determined by the provisions of this paragraph, excluding the provisions of this subparagraph.
    7. Fair market value of "qualified timberland property" means the fair market value determined in accordance with Article 13 of this chapter.
  4. "Foreign merchandise in transit" means personal property of any description which has been or will be moved by waterborne commerce through any port located in this state and:
    1. Which has entered the export stream, although temporarily stored or warehoused in the county where the port of export is located; or
    2. Which was shipped from a point of origin located outside the customs territory of the United States and on which United States customs duties are paid at or through any customs district or port located in this state, although stored or warehoused in the county where the port of entry is located while in transit to a final destination.
  5. "Forest land conservation use value" of forest land conservation use property means the amount determined in accordance with the specifications and criteria provided for in Code Section 48 5 271 and Article VII, Section I, Paragraph III(f) of the Constitution.
  6. "Forest land fair market value" means the fair market value of the forest land determined in accordance with Article VII, Section I, Paragraph III(f) of the Constitution.

    (Ga. L. 1909, p. 36, § 22; Civil Code 1910, § 1004; Code 1933, § 92-5702; Ga. L. 1968, p. 358, § 1; Ga. L. 1969, p. 980, § 2; Ga. L. 1975, p. 96, § 1; Ga. L. 1978, p. 1950, § 1; Code 1933, § 91A-1001, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 17; Ga. L. 1983, p. 716, § 1; Ga. L. 1989, p. 1585, § 1; Ga. L. 1990, p. 1122, § 1; Ga. L. 1990, p. 1869, § 1; Ga. L. 1991, p. 1903, § 2; Ga. L. 1992, p. 1008, § 1; Ga. L. 2001, p. 1098, § 1; Ga. L. 2003, p. 170, § 1; Ga. L. 2008, p. 297, § 1/HB 1211; Ga. L. 2009, p. 27, § 1/SB 55; Ga. L. 2010, p. 1104, §§ 5-1, 5-2, 5-3, 5-4/SB 346; Ga. L. 2012, p. 843, § 3/HB 1102; Ga. L. 2014, p. 672, § 1/HB 755; Ga. L. 2014, p. 820, § 1/HB 954; Ga. L. 2017, p. 55, § 1/HB 196; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 119, §§ 1, 2/HB 85; Ga. L. 2018, p. 1112, § 48/SB 365.)

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, in the second sentence of paragraph (3), substituted "utilized" for "considered" near the middle and inserted ", and, if actual income and expense data are voluntarily supplied by the property owner, such data shall be considered in such determination" at the end; rewrote division (3)(B)(vi); added division (3)(B)(vii); and redesignated former division (3)(B)(vii) as present division (3)(B)(viii). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (3), and, in division (3)(F)(i), revised punctuation and substituted "'Georgia Brownfield Act'" for "'Georgia Hazardous Site Reuse and Redevelopment Act'".

The 2018 amendments. The first 2018 amendment, effective January 1, 2019, added subparagraph (3)(G), inserted "use" following "'Forestland conservation"' in paragraph (5), and rewrote paragraph (6). The second 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation in subdivisions (3)(B)(vii)(I) and (3)(B)(vii)(II).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, a misspelling of "occurred" was corrected in paragraph (.1).

Pursuant to Code Section 28-9-5, in 2018, "rehabilitated" was inserted before "historic property" in subparagraph (4)(C).

Editor's notes. - Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Ga. L. 2008, p. 297, § 5/HB 1211, not codified by the General Assembly, provides that the 2008 amendment becomes effective on January 1, 2009, upon the ratification of a resolution at the November 2008, state-wide general election, which resolution amends the Constitution so as to provide for the special assessment and taxation of forest land conservation use property and for local government assistance grants. The constitutional amendment (Ga. L. 2008, p. 1209) was ratified at the general election held on November 4, 2008.

Ga. L. 2009, p. 27, § 5/SB 55, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2017, p. 55, § 1/HB 196, which amended this Code section, purported to amend paragraph (3) but no changes were made to subparagraphs (B.1), (B.2), and (C) through (F).

Ga. L. 2018, p. 119, § 7/HB 85, not codified by the General Assembly, provides, in part, that this Act shall become effective on January 1, 2019, upon the ratification of the question presented to the voters at the November 6, 2018 election. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

Law reviews. - For article discussing tax exemptions and deductions as incentives for establishment of foreign business in Georgia, see 27 Mercer L. Rev. 629 (1976). For article, "The Tax Abatement Program for Historic Properties in Georgia," see 28 Ga. St. B. J. 129 (1992). For annual survey on law of real property, see 43 Mercer L. Rev. 353 (1991). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For annual survey on real property, see 66 Mercer L. Rev. 151 (2014). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For annual survey on local government law, see 68 Mercer L. Rev. 199 (2016). For annual survey of real property law, see 68 Mercer L. Rev. 231 (2016). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For note on the 1989 amendment to this Code section, see 6 Ga. St. U. L. Rev. 173 (1989).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality of utilizing other methods for determining fair market value. - Utilization of different methods for determining fair market value for purposes of taxation creates no infirmity under the United States Constitution or under the state constitution or laws. Dougherty County Bd. of Tax Assessors v. Burt Realty Co., 250 Ga. 467 , 298 S.E.2d 475 , cert. denied, 463 U.S. 1208, 103 S. Ct. 3540 , 77 L. Ed. 2 d 1390 (1983).

Statute is not unconstitutional for vagueness of the term "fair market value of property." Chilivis v. Backus, 236 Ga. 88 , 222 S.E.2d 371 (1976).

Section runs afoul of taxation uniformity provision of constitution. - Inasmuch as O.C.G.A. § 48-5-2(3) (B.1) exempted the low-income housing tax credits from consideration in determining the fair market value of the properties, the statute granted preferential treatment for ad valorem taxation purposes and created a subclass of tangible property other than as permitted by the State Constitution, Ga. Const. 1983, Art. VII, Sec. I, Para. III (b), which ran afoul of the taxation uniformity provision. Heron Lake II Apts., L. P. v. Lowndes County Bd. of Tax Assessors, 299 Ga. 598 , 791 S.E.2d 77 (2016).

Definition of "fair market value of property" is not too vague and indefinite to be enforced. Chilivis v. Kell, 236 Ga. 226 , 223 S.E.2d 117 , cert. denied, 429 U.S. 891, 97 S. Ct. 249 , 50 L. Ed. 2 d 174 (1976).

Constitutionality of the term "fair market value of property." - Term "fair market value of property" as defined in this statute is not too vague and indefinite to be enforced, and there is no merit in the constitutional attacks on county ad valorem tax assessments statutes because of their use of this term. Butts County v. Briscoe, 236 Ga. 233 , 223 S.E.2d 199 (1976).

Fair market value. - Because "fair market value of property" was not defined as the amount a buyer would pay to purchase, and a willing seller would accept, for a defeasable interest in property; the appellate court concluded the tax sale did not qualify as an arm's length, bona fide sale such that the one-year freeze applied and, thus, the trial court did not err in granting summary judgment to the Newton County Board of Tax Assessors, and in denying the buyers' cross-motion on that ground. Ballard v. Newton County Bd. of Tax Assessors, 332 Ga. App. 521 , 773 S.E.2d 780 (2015).

Highest and best use may be considered. - In assessing the fair market value of real property, tax assessors may, when appropriate, consider the "highest and best use" of real property under the statutory criterion allowing "[A]ny other factors deemed pertinent in arriving at a fair market value." Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65 , 318 S.E.2d 643 (1984).

Applicability of 1979 amendment. - Change made by Ga. L. 1979, p. 5, § 17, is not to the tax year 1979 but to tax years 1980 and thereafter. Monroe County Bd. of Tax Assessors v. Remick, 165 Ga. App. 616 , 300 S.E.2d 203 (1983).

Simultaneous application of local Act homestead exemption was not precluded. - Although an owner's property qualified for preferential assessment under the Rehabilitated Historic Property Preferential Assessment Act (RHPPA), O.C.G.A. § 48-5-7.2 , the owner was allowed to use the effective date of the local Act homestead exemption, Ga. L. 1999, p. 4213, § 1, as the base year for the fair market valuation assessment of the property because the simultaneous application of the RHPPA and the local Act homestead exemption was not precluded. Chatham County Bd. of Tax Assessors v. Bock, 299 Ga. App. 257 , 682 S.E.2d 355 (2009).

"Foreign merchandise in transit." - Imported stone tile/slab, which was stored at the taxpayer's pleasure for sale to anyone who might wish to purchase it, was not "in transit to a final destination" within the contemplation of subparagraph (4)(B) of O.C.G.A. § 48-5-2 and was consequently not exempt from ad valorem taxation under O.C.G.A. § 48-5-5 . Seabrook Corp. v. Chatham County Bd. of Equalization, 195 Ga. App. 730 , 394 S.E.2d 796 (1990).

Merchandise brought into the United States through the port of Charleston, South Carolina and transported, via land freight carrier to a container freight station in Chatham County, was not "foreign merchandise in transit" and was therefore not exempt from ad valorem taxation. Pier 1 Imports v. Chatham County Bd. of Tax Assessors, 199 Ga. App. 294 , 404 S.E.2d 637 (1991).

Construction of O.C.G.A. § 48-5-2(3) with local constitutional amendment. - Trial court properly determined that no conflict existed between a local constitutional amendment (LCA) and O.C.G.A. § 48-5-2(3) because the statute focused on the market-determined value of property on the actual date the property was acquired, rather than the property's value as much as a year later and was entirely consistent with the LCA, which froze the ad valorem tax value of homestead property in the county at the property's fair market value at the start of the year after a homestead exemption was allowed or after ownership of the property changed. Columbus Bd. of Tax Assessors v. Yeoman, 293 Ga. 107 , 744 S.E.2d 18 (2013).

Trial court is correct in disregarding valuation placed on property by board of tax assessors when the chairperson concedes that the chairperson has no knowledge of the existing use of the property, that the existing zoning is not indicative of any use to which the property might reasonably be put, and that the chairperson knows of no other factors, other than the property's general location, which might be pertinent in determining the amount the property would bring at a cash sale. Evans v. Board of Tax Assessors, 168 Ga. App. 792 , 310 S.E.2d 562 (1983).

No distinction between property owned by public utility corporations and individuals. Ogletree v. Woodward, 150 Ga. 691 , 105 S.E. 243 (1920).

Duty to return all property at fair market value is a statutory mandate. - Provision requiring that all property be returned for taxation at the property's fair market value is, undeniably, a statutory mandate. McLennan v. Undercofler, 222 Ga. 302 , 149 S.E.2d 705 (1966).

Duty to return all property at fair market value is not supreme, but yields to the duty to avoid discrimination. McLennan v. Undercofler, 222 Ga. 302 , 149 S.E.2d 705 (1966); Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973).

Construction of "existing use of property." - Term "existing use of property" as used in the definition of "fair market value of property" cannot be assigned any particular value since real property is unique and the extent to which existing use affects the property's value is dependent upon a great variety of other factors. Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 , 260 S.E.2d 313 (1979).

Construction with other law. - Assessments lacked uniformity in failing to follow the mandates of O.C.G.A. § 48-5-2 regarding consideration of "existing use of the property" and "other factors deemed pertinent in arriving at fair market value" and in failing to exempt standing timber under the mandate of O.C.G.A. §§ 48-5-7.1(a)(1) and 48-5-7.5 as set forth in Ga. Const. 1983, Art. VII, Sec. I, Para. III. Leverett v. Jasper County Bd. of Tax Assessors, 233 Ga. App. 470 , 504 S.E.2d 559 (1998).

"Bona fide sale" included sale by Freddie Mac at a loss. - Trial court erred in concluding that a 2011 sale of taxable property by Freddie Mac did not qualify as an arm's length, bona fide sale for purposes of limiting the assessment value of the property in the next year under O.C.G.A. § 48-5-2(3) ; O.C.G.A. § 48-5-2 (.1) expressly defined a bona fide sale to include distress transactions. CPF Invs., LLLP v. Fulton County Bd. of Assessors, 330 Ga. App. 744 , 769 S.E.2d 159 (2015).

Arm's length bona fide sale occurred at sheriff's sale. - Trial court erred by determining that the sheriff's sale of certain real property was not an arm's length, bona fide sale under O.C.G.A. § 48-5-2(3) because the sheriff's sale of the subject property was a distress sale and public auction; thus, it was an arm's length, bona fide sale under the plain terms of § 48-5-2 (.1). Park Solutions, LLC v. DeKalb County Bd. of Tax Assessors, 336 Ga. App. 832 , 783 S.E.2d 453 (2016).

Discrepancies in tax evaluation assessment. - Bankruptcy court found that for the purposes of ad valorem tax on the debtors' equipment that: (1) for 1997, the value was the lowest of the tax assessors' value due to discrepancies in the tax assessors' values; (2) for 1998, the court accepted the value determined by the board of equalization which gave some weight to the debtors' appraiser who considered comparable sales; (3) for 1999, the court took the tax assessors' lowest value as the debtors' appraiser omitted a laser device; and (4) for 2000, the debtors did not challenge the tax assessors' value. In re R-P Packaging, Inc., 278 Bankr. 281 (Bankr. M.D. Ga. 2002).

Cited in Williamson v. DeKalb County Bd. of Tax Assessors, 168 Ga. App. 47 , 308 S.E.2d 55 (1983); Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 , 350 S.E.2d 790 (1986); Hawkins v. Grady County Bd. of Tax Assessors, 192 Ga. App. 416 , 385 S.E.2d 305 (1989); Coleman v. Montgomery County, 228 Ga. App. 276 , 491 S.E.2d 495 (1997); Jones v. Chatham County Bd. of Tax Assessors, 270 Ga. App. 483 , 606 S.E.2d 673 (2004).

Factors to Be Considered

Existing use of property is not exclusive factor in determining fair market value; assessors are directed to consider also existing zoning of property, existing covenants or restrictions in the deed dedicating the property to a particular use, or any other factors deemed pertinent in arriving at a fair market value. Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 , 260 S.E.2d 313 (1979).

Existing use must be employed as a yardstick with which to measure fair market value. Inland Container Corp. v. Paulding County Bd. of Tax Assessors, 220 Ga. App. 878 , 470 S.E.2d 702 (1996), overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 , 711 S.E.2d 51 (2011).

Sufficiency of evidence that assessors failed to consider existing use of property in valuation. - Evidence is sufficient to support the judgment of the trial court that assessors failed to consider the existing use of land which is generally categorized as vacant land, not commercial, industrial, or residential subdivision, when assessors, relying on the property's highest and best use, assigned such land a base value according to the district in which the land was located, which value was determined by the sale price of other vacant lands purchased for development, which sales did not accurately reflect the value of other vacant land because such sales were often for special purposes such as schools or parks, or speculative development. Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 , 260 S.E.2d 313 (1979).

"Other pertinent factors" should be considered only after factors listed in section. - It is error for a court to approve a valuation which tilts market value in favor of an assumed highest and best use to appear from future speculation and development, rather than first determining the criteria for zoning, existing use, and deed restrictions, if any, at which time other pertinent factors may be considered. Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557 , 271 S.E.2d 691 (1980); Dotson v. Henry County Bd. of Tax Assessors, 161 Ga. App. 257 , 287 S.E.2d 696 (1982).

Intent as to use of "highest and best use" as factor in valuation. - While under the criterion "any other factors deemed pertinent" the highest and best use may be considered, the General Assembly did not base market value on highest and best use, nor did the General Assembly list highest and best use as a specific criterion. Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557 , 271 S.E.2d 691 (1980).

"Highest and best use" is factor only if it reflects amount realized from cash sale of the property. That valuation will not be confined to actual use alone, and all criteria added by the General Assembly are to be considered. Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557 , 271 S.E.2d 691 (1980).

"Highest and best use" is a much more speculative assigned value than existing use. Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557 , 271 S.E.2d 691 (1980).

Valuation of income-producing property by income capitalization method. - In considering existing use, when the use is income producing, it would appear that the income capitalization method should at least be considered, this being a standard method of arriving at value. Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557 , 271 S.E.2d 691 (1980).

Method for fixing fair market value of leaseholds. - In fixing the fair market value of a leasehold for tax purposes, the rule of "fair market value of property" should always be applied. Delta Air Lines v. Coleman, 219 Ga. 12 , 131 S.E.2d 768 , cert. denied, 375 U.S. 904, 84 S. Ct. 195 , 11 L. Ed. 2 d 145 (1963).

Valuation of separate taxable interests when tax liability divided among owners. - Existence of separate taxable interests and estates in the same property and determination of their respective fair market values for assessment purposes is necessary only when the tax liability is likewise divided among the owners. Martin v. Liberty County Bd. of Tax Assessors, 152 Ga. App. 340 , 262 S.E.2d 609 (1979).

Valuation of leases. - Assessed value must consider, inter alia: existing zoning, existing use, and "any other factors deemed pertinent in arriving at fair market value." Therefore, a consideration of "existing use" (the current leases) must be employed as a "'yardstick' with which to measure fair market value" not hypothetical non-existing leases. Dougherty County Bd. of Equalization v. Castro Dev. Co., 228 Ga. App. 293 , 491 S.E.2d 483 (1997).

Valuation of dairy farm cannot be based on sales for speculative or development purposes. - When the assessed value of rural acreage used as a dairy farm is based primarily on sales of other property, and all the so-called comparable sales are for speculative or development purposes, with the exception of one which was intended for use as a private airport, the statutory formula has not been properly applied. Dotson v. Henry County Bd. of Tax Assessors, 155 Ga. App. 557 , 271 S.E.2d 691 (1980).

Club membership's relevancy to valuation of property. - Although the taxpayers' memberships in a club were not subject to taxation, if a taxpayer relinquished that membership upon sale of the taxpayer's real estate, the buyer could apply for immediate membership, and such an application would normally be granted. Therefore, a county board of tax assessors would have violated Ga. Const. 1983, Art. VII, Sec. I, Para. III and O.C.G.A. § 48-5-1 if the board excluded the enhanced value of the properties attributable to the right to apply for such memberships from ad valorem taxation because the membership was part of the properties' fair market value. Morton v. Glynn County Bd. of Tax Assessors, 294 Ga. App. 901 , 670 S.E.2d 528 (2008).

Use of a "value in use in place" standard was not an inappropriate method of determining the fair market value of machinery and equipment for taxation purposes. Flambeau Corp. v. Morgan County Bd. of Tax Assessors, 238 Ga. App. 812 , 520 S.E.2d 275 (1999).

Federal tax credits considered. - Prior to the statutory amendment contained in O.C.G.A. § 48-5-2(3) (B.1), tax credits under 26 U.S.C. § 42 were properly considered in establishing the fair market value of real estate for property tax purposes. Pine Pointe Hous., L.P. v. Lowndes County Bd. of Tax Assessors, 254 Ga. App. 197 , 561 S.E.2d 860 (2002).

Historic properties. - O.C.G.A. § 48-5-2(3)(C) defines "fair market value" of property classified as rehabilitated historic property under O.C.G.A. § 48-5-7.2 and sets forth the same test to be used when the county tax receiver or tax commissioner enters the basis or value of a parcel of rehabilitated historic property; thus, § 48-5-7.2 did not require that both the rehabilitation process and the Department of Natural Resources final certification process be completed within the two-year period before the owner may have applied for and obtained preferential assessment for the property and a tax board's argument that the board had no value upon which to base the preferential assessment whenever the owner allows the preliminary assessment to lapse upon expiration of the two-year rehabilitation period was without merit. Chatham County Bd. of Tax Assessors v. Emmoth, 278 Ga. 144 , 598 S.E.2d 495 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Tax commissioner may legitimately inquire into the cost, depreciation, age, and use of property which is subject to taxation for purposes of investigating the property's fair market value. This does not mean that property is to be returned or assessed for taxation at other than the property's fair market value; nor does it mean property should be assessed at book value rather than fair market value, although in many cases, fair market value may, in fact, be identical with book value. 1963-65 Op. Att'y Gen. p. 113.

Earnings as an element of fair market value of property. - Formula taking earnings into consideration may be used in arriving at the fair market value of property of a public service corporation; the formula used should not be considered conclusive but be used merely as a guide. 1965-66 Op. Att'y Gen. No. 66-12.

Duty of county tax assessors to periodically update property valuations. - If the fair market value of property increases every two years, then it is the duty of the county tax assessors to increase the valuation of property for tax purposes every two years. 1969 Op. Att'y Gen. No. 69-504.

Applicability to 1990 and 1991 tax years. - Neither subsection (1)(E) (now subparagraph (3)(E) ) nor § 48-5-33 (repealed) applies to the 1990 tax year. With respect to the 1991 tax year, absent further constitutional amendment or action by the General Assembly, § 48-5-33 (repealed) governs over subsection (1)(E) to the extent they are inconsistent. 1990 Op. Att'y Gen. No. 90-17.

Administrative caps on assistance grants prohibited. - Because neither Ga. Const. 1983, Art. VII, Sec. I, Para. III nor the Forest Land Protection Act, O.C.G.A. § 48-5-7.7 , authorize or contemplate a cap on assistance grants based on the total exemption value of forest land conservation use property, the Department of Revenue would not be authorized to impose an administrative cap on assistance grants issued pursuant to the Forest Land Protection Act of 2008 in the manner proposed. 2016 Op. Att'y Gen. No. 16-5.

RESEARCH REFERENCES

ALR. - Taxes: valuing undeveloped mining property as prospect, 2 A.L.R. 1550 .

Assessment of corporate property at full value according to law when valuations generally are illegally fixed lower, 3 A.L.R. 1370 ; 28 A.L.R. 983 ; 55 A.L.R. 503 .

Prospective value as basis of valuation of land for purposes of property taxation, 24 A.L.R. 649 .

Method or rule for valuation of leasehold interest for purpose of property taxation, 84 A.L.R. 1310 .

Rights appurtenant, easements, restrictions, or charges in respect of land as factors in assessment of real property for property taxation, 108 A.L.R. 829 .

Valuation of property for purpose of taxation as affected by variation of tax rates for local or special purposes in different local taxing units, or inclusion of property within particular taxing unit, 119 A.L.R. 1300 .

Easement as factor in property taxation, 134 A.L.R. 963 .

Discretion of court or referee as to mode of valuation of real property for tax purposes, 152 A.L.R. 611 .

Application of "blockage rule" or "blockage discount theory" in determining stock valuation, for purposes of taxation of intangibles, 33 A.L.R.2d 607.

Income or rental value as a factor in evaluation of real property for purposes of taxation, 96 A.L.R.2d 666.

Separate assessment and taxation of air rights, 56 A.L.R.3d 1300.

Situs of tangible personal property for purposes of property taxation, 2 A.L.R.4th 432.

48-5-3. Taxable property.

All real property including, but not limited to, leaseholds, interests less than fee, and all personal property shall be liable to taxation and shall be taxed, except as otherwise provided by law. Liability of property for taxation shall not be affected by the individual or corporate character of the property owner or by the resident or nonresident status of the property owner.

(Ga. L. 1851, p. 288, § 1; Code 1863, §§ 730, 732, 733; Code 1868, §§ 797, 799, 800; Code 1873, §§ 799, 802, 803; Code 1882, §§ 799, 802, 803; Ga. L. 1889, p. 35, §§ 1, 2; Civil Code 1895, §§ 767, 768, 769, 777; Civil Code 1910, §§ 1002, 1008, 1009, 1017; Code 1933, §§ 92-101, 92-104, 92-105; Ga. L. 1937-38, Ex. Sess., p. 156, § 2; Code 1933, § 91A-1002, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 18.)

Law reviews. - For article discussing ad valorem taxation and interest in real property in Georgia, prior to the enactment of the Georgia Public Revenue Code, Code 1933, Title 91A (see this title), see 31 Mercer L. Rev. 293 (1979). For note discussing taxation of shares of stock, see 1 Ga. L. Rev. No. 2, p. 41 (1927). For note, "Land Use Decisions and the Property Tax," see 11 Ga. St. B. J. 103 (1974). For comment, "Making Debt Pay: Examining the Use of Property Tax Delinquency as a Revenue Source," see 62 Emory L.J. 217 (2012).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Construction with other provisions. - Former Code 1933, § 92-101 (see now O.C.G.A. § 48-5-3 ), provided that all real and personal property, whether owned by individuals or corporations, resident or non-resident, shall be liable to taxation, except as otherwise provided by law. Furthermore, former Code 1933, § 92-102 (see now O.C.G.A. § 48-1-2 ) declared that for the purpose of taxation personal property shall be construed to include, among other things, moneys, credits, and effects, whatsoever they may be, and money due on open account or evidenced by notes, contracts, bonds, or other obligations, whether secured or unsecured. Finally, former Code 1933, § 92-105 (see now O.C.G.A. § 48-5-3 ) provided that lands or other property belonging to citizens of the United States, not residents of this state, shall not be taxed higher than the property of residents, but such nonresidents, whether their property in this state is real or personal, shall pay taxes on the property in Georgia. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84 , 38 S.E.2d 786 (1946).

No application to understanding of transfer tax. - Because Georgia's ad valorem taxation scheme is contained in its own chapter, entirely separate from the chapter that describes the real estate transfer tax, the definition of taxable property in O.C.G.A. § 48-5-3 did not support an argument regarding the nature of the transfer tax in O.C.G.A. § 48-6-1 et seq. Athens-Clarke County Unified Gov't v. Fed. Hous. Fin. Agency, F. Supp. 2d (M.D. Ga. May 14, 2013).

State has ample power to tax the estates of nonresidents, living or dead, actually located within the state. City of Blakely v. Hilton, 150 Ga. 27 , 102 S.E. 340 (1920).

Power of municipalities to levy taxes. - Municipality may levy no taxes upon the municipality's inhabitants or upon property therein, except when the power to do so has been plainly and unmistakably conferred by the state. Lewis & Holmes Motor Freight Corp. v. City of Atlanta, 195 Ga. 810 , 25 S.E.2d 699 (1943).

Power of municipality to determine tax situs for purposes of municipal taxation. - While the state has the power to separate tax situs from the domicile of the owner as to personalty which is kept in transit and may not be said to have any one fixed location, and to provide for the property's assessment for municipal taxation, unless the state does so, a municipality may not declare such a separate situs and thus render such property subject to taxation when it otherwise should not be so. Lewis & Holmes Motor Freight Corp. v. City of Atlanta, 195 Ga. 810 , 25 S.E.2d 699 (1943).

Effect of local practices or interpretations which conflict with state tax law. - Since state law plainly required taxation of the credits in question, no interpretation or practice to the contrary by local authorities could properly be adopted by the court in determining their taxability. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84 , 38 S.E.2d 786 (1946).

In bankruptcy proceedings, for purposes of ad valorem taxation, the value of the debtor's equipment was based on declarations of value in the debtor's tax returns; the court was not persuaded by the testimony of the debtor's witness regarding a lower valuation. Chipman-Union, Inc. v. Greene County (In re Chipman-Union, Inc.), 285 Bankr. 752 (Bankr. M.D. Ga. 2002).

Cited in Hart County Bd. of Tax Assessors v. Dunlop Tire & Rubber Corp., 252 Ga. 479 , 314 S.E.2d 188 (1984); Milner v. Bivens, 255 Ga. 49 , 335 S.E.2d 288 (1985); Macon-Bibb County Bd. of Tax Assessors v. Atlantic S.E. Airlines, 262 Ga. 119 , 414 S.E.2d 635 (1992); Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003); Int'l Auto Processing, Inc. v. Glynn County, 287 Ga. App. 431 , 651 S.E.2d 535 (2007); Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 , 705 S.E.2d 678 (2011).

Specific Items of Property

Contract created security interest not subject to Georgia taxation. United States v. DeKalb County, 729 F.2d 738 (11th Cir. 1984).

Leasehold held by a nonprofit hospital, when severed from the private- and taxable-fee owned by a for-profit corporation, took on the tax exempt status of the holder of the leasehold. Douglas County v. Anneewakee, Inc., 179 Ga. App. 270 , 346 S.E.2d 368 (1986).

Interest of private corporation under lease from county industrial development authority need not be returned for county ad valorem taxation. McMillan v. Jacobs, 249 Ga. 117 , 288 S.E.2d 211 (1982).

Attorney's law library. - An attorney's law library, which is maintained in connection with the practice of his or her profession, is not exempted from ad valorem taxation by Georgia's constitution, nor is the attorney's law library exempted by any legislation enacted pursuant to the constitution. Clayton County Bd. of Tax Assessors v. King, 260 Ga. 495 , 397 S.E.2d 293 (1990).

Income is not property in the sense the word property is used in this statute, but is the fruit of property. Waring v. Mayor of Savannah, 60 Ga. 93 (1878).

Promissory notes held by nonresidents on residents of this state, although actually in the state for collection, are not taxable. Collins v. Miller, 43 Ga. 336 (1871).

Notes and accounts representing credit transactions involving a foreign corporation, maintaining a place of business in this state, are taxable. Armour Packing Co. v. Mayor of Savannah, 115 Ga. 140 , 41 S.E. 237 (1902); Armour Packing Co. v. City Council, 118 Ga. 552 , 45 S.E. 424 (1903); Armour Packing Co. v. Clark, 124 Ga. 369 , 52 S.E. 145 (1905).

Return and taxation of leaseholds. - Leasehold is an estate in land less than the fee; it is severed from the fee and classified for tax purposes as realty. Delta Air Lines v. Coleman, 219 Ga. 12 , 131 S.E.2d 768 , cert. denied, 375 U.S. 904, 84 S. Ct. 195 , 11 L. Ed. 2 d 145 (1963); Henson v. Georgia Indus. Realty Co., 220 Ga. 857 , 142 S.E.2d 219 (1965); Ferguson v. Leggett, 226 Ga. 333 , 174 S.E.2d 913 (1970); Martin v. Liberty County Bd. of Tax Assessors, 152 Ga. App. 340 , 262 S.E.2d 609 (1979).

Owner of a leasehold is required to return it for taxes and pay taxes on it as other property. Ferguson v. Leggett, 226 Ga. 333 , 174 S.E.2d 913 (1970).

Leasehold estate which has been severed from a fee in public property is taxable. Delta Air Lines v. Coleman, 219 Ga. 12 , 131 S.E.2d 768 , cert. denied, 375 U.S. 904, 84 S. Ct. 195 , 11 L. Ed. 2 d 145 (1963).

Widow is liable for the taxes on the real estate assigned to the widow as dower. Austell v. Swann, 74 Ga. 278 (1884).

Possibility of reverter remaining in a grantor is not an estate in land and is not taxable. Mayor of Gainesville v. Brenau College, 150 Ga. 156 , 103 S.E. 164 (1920).

City may not tax daily average value of motor corporation's vehicles within city. - City charter provision granting to the city the right to levy "an ad valorem tax on all real and personal property which under the laws of this state is subject to taxation within the incorporate limits of said city," in conjunction with this statute, does not grant the city the power to tax a "daily average" of the composite value of truck and trailer property of a motor corporation as may be moved within and without the city, since this is not a tax on any specific property anywhere. Lewis & Holmes Motor Freight Corp. v. City of Atlanta, 195 Ga. 810 , 25 S.E.2d 699 (1943).

Scope of exemptions from taxation of property. - Apart from permitted exemptions, the Constitution of Georgia evinces an intention that no property which is subject to taxation in this state shall be relieved therefrom, and the statutes express with equal certainty an intention by lawmakers to lay a tax upon all property of every kind or class which this state has jurisdiction to tax, nothing excepted. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 (1942), later appeal, 201 Ga. 84 , 38 S.E.2d 786 (1946).

Bonds of the state are not taxable property. Miller v. Wilson, 60 Ga. 505 (1878).

Only those federal obligations necessary to functioning of government are immune from state taxation. - Federal statutes immunize from state taxation only the interest-bearing obligations of the United States which are needed to secure credit to carry on the necessary functions of government. Smith v. Davis, 323 U.S. 111, 65 S. Ct. 157 , 89 L. Ed. 107 (1944).

An open account claim against United States is taxable. - An open account claim against the United States does not represent a credit instrumentality of the federal government immune from state taxation. Smith v. Davis, 323 U.S. 111, 65 S. Ct. 157 , 89 L. Ed. 107 (1944).

Lease that granted a usufruct was not subject to county taxation. - Fifty year lease from a city recreational authority to a company to develop and operate a municipal golf course granted a nontaxable usufruct interest since the provisions of the parties' lease showed that the authority retained dominion and control over the property and that the company took only a circumscribed and limited use of the premises. It was error to grant a county tax assessor's motion for summary judgment to assess ad valorem taxes against the company on the value of the land and the company's improvements to the land since a usufruct was not an interest in land subject to taxation under O.C.G.A. § 48-5-3 . Diversified Golf, LLC v. Hart County Bd. of Tax Assessors, 267 Ga. App. 8 , 598 S.E.2d 791 (2004).

Courts of Georgia have drawn distinctions between the rights of a holder of a usufruct and those of a title holder. A usufruct is not subject to ad valorem taxation pursuant to O.C.G.A. § 48-5-3 , and the usufruct interest does not authorize the tenant to seek an easement by necessity, pursuant to O.C.G.A. § 44-9-40(b) . However, the usufruct holder's possessory rights may constitute a property interest for which just compensation is payable under Ga. Const. 1983, Art. I, Sec. III, Para. I(a). The Stuttering Foundation, Inc. v. Glynn County, 301 Ga. 492 , 801 S.E.2d 793 (2017).

Valuation of railroad. - In an action in which a railroad filed suit under the Railroad Revitalization and Regulatory Reform Act of 1976 against the Georgia Board of Equalization, and its individual members, including the Georgia Commissioner of Revenue, challenging the assessment of the fair market value, under O.C.G.A. § 48-5-6 , of the railroad's taxable railroad operating property in Georgia, and the Board's acceptance of the assessment under O.C.G.A. § 48-2-18(c) , because in Georgia, O.C.G.A. § 48-5-3 defined taxable property as all real property, including but not limited to leaseholds, interests less than fee, and all personal property, and O.C.G.A. § 48-5-520 also provided that a railroad's rolling stock and other personal property appurtenant to the rolling stock was to be taxed on as much as the whole value of the rolling stock and personal property as the length of the railroad in Georgia bore to the whole length of the railroad, without regard to the location of the head office of the railroad, there was no commercial and industrial personal property tax exemption in Georgia. CSX Transp., Inc. v. State Bd. of Equalization, 448 F. Supp. 2d 1330 (N.D. Ga. 2005), aff'd, 472 F.3d 1281 (11th Cir. 2006); rev'd in part, 552 U.S. 9, 128 S. Ct. 467 , 169 L. Ed. 2 d 418 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Construction with other provisions. - Former Code 1933, § 92-101 (see now O.C.G.A. § 48-5-3 ) read in conjunction with former Code 1933, § 92-6208 (see now O.C.G.A. § 48-5-16 ) led to the conclusion that all property not specifically exempted from taxation was taxable and must be returned for taxation. 1963-65 Op. Att'y Gen. p. 34.

What terms "personal property" and "real or personal property" include. - "Personal property," in its broad and general sense, includes everything which is subject of ownership not coming under the denomination of real estate, and the term "real or personal property" is commonly used to denote property of all kinds. 1948-49 Op. Att'y Gen. p. 661.

What property subject to taxation. - Raw materials, goods in process, and goods in transit owned by the taxpayer are taxable and must be returned for taxation. 1963-65 Op. Att'y Gen. p. 34.

Golf carts and motor boats are subject to property taxation. 1969 Op. Att'y Gen. No. 69-378.

Chickens comprising a chicken business must be returned for taxation. 1948-49 Op. Att'y Gen. p. 661.

Lease of real property conveying an interest therein is subject to ad valorem taxation. 1969 Op. Att'y Gen. No. 69-482.

An easement which amounts to a freehold interest is subject to ad valorem taxation. 1960-61 Op. Att'y Gen. p. 476.

Taxation of mineral interests. - There is no tax on mineral interests which is dependent upon the producing or nonproducing element of such interest, but mineral interests are taxable ad valorem as other property. 1952-53 Op. Att'y Gen. p. 425.

Granite deposit is assessed as part of realty until it is quarried or unless a mineral lease has been granted to another. 1945-47 Op. Att'y Gen. p. 554.

Taxation of property leased from United States. - While property owned by the United States government is not subject to any ad valorem taxation, any such property which has been leased to an individual for private purposes is subject to ad valorem taxation as to the latter's interest. 1952-53 Op. Att'y Gen. p. 424.

Effect of purchase of Georgia license tag by persons on military duty in Georgia. - Purchase of a Georgia license tag by a member of the armed forces stationed in Georgia does not necessarily render such person liable for Georgia property taxes. If, however, such person is domiciled in Georgia, the mere fact that the person is a member of the armed forces does not relieve the person of Georgia property taxes. 1952-53 Op. Att'y Gen. p. 427.

Taxation of personal property owned by residents in military service. - Resident of Georgia is required to pay ad valorem taxes upon motor vehicles owned by the resident during the time that the taxpayer was in active military service and did not physically reside in Georgia. 1952-53 Op. Att'y Gen. p. 425; 1954-56 Op. Att'y Gen. p. 671.

Military personnel who are residents of Georgia are required to pay personal property tax, even though the military personnel are not physically present in the state. 1954-56 Op. Att'y Gen. p. 668.

Taxation of personal property owned by nonresidents in this state on military service. - Military personnel who are residents of other states, and who are in Georgia solely by virtue of military orders, are not subject to Georgia ad valorem taxes, even though the personnel purchase an automobile license tag in Georgia. 1954-56 Op. Att'y Gen. p. 671.

Resident military personnel are subject to all state, county, and municipal taxes on their personal property, but military personnel who are residents of another state and stationed in Georgia are not subject to such taxes. 1954-56 Op. Att'y Gen. p. 673.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 127 et seq.

C.J.S. - 84 C.J.S., Taxation, § 74 et seq.

ALR. - Taxation of chattels and conditional sale contracts or title retaining notes given in respect of them, 12 A.L.R. 566 .

Situs for taxation of membership in exchange or board of trade, 17 A.L.R. 89 .

Power of state to tax debts due from United States under contracts other than loans, 30 A.L.R. 1462 .

Liability of purchaser of personal property for taxes assessed against former owner, 41 A.L.R. 187 .

Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378 ; 65 A.L.R. 677 .

Taxation of land under perpetual lease or ground rent, 55 A.L.R. 154 .

Leasehold interest as real property within tax laws, 59 A.L.R. 701 .

Situs for property taxation as between different states or countries, of personal property, or interests therein, held by trustees, executors, or administrators, 67 A.L.R. 393 ; 127 A.L.R. 379 ; 172 A.L.R. 341 .

Method or rule for valuation of leasehold interest for purpose of property taxation, 84 A.L.R. 1310 .

Right of taxpayer to pay one tax against his property without paying other taxes against it, 89 A.L.R. 715 .

Income as "property" within constitutional limitation on taxation, 97 A.L.R. 1488 .

Tax on corporations as affected by fact that corporation is not actually engaged in or carrying on business for which it was incorporated, 124 A.L.R. 1109 .

General property tax in respect of royalties and other interests (apart from interest of lessee) under oil and gas lease, 128 A.L.R. 851 ; 162 A.L.R. 420 .

Tax exemption of educational institutions as extending to athletic fields or property used for social or recreation purposes, 143 A.L.R. 274 .

Rights of insured or beneficiary under insurance policy as subject to property tax, 150 A.L.R. 788 ; 167 A.L.R. 1052 .

Tenant's interest in respect of building or other structure erected by him as separate unit for property tax apart from land, 154 A.L.R. 1309 .

Situs of vessels for tax purposes, 26 A.L.R.2d 1376.

Income or rental value as a factor in evaluation of real property for purposes of taxation, 96 A.L.R.2d 666.

Availability of tax exemption to property held on lease from exempt owner, 54 A.L.R.3d 402.

Separate assessment and taxation of air rights, 56 A.L.R.3d 1300.

Property taxation of computer software, 82 A.L.R.3d 606.

Validity, construction, and effect of state statutes affording preferential property tax treatment to land used for agricultural purposes, 98 A.L.R.3d 916.

Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-4. Ad valorem taxation of property of federal corporations and agencies.

Except as prohibited by the Constitution and laws of the United States, all property owned or possessed in this state by a corporation organized under the laws of the United States or owned or possessed by an agency of the United States engaged in this state in proprietary, as distinguished from governmental, activities shall be subject to ad valorem taxation in this state at the same rate and in the same manner as the property of private corporations owning property in this state and engaged in similar businesses. All laws relating to ad valorem taxation of private corporations shall apply to ad valorem taxation of agencies of the United States and corporations organized under the laws of the United States.

(Ga. L. 1939, p. 95, § 1; Code 1933, § 91A-1005, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

City was not a local authority. - In a declaration suit, a city was properly determined not to be a local authority as that term is used in O.C.G.A. § 48-13-13(5) and, thus, was subject to the levy of occupation taxes by another municipality for the city's proprietary operations at its airport, which was in the other municipality's city limits, because the terms local authority and municipality were not the same under the statute. City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 154.

C.J.S. - 84 C.J.S., Taxation, §§ 232, 233.

ALR. - Applicability of state license tax law to property or business of individual on land owned by federal government, 46 A.L.R. 224 .

State tax on goods purchased by, or for the benefit of, the federal government, or on the privilege of conducting the business in connection with which the sales are made, 140 A.L.R. 621 .

48-5-5. Acquisition of situs by foreign merchandise in transit.

  1. Foreign merchandise in transit shall acquire no situs so as to become subject to ad valorem taxation by political subdivisions of this state in which the port of original entry or the port of export of such merchandise is located. Such property shall not acquire situs by virtue of the fact that while in the warehouse the property is assembled, bound, joined, processed, disassembled, divided, cut, broken in bulk, relabeled, or repackaged. The grant of "no situs" status shall be liberally construed to effect the purposes of this Code section.
  2. Property which meets all of the following qualifications shall acquire no situs so as to become subject to ad valorem taxation by political subdivisions of this state:
    1. Such property is owned by a person who is not a Georgia resident and does not maintain or operate a place of business in Georgia;
    2. Such person has contracted with a commercial printer located in Georgia for printing services to be performed in Georgia; and
    3. Such property is provided by such person to such printer for the performance of such services.

      (Ga. L. 1969, p. 980, §§ 1, 2; Code 1933, § 91A-1006, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 716, § 2; Ga. L. 1998, p. 124, § 1.)

Editor's notes. - Ga. L. 1998, p. 124, § 4, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all taxable years beginning on or after January 1, 1999.

Law reviews. - For article discussing tax exemptions and deductions as incentives for establishment of foreign business in Georgia, see 27 Mercer L. Rev. 629 (1976). For article, "Freeport Exemption from Property Taxes for Inventory Stored in Georgia But Destined for Shipment Out-of-State," see 28 Ga. St. B. J. 108 (1991).

JUDICIAL DECISIONS

What constitutes goods "in transit." - Imported stone tile/slab, which was stored at the taxpayer's pleasure for sale to anyone who might wish to purchase it, was not "in transit to a final destination" within the contemplation of O.C.G.A. § 48-5-2(2)(B) (see now O.C.G.A. § 48-5-2(4)(B)) and was consequently not exempt from ad valorem taxation under O.C.G.A. § 48-5-5 . Seabrook Corp. v. Chatham County Bd. of Equalization, 195 Ga. App. 730 , 394 S.E.2d 796 (1990).

Merchandise brought into the United States through the port of Charleston, South Carolina and transported, via land freight carrier to a container freight station in Chatham County, was not "foreign merchandise in transit" and was therefore not exempt from ad valorem taxation. Pier 1 Imports v. Chatham County Bd. of Tax Assessors, 199 Ga. App. 294 , 404 S.E.2d 637 (1991).

Merchandise brought into the United States through the port of Savannah, Georgia, and transported monthly from Gotham County warehouse to the company's distributorship office in Los Angeles was not "in transit" and was therefore not exempt from ad valorem taxation. Los Angeles Tile Co. v. Chatham County Bd. of Tax Assessors, 209 Ga. App. 245 , 433 S.E.2d 82 (1993).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 157 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 150, 160, 161, 216, 225.

ALR. - Situs as between different states or countries of tangible chattels for purposes of property taxation, 110 A.L.R. 707 .

License or excise tax on merchandise brokers or persons performing similar functions as affected by commerce clause, 155 A.L.R. 239 .

State tax on or in respect of goods shipped in interstate commerce to consignee for sale on consignor's account without previous sale or order for purchase, 4 A.L.R.2d 244.

Situs of vessels for tax purposes, 26 A.L.R.2d 1376.

Situs of tangible personal property for purposes of property taxation, 2 A.L.R.4th 432.

Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-6. Return of property at fair market value.

All property shall be returned for taxation at its fair market value except as otherwise provided in this chapter.

(Ga. L. 1909, p. 36, § 15; Civil Code 1910, § 1003; Code 1933, § 92-5701; Code 1933, § 91A-1007, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 21; Ga. L. 1991, p. 1903, § 3.)

Editor's notes. - Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Law reviews. - For comment on McLennan v. Undercofler, 222 Ga. 306 , 149 S.E.2d 705 (1966), see 18 Mercer L. Rev. 290 (1966).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Determination of the fair market value of the property involved is generally a question for the trier of fact. Delta Air Lines, Inc. v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225 , 539 S.E.2d 905 (2000).

Constitutionality of utilizing other methods for determining fair market value. - Utilization of different methods for determining fair market value for purposes of taxation creates no infirmity under the United States Constitution or under the state constitution or laws. Dougherty County Bd. of Tax Assessors v. Burt Realty Co., 250 Ga. 467 , 298 S.E.2d 475 , cert. denied, 463 U.S. 1208, 103 S. Ct. 3540 , 77 L. Ed. 2 d 1390 (1983).

Fair market value is not the retail value to the taxpayer, but the current wholesale value adjusted for the fair market; the taxpayer's cost may be adjusted upward, downward, or remain the same to reflect the "wholesale market" as that term reflects the fair market value of the tangible personalty in the taxpayer's possession. Macon-Bibb County Bd. of Tax Assessors v. J.C. Penney Co., 239 Ga. App. 322 , 521 S.E.2d 234 (1999).

Fair market value of land. - Fair market value of land, whether it be the fee, a leasehold, or any other interest, is a question which necessarily addresses itself to the honesty, the experience, and the familiarity of land values in a given locality of the person or persons whose duty it becomes to determine and fix the value. DeKalb County Bd. of Tax Assessors v. W.C. Harris & Co., 248 Ga. 277 , 282 S.E.2d 880 (1981).

Failure to indicate fair market value on return. - When a taxpayer sold improvements on the taxpayer's property, then filed a return in which the taxpayer left blank the area for "market value," the taxpayer was not entitled to a refund under O.C.G.A. § 48-5-380 , as under O.C.G.A. § 48-5-6 , returns had to state fair market value; a county was not required to interpret the taxpayer's silence on market value as a declaration that there was no value, and under O.C.G.A. § 48-5-20(a)(1), a taxpayer who failed to return taxable property in a given year was deemed to have returned the property at the same valuation as applied the preceding year. Int'l Auto Processing, Inc. v. Glynn County, 287 Ga. App. 431 , 651 S.E.2d 535 (2007).

Statute is not unconstitutional for vagueness of the term "fair market value of property." Chilivis v. Backus, 236 Ga. 88 , 222 S.E.2d 371 (1976).

Statute does not violate the uniformity of tax requirement of the Constitution of Georgia because the property of railroads and other utility companies is assessed by the commissioner. Butts County v. Briscoe, 236 Ga. 233 , 223 S.E.2d 199 (1976).

Duty to return all property at fair market value is a statutory mandate. - Provision requiring that all property be returned for taxation at the property's fair market value is, undeniably, a statutory mandate. McLennan v. Undercofler, 222 Ga. 302 , 149 S.E.2d 705 (1966) commented on in 18 Mercer L. Rev. 290 (1966).

Duty to return all property at fair market value is not supreme, but yields to the duty to avoid discrimination. McLennan v. Undercofler, 222 Ga. 302 , 149 S.E.2d 705 (1966) commented on in 18 Mercer L. Rev. 290 (1966); Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973).

Property purchased through industrial revenue bonds. - Company's personal property purchased through industrial revenue bonds was not entitled to a leasehold interest value of 50 percent of the property's fair market value because neither the leasing agreement, nor any representations purportedly made by the development authority, required a reduction of the company's tax burden and such a reduction violated the uniformity requirements of the state constitution. Coweta County Bd. of Tax Assessors v. EGO Prods., Inc., 241 Ga. App. 85 , 526 S.E.2d 133 (1999).

Discrepancies in tax evaluation assessment. - Bankruptcy court found that for the purposes of ad valorem tax on the debtors' equipment that: (1) for 1997, the value was the lowest of the tax assessors' value due to discrepancies in the tax assessors' values; (2) for 1998, the court accepted the value determined by the board of equalization which gave some weight to the debtors' appraiser who considered comparable sales; (3) for 1999, the court took the tax assessors' lowest value as the debtors' appraiser omitted a laser device; and (4) for 2000, the debtors did not challenge the tax assessors' value. In re R-P Packaging, Inc., 278 Bankr. 281 (Bankr. M.D. Ga. 2002).

Factors to Be Considered

Fact that property may be rented for amount which is disproportionate to "fair market value" does not, in and of itself, entitle the owner to an assessment based on some other method of valuation. Williamson v. DeKalb County Bd. of Tax Assessors, 168 Ga. App. 47 , 308 S.E.2d 55 (1983).

Cost may be fair market value. - "Cost" to the taxpayer may be part and parcel of an assessment of the "fair market value" of personalty. Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94 , 491 S.E.2d 173 (1997).

Acquisition cost of property. - Evidence held insufficient to show that the fair market value of inventory equaled the inventory's acquisition cost. J.C. Penney Co. v. Richmond County Bd. of Tax Assessors, 233 Ga. App. 399 , 504 S.E.2d 201 (1998).

Past assessments or assessments of nearby property. - It is not proper to determine the fair market value of property on the basis of past assessments or assessments of nearby property without a showing that these assessments are based on fair market value. Evans v. Board of Tax Assessors, 168 Ga. App. 792 , 310 S.E.2d 562 (1983).

Construction of term "existing use of property" as used in § 48-5-2 . - Term "existing use of property," as used in former Code 1933, § 92-5707 (see now O.C.G.A. § 48-5-2 ), cannot be assigned any particular value as real property was unique and the extent to which existing use affects the property's value was dependent upon a great variety of other factors. Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 , 260 S.E.2d 313 (1979).

Existing use of property is not exclusive factor in determining fair market value; assessors are directed by former Code 1933, § 92-5702 (see now O.C.G.A. § 48-5-2 ) to consider also existing zoning of property, existing covenants or restrictions in the deed dedicating the property to a particular use, or any other factors deemed pertinent in arriving at fair market value. Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 , 260 S.E.2d 313 (1979).

Method for fixing fair market value of leaseholds. - In fixing the fair market value of a leasehold for tax purposes, the rule of "fair market value of property" should always be applied. Delta Air Lines v. Coleman, 219 Ga. 12 , 131 S.E.2d 768 , cert. denied, 375 U.S. 904, 84 S. Ct. 195 , 11 L. Ed. 2 d 145 (1963).

Valuation of separate taxable interests when tax liability divided among owners. - Existence of separate taxable interests and estates in the same property and a determination of their respective "fair market values" for assessment purposes is necessary only when the tax liability is likewise divided among the owners. Martin v. Liberty County Bd. of Tax Assessors, 152 Ga. App. 340 , 262 S.E.2d 609 (1979).

Valuation of railroad. - In an action in which a railroad filed suit under the Railroad Revitalization and Regulatory Reform Act of 1976 against the Georgia Board of Equalization, and its individual members, including the Georgia Commissioner of Revenue, challenging the assessment of the fair market value, under O.C.G.A. § 48-5-6 , of the railroad's taxable railroad operating property in Georgia, and the Board's acceptance of the assessment under O.C.G.A. § 48-2-18(c) , because in Georgia, O.C.G.A. § 48-5-3 defined taxable property as all real property, including but not limited to leaseholds, interests less than fee, and all personal property, and O.C.G.A. § 48-5-520 also provided that a railroad's rolling stock and other personal property appurtenant to the rolling stock was to be taxed on as much as the whole value of the rolling stock and personal property as the length of the railroad in Georgia bore to the whole length of the railroad, without regard to the location of the head office of the railroad, there was no commercial and industrial personal property tax exemption in Georgia. CSX Transp., Inc. v. State Bd. of Equalization, 448 F. Supp. 2d 1330 (N.D. Ga. 2005), aff'd, 472 F.3d 1281 (11th Cir. 2006); rev'd in part, 552 U.S. 9, 128 S. Ct. 467 , 169 L. Ed. 2 d 418 (2007).

Admissibility of assessed value for previous year in valuation disputes. - In tax valuation disputes, the value of the property determined by the tax assessors for the previous year is admissible as evidence of the current value of the property at the insistence of the taxpayer. Board of Tax Assessors v. McCauley, 245 Ga. 381 , 265 S.E.2d 786 (1980).

Sufficiency of evidence that assessors failed to consider existing use of property in valuation. - Evidence is sufficient to support judgment of trial court that assessors failed to consider the existing use of land which is generally categorized as vacant land, not commercial, industrial, or residential subdivision, when assessors, relying on the property's highest and best use, assigned such land a base value according to the district in which the land was located, which value was determined by the sale price of other vacant lands purchased for development, which sales did not accurately reflect the value of other vacant land because such sales were often for special purposes such as schools or parks, or speculative development. Cobb County Bd. of Tax Assessors v. Sibley, 244 Ga. 404 , 260 S.E.2d 313 (1979).

Assessment upheld. - Court affirmed the trial court's ruling regarding the assessment of a taxpayer's residential property when the taxpayer presented no evidence of the property's fair market value and the board of assessors presented evidence of comparable sales in the taxpayer's neighborhood that established that the assessment actually approximated fair market value. Smith v. Elbert County Bd. of Tax Assessors, 292 Ga. App. 417 , 664 S.E.2d 786 (2008), overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 , 711 S.E.2d 51 (2011).

Club membership appurtenant to property. - Although the taxpayers' memberships in a club were not subject to taxation, if a taxpayer relinquished that membership upon sale of the taxpayer's real estate, the buyer could apply for immediate membership, and such an application would normally be granted. Therefore, a county board of tax assessors would have violated Ga. Const. 1983, Art. VII, Sec. I, Para. III and O.C.G.A. § 48-5-1 if the board excluded the enhanced value of the properties attributable to the right to apply for such memberships from ad valorem taxation because the membership was part of the properties' fair market value. Morton v. Glynn County Bd. of Tax Assessors, 294 Ga. App. 901 , 670 S.E.2d 528 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Tax commissioner may legitimately inquire into the cost, depreciation, age, and use of property which is subject to taxation for purposes of investigating the property's fair market value. This does not mean that the property is to be returned or assessed for taxation at other than the property's fair market value; nor does it mean property should be assessed at book value rather than fair market value, although in many cases, fair market value may, in fact, be identical with book value. 1963-65 Op. Att'y Gen. p. 113.

Earnings as an element of fair market value of property. - Formula taking earnings into consideration may be used in arriving at the fair market value of property of a public service corporation; the formula used should not be considered conclusive but be used merely as a guide. 1965-66 Op. Att'y Gen. No. 66-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 113.

C.J.S. - 84 C.J.S., Taxation, § 449 et seq.

ALR. - Taxes: valuing undeveloped mining property as prospect, 2 A.L.R. 1550 .

Assessment of corporate property at full value according to law when valuations generally are illegally fixed lower, 3 A.L.R. 1370 ; 28 A.L.R. 983 ; 55 A.L.R. 503 .

Prospective value as basis of valuation of land for purposes of property taxation, 24 A.L.R. 649 .

Rights appurtenant, easements, restrictions, or charges in respect of land as factors in assessment of real property for property taxation, 108 A.L.R. 829 .

Valuation of property for purpose of taxation as affected by variation of tax rates for local or special purposes in different local taxing units, or inclusion of property within particular taxing unit, 119 A.L.R. 1300 .

Price paid or received by taxpayer for property as evidence of its value for tax purposes, 160 A.L.R. 684 .

Separate assessment and taxation of air rights, 56 A.L.R.3d 1300.

48-5-7. Assessment of tangible property.

  1. Except as otherwise provided in this Code section, taxable tangible property shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's fair market value.
  2. Tangible real property which is devoted to bona fide agricultural purposes as defined in this chapter and which otherwise conforms to the conditions and limitations imposed in this chapter shall be assessed for ad valorem property tax purposes at 75 percent of the value which other tangible real property is assessed and shall be taxed on a levy made by each respective tax jurisdiction according to said assessment.
  3. Tangible real property which qualifies as rehabilitated historic property pursuant to the provisions of Code Section 48-5-7.2 shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's fair market value. For the purposes of this subsection, the term "fair market value" shall mean the fair market value of rehabilitated historic property pursuant to the provisions of subparagraph (C) of paragraph (3) of Code Section 48-5-2.

    (c.1) Tangible real property which qualifies as landmark historic property pursuant to the provisions of Code Section 48-5-7.3 shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's fair market value. For the purposes of this subsection, the term "fair market value" shall mean the fair market value of landmark historic property pursuant to the provisions of subparagraph (D) of paragraph (3) of Code Section 48-5-2.

    (c.2) Tangible real property which is devoted to bona fide conservation uses as defined in this chapter and which otherwise conforms to the conditions and limitations imposed in this chapter shall be assessed for property tax purposes at 40 percent of its current use value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's current use value.

    (c.3) Tangible real property located in a transitional developing area which is devoted to bona fide residential uses and which otherwise conforms to the conditions and limitations imposed in this chapter for bona fide residential transitional property shall be assessed for property tax purposes at 40 percent of its current use value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's current use value.

    (c.4) Tangible real property which qualifies as brownfield property pursuant to the provisions of Code Section 48-5-7.6 shall be assessed at 40 percent of its fair market value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's fair market value. For the purposes of this subsection, the term "fair market value" shall mean the fair market value of brownfield property pursuant to the provisions of subparagraph (F) of paragraph (3) of Code Section 48-5-2.

    (c.5) Tangible real property which qualifies as forest land conservation use property pursuant to the provisions of Code Section 48-5-7.7 shall be assessed at 40 percent of its forest land conservation use value and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of the property's forest land conservation use value.

    (c.6) Tangible real property which qualifies as qualified timberland property in accordance with the provisions of Article 13 of this chapter shall be assessed at 40 percent of its fair market value of qualified timberland property and shall be taxed on a levy made by each respective tax jurisdiction according to 40 percent of its fair market value of qualified timberland property as such value is determined by the commissioner in accordance with Article 13 of this chapter.

  4. The requirement contained in this Code section that all tax jurisdictions assess taxable tangible property at 40 percent of fair market value shall not apply to any tax jurisdiction whose ratio of assessed value to fair market value exceeded 40 percent for the tax year 1971. No tax jurisdiction so exempted shall assess at a ratio of less than 40 percent except as necessary to effect the preferential assessment provided in subsection (b) of this Code section.
  5. Each notice of ad valorem taxes due sent to taxpayers of counties and municipalities shall include both the fair market value of the property of the taxpayer which is subject to taxation and the assessed value of the property after being reduced as provided by this Code section.

    (Ga. L. 1851-52, p. 288, § 14; Code 1863, § 734; Code 1868, § 801; Code 1873, § 804; Code 1882, § 804; Civil Code 1895, § 770; Ga. L. 1909, p. 36, § 1; Civil Code 1910, § 1010; Code 1933, § 92-5703; Ga. L. 1968, p. 358, § 2; Ga. L. 1972, p. 1102, § 1; Ga. L. 1975, p. 1083, § 1; Ga. L. 1976, p. 518, § 1; Code 1933, § 91A-1019, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 26; Ga. L. 1983, p. 1850, § 2; Ga. L. 1989, p. 1585, § 2; Ga. L. 1990, p. 1122, § 2; Ga. L. 1991, p. 1903, § 4; Ga. L. 1992, p. 6, § 48; Ga. L. 2003, p. 170, § 2; Ga. L. 2018, p. 119, § 3/HB 85.)

The 2018 amendment effective January 1, 2019, added subsections (c.5) and (c.6).

Editor's notes. - Ga. L. 1983, p. 1850, § 1, effective April 8, 1983, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes imposed by Article VII, Section I, Paragraph III, subparagraph (c) of the Constitution of the State of Georgia."

Ga. L. 1983, p. 1850, § 4, effective April 8, 1983, not codified by the General Assembly, provided that that Act ( § 2 of which amended this Code section) "shall apply to all tax years beginning on or after January 1, 1984."

Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

The state-wide referendum (Ga. L. 2002, p. 1017, § 2), which would have added a new subsection (c.4), relating to exemption from ad valorem taxation for commercial dockside facilities, was defeated at the November 2002, general election.

Ga. L. 2018, p. 119, § 7/HB 85, not codified by the General Assembly, provides, in part, that the addition of subsections (c.5) and (c.6) to this Code section shall become effective on January 1, 2019, only if an amendment to the Constitution of Georgia is ratified at the November, 2018, general election modifying constitutional prescriptions for forest land conservation use property and related assistance grants, permitting the withholding of a portion of assistance grants to provide for certain state administrative costs, and establishing qualified timberland property as a subclassification of tangible property for purposes of ad valorem taxation. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

Law reviews. - For note on the 1989 amendment to this Code section, see 6 Ga. St. U. L. Rev. 173 (1989).

JUDICIAL DECISIONS

Statute is not unconstitutional for vagueness of the term "fair market value." Chilivis v. Backus, 236 Ga. 88 , 222 S.E.2d 371 (1976).

Constitutionality. - Setting the assessed value of tangible property at 40 percent of fair market value is not in conflict with the Georgia Constitution. Salem v. Tattnall County, 250 Ga. 881 , 302 S.E.2d 99 (1983).

Department of Natural Resources certification not required within two-year time frame. - Under O.C.G.A. § 48-5-7.2 , an owner needed only to complete the rehabilitation of property within 24 months in order to be allowed to apply for and obtain certification of the property as rehabilitated historic property for purposes of preferential assessment under O.C.G.A. § 48-5-7(c) and there was no statutory basis that the owner obtain final certification from the Department of Natural Resources within that two year time frame. Chatham County Bd. of Tax Assessors v. Emmoth, 278 Ga. 144 , 598 S.E.2d 495 (2004).

Assessment procedures upheld. - Assessment of property at 40% of value did not violate the constitutional requirement of uniformity, even though statistical evidence showed the average level of assessment of other property to be 38.84% of fair market value or lower. Bellsouth Telecommunications, Inc. v. Henry County Bd. of Assessors, 217 Ga. App. 699 , 458 S.E.2d 705 (1995).

Construction with other provisions. - Words "assessed value" in Ga. Const. 1945, Art. VIII, Sec. XII, Para. I (see now Ga. Const. 1983, Art. VIII, Sec. VI, Para. I) mean the correctly assessed value, that is, the assessed value approved by the commissioner, not an incorrectly assessed value. Board of Comm'rs v. Allgood, 234 Ga. 9 , 214 S.E.2d 522 (1975).

Because a beneficial property owner only benefitted from a lower ad valorem tax in proportion to the interest owned in the property, the trial court did not err in granting summary judgment to a corporation, as approval of preferential ad valorem tax treatment for property co-owned by the shareholders of the corporation by a tenancy in common did not violate O.C.G.A. § 48-5-7.4(b)(3), as an individual's benefit was to be determined on a pro-rata basis; thus, if the interests of shareholders who were tenants in common of the property were so calculated, no single shareholder would have benefitted from current use assessment as to more than 2,000 acres. Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 , 629 S.E.2d 501 (2006).

Under O.C.G.A. § 48-5-7.4 , the owners of "bona fide conservation use property," including property used for certain agricultural purposes and meeting other statutory criteria and conditions, may apply to the county board of tax assessors for "current use assessment" of their property for purposes of calculating ad valorem taxes. If the application is granted, the property is assessed for tax purposes at 40 percent of the property's "current use value" instead of 40 percent of the property's "fair market value," under O.C.G.A. § 48-5-7(a) and (c.2), thus resulting in tax savings. Morrison v. Claborn, 294 Ga. App. 508 , 669 S.E.2d 492 (2008).

Court erred by failing to make necessary findings as to business operated on property. - Trial court erred by holding that operating a commercial grain business on property designated conservation use property under O.C.G.A. § 48-5-7.4 did not constitute a breach of the conservation use covenant because the court failed to make any findings as to whether the grain business was incidental and not detrimental to the qualifying use of the property. Terrell County Bd. of Tax Assessors v. Goolsby, 324 Ga. App. 535 , 751 S.E.2d 158 (2013).

All property to be returned at fair market value. - Basic requirement, whether the property is returnable to the comptroller general (now commissioner) or to the tax receivers of the several counties, is that all property shall be returned and assessed at the property's fair market value. Ogletree v. Woodward, 150 Ga. 691 , 105 S.E. 243 (1920).

Property is not ordinarily deemed as taxed until tax has been levied since the word "taxation" ordinarily includes a determination of the rate of levy and imposition of the levy, as an essential part of the sovereign power and process, it follows that property will not ordinarily be deemed as taxed until the tax has been levied. Rayle Elec. Membership Corp. v. Cook, 195 Ga. 734 , 25 S.E.2d 574 (1943).

Valuation of debts. - It is not necessary that the owner of a debt should return it at more than its fair market value, and the fact that the debt is valued, with other debts, at a gross amount, and the whole thus returned, can make no difference, provided the value placed upon them is what the taxpayer believes to be their fair market value. Lewis v. Horne, 44 Ga. 627 (1872).

Right to appeal penalty assessment. - An assessment of a penalty for a breach of a conservation use covenant is an assessment for which a property owner has the right to appeal pursuant to O.C.G.A. § 48-5-311 . Oconee County Bd. of Tax Assessors v. Thomas, 282 Ga. 422 , 651 S.E.2d 45 (2007).

Mandamus relief properly denied since certification of appeals obtained. - Trial court did not err by denying a group of property owners their request for mandamus relief in the nature of finding that the county board of tax assessors certified their property tax appeals because it was undisputed that the tax appeals were physically delivered to the trial court and that it had ruled that such appeals were certified to it, thus, the property owners received the relief sought regarding certification. Newton Timber Co., L.L.L.P. v. Monroe County Bd. of Tax Assessors, Ga. , 755 S.E.2d 770 (2014).

Cited in Fulton County v. Strickland, 251 Ga. 473 , 306 S.E.2d 299 (1983); Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 689, 731.

C.J.S. - 84 C.J.S., Taxation, § 449 et seq.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

Original cost of construction or reproduction cost as proper factors in assessing real property for taxation, 104 A.L.R. 790 .

Different parts or parcels of land in same ownership as single unit or separate units for tax assessment purposes, 133 A.L.R. 524 .

Real-estate tax equalization, reassessment, or revaluation program commenced but not completed within the year, as violative of constitutional provisions requiring equal and uniform taxation, 76 A.L.R.2d 1077.

Tax assessor's civil liability to taxpayer for excessive or improper assessment of real property, 82 A.L.R.2d 1148.

Income or rental value as a factor in evaluation of real property for purposes of taxation, 96 A.L.R.2d 666.

Judicial notice as to assessed valuations, 42 A.L.R.3d 1439.

48-5-7.1. Tangible real property devoted to agricultural purposes - Definition; persons entitled to preferential tax assessment; covenant to maintain agricultural purposes; penalty for breach of covenant.

  1. For purposes of this article, the term "tangible real property which is devoted to bona fide agricultural purposes":
    1. Is tangible real property, the primary use of which is good faith commercial production from or on the land of agricultural products, including horticultural, floricultural, forestry, dairy, livestock, poultry, and apiarian products and all other forms of farm products; but
    2. Includes only the value which is $100,000.00 or less of the fair market value of tangible real property which is devoted to the storage or processing of agricultural products from or on the property; and
    3. Excludes the entire value of any residence located on the property.
  2. No property shall qualify for the preferential ad valorem property tax assessment provided for in subsection (b) of Code Section 48-5-7 unless:
    1. It is owned by one or more natural or naturalized citizens; or
    2. It is owned by a family-farm corporation, the controlling interest of which is owned by individuals related to each other within the fourth degree by civil reckoning, and such corporation derived 80 percent or more of its gross income for the year immediately preceding the year in which application for preferential assessment is made from bona fide agricultural pursuits carried out on tangible real property located in this state, which property is devoted to bona fide agricultural purposes.
  3. No property shall qualify for said preferential assessment if such assessment would result in any person who has a beneficial interest in such property, including any interest in the nature of stock ownership, receiving in any tax year any benefit of preferential assessment as to more than 2,000 acres. If any taxpayer has any beneficial interest in more than 2,000 acres of tangible real property which is devoted to bona fide agricultural purposes, such taxpayer shall apply for preferential assessment only as to 2,000 acres of such land.
  4. No property shall qualify for preferential assessment unless and until the owner of such property agrees by covenant with the appropriate taxing authority to maintain the eligible property in bona fide agricultural purposes for a period of at least ten years beginning on the first day of January of the year in which such property qualifies for preferential assessment and ending on the last day of December of the tenth year of the covenant period.  After the expiration of any ten-year covenant period, the property shall not qualify for further preferential assessment until and unless the owner of the property enters into a renewal covenant for an additional period of ten years.
  5. No property shall maintain its eligibility for preferential assessment unless a valid covenant remains in effect and unless the property is continuously devoted to bona fide agricultural purposes during the entire period of the covenant.
  6. If any change in ownership of such qualified property occurs during the covenant period, all qualification requirements must be met again before the property shall be eligible to be continued for preferential assessment. If ownership of the property is acquired during a covenant period by a person qualified to enter into an original covenant, by a newly formed corporation the stock in which is owned by the original covenantor or others related to the original covenantor within the fourth degree by civil reckoning, or by the personal representative of an owner who was a party to the covenant, then the original covenant may be continued by such acquiring party for the remainder of the term, in which event no breach of the covenant shall be deemed to have occurred.
  7. A penalty shall be imposed under this subsection if during the period of the covenant entered into by a taxpayer the covenant is breached. The penalty shall be computed by multiplying the amount by which the preferential assessment has reduced taxes otherwise due for the year in which the breach occurs times:
    1. A factor of five if the breach occurs in the first or second year of the covenant period;
    2. A factor of four if the breach occurs during the third or fourth year of the covenant period;
    3. A factor of three if the breach occurs during the fifth or sixth year of the covenant period; or
    4. A factor of two if the breach occurs in the seventh, eighth, ninth, or tenth year of the covenant period.
  8. A penalty imposed under subsection (g) of this Code section shall bear interest at the rate specified in Code Section 48-2-40 from the date the covenant is breached.
  9. Penalties and interest imposed under this Code section shall constitute a lien against the property and shall be collected as other unpaid ad valorem taxes are collected. Such penalties and interest shall be distributed pro rata to each taxing jurisdiction wherein the preferential assessment has been granted based upon the total amount by which such preferential assessment has reduced taxes for each such taxing jurisdiction on the property in question as provided in this Code section.
  10. The penalty imposed by subsection (g) of this Code section shall not apply in any case where a covenant is breached solely as a result of:
    1. The acquisition of part or all of the property under the power of eminent domain;
    2. The sale of part or all of the property to a public or private entity which would have had the authority to acquire the property under the power of eminent domain; or
    3. The death of an owner who was a party to the covenant.
  11. All applications for preferential assessment, including the covenant agreement required under this Code section, shall be filed on or before the last day for filing ad valorem tax returns in the county for the tax year for which such preferential assessment shall be first applicable. An application for continuation of preferential assessment upon a change in ownership of the qualified property shall be filed on or before the last date for filing tax returns in the year following the year in which the change in ownership occurred. Applications for preferential assessment shall be filed with the county board of tax assessors who shall approve or deny the application. If the application is approved on or after July 1, 1998, the county board of tax assessors shall file a copy of the approved application in the office of the clerk of the superior court in the county in which the eligible property is located. The clerk of the superior court shall file and index such application in the real property records maintained in the clerk's office. Applications approved prior to July 1, 1998, shall be filed and indexed in like manner without payment of any fee. If the application is not so recorded in the real property records, a transferee of the property affected shall not be bound by the covenant or subject to any penalty for its breach. The fee of the clerk of the superior court for recording such applications approved on or after July 1, 1998, shall be paid by the owner of the eligible property with the application for preferential treatment and shall be paid to the clerk by the board of tax assessors when the application is filed with the clerk. If the application is denied, the board of tax assessors shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306 and shall return any filing fees advanced by the owner. Appeals from the denial of an application by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311. As to property approved for preferential assessment prior to July 1, 1998, the county board of tax assessors shall file copies of all approved applications in the office of the clerk of the superior court not later than August 14, 1998, and the clerk shall file, index, and record such approved applications, as provided for in this subsection, with the fee of the clerk of the superior court for filing, indexing, and recording to be paid out of the general funds of the county.
  12. The commissioner shall by regulation provide uniform application and covenant forms to be used in making application for preferential assessment. Such application shall include an oath or affirmation by the taxpayer that he has not at any time received, or made a pending application for, preferential assessment in the same or another county with respect to any property which taken together with property for which application is then being made exceeds 2,000 acres.
  13. The commissioner shall annually submit a report to the Governor and members of the General Assembly which shall show the fiscal impact of the preferential assessment provided for in this Code section. The report shall include the amount of assessed value eliminated from each county's digest as a result of the preferential assessment; approximate tax dollar losses, by county, to all local governments affected by such preferential assessment; and any recommendations regarding state and local administration of this Code section, with emphasis upon enforcement problems, if any, attendant with this Code section. The report shall also include any other data or facts which the commissioner deems relevant.
    1. The transfer prior to July 1, 1988, of a part of the property subject to a covenant shall not constitute a breach of a covenant entered into before or after July 1, 1984, if:
      1. The part of the property so transferred is used for single-family residential purposes and the residence is occupied by a person who is related within the fourth degree of civil reckoning to an owner of the property subject to the covenant; and
      2. The part of the property so transferred, taken together with any other part of the property so transferred during the covenant period, does not exceed a total of three acres.
    2. The transfer on or after July 1, 1988, of a part of the property subject to a covenant shall not constitute a breach of a covenant entered into before or after July 1, 1988, if:
      1. The part of the property so transferred is transferred to a person who is related within the fourth degree of civil reckoning to an owner of the property subject to the covenant; and
      2. The part of the property so transferred, taken together with any other part of the property transferred to the same relative during the covenant period, does not exceed a total of five acres.
  15. The following shall not constitute a breach of a covenant entered into before or after July 1, 1984:
    1. Mineral exploration of the property subject to the covenant or the leasing of the property subject to the covenant for purposes of mineral exploration if the primary use of the property continues to be the good faith commercial production from or on the land of agricultural products; or
    2. Allowing all or part of the property subject to the covenant to lie fallow or idle for purposes of any land conservation program, for purposes of any federal agricultural assistance program, or for other agricultural management purposes.
  16. Property which is subject to preferential assessment shall be separately classified from all other property on the tax digest; and such separate classification shall be such as will enable any person examining the tax digest to readily ascertain that the property is subject to preferential assessment. Covenants shall be public records and shall be indexed and maintained in such manner as will allow members of the public to readily locate the covenant affecting any particular property subject to preferential assessment.
    1. In any case in which a covenant is breached solely as a result of the foreclosure of a deed to secure debt, or the property is conveyed to the lienholder without compensation and in lieu of foreclosure, the penalty specified by paragraph (2) of this subsection shall apply and the penalty specified by subsection (g) of this Code section shall not apply if:
      1. The deed to secure debt was executed as a part of a bona fide commercial loan transaction in which the grantor of the deed to secure debt received consideration equal in value to the principal amount of the debt secured by the deed to secure debt;
      2. The loan was made by a person or financial institution who or which is regularly engaged in the business of making loans; and
      3. The deed to secure debt was intended by the parties as security for the loan and was not intended for the purpose of carrying out a transfer which would otherwise be subject to the penalty specified by subsection (g) of this Code section.
    2. When a breach occurs solely as a result of a foreclosure which meets the qualifications of paragraph (1) of this subsection, the penalty imposed shall be the amount by which preferential assessment has reduced taxes otherwise due for the year in which the covenant is breached.
    3. A penalty imposed under this subsection shall bear interest at the rate specified in Code Section 48-2-40 from the date the covenant is breached.
    1. In any case in which a covenant is breached solely as a result of a medically demonstrable illness or disability which renders the owner of the real property physically unable to continue the property in agricultural use, the penalty specified by paragraph (2) of this subsection shall apply and the penalty specified by subsection (g) of this Code section shall not apply. The penalty specified by paragraph (2) of this subsection shall likewise be substituted for the penalty specified by subsection (g) of this Code section in any case in which a covenant is breached solely as a result of a medically demonstrable illness or disability which renders the operator of the real property physically unable to continue the property in agricultural use, provided that the alternative penalty shall apply in this case only if the operator of the real property is a member of the family owning a family-farm corporation which owns the real property.
    2. When a breach occurs which meets the qualifications of paragraph (1) of this subsection, the penalty imposed shall be the amount by which preferential assessment has reduced taxes otherwise due for the year during which the covenant is breached.
    3. A penalty imposed under this subsection shall bear interest at the rate specified in Code Section 48-2-40 from the date the covenant is breached.
    4. Prior to the imposition of the alternative penalty authorized by this subsection in lieu of the penalty specified by subsection (g) of this Code section, the board of tax assessors shall require satisfactory evidence which clearly demonstrates that the breach is the result of a medically demonstrable illness or disability which meets the qualifications of paragraph (1) of this subsection.

    (r.1) In any case in which a covenant is breached solely as a result of an owner electing to discontinue the property in its qualifying use, provided such owner has renewed without an intervening lapse at least once the covenant under this Code section, has reached the age of 65 or older, and has kept the property in a qualifying use under the renewal covenant for at least three years the penalty specified by subsection (g) of this Code section shall not apply and the penalty imposed shall be the amount by which preferential assessment has reduced taxes otherwise due for the year in which the covenant is breached. Such penalty shall bear interest at the rate specified in Code Section 48-2-40 from the date of the breach. Such election shall be in writing and shall not become effective until filed with the county board of tax assessors.

  19. Property which is subject to preferential assessment and which is subject to a covenant under this Code section may be changed from such covenant and placed in a covenant for bona fide conservation use under Code Section 48-5-7.4 if such property meets all of the requirements and conditions specified in Code Section 48-5-7.4.  Any such change shall terminate the covenant under this Code section, shall not constitute a breach of the covenant under this Code section, and shall require the establishment of a new covenant period under Code Section 48-5-7.4.  No property may be changed under this subsection more than once.
  20. At such time as the property ceases to be eligible for preferential assessment or when any ten-year covenant period expires and the property does not qualify for further preferential assessment, the owner of the property shall file an application for release of preferential treatment with the county board of tax assessors who shall approve the release upon verification that all taxes and penalties with respect to the property have been satisfied. After the application for release has been approved by the board of tax assessors, the board shall file the release in the office of the clerk of the superior court in the county in which the original covenant was filed. The clerk of the superior court shall file and index such release in the real property records maintained in the clerk's office. No fee shall be paid to the clerk of the superior court for recording such release. The commissioner shall by regulation provide uniform release forms. (Code 1981, § 48-5-7.1 , enacted by Ga. L. 1983, p. 1850, § 3; Ga. L. 1984, p. 22, § 48; Ga. L. 1984, p. 686, § 1; Ga. L. 1985, p. 149, § 48; Ga. L. 1986, p. 820, § 1; Ga. L. 1987, p. 286, §§ 1-3; Ga. L. 1988, p. 895, § 1; Ga. L. 1990, p. 292, § 1; Ga. L. 1991, p. 668, § 1; Ga. L. 1991, p. 1903, § 5; Ga. L. 1998, p. 553, §§ 1, 2; Ga. L. 1999, p. 589, § 1; Ga. L. 2002, p. 1031, § 1; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, in subsection (a), substituted "For purposes of this article, the term" for "For purposes of this article," and revised punctuation.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "convenant" was changed to "covenant" in the introductory language of subsection (n) and in paragraph (o)(2).

Editor's notes. - Ga. L. 1983, p. 1850, § 1, effective April 8, 1983, not codified by the General Assembly, provided that: "It is the intent of this Act to implement certain changes imposed by Article VII, Section I, Paragraph III, subparagraph (c) of the Constitution of the State of Georgia."

Ga. L. 1983, p. 1850, § 4, effective April 8, 1983, not codified by the General Assembly, provided that that Act ( § 3 of which enacted this Code section) "shall apply to all tax years beginning on or after January 1, 1984."

Ga. L. 1987, p. 286, § 4, not codified by the General Assembly, provided that the amendments to subsections (g), (q) and (r) by that Act shall apply to breaches occurring on or after the effective date of the Act [March 26, 1987] and the amendment to subsection (k) shall apply with respect to changes of ownership occurring during calendar year 1986 or at any time thereafter.

Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section by that act shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Ga. L. 2002, p. 1031, § 9, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 2002.

JUDICIAL DECISIONS

Construction with other law. - Assessments lacked uniformity in failing to follow the mandates of O.C.G.A. § 48-5-2 regarding consideration of "existing use of the property" and "other factors deemed pertinent in arriving at fair market value" and in failing to exempt standing timber under the mandate of paragraph (a)(1) of O.C.G.A. § 48-5-7.1 and O.C.G.A. § 48-5-7.5 as set forth in Ga. Const. 1983, Art. VII, Sec. I, Para. III. Leverett v. Jasper County Bd. of Tax Assessors, 233 Ga. App. 470 , 504 S.E.2d 559 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Transfer of portion of property. - Subsection (f) of O.C.G.A. § 48-5-7.1 does not require that all property subject to a covenant be transferred before the covenant can be continued pursuant to that provision. 1987 Op. Att'y Gen. No. U87-14.

Subsections (f) and (n) may be implemented concurrently, which would allow the transfer of up to three acres of land to a relative for the purpose of building a residence, while also allowing the covenant to be continued by the same relative with respect to the remaining acreage transferred which is to be continued in agricultural usage as required by the statute. 1987 Op. Att'y Gen. No. U87-10.

48-5-7.2. Certification as rehabilitated historic property for purposes of preferential assessment.

    1. For the purposes of this article, "rehabilitated historic property" means tangible real property which:
      1. Qualifies for listing on the Georgia Register of Historic Places as provided in Part 1 of Article 3 of Chapter 3 of Title 12;
      2. Is in the process of or has been substantially rehabilitated, provided that in the case of owner occupied residential real property the rehabilitation has increased the fair market value of the building or structure by not less than 50 percent, or, in the case of income-producing real property, the rehabilitation has increased the fair market value of the building or structure by not less than 100 percent, or, in the case of real property used primarily as residential property but partially as income-producing property, the rehabilitation has increased the fair market value of the building or structure by not less than 75 percent, provided that the exact percentage of such increase in the fair market value to be required shall be determined by rules and regulations promulgated by the Board of Natural Resources. For the purposes of this subparagraph, the term "fair market value" shall mean the fair market value of the property, excluding the provisions of subparagraph (C) of paragraph (3) of Code Section 48-5-2;
      3. The rehabilitation of which meets the rehabilitation standards as provided in regulations promulgated by the Department of Natural Resources; and
      4. Has been certified by the Department of Natural Resources as rehabilitated historic property eligible for preferential assessment.
    2. The preferential classification and assessment of rehabilitated historic property provided for in this Code section shall apply to the building or structure which is the subject of the rehabilitation, the real property on which the building or structure is located, and not more than two acres of real property surrounding the building or structure. The remaining property shall be assessed for tax purposes as otherwise provided by law.
    3. Property may qualify as historic property only if substantial rehabilitation of such property was initiated after January 1, 1989, and only property which has been certified as rehabilitated historic property by the Department of Natural Resources after July 1, 1989, may qualify for preferential assessment.
  2. In order for property to qualify for preferential assessment as provided for in subsection (c) of Code Section 48-5-7, the property must receive certification as rehabilitated historic property as defined in paragraph (1) of subsection (a) of this Code section and pursuant to regulations promulgated by the Department of Natural Resources. Applications for certification of such property shall be accompanied by a fee specified by rules and regulations of the Board of Natural Resources. The Department of Natural Resources may, at its discretion, delegate its responsibilities conferred under subparagraph (a)(1)(C) of this Code section.
  3. Upon a property owner's receiving preliminary certification pursuant to the provisions of subsection (b) of this Code section, such property owner shall submit a copy of such preliminary certification to the county board of tax assessors. A property owner shall have 24 months from the date that preliminary certification is received pursuant to subsection (b) of this Code section in which to complete the rehabilitation of such property in conformity with the application approved by the Department of Natural Resources. After receiving the preliminary certification from the property owner, the county board of tax assessors shall not increase the assessed value of such property during the period of rehabilitation of such property, not to exceed two years. During such period of rehabilitation of the property, the county tax receiver or tax commissioner shall enter upon the tax digest a notation that the property is subject to preferential assessment and shall also enter an assessment of the fair market value of the property, excluding the preferential assessment authorized by this Code section. Any taxes not paid on the property as a result of the preliminary certification and frozen assessed value of the property shall be considered deferred until a final determination is made as to whether such property qualifies for preferential assessment as provided in this Code section.
  4. Upon the completion of the rehabilitation of such property, the property owner shall submit a request in writing for final certification to the Department of Natural Resources. The Department of Natural Resources shall determine whether such property as rehabilitated constitutes historic property which will be listed on the Georgia Register of Historic Places and which qualifies for preferential assessment. The Department of Natural Resources shall issue to the property owner a final certification if such property so qualifies.
  5. Upon receipt of final certification from the Department of Natural Resources, a property owner desiring classification of any such historic property as rehabilitated historic property in order to receive the preferential assessment shall make application to the county board of tax assessors and include the order of final certification with such application. The county board of tax assessors shall determine if the value of the building or structure has been increased in accordance with the provisions of subparagraph (a)(1)(B) of this Code section; provided, however, that, if the property owner can document expenditures on rehabilitation of owner occupied property of not less than 50 percent of the fair market value of the building or structure at the time of the preliminary certification of the property, or, in the case of income-producing property, expenditures on rehabilitation of such property of not less than 100 percent of the fair market value of the building or structure at the time of preliminary certification of the property, or, in the case of real property used primarily as residential property but partially as income-producing property, expenditures on rehabilitation of such property of not less than 75 percent of the fair market value of the building or structure at the time of preliminary certification of the property, the county board of tax assessors shall be required to grant preferential assessment to such property. For the purposes of this subsection, the term "fair market value" shall mean the fair market value of the building or structure, excluding the provisions of subparagraph (C) of paragraph (3) of Code Section 48-5-2; and such rehabilitation expenditures shall also include expenditures incurred in preserving specimen trees upon not more than two acres of real property surrounding the building or structure. As used in this Code section, the term "specimen tree" means any tree having a trunk diameter of 30 inches or more. The county board of tax assessors shall make the determination within 30 days after receiving the application and shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306. Appeals from the denial of an application for preferential assessment by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311.
  6. A property owner who fails to have property classified as rehabilitated historic property and listed on the Georgia Register of Historic Places for the preferential assessment shall be required to pay the difference between the amount of taxes on the property during the period that the assessment was frozen pursuant to the provisions of subsection (c) of this Code section and the amount of taxes which would have been due had the property been assessed at the regular fair market value, plus interest at the rate prescribed in Code Section 48-2-40.
    1. Property which has been classified by the county board of tax assessors as rehabilitated historic property shall be eligible for the preferential assessment provided for in subsection (c) of Code Section 48-5-7; provided, however, that, for the purposes of determining the years of eligibility for preferential assessment, the tax year following the year in which the preliminary certification was filed with the county board of tax assessors pursuant to subsection (c) of this Code section shall be considered and counted as the first year of eligibility.
    2. Property which is subject to preferential assessment shall be separately classified from all other property on the tax digest; and such separate classification shall be such as will enable any person examining the tax digest to ascertain readily that the property is subject to preferential assessment.
    3. The county tax receiver or tax commissioner shall enter upon the tax digest as the basis or value of a parcel of rehabilitated historic property a value equal to the greater of the acquisition cost of the property or the assessment of the fair market value of the property as recorded in the county tax digest at the time preliminary certification on such property was received by the county board of tax assessors pursuant to subsection (c) of this Code section. Property classified as rehabilitated historic property shall be recorded upon the tax digest as provided in this Code section for nine consecutive assessment years, and the notation "rehabilitated historic property" shall be entered on the tax digest adjacent to the valuation of such property to indicate that the property is being preferentially assessed. The tax commissioner or tax receiver shall also enter upon the tax digest an assessment of the fair market value of the property each year, excluding the provisions of subparagraph (C) of paragraph (3) of Code Section 48-5-2.
  8. When property has once been classified and assessed as rehabilitated historic property, it shall remain so classified and be granted the special assessment until the property becomes disqualified by any one of the following:
    1. Written notice by the taxpayer to the county tax commissioner or receiver to remove the preferential classification and assessment;
    2. Sale or transfer of ownership making the property exempt from property taxation;
    3. Decertification of such property by the Department of Natural Resources. The Department of Natural Resources has the authority to decertify any property which no longer possesses the qualities and features which made it eligible for the Georgia Register of Historic Places or which has been altered through inappropriate rehabilitation as determined by the Department of Natural Resources. The sale or transfer to a new owner shall not operate to disqualify the property from preferential classification and assessment so long as the property continues to qualify as rehabilitated historic property. When for any reason the property or any portion thereof ceases to qualify as rehabilitated historic property, the owner at the time of change shall notify the Department of Natural Resources and the county board of tax assessors prior to the next January; or
    4. The expiration of nine years during which the property was classified and assessed as rehabilitated historic property; provided, however, that any such property may qualify thereafter as rehabilitated historic property if such property is subject to subsequent rehabilitation and qualifies under the provisions of this Code section.
  9. Any person who is aggrieved or adversely affected by any order or action of the Department of Natural Resources pursuant to this Code section shall, upon petition within 30 days after the issuance of such order or taking of such action, have a right to a hearing before an administrative law judge appointed by the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the Department of Natural Resources, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
    1. The taxes and interest deferred pursuant to this Code section shall constitute a prior lien and shall attach as of the date and in the same manner and shall be collected as are other liens for taxes, as provided for under this title, but the deferred taxes and interest shall only be due, payable, and delinquent as provided in this Code section.
    2. Liens for taxes deferred under this Code section, except for any lien covering the then current tax year, shall not be divested by an award for year's support authorized pursuant to former Chapter 5 of Title 53 as such existed on December 31, 1997, if applicable, or Chapter 3 of Title 53. (Code 1981, § 48-5-7.2 , enacted by Ga. L. 1989, p. 1585, § 3; Ga. L. 1992, p. 6, § 48; Ga. L. 1998, p. 128, § 48; Ga. L. 2000, p. 775, § 1; Ga. L. 2011, p. 752, § 48/HB 142.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1991, "owner's" was substituted for "owner" near the beginning of subsection (c).

Administrative Rules and Regulations. - Preliminary and Final Certification of Rehabilitated Historic Properties, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Natural Resources, Historic Preservation, Chapter 391-5-11.

Law reviews. - For article, "The Tax Abatement Program for Historic Properties in Georgia," see 28 Ga. St. B. J. 129 (1992). For note on the 1989 enactment of this Code section, see 6 Ga. St. U. L. Rev. 173 (1989). For note on the 2000 amendment of this Code section, see 17 Ga. St. U. L. Rev. 274 (2000).

JUDICIAL DECISIONS

Final certification from Department of Natural Resources not required in two-year time frame. - Under O.C.G.A. § 48-5-7.2 , an owner needed only to complete the rehabilitation of property within 24 months in order to be allowed to apply for and obtain certification of the property as rehabilitated historic property for purposes of preferential assessment under O.C.G.A. § 48-5-7(c) and there was no statutory basis that the owner obtain final certification from the Department of Natural Resources within that two year time frame. Chatham County Bd. of Tax Assessors v. Emmoth, 278 Ga. 144 , 598 S.E.2d 495 (2004).

Simultaneous application of local Act homestead exemption was not precluded. - Although an owner's property qualified for preferential assessment under the Rehabilitated Historic Property Preferential Assessment Act (RHPPA), O.C.G.A. § 48-5-7.2 , the owner was allowed to use the effective date of the local Act homestead exemption, Ga. L. 1999, p. 4213, § 1, as the base year for the fair market valuation assessment of the property because the simultaneous application of the RHPPA and the local Act homestead exemption was not precluded. Chatham County Bd. of Tax Assessors v. Bock, 299 Ga. App. 257 , 682 S.E.2d 355 (2009).

48-5-7.3. Landmark historic property.

    1. As used in this Code section, the term "landmark historic property" means tangible real property which:
      1. Has been listed on the National Register of Historic Places or on the Georgia Register of Historic Places as provided in Part 1 of Article 3 of Chapter 3 of Title 12 and has been so certified by the Department of Natural Resources; and
      2. Has been certified by a local government as landmark historic property having exceptional architectural, historic, or cultural significance pursuant to a comprehensive local historic preservation or landmark ordinance which is of general application within such locality and has been approved as such by the state historic preservation officer.
    2. The preferential classification and assessment of landmark historic property provided for in this Code section shall apply to the building or structure which is listed on the National Register of Historic Places or on the Georgia Register of Historic Places, the real property on which the building or structure is located, and not more than two acres of real property surrounding the building or structure.  The remaining property shall be assessed for tax purposes as otherwise provided by law.
    3. Property may qualify as landmark historic property and be eligible to receive the preferential assessment provided for in this Code section only if the local governing authority has adopted an ordinance authorizing such preferential assessments for landmark historic property under this Code section. Notwithstanding any other provision of this paragraph, said ordinances may extend the preferential assessment authorized by this Code section to tangible income-producing real property, tangible nonincome-producing real property, or combination thereof, so as to encourage the preservation of historic properties and assist in the revitalization of historic areas.
  2. In order for property to qualify under this Code section for preferential assessment as provided for in subsection (c.1) of Code Section 48-5-7, the property must receive the certifications required for landmark historic property as defined in paragraph (1) of subsection (a) of this Code section.
  3. Upon receipt of said certifications, a property owner desiring classification of any such historic property as landmark historic property in order to receive the preferential assessment shall make application to the county board of tax assessors and include said certifications with such application. The county board of tax assessors shall determine if the provisions of this Code section have been complied with and upon such determination, the county board of tax assessors shall be required to grant preferential assessment to such property. The county board of tax assessors shall make the determination within 30 days after receiving the application and shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306. Appeals from the denial of an application for preferential assessment by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311.
    1. Property which has been classified by the county board of tax assessors as landmark historic property shall be immediately eligible for the preferential assessment provided for in subsection (c.1) of Code Section 48-5-7; provided, however, that, for the purposes of determining the years of eligibility for preferential assessment, the tax year following the year in which the certification was filed with the county board of tax assessors pursuant to subsection (c) of this Code section shall be considered and counted as the first year of eligibility.
    2. Property which is subject to preferential assessment shall be separately classified from all other property on the tax digest; and such separate classification shall be such as will enable any person examining the tax digest to ascertain readily that the property is subject to preferential assessment.
    3. The county tax receiver or tax commissioner shall enter upon the tax digest as the basis or value of a parcel of landmark historic property a value equal to the greater of the acquisition cost of the property or the assessment of the fair market value of the property as recorded in the county tax digest at the time certification on such property was received by the county board of tax assessors pursuant to subsection (c) of this Code section. Property classified as landmark historic property shall be recorded upon the tax digest as provided in this Code section for nine consecutive assessment years, and the notation "landmark historic property" shall be entered on the tax digest adjacent to the valuation of such property to indicate that the property is being preferentially assessed.  The tax commissioner or tax receiver shall also enter upon the tax digest an assessment of the fair market value of the property each year, excluding the provisions of subparagraph (D) of paragraph (3) of Code Section 48-5-2.
    1. When property has once been classified and assessed as landmark historic property, it shall remain so classified and be granted the special assessment until the property becomes disqualified by any one of the following:
      1. Written notice by the taxpayer to the county tax commissioner or receiver to remove the preferential classification and assessment;
      2. Sale or transfer of ownership making the property exempt from property taxation;
      3. Decertification of such property by the Department of Natural Resources.  The Department of Natural Resources has the authority to decertify any property which no longer possesses the qualities and features which made it eligible for the Georgia Register of Historic Places or which has been altered through inappropriate rehabilitation as determined by the Department of Natural Resources. The sale or transfer to a new owner shall not operate to disqualify the property from preferential classification and assessment so long as the property continues to qualify as landmark historic property, except as specified in subparagraph (B) of this paragraph. When for any reason the property or any portion thereof ceases to qualify as landmark historic property, the owner at the time of change shall notify the Department of Natural Resources and the county board of tax assessors prior to the next January;
      4. Decertification of such property by the local governing authority for failure to maintain such property in a standard condition as specified in the local historic preservation or landmark ordinance or in local building codes; or
      5. The expiration of nine years during which the property was classified and assessed as landmark historic property; provided, however, that any such property may qualify thereafter as landmark historic property if such property is subject to subsequent rehabilitation and qualifies under other portions of the historic properties tax incentive program contained within the provisions of this Code section.
    2. Except as otherwise provided in this Code section, if a property becomes disqualified pursuant to any provision of this subsection, the decertification shall be transmitted to the county board of tax assessors and said assessors shall appropriately notate the property as decertified. Such property shall not be eligible to receive the preferential assessment provided for in this Code section during the taxable year in which such disqualification occurs.
  6. Any person who is aggrieved or adversely affected by any order or action of the Department of Natural Resources pursuant to this subsection shall, upon petition within 30 days after the issuance of such order or taking of such action, have a right to a hearing before an administrative law judge appointed by the Board of Natural Resources. The hearing before the administrative law judge shall be conducted in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."  The decision of the administrative law judge shall constitute the final decision of the board and any party to the hearing, including the Department of Natural Resources, shall have the right of judicial review thereof in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  7. No property shall be eligible to receive simultaneously more than one of the preferential assessments provided for in this Code section and Code Section 48-5-7.2.
  8. Any landmark historic property which lies within a locally designated landmark or historic preservation district which is predominantly a residential district as determined by the local governing authority shall not be eligible for the preferential assessment provided for in this subsection if such landmark historic property constitutes a nonconforming use pursuant to applicable local zoning ordinances or if such landmark historic property does not contribute to the architectural, historic, or cultural values  for which said district is significant.
    1. The difference between the preferential assessment granted by this Code section and the taxes which would otherwise be assessed and interest thereon shall constitute a prior lien and shall attach as of the date and in the same manner and shall be collected as are other liens for taxes, as provided for under this title, but  shall only be due, payable, and delinquent as provided in this Code section.
    2. Such liens for taxes, except for any lien covering the then current tax year, shall not be divested by an award for year's support authorized pursuant to former Chapter 5 of Title 53 as such existed on December 31, 1997, if applicable, or Chapter 3 of Title 53. (Code 1981, § 48-5-7.3 , enacted by Ga. L. 1990, p. 1122, § 3; Ga. L. 1992, p. 6, § 48; Ga. L. 1992, p. 1502, § 1; Ga. L. 1998, p. 128, § 48; Ga. L. 2011, p. 752, § 48/HB 142; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "As used in this Code section, the term" for "For the purposes of this Code section," at the beginning of paragraph (a)(1).

Editor's notes. - Ga. L. 1998, p. 128, § 48(3), purported to amend paragraph (2) of subsection (j) of this Code section but, in fact, amended paragraph (2) of subsection (i); this Code section contains no subsection (j).

Law reviews. - For article, "The Tax Abatement Program for Historic Properties in Georgia," see 28 Ga. St. B. J. 129 (1992).

48-5-7.4. Bona fide conservation use property; residential transitional property; application procedures; penalties for breach of covenant; classification on tax digest; annual report.

  1. For purposes of this article, the term "bona fide conservation use property" means property described in and meeting the requirements of paragraph (1) or (2) of this subsection, as follows:
    1. Not more than 2,000 acres of tangible real property of a single person, the primary purpose of which is any good faith production, including but not limited to subsistence farming or commercial production, from or on the land of agricultural products or timber, subject to the following qualifications:
      1. Such property includes the value of tangible property permanently affixed to the real property which is directly connected to such owner's production of agricultural products or timber and which is devoted to the storage and processing of such agricultural products or timber from or on such real property;
        1. A person who owns an interest in a family owned farm entity as described in division (1)(C)(iv) of this subsection shall be considered to own only the percent of the bona fide conservation use property held by such family owned farm entity that is equal to the percent interest owned by such person in such family owned farm entity; and
        2. A person who owns an interest in a family owned farm entity as described in division (1)(C)(iv) of this subsection may elect to allocate the lesser of any unused portion of such person's 2,000 acre limitation or the product of such person's percent interest in the family owned farm entity times the total number of acres owned by the family owned farm entity subject to such bona fide conservation use assessment, with the result that the family owned farm entity may receive bona fide conservation use assessment on more than 2,000 acres;
      2. Such property excludes the entire value of any residence and its underlying property; as used in this subparagraph, the term "underlying property" means the minimum lot size required for residential construction by local zoning ordinances or two acres, whichever is less. The board of tax assessors shall not require a recorded plat or survey to set the boundaries of the underlying property. This provision for excluding the underlying property of a residence from eligibility in the conservation use covenant shall only apply to property that is first made subject to a covenant or is subject to the renewal of a previous covenant on or after May 1, 2012;
      3. Except as otherwise provided in division (vii) of this subparagraph, such property must be owned by:
        1. One or more natural or naturalized citizens;
        2. An estate of which the devisees or heirs are one or more natural or naturalized citizens;
        3. A trust of which the beneficiaries are one or more natural or naturalized citizens;
        4. A family owned farm entity, such as a family corporation, a family partnership, a family general partnership, a family limited partnership, a family limited corporation, or a family limited liability company, all of the interest of which is owned by one or more natural or naturalized citizens related to each other by blood or marriage within the fourth degree of civil reckoning, except that, solely with respect to a family limited partnership, a corporation, limited partnership, limited corporation, or limited liability company may serve as a general partner of the family limited partnership and hold no more than a 5 percent interest in such family limited partnership, an estate of which the devisees or heirs are one or more natural or naturalized citizens, a trust of which the beneficiaries are one or more natural or naturalized citizens, or an entity created by the merger or consolidation of two or more entities which independently qualify as a family owned farm entity, and which family owned farm entity derived 80 percent or more of its gross income from bona fide conservation uses, including earnings on investments directly related to past or future bona fide conservation uses, within this state within the year immediately preceding the year in which eligibility is sought; provided, however, that in the case of a newly formed family farm entity, an estimate of the income of such entity may be used to determine its eligibility;
        5. A bona fide nonprofit organization designated under Section 501(c)(3) of the Internal Revenue Code;
        6. A bona fide club organized for pleasure, recreation, and other nonprofitable purposes; or
        7. In the case of constructed storm-water wetlands, any person may own such property;
      4. Factors which may be considered in determining if such property is qualified may include, but not be limited to:
        1. The nature of the terrain;
        2. The density of the marketable product on the land;
        3. The past usage of the land;
        4. The economic merchantability of the agricultural product; and
        5. The utilization or nonutilization of recognized care, cultivation, harvesting, and like practices applicable to the product involved and any implemented plans thereof;
      5. Such property shall, if otherwise qualified, include, but not be limited to, property used for:
        1. Raising, harvesting, or storing crops;
        2. Feeding, breeding, or managing livestock or poultry;
        3. Producing plants, trees, fowl, or animals, including without limitation the production of fish or wildlife by maintaining not less than ten acres of wildlife habitat either in its natural state or under management, which shall be deemed a type of agriculture; provided, however, that no form of commercial fishing or fish production shall be considered a type of agriculture; or
        4. Production of aquaculture, horticulture, floriculture, forestry, dairy, livestock, poultry, and apiarian products; and
      6. The primary purpose described in this paragraph includes land conservation and ecological forest management in which commercial production of wood and wood fiber products may be undertaken primarily for conservation and restoration purposes rather than financial gain; or
    2. Not more than 2,000 acres of tangible real property, excluding the value of any improvements thereon, of a single owner of the types of environmentally sensitive property specified in this paragraph and certified as such by the Department of Natural Resources, if the primary use of such property is its maintenance in its natural condition or controlling or abating pollution of surface or ground waters of this state by storm-water runoff or otherwise enhancing the water quality of surface or ground waters of this state and if such owner meets the qualifications of subparagraph (C) of paragraph (1) of this subsection:
      1. Environmentally sensitive areas, including any otherwise qualified land area 1,000 feet or more above the lowest elevation of the county in which such area is located that has a percentage slope, which is the difference in elevation between two points 500 feet apart on the earth divided by the horizontal distance between those two points, of 25 percent or greater and shall include the crests, summits, and ridge tops which lie at elevations higher than any such area;
      2. Wetland areas that are determined by the United States Army Corps of Engineers to be wetlands under their jurisdiction pursuant to Section 404 of the federal Clean Water Act, as amended, or wetland areas that are depicted or delineated on maps compiled by the Department of Natural Resources or the United States Fish and Wildlife Service pursuant to its National Wetlands Inventory Program;
      3. Significant ground-water recharge areas as identified on maps or data compiled by the Department of Natural Resources;
      4. Undeveloped barrier islands or portions thereof as provided for in the federal Coastal Barrier Resources Act, as amended;
      5. Habitats as certified by the Department of Natural Resources as containing species that have been listed as either endangered or threatened under the federal Endangered Species Act of 1973, as amended;
      6. River or stream corridors or buffers which shall be defined as those undeveloped lands which are:
        1. Adjacent to rivers and perennial streams that are within the 100 year flood plain as depicted on official maps prepared by the Federal Emergency Management Agency; or
        2. Within buffer zones adjacent to rivers or perennial streams, which buffer zones are established by law or local ordinance and within which land-disturbing activity is prohibited; or
        1. Constructed storm-water wetlands of the free-water surface type certified by the Department of Natural Resources under subsection (k) of Code Section 12-2-4 and approved for such use by the local governing authority.
        2. No property shall maintain its eligibility for current use assessment as a bona fide conservation use property as defined in this subparagraph unless the owner of such property files an annual inspection report from a licensed professional engineer certifying that as of the date of such report the property is being maintained in a proper state of repair so as to accomplish the objectives for which it was designed. Such inspection report and certification shall be filed with the county board of tax assessors on or before the last day for filing ad valorem tax returns in the county for each tax year for which such assessment is sought.

    (A.1) In the application of the limitation contained in the introductory language of this paragraph, the following rules shall apply to determine beneficial interests in bona fide conservation use property held in a family owned farm entity as described in division (1)(C)(iv) of this subsection:

    (a.1) Notwithstanding any other provision of this Code section to the contrary, in the case of property which otherwise meets the requirements for current use assessment and the qualifying use is pursuant to division (1)(E)(iii) of subsection (a) of this Code section, when the owner seeks to renew the covenant or reenter a covenant subsequent to the termination of a previous covenant which met such requirements and the owner meets the qualifications under this Code section but the property is no longer being used for the qualified use for which the previous covenant was entered pursuant to division (1)(E)(iii) of subsection (a) of this Code section, the property is not environmentally sensitive property within the meaning of paragraph (2) of subsection (a) of this Code section, and the primary use of the property is maintenance of a wildlife habitat of not less than ten acres either by maintaining the property in its natural condition or under management, the county board of tax assessors shall be required to accept such use as a qualifying use for purposes of this Code section.

  2. Except in the case of the underlying portion of a tract of real property on which is actually located a constructed storm-water wetland, the following additional rules shall apply to the qualification of conservation use property for current use assessment:
    1. When one-half or more of the area of a single tract of real property is used for a qualifying purpose, then such tract shall be considered as used for such qualifying purpose unless some other type of business is being operated on the unused portion; provided, however, that such unused portion must be minimally managed so that it does not contribute significantly to erosion or other environmental or conservation problems. The lease of hunting rights or the use of the property for hunting purposes shall not constitute another type of business. The charging of admission for use of the property for fishing purposes shall not constitute another type of business;
      1. The owner of a tract, lot, or parcel of land totaling less than ten acres shall be required by the tax assessor to submit additional relevant records regarding proof of bona fide conservation use for qualified property that on or after May 1, 2012, is either first made subject to a covenant or is subject to a renewal of a previous covenant. The provisions of this paragraph relating to requiring additional relevant records regarding proof of bona fide conservation use shall not apply to such property if the owner of the subject property provides one or more of the following:
        1. Proof that such owner has filed with the Internal Revenue Service a Schedule E, reporting farm related income or loss, or a Schedule F, with Form 1040, or, if applicable, a Form 4835, pertaining to such property;
        2. Proof that such owner has incurred expenses for the qualifying use; or
        3. Proof that such owner has generated income from the qualifying use.

          Prior to a denial of eligibility under this paragraph, the tax assessor shall conduct and provide proof of a visual, on-site inspection of the property. Reasonable notice shall be provided to the property owner before being allowed a visual, on-site inspection of the property by the tax assessor.

      2. The owner of a tract, lot, or parcel of land totaling ten acres or more shall not be required by the tax assessor to submit additional relevant records regarding proof of bona fide conservation use for qualified property that on or after May 1, 2012, is either first made subject to a covenant or is subject to a renewal of a previous covenant;
    3. No property shall qualify as bona fide conservation use property if such current use assessment would result in any person who has a beneficial interest in such property, including any interest in the nature of stock ownership, receiving in any tax year any benefit of current use assessment as to more than 2,000 acres. If any taxpayer has any beneficial interest in more than 2,000 acres of tangible real property which is devoted to bona fide conservation uses, such taxpayer shall apply for current use assessment only as to 2,000 acres of such land;
    4. No property shall qualify as bona fide conservation use property if it is leased to a person or entity which would not be entitled to conservation use assessment;
    5. No property shall qualify as bona fide conservation use property if such property is at the time of application for current use assessment subject to a restrictive covenant which prohibits the use of the property for the specific purpose described in subparagraph (a)(1)(E) of this Code section for which bona fide conservation use qualification is sought; and
    6. No otherwise qualified property shall be denied current use assessment on the grounds that no soil map is available for the county in which such property is located; provided, however, that if no soil map is available for the county in which such property is located, the owner making an application for current use assessment shall provide the board of tax assessors with a certified soil survey of the subject property unless another method for determining the soil type of the subject property is authorized in writing by such board.
  3. For purposes of this article, the term "bona fide residential transitional property" means not more than five acres of tangible real property of a single owner which is private single-family residential owner occupied property located in a transitional developing area.  Such classification shall apply to all otherwise qualified real property which is located in an area which is undergoing a change in use from single-family residential use to agricultural, commercial, industrial, office-institutional, multifamily, or utility use or a combination of such uses.  Change in use may be evidenced by recent zoning changes, purchase by a developer, affidavits of intent, or close proximity to property which has undergone a change from single-family residential use.  To qualify as residential transitional property, the valuation must reflect a change in value attributable to such property's proximity to or location in a transitional area.
  4. No property shall qualify for current use assessment under this Code section unless and until the owner of such property agrees by covenant with the appropriate taxing authority to maintain the eligible property in bona fide qualifying use for a period of ten years beginning on the first day of January of the year in which such property qualifies for such current use assessment and ending on the last day of December of the final year of the covenant period. After the owner has applied for and has been allowed current use assessment provided for in this Code section, it shall not be necessary to make application thereafter for any year in which the covenant period is in effect and current use assessment shall continue to be allowed such owner as specified in this Code section. At least 60 days prior to the expiration date of the covenant, the county board of tax assessors shall send by first-class mail written notification of such impending expiration. Upon the expiration of any covenant period, the property shall not qualify for further current use assessment under this Code section unless and until the owner of the property has entered into a renewal covenant for an additional period of ten years; provided, however, that the owner may enter into a renewal contract in the ninth year of a covenant period so that the contract is continued without a lapse for an additional ten years.
  5. A single owner shall be authorized to enter into more than one covenant under this Code section for bona fide conservation use property, provided that the aggregate number of acres of qualified property of such owner to be entered into such covenants does not exceed 2,000 acres.  Any such qualified property may include a tract or tracts of land which are located in more than one county.  A single owner shall be authorized to enter qualified property in a covenant for bona fide conservation use purposes and to enter simultaneously the residence located on such property in a covenant for bona fide residential transitional use if the qualifications for each such covenant are met.  A single owner shall be authorized to enter qualified property in a covenant for bona fide conservation use purposes and to enter other qualified property of such owner in a covenant for bona fide residential transitional use.
  6. An owner shall not be authorized to make application for and receive current use assessment under this Code section for any property which at the time of such application is receiving preferential assessment under Code Section 48-5-7.1 except that such owner shall be authorized to change such preferential assessment covenant in the manner provided for in subsection (s) of Code Section 48-5-7.1.
  7. Except as otherwise provided in this subsection, no property shall maintain its eligibility for current use assessment under this Code section unless a valid covenant remains in effect and unless the property is continuously devoted to an applicable bona fide qualifying use during the entire period of the covenant. An owner shall be authorized to change the type of bona fide qualifying conservation use of the property to another bona fide qualifying conservation use and the penalty imposed by subsection (l) of this Code section shall not apply, but such owner shall give notice of any such change in use to the board of tax assessors.
  8. If any breach of a covenant occurs, the existing covenant shall be terminated and all qualification requirements must be met again before the property shall be eligible for current use assessment under this Code section.
    1. If ownership of all or a part of the property is acquired during a covenant period by a person or entity qualified to enter into an original covenant, then the original covenant may be continued by such acquiring party for the remainder of the term, in which event no breach of the covenant shall be deemed to have occurred.
      1. As used in this paragraph, the term "contiguous" means real property within a county that abuts, joins, or touches and has the same undivided common ownership. If an applicant's tract is divided by a county boundary, public roadway, public easement, public right of way, natural boundary, land lot line, or railroad track, then the applicant has, at the time of the initial application, a one-time election to declare the tract as contiguous irrespective of a county boundary, public roadway, public easement, public right of way, natural boundary, land lot line, or railroad track.
      2. If a qualified owner has entered into an original bona fide conservation use covenant and subsequently acquires additional qualified property contiguous to the property in the original covenant, the qualified owner may elect to enter the subsequently acquired qualified property into the original covenant for the remainder of the ten-year period of the original covenant; provided, however, that such subsequently acquired qualified property shall be less than 50 acres.
    1. All applications for current use assessment under this Code section, including the covenant agreement required under this Code section, shall be filed on or before the last day for filing ad valorem tax returns in the county for the tax year for which such current use assessment is sought, except that in the case of property which is the subject of a reassessment by the board of tax assessors an application for current use assessment may be filed in conjunction with or in lieu of an appeal of the reassessment. An application for continuation of such current use assessment upon a change in ownership of all or a part of the qualified property shall be filed on or before the last date for filing tax returns in the year following the year in which the change in ownership occurred. Applications for current use assessment under this Code section shall be filed with the county board of tax assessors who shall approve or deny the application. If the application is approved on or after July 1, 1998, the county board of tax assessors shall file a copy of the approved application in the office of the clerk of the superior court in the county in which the eligible property is located. The clerk of the superior court shall file and index such application in the real property records maintained in the clerk's office. Applications approved prior to July 1, 1998, shall be filed and indexed in like manner without payment of any fee. If the application is not so recorded in the real property records, a transferee of the property affected shall not be bound by the covenant or subject to any penalty for its breach. The fee of the clerk of the superior court for recording such applications approved on or after July 1, 1998, shall be paid by the owner of the eligible property with the application for preferential treatment and shall be paid to the clerk by the board of tax assessors when the application is filed with the clerk. If the application is denied, the board of tax assessors shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306 and shall return any filing fees advanced by the owner. Appeals from the denial of an application by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311.
    2. If the final determination on appeal to superior court is to approve the application for current use assessment, the taxpayer shall recover costs of litigation and reasonable attorney's fees incurred in the action.
    3. Any final determination on appeal that causes a reduction in taxes and creates a refund that is owed to the taxpayer shall be paid by the tax commissioner to such taxpayer, entity, or transferee that paid the taxes within 60 days from the date of the final determination of value. Such refund shall include interest at the same rate specified in Code Section 48-2-35 which shall accrue from the due date of the taxable year in question or the date paid, whichever is later, through the date on which the final determination of value was made. In no event shall the amount of such interest exceed $5,000.00. Any refund paid after the sixtieth day shall accrue interest from the sixty-first day until paid with interest at the same rate specified in Code Section 48-2-35. The interest accrued after the sixtieth day shall not be subject to the limits imposed by this subsection. The tax commissioner shall pay the tax refund and any interest for the refund from current collections in the same proportion for each of the levying authorities for which the taxes were collected.
    4. For the purposes of this Code section, any final determination on appeal that causes an increase in taxes and creates an additional billing shall be paid to the tax commissioner as any other tax due. After the tax bill notice has been mailed out, the taxpayer shall be afforded 60 days from the date of the postmark to make full payment of the adjusted bill. Once the 60 day payment period has expired, the bill shall be considered past due and interest shall accrue from the original billing due date as specified in Code Section 48-2-40 without limit until the bill is paid in full. Once past due, all other fees, penalties, and late and collection notices shall apply as prescribed in this chapter for the collection of delinquent taxes.
    5. In the event such application is approved, the taxpayer shall continue to receive annual notification of any change in the fair market value of such property and any appeals with respect to such valuation shall be made in the same manner as other property tax appeals are made pursuant to Code Section 48-5-311.
    1. The commissioner shall by regulation provide uniform application and covenant forms to be used in making application for current use assessment under this Code section. Such application shall include an oath or affirmation by the taxpayer that he or she is in compliance with the provisions of paragraphs (3) and (4) of subsection (b) of this Code section, if applicable.
    2. The applicable local governing authority shall accept applications for approval of property for purposes of subparagraph (a)(2)(G) of this Code section and shall certify property to the local board of tax assessors as meeting or not meeting the criteria of such paragraph. The local governing authority shall not certify any property as meeting the criteria of subparagraph (a)(2)(G) of this Code section unless:
      1. The owner has submitted to the local governing authority:
        1. A plat of the tract in question prepared by a licensed land surveyor, showing the location and measured area of such tract;
        2. A certification by a licensed professional engineer that the specific design used for the constructed storm-water wetland was recommended by the engineer as suitable for such site after inspection and investigation; and
        3. Information on the actual cost of constructing and estimated cost of operating the storm-water wetland, including without limitation a description of all incorporated materials, machinery, and equipment; and
      2. An authorized employee or agent of the local governing authority has inspected the site before, during, and after construction of the storm-water wetland to determine compliance with the requirements of subparagraph (a)(2)(G) of this Code section.

    (k.1) In the case of an alleged breach of the covenant, the owner shall be notified in writing by the board of tax assessors. The owner shall have a period of 30 days from the date of such notice to cease and desist the activity alleged in the notice to be in breach of the covenant or to remediate or correct the condition or conditions alleged in the notice to be in breach of the covenant. Following a physical inspection of property, the board of tax assessors shall notify the owner that such activity or activities have or have not properly ceased or that the condition or conditions have or have not been remediated or corrected. The owner shall be entitled to appeal the decision of the board of tax assessors and file an appeal disputing the findings of the board of tax assessors. Such appeal shall be conducted in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311. If the final determination on appeal to superior court is to reverse the decision of the board of tax assessors to enforce the breach of the covenant, the taxpayer shall recover costs of litigation and reasonable attorney's fees incurred in the action.

  12. A penalty shall be imposed under this subsection if during the period of the covenant entered into by a taxpayer the covenant is breached. The penalty shall be applicable to the entire tract which is the subject of the covenant and shall be twice the difference between the total amount of tax paid pursuant to current use assessment under this Code section and the total amount of taxes which would otherwise have been due under this chapter for each completed or partially completed year of the covenant period. No penalty shall be imposed until the appeal of the board of tax assessors' determination of breach is concluded. After the final determination on appeal, the taxpayer shall be afforded 60 days from issuance of the bill to make full payment. Once the 60 day payment period has expired, the bill shall be considered past due and interest shall accrue from the original billing due date as specified in Code Section 48-2-40 without limit until the bill is paid in full. Once past due, all other fees, penalties, and late and collection notices shall apply as prescribed in this chapter for the collection of delinquent taxes.
  13. Penalties and interest imposed under this Code section shall constitute a lien against the property and shall be collected in the same manner as unpaid ad valorem taxes are collected. Such penalties and interest shall be distributed pro rata to each taxing jurisdiction wherein current use assessment under this Code section has been granted based upon the total amount by which such current use assessment has reduced taxes for each such taxing jurisdiction on the property in question as provided in this Code section.
  14. The penalty imposed by subsection (l) of this Code section shall not apply in any case where a covenant is breached solely as a result of:
    1. The acquisition of part or all of the property under the power of eminent domain;
    2. The sale of part or all of the property to a public or private entity which would have had the authority to acquire the property under the power of eminent domain; or
    3. The death of an owner who was a party to the covenant.
  15. The transfer of a part of the property subject to a covenant for a bona fide conservation use shall not constitute a breach of a covenant if:
    1. The part of the property so transferred is used for single-family residential purposes, starting within one year of the date of transfer and continuing for the remainder of the covenant period, and the residence is occupied within 24 months from the date of the start by a person who is related within the fourth degree of civil reckoning to an owner of the property subject to the covenant; and
    2. The part of the property so transferred, taken together with any other part of the property so transferred to the same relative during the covenant period, does not exceed a total of five acres;

      and in any such case the property so transferred shall not be eligible for a covenant for bona fide conservation use, but shall, if otherwise qualified, be eligible for current use assessment as residential transitional property and the remainder of the property from which such transfer was made shall continue under the existing covenant until a terminating breach occurs or until the end of the specified covenant period.

  16. The following shall not constitute a breach of a covenant:
    1. Mineral exploration of the property subject to the covenant or the leasing of the property subject to the covenant for purposes of mineral exploration if the primary use of the property continues to be the good faith production from or on the land of agricultural products;
    2. Allowing all or part of the property subject to the covenant to lie fallow or idle for purposes of any land conservation program, for purposes of any federal agricultural assistance program, or for other agricultural management purposes;
    3. Allowing all or part of the property subject to the covenant to lie fallow or idle due to economic or financial hardship if the owner notifies the board of tax assessors on or before the last day for filing a tax return in the county where the land lying fallow or idle is located and if such owner does not allow the land to lie fallow or idle for more than two years of any five-year period;
      1. Any property which is subject to a covenant for bona fide conservation use being transferred to a place of religious worship or burial or an institution of purely public charity if such place or institution is qualified to receive the exemption from ad valorem taxation provided for under subsection (a) of Code Section 48-5-41. No person shall be entitled to transfer more than 25 acres of such person's property in the aggregate under this paragraph.
      2. Any property transferred under subparagraph (A) of this paragraph shall not be used by the transferee for any purpose other than for a purpose which would entitle such property to the applicable exemption from ad valorem taxation provided for under subsection (a) of Code Section 48-5-41 or subsequently transferred until the expiration of the term of the covenant period. Any such use or transfer shall constitute a breach of the covenant;
    5. Leasing a portion of the property subject to the covenant, but in no event more than six acres, for the purpose of placing thereon a cellular telephone transmission tower. Any such portion of such property shall cease to be subject to the covenant as of the date of execution of such lease and shall be subject to ad valorem taxation at fair market value;
    6. Allowing all or part of the property subject to the covenant on which a corn crop is grown to be used for the purpose of constructing and operating a maze so long as the remainder of such corn crop is harvested;
      1. Allowing all or part of the property subject to the covenant to be used for agritourism purposes.
      2. As used in this paragraph, the term "agritourism" means charging admission for persons to visit, view, or participate in the operation of a farm or dairy or production of farm or dairy products for entertainment or educational purposes or selling farm or dairy products to persons who visit such farm or dairy;
    8. Allowing all or part of the property which has been subject to a covenant for at least one year to be used as a site for farm weddings;
    9. Allowing all or part of the property which has been subject to a covenant for at least one year to be used to host not for profit equestrian performance events to which spectator admission is not contingent upon an admission fee but which may charge an entry fee from each participant;
    10. Allowing all or part of the property subject to the covenant to be used to host a not for profit rodeo event to which spectator admission and participant entry fees are charged in an amount that in aggregate does not exceed the cost of hosting such event;
      1. Allowing part of the property subject to the covenant to be used for solar generation of energy and conversion of such energy into heat or electricity, and the sale of the same in accordance with applicable law.
      2. The provisions of subparagraph (A) of this paragraph shall not allow the portion of the property on which such solar energy generating equipment is located, as depicted by a boundary survey prepared by a licensed surveyor, and which is subject to an existing covenant to remain in the covenant. Such property shall be removed from the existing covenant at the time of the installation of the solar energy generating equipment and shall be subject to the penalty for breach of the covenant contained in subsection (q) of this Code section and shall be subject to ad valorem taxation at fair market value; or
      1. Allowing part of the property subject to the covenant to be used for farm labor housing. As used in this paragraph, the term "farm labor housing" means all buildings or structures used as living quarters when such housing is provided free of charge to workers who provide labor on agricultural property.
      2. The provisions of subparagraph (A) of this paragraph shall not allow the portion of the property on which such farm labor housing is located and which is subject to an existing covenant to remain in the covenant. Such property shall be removed from the existing covenant at the time construction of the farm labor housing begins and shall be subject to ad valorem taxation at fair market value.
  17. In the following cases, the penalty specified by subsection (l) of this Code section shall not apply and the penalty imposed shall be the amount by which current use assessment has reduced taxes otherwise due for the year in which the covenant is breached, such penalty to bear interest at the rate specified in Code Section 48-2-40 from the date of the breach:
    1. Any case in which a covenant is breached solely as a result of the foreclosure of a deed to secure debt or the property is conveyed to the lienholder without compensation and in lieu of foreclosure, if:
      1. The deed to secure debt was executed as a part of a bona fide commercial loan transaction in which the grantor of the deed to secure debt received consideration equal in value to the principal amount of the debt secured by the deed to secure debt;
      2. The loan was made by a person or financial institution who or which is regularly engaged in the business of making loans; and
      3. The deed to secure debt was intended by the parties as security for the loan and was not intended for the purpose of carrying out a transfer which would otherwise be subject to the penalty specified by subsection (l) of this Code section;
    2. Any case in which a covenant is breached solely as a result of a medically demonstrable illness or disability which renders the owner of the real property physically unable to continue the property in the qualifying use, provided that the board of tax assessors shall require satisfactory evidence which clearly demonstrates that the breach is the result of a medically demonstrable illness or disability;
    3. Any case in which a covenant is breached solely as a result of an owner electing to discontinue the property in its qualifying use, provided such owner has renewed without an intervening lapse at least once the covenant for bona fide conservation use, has reached the age of 65 or older, and has kept the property in a qualifying use under the renewal covenant for at least three years. Such election shall be in writing and shall not become effective until filed with the county board of tax assessors;
    4. Any case in which a covenant is breached solely as a result of an owner electing to discontinue the property in its qualifying use, provided such owner entered into the covenant for bona fide conservation use for the first time after reaching the age of 67 and has either owned the property for at least 15 years or inherited the property and has kept the property in a qualifying use under the covenant for at least three years. Such election shall be in writing and shall not become effective until filed with the county board of tax assessors; or
    5. Any case in which a covenant is breached solely as a result of an owner that is a family owned farm entity as described in division (a)(1)(C)(iv) of this Code section electing to discontinue the property in its qualifying use on or after July 1, 2018, provided the owner has renewed at least once, without an intervening lapse, the covenant for bona fide conservation use, has kept the property in a qualifying use under the renewal covenant for at least three years, and any current shareholder, member, or partner of such family owned farm entity has reached the age of 65 and such shareholder, member, or partner held some beneficial interest, directly or indirectly through a family owned farm entity, in the property continuously since the time the covenant immediately preceding the current renewal covenant was entered. Such election shall be in writing and shall not become effective until filed with the county board of tax assessors.
  18. Property which is subject to current use assessment under this Code section shall be separately classified from all other property on the tax digest; and such separate classification shall be such as will enable any person examining the tax digest to ascertain readily that the property is subject to current use assessment under this Code section.  Covenants shall be public records and shall be indexed and maintained in such manner as will allow members of the public to locate readily the covenant affecting any particular property subject to current use assessment under this Code section. Based on information submitted by the county boards of tax assessors, the commissioner shall maintain a central registry of conservation use property, indexed by owners, so as to ensure that the 2,000 acre limitations of this Code section are complied with on a state-wide basis.
  19. The commissioner shall annually submit a report to the Governor, the Department of Agriculture, the Georgia Agricultural Statistical Service, the State Forestry Commission, the Department of Natural Resources, and the University of Georgia Cooperative Extension Service and the House Ways and Means, Natural Resources and Environment, and Agriculture and Consumer Affairs committees and the Senate Finance, Natural Resources and Environment, and Agriculture and Consumer Affairs committees and shall make such report available to other members of the General Assembly, which report shall show the fiscal impact of the assessments provided for in this Code section and Code Section 48-5-7.5. The report shall include the amount of assessed value eliminated from each county's digest as a result of such assessments; approximate tax dollar losses, by county, to all local governments affected by such assessments; and any recommendations regarding state and local administration of this Code section and Code Section 48-5-7.5, with emphasis upon enforcement problems, if any, attendant with this Code section and Code Section 48-5-7.5. The report shall also include any other data or facts which the commissioner deems relevant.
  20. A public notice containing a brief, factual summary of the provisions of this Code section shall be posted in a prominent location readily viewable by the public in the office of the board of tax assessors and in the office of the tax commissioner of each county in this state.
  21. Reserved.
  22. Reserved.
  23. At such time as the property ceases to be eligible for current use assessment or when any ten-year covenant period expires and the property does not qualify for further current use assessment, the owner of the property shall file an application for release of current use treatment with the county board of tax assessors who shall approve the release upon verification that all taxes and penalties with respect to the property have been satisfied. After the application for release has been approved by the board of tax assessors, the board shall file the release in the office of the clerk of the superior court in the county in which the original covenant was filed. The clerk of the superior court shall file and index such release in the real property records maintained in the clerk's office. No fee shall be paid to the clerk of the superior court for recording such release. The commissioner shall by regulation provide uniform release forms.
  24. Notwithstanding any other provision of this Code section to the contrary, in any case where a renewal covenant is breached by the original covenantor or a transferee who is related to that original covenantor within the fourth degree by civil reckoning, the penalty otherwise imposed by subsection (l) of this Code section shall not apply if the breach occurs during the sixth through tenth years of such renewal covenant, and the only penalty imposed shall be the amount by which current use assessment has reduced taxes otherwise due for each year in which such renewal covenant was in effect, plus interest at the rate specified in Code Section 48-2-40 from the date the covenant is breached.
  25. The commissioner shall have the power to make and publish reasonable rules and regulations for the implementation and enforcement of this Code section. Without limiting the commissioner's authority with respect to any other such matters, the commissioner may prescribe soil maps and other appropriate sources of information for documenting eligibility as a bona fide conservation use property. The commissioner also may provide that advance notice be given to taxpayers of the intent of a board of tax assessors to deem a change in use as a breach of a covenant.
  26. The governing authority of a county shall not publish or promulgate any information which is inconsistent with the provisions of this chapter. (Code 1981, § 48-5-7.4 , enacted by Ga. L. 1991, p. 1903, § 6; Ga. L. 1992, p. 6, § 48; Ga. L. 1993, p. 947, §§ 1-6; Ga. L. 1994, p. 428, §§ 1, 2; Ga. L. 1996, p. 1021, § 1; Ga. L. 1998, p. 553, §§ 3, 4; Ga. L. 1998, p. 574, § 1; Ga. L. 1999, p. 589, § 2; Ga. L. 1999, p. 590, § 1; Ga. L. 1999, p. 656, § 1; Ga. L. 2000, p. 1338, § 1; Ga. L. 2002, p. 1031, §§ 2, 3; Ga. L. 2003, p. 271, § 2; Ga. L. 2003, p. 565, § 1; Ga. L. 2004, p. 360, § 1; Ga. L. 2004, p. 361, § 1; Ga. L. 2004, p. 362, §§ 1, 1A; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2005, p. 222, §§ 1, 2/HB 1; Ga. L. 2006, p. 685, § 1/HB 1293; Ga. L. 2006, p. 819, § 1/HB 1502; Ga. L. 2007, p. 90, § 1/HB 78; Ga. L. 2007, p. 608, § 1/HB 321; Ga. L. 2008, p. 1149, §§ 1, 2, 3/HB 1081; Ga. L. 2012, p. 763, § 1/HB 916; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2013, p. 655, § 1/HB 197; Ga. L. 2013, p. 683, § 1/SB 145; Ga. L. 2016, p. 583, § 1/HB 987; Ga. L. 2017, p. 9, § 1/HB 238; Ga. L. 2018, p. 910, § 1/SB 458.)

The 2016 amendment, effective July 1, 2016, inserted "within 24 months from the date of the start" in the middle of paragraph (o)(1); in subsection (p), deleted "or" at the end of paragraph (p)(8), substituted "; or" for a period at the end of paragraph (p)(9), and added paragraph (p)(10).

The 2017 amendment, effective April 17, 2017, in division (a)(1)(C)(iv), in the middle, deleted "or" preceding "a trust of which the beneficiaries", and inserted ", or an entity created by the merger or consolidation of two or more entities which independently qualify as a family owned farm entity,"; and, in subsection (p), deleted "or" at the end of paragraph (p)(9), substituted a semicolon for a period at the end of paragraph (p)(10), and added paragraphs (p)(11) and (p)(12).

The 2018 amendment, effective July 1, 2018, added the second sentence in subparagraph (a)(1)(B); deleted "conservation" following "nonprofit" in division (a)(1)(C)(v); deleted "pursuant to Section 501(c)(7) of the Internal Revenue Code" following "purposes" in division (a)(1)(C)(vi); substituted "wetland" for "wetlands" in the middle of the introductory paragraph of subsection (b); substituted the present provisions of paragraph (b)(2) for the former provisions, which read: "The owner of a tract, lot, or parcel of land totaling less than ten acres shall be required by the tax assessor to submit additional relevant records regarding proof of bona fide conservation use for qualified property that on or after May 1, 2012, is either first made subject to a covenant or is subject to a renewal of a previous covenant. If the owner of the subject property provides proof that such owner has filed with the Internal Revenue Service a Schedule E, reporting farm related income or loss, or a Schedule F, with Form 1040, or, if applicable, a Form 4835, pertaining to such property, the provisions of this paragraph, requiring additional relevant records regarding proof of bona fide conservation use, shall not apply to such property. Prior to a denial of eligibility under this paragraph, the tax assessor shall conduct and provide proof of a visual on-site inspection of the property. Reasonable notice shall be provided to the property owner before being allowed a visual, on-site inspection of the property by the tax assessor;"; added paragraphs (j)(2) through (j)(4); redesignated former paragraph (j)(2) as present paragraph (j)(5); added the last sentence in subsection (k.1); in subsection (l), deleted the former third sentence, which read: "Any such penalty shall bear interest at the rate specified in Code Section 48-2-40 from the date the covenant is breached.", and added the present third through sixth sentences; deleted "or" at the end of paragraph (q)(3); substituted "; or" for a period at the end of paragraph (q)(4); and added paragraph (q)(5).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, subsection (w), as added by Ga. L. 1998, p. 574, § 1, was redesignated as subsection (x).

Pursuant to Code Section 28-9-5, in 2003, divisions (a)(2)(G)(1) and (a)(2)(G)(2) as added by Ga. L. 2003, p. 271, § 2, were redesignated as divisions (a)(2)(G)(i) and (a)(2)(G)(ii).

Pursuant to Code Section 28-9-5, in 2004, paragraph (a)(2.1) was redesignated as subsection (a.1) and "paragraph (2) of subsection (a) of this Code section" was substituted for "paragraph (2) of this subsection" in subsection (a.1).

Pursuant to Code Section 28-9-5, in 2012, "and paragraph (3)" was deleted following "paragraph (1) or (2)" in the introductory language of subsection (a); "May 1, 2012" was substituted for "the effective date of this paragraph" at the end of subparagraph (a)(1)(B); in paragraph (b)(2), "May 1, 2012," was substituted for "the effective date of this paragraph" in the first sentence, a period was substituted for a semicolon at the end of the next-to-last sentence, and a semicolon was added at the end. The language appearing in the Act as "(1)(A) The governing authority of a county shall not publish or promulgate any information which is inconsistent with the provisions of this Chapter." was redesignated as subsection (z).

Pursuant to Code Section 28-9-5, in 2018, "July 1, 2018 " was substituted for "the effective date of this paragraph" in paragraph (q)(5).

Editor's notes. - Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Ga. L. 1993, p. 947, § 10, not codified by the General Assembly, provides: "Sections 1, 2, 3, 4, and 9 of this Act shall be applicable to all bona fide conservation use covenants entered into for all taxable years beginning on or after January 1, 1993, and to any table of values of bona fide conservation use property established by the state revenue commissioner for all taxable years beginning on or after January 1, 1993. Any bona fide conservation use covenant entered into for the taxable year beginning January 1, 1992, shall continue to be governed by the law in effect for that taxable year."

Ga. L. 2002, p. 1031, § 9, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 2002.

Ga. L. 2003, p. 271, § 3, not codified by the General Assembly, provides that the amendment by this Act shall be applicable to all taxable years beginning on or after January 1, 2004.

Ga. L. 2004, p. 361, § 2, not codified by the General Assembly, provides that the amendment to subparagraph (a)(2)(F) shall apply to all taxable years beginning on or after January 1, 2005.

Administrative Rules and Regulations. - Rules for Certification of Environmentally Sensitive Property, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Natural Resources, Environmental Protection, Chapter 391-3-18.

Law reviews. - For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009). For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For annual survey on real property, see 66 Mercer L. Rev. 151 (2014). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on local government law, see 69 Mercer L. Rev. 205 (2017). For note on the 2000 amendment of this Code section, see 17 Ga. St. U. L. Rev. 277 (2000).

JUDICIAL DECISIONS

Valuation of comparable properties as evidence. - Evidence of the valuations of conservation use properties was relevant in an action involving the assessment of comparable corporate properties. Georgia-Pacific Corp. v. Talbot County Bd. of Tax Assessors, 241 Ga. App. 444 , 526 S.E.2d 914 (1999).

Requirement of valid covenant and bona fide qualifying use. - O.C.G.A. § 48-5-7.4(g) provides that no property shall maintain the property's eligibility for current use assessment under that Code section unless a valid covenant remains in effect and unless the property is continuously devoted to an applicable bona fide qualifying use during the entire period of the covenant. Terrell County Bd. of Tax Assessors v. Goolsby, 324 Ga. App. 535 , 751 S.E.2d 158 (2013).

Failure to conduct on-site inspection. - Board of Tax Assessors was prohibited from applying O.C.G.A. § 48-5-7.4(b)(2), because the Board failed to show the Board conducted an on-site inspection. Cherokee County Bd. of Tax Assessors v. Mason, 340 Ga. App. 889 , 798 S.E.2d 32 (2017).

Owner only benefitted from a lower ad valorem tax in proportion to interest owned. - Because a beneficial property owner only benefitted from a lower ad valorem tax in proportion to the interest owned in the property, the trial court did not err in granting summary judgment to a corporation, as approval of preferential ad valorem tax treatment for property co-owned by the shareholders of the corporation by a tenancy in common did not violate O.C.G.A. § 48-5-7.4(b)(3), as an individual's benefit was to be determined on a pro-rata basis; thus, if the interests of shareholders who were tenants in common of the property were so calculated, no single shareholder would have benefitted from the current use assessment as to more than 2,000 acres. Effingham County Bd. of Tax Assessors v. Samwilka, Inc., 278 Ga. App. 521 , 629 S.E.2d 501 (2006).

Property properly disqualified as bona fide conservation use property. - Board's determination that an owner's property did not qualify as a bona fide conservation use property due to restrictive covenants was proper because O.C.G.A. § 48-5-7.4(b)(5) was strictly construed in favor of the board, and disqualified property which was restricted from any, but not necessarily all, of the activities described in O.C.G.A. § 48-5-7.4(a)(1)(E). Morrison v. Claborn, 294 Ga. App. 508 , 669 S.E.2d 492 (2008).

Property not qualified for current use assessment. - Georgia Court of Appeals concludes that if the taxpayer is operating some other type of business, a business separate and apart from the commercial production from or on the land of agricultural products, and the business is not incidental, occasional, intermediate, or temporary but is detrimental to or in conflict with the property's primary purpose, then the land does not qualify for current use assessment under O.C.G.A. § 48-5-7.4 . Terrell County Bd. of Tax Assessors v. Goolsby, 324 Ga. App. 535 , 751 S.E.2d 158 (2013).

Evidence of use for farming timber. - Trial court did not err by finding that the land owner's actions constituted good faith production including, but limited to farming or commercial production, from or on the land of agricultural products or timber as it simply made a credibility determination, accepting the owner's account of the owner's past harvesting and intent to harvest poplar in the future. Cherokee County Bd. of Tax Assessors v. Mason, 340 Ga. App. 889 , 798 S.E.2d 32 (2017).

Error in failing to make necessary findings as to business operated on property. - Trial court erred by holding that operating a commercial grain business on property designated conservation use property under O.C.G.A. § 48-5-7.4 did not constitute a breach of the conservation use covenant because the court failed to make any findings as to whether the grain business was incidental and not detrimental to the qualifying use of the property. Terrell County Bd. of Tax Assessors v. Goolsby, 324 Ga. App. 535 , 751 S.E.2d 158 (2013).

Right to appeal penalty assessment. - An assessment of a penalty for a breach of a conservation use covenant is an assessment for which a property owner has the right to appeal pursuant to O.C.G.A. § 48-5-311 . Oconee County Bd. of Tax Assessors v. Thomas, 282 Ga. 422 , 651 S.E.2d 45 (2007).

Mandamus relief properly denied since certification of appeals obtained. - Trial court did not err by denying a group of property owners their request for mandamus relief in the nature of finding that the county board of tax assessors certified their property tax appeals because it was undisputed that the tax appeals were physically delivered to the trial court and that it had ruled that such appeals were certified to it, thus, the property owners received the relief sought regarding certification. Newton Timber Co., L.L.L.P. v. Monroe County Bd. of Tax Assessors, Ga. , 755 S.E.2d 770 (2014).

Notice and opportunity to cure not properly given. - Board of Tax Assessors failed to meet its threshold obligation to provide the property owner with notice of an opportunity to correct the alleged breach of a conservation covenant; therefore, the property owner was entitled to summary judgment in an action for breach of the covenant and assessment of a penalty against the property owner. Morgan County Bd. of Tax Assessors v. Ward, 318 Ga. App. 186 , 733 S.E.2d 470 (2012).

48-5-7.5. Assessment of standing timber; penalty for failure to timely report; effect of reduction of property tax digest; supplemental assessment.

  1. Standing timber shall be assessed for ad valorem taxation only once and such assessment shall be made following its harvest or sale as provided for in this Code section.  Such timber shall be subject to ad valorem taxation notwithstanding the fact that the underlying land is exempt from taxation, unless such taxation is prohibited by federal law or treaty.  Such timber shall be assessed at 100 percent of its fair market value and shall be taxed on a levy made by each respective taxing jurisdiction according to such 100 percent fair market value.  Such assessment shall be made in the county where the timber was grown and shall be taxable by that county and any other taxing jurisdiction therein in which the timber was grown.
  2. For purposes of this Code section, the term "sale" of timber shall mean the arm's length, bona fide sale of standing timber for harvest separate and apart from the underlying land and shall not include the simultaneous sale of a tract of land and the timber thereon.
  3. Lump sum sales.
    1. Where standing timber is sold, in an arm's length, bona fide sale, by timber deed, contract, lease, agreement, or otherwise to be harvested within a three-year period after the date of the sale and for a lump sum price, so much of said timber as will be harvested within three years shall be assessed for taxation as of the date of the sale. The fair market value of such timber for purposes of ad valorem taxation shall be the lump sum price paid by the purchaser in the arm's length, bona fide sale. Any timber described in any sale instrument which is not harvested within three years after the date of the sale shall later be assessed for taxation following its future harvest or sale. Ad valorem taxes shall be payable by the seller and shall be calculated by multiplying the 100 percent fair market value of the timber times the millage rate levied by the taxing authority on tangible property for the previous calendar year. Immediately upon receipt by the seller of the purchase price, the seller shall remit to the purchaser the amount of ad valorem tax due on the sale, in the form of a negotiable instrument payable to the tax collector or tax commissioner. Such negotiable instrument shall be remitted by the purchaser to the tax collector or tax commissioner not later than five days after receipt of the tax from the seller. A purchaser failing to make such remittance shall be personally liable for the tax. With said remittance, the purchaser shall present to the board of tax assessors and to the tax collector or tax commissioner a report of the sale showing the lump sum sales price of the standing timber, the date of sale, the addresses of the seller and purchaser, and the location of the standing timber in the county. The tax collector or tax commissioner shall collect from the purchaser the seller's negotiable instrument in payment of the tax; and a receipt showing payment of the tax shall promptly be delivered by the tax collector or tax commissioner to the seller.
    2. Upon request of the purchaser, the tax collector or tax commissioner shall enter upon or attach to the instrument conveying the standing timber a certification that the ad valorem tax has been paid, the date, and the amount of the tax.  The certificate shall be signed by the tax collector or tax commissioner or his deputy. The purchaser may then present the instrument together with the certificate to the clerk of superior court of the county or counties in which the standing timber is located, who shall then file the instrument for record.  The ad valorem tax levied under this subsection on lump sum sales of standing timber shall be paid to the tax collector or tax commissioner prior to and as a prerequisite to the filing for record of the instrument with the clerk of superior court, and the clerk shall not be permitted to file the instrument for record unless the instrument discloses on its face the proper certificate showing that the tax has been paid; and the certificate shall be recorded with the instrument.
  4. Unit price sales.
    1. Any person purchasing standing timber, in an arm's length, bona fide sale, by timber deed, contract, lease, agreement, or otherwise by unit prices shall furnish a report to the seller and the county board of tax assessors within 45 days after the end of each calendar quarter. The report shall show the total dollar value of standing timber paid to the seller and the volume, in pounds, if available, or measured volume, of softwood and hardwood pulpwood, chip and saw logs, saw timber, poles, posts, and fuel wood harvested. Such report shall include such data through the last business day of the calendar quarter, the names and addresses of the seller and the purchaser, and the location of the harvested timber. A copy of such report shall also be furnished by the seller to the tax assessors within 60 days after the end of the calendar quarter. The fair market value of such timber for purposes of ad valorem taxation shall be the total dollar values paid by the purchaser in the arm's length, bona fide sale. Ad valorem taxes shall be payable by the seller in the unit price sales transaction as provided in subsection (h) of this Code section and shall be calculated by multiplying the 100 percent fair market value of the timber times the millage rate levied by the taxing authority on tangible property for the previous calendar year.
    2. Reports to the tax assessors shall be confidential, shall not be revealed to any person other than authorized tax officials, and shall be exempt from disclosure under Article 4 of Chapter 18 of Title 50.
  5. Owner harvests. Owners of real property in this state who harvest standing timber from their own lands shall report the volume, in pounds, if available, or measured volume, of softwood and hardwood pulpwood, chip and saw logs, saw timber, poles, posts, and fuel wood harvested through the last business day of each calendar quarter from said lands to the tax assessors within 45 days after the end of each calendar quarter. Such reports shall also identify the location of the tract from which the standing timber was harvested. The fair market value of such timber for purposes of ad valorem taxation shall be as determined under subsection (g) of this Code section. Ad valorem taxes shall be paid by the landowner as provided in subsection (h) of this Code section and shall be calculated by multiplying the 100 percent fair market value of the timber times the millage rate levied by the taxing authority on tangible property for the previous calendar year.
  6. Other sales and harvests. Every sale and every harvest of timber not previously taxed (excepting only a sale not for harvest within three years) shall be a taxable event.  If any such sale or harvest is not a reportable taxable event described under subsection (c), (d), or (e) of this Code section, such timber shall be subject to ad valorem taxation under this subsection; and such sale or harvest shall be reported and taxed under the provisions of subsection (c), (d), or (e) of this Code section, whichever is most nearly applicable.
  7. The commissioner, after consultation with the State Forestry Commission, shall provide the tax assessors of each county with the weighted average price paid, in pounds and measured volume, during each calendar year for softwood and hardwood pulpwood, chip and saw logs, saw timber, poles, posts, and fuel wood in each county or multicounty area within 60 days of the end of each calendar year. The most recent weighted average prices provided by the commissioner shall be applied by the tax assessors to the volume of wood removals reported as provided in this Code section to determine the fair market value of timber harvested other than under a taxable lump sum sale or taxable unit price sale.
      1. Based on the reports and data provided under subsections (d), (f), and (g) of this Code section, the tax collector or tax commissioner shall on a quarterly basis mail tax bills for sales and harvests other than lump sum sales. Ad valorem taxes on such sales and harvests shall be payable by the landowner within 30 days of receipt of the bill from the tax collector or tax commissioner.
      2. Based upon the reports and data provided under subsections (e) and (g) of this Code section, ad valorem taxes for owner harvests shall be payable by the landowner to the tax collector or tax commissioner within 45 days after the end of each calendar quarter.
    2. Any ad valorem tax or penalty which is not timely paid as provided in this Code section shall bear interest at the rate specified in Code Section 48-2-40 from the due date.  Unpaid taxes, penalty, and interest imposed under this Code section shall constitute a lien against the property of the person responsible for payment of such tax and shall be collected in the same manner as other unpaid ad valorem taxes are collected.
  9. The millage rate applicable at the time of sale or the time of harvest of standing timber shall be the millage rate levied by the taxing authority on tangible property for the preceding calendar year.
  10. Any person who fails to timely make any report or disclosure required by this Code section shall pay a penalty of 50 percent of the tax due, except that if the failure to comply is unintentional and the report or disclosure is filed within 12 months after the due date the amount of the penalty shall be 1 percent for each month or part of a month that the report or disclosure is late.
  11. Forms for reports required by this Code section shall be supplied to each county by the department.
    1. In any county in which the ad valorem taxation of timber pursuant to this Code section reduces the total property tax digest of such county for tax year 1992 by more than 20 percent of the amount of the total property tax digest of such county for the immediately preceding taxable year, such digest shall be supplemented as follows:
      1. The difference between the total property tax digest for the county and the total property tax digest less the total assessed value of standing timber removed from the digest shall be calculated;
      2. The difference calculated under subparagraph (A) of this paragraph shall be reduced by the fair market value of sold or harvested timber; and
      3. If the amount calculated under subparagraph (B) of this paragraph is more than 20 percent of the amount of the total property tax digest of such county for the immediately preceding taxable year, the resulting amount shall be assigned and taxed on a levy made by the tax officials of such county in a pro rata manner against the land underlying the standing timber so removed from the digest.
    2. Where a digest is so supplemented for tax year 1992, it shall be supplemented in subsequent years as follows:
      1. For tax year 1993, such supplemental assessment shall be in an amount equal to 75 percent of the supplemental assessment received for tax year 1992;
      2. For tax year 1994, such supplemental assessment shall be in an amount equal to 50 percent of the supplemental assessment received for tax year 1992;
      3. For tax year 1995, such supplemental assessment shall be in an amount equal to 25 percent of the supplemental assessment received for tax year 1992; and
      4. For tax year 1996 and future tax years, no supplemental assessment shall be received.
    1. Any supplemental assessment added to a digest pursuant to subsection (l) of this Code section shall not be included in the calculation of the equalized adjusted school property tax digest under Code Section 48-5-274 for the purpose of calculating the required local five mill share for school funding purposes under Code Section 20-2-164 .
    2. The fair market value of timber harvested or sold added to a digest pursuant to this Code section shall be included in the calculation of the equalized adjusted school property tax digest under Code Section 48-5-274 for the purpose of calculating the required local five mill share for school funding purposes under Code Section 20-2-164 . (Code 1981, § 48-5-7.5 , enacted by Ga. L. 1991, p. 1903, § 6; Ga. L. 1995, p. 792, §§ 1-6; Ga. L. 2000, p. 618, § 96; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "State Forestry Commission" for "Georgia Forestry Commission" near the beginning of the first sentence of subsection (g).

Editor's notes. - Ga. L. 1991, p. 1903, § 14, effective April 24, 1991, not codified by the General Assembly, provides: "To assist counties and boards of education in planning, volumes of standing timber harvested in each county through the last business day of the second and third quarters of 1991 shall be reported by the purchaser, or by the harvester if there is no purchaser, to the tax assessors of the county or counties in which the timber was harvested by November 15, 1991. Such reports shall show the number of pounds, if available, or measured volume of softwood and hardwood pulpwood, chip and saw logs, saw timber, poles, posts, and fuel wood so harvested. The commissioner, after consultation with the Georgia Forestry Commission, shall provide the tax assessor of each county with the weighted average unit price in pounds and measured volume paid through the last business day of such period for each such product class, no later than November 15, 1991."

Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Ga. L. 2000, p. 618, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'A Plus Education Reform Act of 2000.'"

JUDICIAL DECISIONS

Construction with other law. - Assessments lacked uniformity in failing to follow the mandates of O.C.G.A. § 48-5-2 regarding consideration of "existing use of the property" and "other factors deemed pertinent in arriving at fair market value" and in failing to exempt standing timber under the mandate of O.C.G.A. §§ 48-5-7.1(a)(1) and 48-5-7.5 as set forth in Ga. Const. 1983, Art. VII, Sec. I, Para. III(e)(2). Leverett v. Jasper County Bd. of Tax Assessors, 233 Ga. App. 470 , 504 S.E.2d 559 (1998).

Timber appraised as separate stratum. - Assessments of land and timber into one number, which were predicated upon appraisals which had been conducted in violation of former O.C.G.A. § 48-5-33 in that timber was appraised as a separate stratum of property, were null and void. Hancock County Bd. of Tax Assessors v. Dickens, 208 Ga. App. 742 , 431 S.E.2d 735 (1993).

OPINIONS OF THE ATTORNEY GENERAL

State not subject to timber tax. - Timber provision does not reveal a clear legislative intent to tax the state, as a result, the state is not subject to the timber tax provided by O.C.G.A. § 48-5-7.5 . Because the taxation of timber provision can be read not to apply to public property, the statute must be construed consistent with the principles that the state is exempt from ad valorem taxation. 1992 Op. Att'y Gen. No. 92-32.

48-5-7.6. "Brownfield property" defined; related definitions; qualifying for preferential assessment; disqualification of property receiving preferential assessment; responsibilities of owners; transfers of property; costs; appeals; creation of lien against property; extension of preferential assessment.

    1. For the purposes of this Code section,  "brownfield property" means tangible real property where:
      1. There has been a release of hazardous waste, hazardous constituents, and hazardous substances into the environment;
      2. The director of the Environmental Protection Division of the Department of Natural Resources, under Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended, has approved and not revoked said approval of the prospective purchaser's corrective action plan or compliance status report for such brownfield property;
      3. The director of the Environmental Protection Division of the Department of Natural Resources, under Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended, has issued and not revoked a limitation of liability certificate for the prospective purchaser; and
      4. The Environmental Protection Division of the Department of Natural Resources has certified eligible costs of remediation pursuant to subsection (j) of this Code section.
    2. The preferential classification and assessment of brownfield property provided for in this Code section shall apply to all real property qualified by the Environmental Protection Division of the Department of Natural Resources under Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended, and any subsequent improvements to said property.
    3. "Eligible brownfield costs" means costs incurred after July 1, 2003, and directly related to the receipt of a limitation of liability pursuant to Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended, that are not ineligible costs.
    4. "Ineligible costs" means expenses of the following types:
      1. Purchase or routine maintenance of equipment of a durable nature that is expected to have a period of service of one year or more after being put into use at the property without material impairment of its physical condition, unless the applicant can show that the purchase was directly related to the receipt of a limitation of liability, or the applicant can demonstrate that the equipment was a total loss and that the loss occurred during the activities required for receipt of applicant's limitation of liability pursuant to Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended;
      2. Materials or supplies not purchased specifically for obtaining a limitation of liability pursuant to Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended;
      3. Employee salaries and out-of-pocket expenses normally provided for in the property owner's operating budget (i.e., meals, fuel) and employee fringe benefits;
      4. Medical expenses;
      5. Legal expenses;
      6. Other expenses not directly related to the receipt of a limitation of liability pursuant to Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended;
      7. Costs arising as a result of claims for damages filed by third parties against the property owner or its agents should there be a new release at the property during or after the receipt of a limitation of liability;
      8. Costs resulting from releases after the purchase of qualified brownfield property that occur as a result of violation of state or federal laws, rules, or regulations;
      9. Purchases of property;
      10. Construction costs;
      11. Costs associated with maintaining institutional controls after the certification of costs by the Environmental Protection Division of the Department of Natural Resources; and
      12. Costs associated with establishing, maintaining or demonstrating financial assurance after the certification of costs by the Environmental Protection Division of the Department of Natural Resources.
    5. "Local taxing authority" means a county, municipal, school district, or any other local governing authority levying ad valorem taxes on a taxpayer's property. If a taxpayer's property is taxed by more than one such authority, the term "local taxing authority" shall mean every levying authority.
    6. "Taxable base" means a value assigned to the brownfield property pursuant to the provisions of subparagraph (F) of paragraph (3) of Code Section 48-5-2.
    7. "Tax savings" means the difference between the amount of taxes paid on the taxable base and the taxes that would otherwise be due on the current fair market value of the qualified brownfield property. Tax savings run with the qualified brownfield property regardless of title transfer and shall be available until the brownfield property is disqualified pursuant to subsection (e) of this Code section.
  2. In order for property to qualify under this Code section for preferential assessment as provided for in subsection (c.4) of Code Section 48-5-7, the applicant must receive the certifications required for brownfield property as defined in paragraph (1) of subsection (a) of this Code section.
  3. Upon receipt of said certifications, a property owner desiring classification of any such contaminated property as brownfield property in order to receive the preferential assessment shall make application to the county board of tax assessors and include said certifications with such application. The county board of tax assessors shall determine if the provisions of this Code section have been complied with, and upon such determination, the county board of tax assessors shall be required to grant preferential assessment to such property. The county board of tax assessors shall make the determination within 90 days after receiving the application and shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306. Failure to timely make such determination or so notify the applicant pursuant to this subsection shall be deemed an approval of the application. Appeals from the denial of an application for preferential assessment by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311.
    1. Property which has been classified by the county board of tax assessors as brownfield property shall be immediately eligible for the preferential assessment provided for in subsection (c.4) of Code Section 48-5-7; provided, however, that, for the purposes of determining the years of eligibility for preferential assessment, the tax year following the year in which the certification was filed with the county board of tax assessors pursuant to subsection (c) of this Code section shall be considered and counted as the first year of eligibility.
    2. Property which is subject to preferential assessment shall be separately classified from all other property on the tax digest; and such separate classification shall be such as will enable any person examining the tax digest to ascertain readily that the property is subject to preferential assessment.
    3. The local taxing authority shall enter upon the tax digest as the basis or value of a parcel of brownfield property a value equal to the lesser of the acquisition cost of the property or the assessment of the fair market value of the property as recorded in the county tax digest at the time application for participation in the program was submitted to the Environmental Protection Division of the Department of Natural Resources under Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended. Property classified as brownfield property shall be recorded upon the tax digest as provided in this Code section for ten consecutive assessment years, or as extended pursuant to subsection (o) of this Code section, unless sooner disqualified pursuant to subsection (e) of this Code section, and the notation "brownfield property" shall be entered on the tax digest adjacent to the valuation of such property to indicate that the property is being preferentially assessed. The local taxing authority shall also enter upon the tax digest an assessment of the fair market value of the property each year, excluding the provisions of subparagraph (F) of paragraph (3) of Code Section 48-5-2.
    1. When property has once been classified and assessed as brownfield property, it shall remain so classified and be granted the preferential assessment until the property becomes disqualified by any one of the following:
      1. Written notice by the taxpayer to the local taxing authority to remove the preferential classification and assessment;
      2. Sale or transfer of ownership to a person not subject to property taxation or making the property exempt from property taxation except a sale or transfer to any authority created by or pursuant to the Constitution of Georgia, statute or local legislation, including a development authority created pursuant to Code Section 36-62-4, constitutional amendment or local legislation, a downtown development authority created pursuant to Code Section 36-42-4, an urban redevelopment agency created pursuant to Code Section 36-61-18, a joint development authority created pursuant to Code Section 36-62-5.1, or a housing authority created pursuant to Code Section 8-3-4;
      3. Revocation of a limitation of liability by the Department of Natural Resources. The Department of Natural Resources has the authority to revoke a limitation of liability pursuant to Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended. The sale or transfer to a new owner shall not operate to disqualify the property from preferential classification and assessment so long as the property continues to qualify as brownfield property, except as specified in subparagraph (B) of this paragraph;
      4. The later of the expiration of ten years during which the property was classified and assessed as brownfield property or the expiration of this preferential assessment period as extended pursuant to subsection (o) of this Code section; or
      5. The tax savings accrued on the property equal the eligible brownfield costs certified by the Environmental Protection Division of the Department of Natural Resources and submitted to the local taxing authority.
    2. Except as otherwise provided in this Code section, if a property becomes disqualified pursuant to subparagraph (C) of paragraph (1) of this subsection, the decertification shall be transmitted to the county board of tax assessors by the Environmental Protection Division of the Department of Natural Resources and said assessors shall appropriately notate the property as decertified. Such property shall not be eligible to receive the preferential assessment provided for in this Code section during the taxable year in which such disqualification occurs.
  6. After a qualified brownfield property begins to receive preferential tax treatment the property owner shall:
    1. In a sworn affidavit, report his or her tax savings realized for each year to the local taxing authority. Such report shall include:
      1. The number of years preferential tax treatment pursuant to this Code section has been received;
      2. Total certified eligible brownfield costs;
      3. Tax savings realized to date;
      4. Transfers of eligible brownfield costs, if any; and
      5. Eligible brownfield costs remaining;
    2. In the tax year in which the taxes otherwise due on the fair market value of the property exceed any remaining eligible brownfield costs, the taxpayer shall pay the taxes due on the fair market value of the property less any remaining eligible brownfield costs.
  7. A qualified brownfield property may be transferred or leased and continue to receive preferential tax treatment if:
    1. The transferee or lessee of the property is an entity required to pay ad valorem property tax on the qualified brownfield property or an interest therein;
    2. The transferee or lessee complies with all of the requirements of this Code section;
    3. The transferee or lessee meets the requirements of Code Section 12-8-206;
    4. The transferee or lessee continues any and all activities, if any are required, for the continuation of a limitation of liability pursuant to Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended;
    5. The transferee or lessee and the transferor notify the local taxing authority with respect to the transfer of the qualified brownfield property by filing a separate copy of the transfer with the local taxing authority no later than 90 days following the date of the transfer;
    6. Failure to timely notify one local taxing authority shall not affect any timely notification to any other local taxing authority; and
    7. The transfer of property shall not restart, reset or otherwise lengthen the period of preferential tax treatment pursuant to this Code section.
    1. A qualified brownfield property may be subdivided into smaller parcels and continue to receive preferential tax treatment if:
      1. All of the requirements of subsection (g) of this Code section are met; and
      2. The transferee and transferor agree and jointly submit to the local taxing authority a sworn affidavit stating the eligible brownfield costs being transferred to the subdivided property, to wit:
  9. A transferor's report to the local taxing authority shall include:
  10. The Environmental Protection Division of the Department of Natural Resources shall review the eligible costs submitted by the applicant/taxpayer and shall approve or deny those costs prior to those costs being submitted to the local tax authority. Eligible costs to be certified as accurate by the Environmental Protection Division shall be submitted by the applicant to the division at such time and in such form as is prescribed by the division. Eligible costs may be submitted for certification only once for each assessment or remediation undertaken pursuant to Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act," as amended. The certification of costs shall be a decision of the director and may be appealed in accordance with subsection (c) of Code Section 12-2-2.
  11. The taxing authority shall provide an appropriate form or forms or space on an existing form or forms to implement this Code section.
  12. Taxpayers shall have the same rights to appeal from the determination of the taxable base and assessments and reassessments of qualified brownfield property as set out in Code Section 48-5-311.
  13. A penalty shall be imposed under this Code section if during the special classification period the taxpayer fails to abide by the corrective action plan. The penalty shall be applicable to the entire tract which is the subject of the special classification and shall be twice the difference between the total amount of tax paid pursuant to preferential assessment under this Code section and the total amount of taxes which would otherwise have been due under this chapter for each completed or partially completed year of the special classification period. Any such penalty shall bear interest at the rate specified in Code Section 48-2-40 from the date the special classification is breached.
  14. Penalties and interest imposed under this Code section shall constitute a lien against the property and shall be collected in the same manner as unpaid ad valorem taxes are collected. Such penalties and interest shall be distributed pro rata to each taxing jurisdiction wherein current use assessment under this Code section has been granted based upon the total amount by which such preferential assessment has reduced taxes for each such taxing jurisdiction on the property in question as provided in this Code section.
    1. Notwithstanding anything to the contrary in subsections (a) through (n) of this Code section, a qualified brownfield property may be eligible for preferential assessment in accordance with the provisions of subsection (c.4) of Code Section 48-5-7 for a period not to exceed 15 years under the following circumstances:
    2. Upon receipt of the certification required by subparagraph (C) of paragraph (1) of this subsection, the county board of tax assessors shall extend the period of preferential assessment for one year for each 365 days of construction inactivity for up to a maximum of five consecutive years. Under no circumstances shall the period of preferential assessment exceed 15 consecutive years.
  1. The total certified eligible brownfield costs for the qualified brownfield property;
  2. The tax savings realized to date;
  3. The eligible brownfield costs being transferred;
  4. The number of years of preferential tax treatment pursuant to this Code section has been received;
  5. The eligible brownfield costs remaining; and
  6. A request to establish the taxable base of the transferred property and reestablish the taxable base for the retained property pursuant to paragraph (2) of this subsection; (ii) Failure to file a sworn affidavit with one local taxing authority shall not affect any sworn affidavit submitted to any other local taxing authority; (iii) A transferee's first report to the local taxing authority shall include: (I) A statement of the amount of the transferred eligible brownfield costs; (II) The number of years of preferential tax treatment the property received prior to transfer (carry over from transferor); and (II) A request to establish a taxable base for the property pursuant to paragraph (2) of this subsection; and (iv) Subsequent reports made by a transferee shall include the same information provided by property owners in paragraph (1) of subsection (f) of this Code section. (2) The taxable base for the subdivided property shall be established by the local taxing authority based on the ratio of acres purchased to total acres at the time of the establishment of the taxable base for the entire qualified brownfield property. Such ratio shall be applied to the taxable base as recorded in the county tax digest at the time the application was received by the Environmental Protection Division for participation in the program under Article 9 of Chapter 8 of Title 12, the "Georgia Brownfield Act." The taxable base on the retained qualified brownfield property shall be decreased by the amount of taxable base assigned to the subdivided portion of the property. (3) The subdivision of property shall not restart, reset, or otherwise lengthen the period of preferential tax treatment pursuant to this Code section.
    1. In the year in which preferential tax treatment ends, the taxpayer shall be liable for any and all ad valorem taxes due on the property for which a certified eligible brownfield cost is not claimed as an offset.
      1. Construction of improvements on the property commenced but thereafter ceased for a period in excess of 180 days;
      2. After a delay in excess of 180 days, construction of improvements on the property resumed; and
      3. The owner of the qualified brownfield property submits a sworn certification to the county board of tax assessors stating the date on which construction first commenced, the date on which construction ceased, and the date on which construction resumed.

        (Code 1981, § 48-5-7.6 , enacted by Ga. L. 2003, p. 170, § 3; Ga. L. 2004, p. 631, § 48; Ga. L. 2012, p. 843, § 4/HB 1102; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2014, p. 866, § 48/SB 340; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (a)(4)(C).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "'Georgia Brownfield Act' " for "'Georgia Hazardous Site Reuse and Redevelopment Act' " throughout this Code section.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, "program" was substituted for "Hazardous Site Reuse and Redevelopment Program" in the first sentence of paragraph (d)(3); and "program under Article 9 of Chapter 8 of Title 12, the 'Georgia Brownfield Act'" was substituted for "Georgia Hazardous Site Reuse and Redevelopment Program" in the second sentence of paragraph (h)(2).

48-5-7.7. Short title; definitions; qualifications for conservation use assessment.

  1. This Code section shall be known and may be cited as the "Georgia Forest Land Protection Act of 2008."
  2. As used in this Code section, the term:
    1. "Contiguous" means real property within a county that abuts, joins, or touches and has the same undivided common ownership.  If an applicant's tract is divided by a county boundary, public roadway, public easement, public right of way, natural boundary, land lot line, or railroad track, then the applicant has, at the time of the initial application, a one-time election to declare the tract as contiguous irrespective of a county boundary, public roadway, public easement, public right of way, natural boundary, land lot line, or railroad track.
    2. "Forest land conservation use property" means real property that is forest land of at least 200 acres in aggregate which lies within one or more counties, provided that such forest land is in parcels of at least 100 acres within any given county and that is subject to the following qualifications:
      1. Such property must be owned by an individual or individuals or by any entity registered to do business in this state;
      2. Such property excludes the entire value of any residence and its underlying land located on the property; as used in this subparagraph, the term "underlying land" means the minimum lot size required for residential construction by local zoning ordinances or two acres, whichever is less.  This provision for excluding the underlying land of a residence from eligibility in the conservation use covenant shall only apply to property that is first made subject to such a covenant, or is subject to a renewal of a previous conservation use covenant, on or after January 1, 2014;
      3. Such property has as its primary use the good faith subsistence or commercial production of trees, timber, or other wood and wood fiber products from or on the land.  Such primary use includes land conservation and ecological forest management in which commercial production of wood and wood fiber products may be undertaken primarily for conservation and restoration purposes rather than financial gain.  Such property may, in addition, have one or more of the following secondary uses:
        1. The promotion, preservation, or management of wildlife habitat;
        2. Carbon sequestration in accordance with the Georgia Carbon Sequestration Registry;
        3. Mitigation and conservation banking that results in restoration or conservation of wetlands and other natural resources; or
        4. The production and maintenance of ecosystem products and services, such as, but not limited to, clean air and water.

          Forest land conservation use property may include, but is not limited to, land that has been certified as environmentally sensitive property by the Department of Natural Resources or which is managed in accordance with a recognized sustainable forestry certification program, such as the Sustainable Forestry Initiative, Forest Stewardship Council, American Tree Farm Program, or an equivalent sustainable forestry certification program approved by the State Forestry Commission.

    3. "Qualified owner" means any individual or individuals or any entity registered to do business in this state.
    4. "Qualified property" means forest land conservation use property as defined in this subsection.
    5. "Qualifying purpose" means a use that meets the qualifications of subparagraph (C) of paragraph (2) of this subsection.
  3. The following additional rules shall apply to the qualification of forest land conservation use property for conservation use assessment:
    1. Forest land conservation use property of an owner within a county for which forest land conservation use assessment is sought under this Code section shall be in covenants, which shall include forest land of at least 200 acres in aggregate which lies within one or more counties, provided that such forest land is in parcels of at least 100 acres within any given county, unless otherwise required under subsection (e) of this Code section;
    2. When one-half or more of the area of a single tract of real property is used for the qualifying purpose, then the entirety of such tract shall be considered as used for such qualifying purpose unless some other type of business is being operated on the portion of the tract that is not being used for a qualifying purpose; provided, however, that such other portion must be minimally managed so that it does not contribute significantly to erosion or other environmental or conservation problems or must be used for one or more secondary purposes specified in subparagraph (b)(2)(C) of this Code section.  The following uses of real property shall not constitute using the property for another type of business:
      1. The lease of hunting rights or the use of the property for hunting purposes;
      2. The charging of admission for use of the property for fishing purposes;
      3. The production of pine straw or native grass seed;
      4. The granting of easements solely for ingress and egress; and
      5. Any type of business devoted to secondary uses listed under subparagraph (b)(2)(C) of this Code section; and
    3. No otherwise qualified forest land conservation use property shall be denied conservation use assessment on the grounds that no soil map is available for the county or counties, if applicable, in which such property is located; provided, however, that if no soil map is available for the county or counties, if applicable, in which such property is located, the board of tax assessors shall use the current soil classification applicable to such property.
  4. No property shall qualify for conservation use assessment under this Code section unless and until the qualified owner of such property agrees by covenant with the appropriate taxing authority to maintain the eligible property in forest land conservation use for a period of ten years beginning on the first day of January of the year in which such property qualifies for such conservation use assessment and ending on the last day of December of the final year of the covenant period.  After the qualified owner has applied for and has been allowed conservation use assessment provided for in this Code section, it shall not be necessary to make application thereafter for any year in which the covenant period is in effect and conservation use assessment shall continue to be allowed such qualified owner as specified in this Code section.  At least 60 days prior to the expiration date of the covenant, the county board of tax assessors where the property is located shall send by first-class mail written notification of such impending expiration.  Upon the expiration of any covenant period, the property shall not qualify for further conservation use assessment under this Code section unless and until the qualified owner of the property has entered into a renewal covenant for an additional period of ten years; provided, however, that the qualified owner may enter into a renewal contract in the ninth year of a covenant period so that the contract is continued without a lapse for an additional ten years.
  5. Subject to the limitations of paragraph (1) of subsection (c) of this Code section, a qualified owner shall be authorized to enter into more than one covenant under this Code section for forest land conservation use property. Any such qualified property may include a tract or tracts of land which are located in more than one county in which event the owner shall enter into a covenant with each county. In the event a single contiguous tract is required to have separate covenants under this subsection, the total acreage of that single contiguous tract shall be utilized for purposes of determining the 200 acre requirement of this Code section.
    1. A qualified owner shall not be authorized to make application for and receive conservation use assessment under this Code section for any property which at the time of such application is receiving preferential assessment under Code Section 48-5-7.1 or current use assessment under Code Section 48-5-7.4; provided, however, that if any property is subject to a covenant under either of those Code sections, it may be changed from such covenant and placed under a covenant under this Code section if it is otherwise qualified. Any such change shall terminate the existing covenant and shall not constitute a breach thereof. No property may be changed more than once under this paragraph.
    2. Any property that is subject to a covenant under this Code section and subsequently fails to adhere to the qualifying purpose, as defined in paragraph (5) of subsection (b) of this Code section, may be changed from the covenant under this Code section and placed under a covenant provided for in Code Section 48-5-7.4 if the property otherwise qualifies under the provisions of that Code section. In such a case, the existing covenant under this Code section shall be terminated, and the change shall not constitute a breach thereof. No property may be changed more than once under this paragraph.
  7. Except as otherwise provided in this Code section, no property shall maintain its eligibility for conservation use assessment under this Code section unless a valid covenant or covenants, if applicable, remain in effect and unless the property is continuously devoted to forest land conservation use during the entire period of the covenant or covenants, if applicable.
  8. If any breach of a covenant occurs, the existing covenant shall be terminated and all qualification requirements must be met again before the property shall be eligible for conservation use assessment under this Code section.
    1. If ownership of all or a part of a forest land conservation use property is acquired during a covenant period by another qualified owner, then the original covenant may be continued only by both such acquiring owner and the transferor for the remainder of the term, in which event, no breach of the covenant shall be deemed to have occurred if the total size of a tract from which the transfer was made is reduced below 200 acres or the size of the tract transferred is less than 200 acres. Following the expiration of the original covenant, no new covenant shall be entered with respect to either tract unless such tract exceeds 200 acres. If a qualified owner has entered into an original forest land conservation use covenant and subsequently acquires additional qualified property contiguous to the property in the original covenant, the qualified owner may elect to enter the subsequently acquired qualified property into the original covenant for the remainder of the 15 year period of the original covenant; provided, however, that such subsequently acquired qualified property shall be less than 200 acres.
    2. If, following such transfer, a breach of the covenant occurs by the acquiring owner, the penalty and interest shall apply to the entire transferred tract and shall be paid by the acquiring owner who breached the covenant. In such case, the covenant shall terminate on such entire transferred tract but shall continue on such entire remaining tract from which the transfer was made and on which the breach did not occur for the remainder of the original covenant.
    3. If, following such transfer, a breach of the covenant occurs by the transferring owner, the penalty and interest shall apply to the entire remaining tract from which the transfer was made and shall be paid by the transferring owner who breached the covenant. In such case, the covenant shall terminate on such entire remaining tract from which the transfer was made but shall continue on such entire transferred tract and on which the breach did not occur for the remainder of the original covenant.
    1. For each taxable year beginning on or after January 1, 2014, all applications for conservation use assessment under this Code section, including any forest land covenant required under this Code section, shall be filed on or before the last day for filing ad valorem tax appeals of the annual notice of assessment except that in the case of property which is the subject of a tax appeal of the annual notice of assessment under Code Section 48-5-311, an application for forest land conservation use assessment may be filed at any time while such appeal is pending. An application for continuation of such forest land conservation use assessment upon a change in ownership of all or a part of the qualified property shall be filed on or before the last date for filing tax returns in the year following the year in which the change in ownership occurred. Applications for forest land conservation use assessment under this Code section shall be filed with the county board of tax assessors in which the property is located who shall approve or deny the application. Such county board of tax assessors shall file a copy of the approved covenant in the office of the clerk of the superior court in the county in which the eligible property is located. The clerk of the superior court shall file and index such covenant in the real property records maintained in the clerk's office. If the covenant is not so recorded in the real property records, a transferee of the property affected shall not be bound by the covenant or subject to any penalty for its breach. The fee of the clerk of the superior court for recording such covenants shall be paid by the qualified owner of the eligible property with the application for forest land conservation use assessment under this Code section and shall be paid to the clerk by the board of tax assessors when the application is filed with the clerk. If the application is denied, the board of tax assessors shall notify the applicant in the same manner that notices of assessment are given pursuant to Code Section 48-5-306 and shall return any filing fees advanced by the owner. Appeals from the denial of an application or covenant by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311.
    2. In the event such application is approved, the qualified owner shall continue to receive annual notification of any change in the forest land fair market value of such property, and any appeals with respect to such valuation shall be made in the same manner as other property tax appeals are made pursuant to Code Section 48-5-311.
  11. The commissioner shall by regulation provide uniform application and covenant forms to be used in making application for conservation use assessment under this Code section.
  12. In the case of an alleged breach of the covenant, the qualified owner shall be notified in writing by the board of tax assessors. The qualified owner shall have a period of 30 days from the date of such notice to cease and desist the activity alleged in the notice to be in breach of the covenant or to remediate or correct the condition or conditions alleged in the notice to be in breach of the covenant. Following a physical inspection of property, the board of tax assessors shall notify the qualified owner that such activity or activities have or have not properly ceased or that the condition or conditions have or have not been remediated or corrected. The qualified owner shall be entitled to appeal the decision of the board of tax assessors and file an appeal disputing the findings of the board of tax assessors. Such appeal shall be conducted in the same manner that other property tax appeals are made pursuant to Code Section 48-5-311.
    1. A penalty shall be imposed under this subsection if during the period of the covenant entered into by a qualified owner the covenant is breached.
    2. Except as provided in subsection (i) of this Code section and paragraph (4) of this subsection, the penalty shall be applicable to the entire tract which is the subject of the covenant.
    3. The penalty shall be twice the difference between the total amount of the tax paid pursuant to the conservation use assessment under this Code section and the total amount of taxes which would otherwise have been due under this chapter for each completed or partially completed year of the covenant period. Any such penalty shall bear interest at the rate specified in Code Section 48-2-40 from the date the covenant is breached.
    4. If ownership of a portion of the land subject to the original covenant constituting at least 200 acres is transferred to another owner qualified to enter into an original forest land conservation use covenant in a bona fide arm's length transaction and breach subsequently occurs, then the penalty shall either be assessed against the entire remaining tract from which the transfer was made or the entire transferred tract, on whichever the breach occurred. The calculation of penalties in paragraph (3) of this subsection shall be used except that the penalty amount resulting from such calculation shall be multiplied by the percentage which represents the acreage of such tract on which the breach occurs to the original covenant acreage. The resulting amount shall be the penalty amount owed by the owner of such tract of land on which the breach occurred.
  14. In any case of a breach of the covenant where a penalty under subsection (m) of this Code section is imposed, an amount equal to the amount of reimbursement to each county, municipality, and board of education in each year of the covenant shall be collected under subsection (o) of this Code section and paid over to the commissioner who shall deposit such amount in the general fund.
  15. Penalties and interest imposed under this Code section shall constitute a lien against that portion of the property to which the penalty has been applied under subsection (m) of this Code section and shall be collected in the same manner as unpaid ad valorem taxes are collected. Except as provided in subsection (n) of this Code section, such penalties and interest shall be distributed pro rata to each taxing jurisdiction wherein conservation use assessment under this Code section has been granted based upon the total amount by which such conservation use assessment has reduced taxes for each such taxing jurisdiction on the property in question as provided in this Code section.
  16. The penalty imposed by subsection (m) of this Code section shall not apply in any case where a covenant is breached solely as a result of:
    1. The acquisition of part or all of the property under the power of eminent domain;
    2. The sale of part or all of the property to a public or private entity which would have had the authority to acquire the property under the power of eminent domain; or
    3. The death of an individual qualified owner who was a party to the covenant.
  17. The following shall not constitute a breach of a covenant:
    1. Mineral exploration of the property subject to the covenant or the leasing of the property subject to the covenant for purposes of mineral exploration if the primary use of the property continues to be the good faith production from or on the land of timber;
    2. Allowing all or part of the property subject to the covenant to lie fallow or idle for purposes of any forestry conservation program, for purposes of any federal agricultural assistance program, or for other agricultural management purposes;
    3. Allowing all or part of the property subject to the covenant to lie fallow or idle due to economic or financial hardship if the qualified owner notifies the board of tax assessors on or before the last day for filing a tax return in the county where the land lying fallow or idle is located and if such qualified owner does not allow the land to lie fallow or idle for more than two years of any five-year period;
      1. Any property which is subject to a covenant for forest land conservation use being transferred to a place of religious worship or burial or an institution of purely public charity if such place or institution is qualified to receive the exemption from ad valorem taxation provided for under subsection (a) of Code Section 48-5-41. No qualified owner shall be entitled to transfer more than 25 acres of such person's property in the aggregate under this paragraph.
      2. Any property transferred under subparagraph (A) of this paragraph shall not be used by the transferee for any purpose other than for a purpose which would entitle such property to the applicable exemption from ad valorem taxation provided for under subsection (a) of Code Section 48-5-41 or subsequently transferred until the expiration of the term of the covenant period. Any such use or transfer shall constitute a breach of the covenant;
    5. Leasing a portion of the property subject to the covenant, but in no event more than six acres of every unit of 2,000 acres, for the purpose of placing thereon a cellular telephone transmission tower. Any such portion of such property shall cease to be subject to the covenant as of the date of execution of such lease and shall be subject to ad valorem taxation at fair market value;
      1. Allowing part of the property subject to the covenant to be used for solar generation of energy and conversion of such energy into heat or electricity, and the sale of the same in accordance with applicable law.
      2. The provisions of subparagraph (A) of this paragraph shall not allow the portion of the property on which such solar energy generating equipment is located, as depicted by a boundary survey prepared by a licensed surveyor, and which is subject to an existing covenant to remain in the covenant. Such property shall be removed from the existing covenant at the time of the installation of the solar energy generating equipment and shall be subject to the penalty for breach of the covenant contained in subsection (r) of this Code section and shall be subject to ad valorem taxation at fair market value; or
      1. Allowing part of the property subject to the covenant to be used for farm labor housing. As used in this paragraph, the term "farm labor housing" means all buildings or structures used as living quarters when such housing is provided free of charge to workers who provide labor on agricultural property.
      2. The provisions of subparagraph (A) of this paragraph shall not allow the portion of the property on which such farm labor housing is located and which is subject to an existing covenant to remain in the covenant. Such property shall be removed from the existing covenant at the time construction of the farm labor housing begins and shall be subject to ad valorem taxation at fair market value.
  18. In the following cases, the penalty specified by subsection (m) of this Code section shall not apply and the penalty imposed shall be the amount by which conservation use assessment has reduced taxes otherwise due for the year in which the covenant is breached, such penalty to bear interest at the rate specified in Code Section 48-2-40 from the date of the breach:
    1. Any case in which a covenant is breached solely as a result of the foreclosure of a deed to secure debt or the property is conveyed to the lienholder without compensation and in lieu of foreclosure, if:
      1. The deed to secure debt was executed as a part of a bona fide commercial loan transaction in which the grantor of the deed to secure debt received consideration equal in value to the principal amount of the debt secured by the deed to secure debt;
      2. The loan was made by a person or financial institution who or which is regularly engaged in the business of making loans; and
      3. The deed to secure debt was intended by the parties as security for the loan and was not intended for the purpose of carrying out a transfer which would otherwise be subject to the penalty specified by subsection (m) of this Code section;
    2. Any case in which a covenant is breached solely as a result of a medically demonstrable illness or disability which renders the qualified owner of the real property physically unable to continue the property in the qualifying use, provided that the board of tax assessors or boards of assessors, if applicable, shall require satisfactory evidence which clearly demonstrates that the breach is the result of a medically demonstrable illness or disability;
    3. Any case in which a covenant is breached solely as a result of a qualified owner electing to discontinue the property in its qualifying use, provided such qualified owner has renewed without an intervening lapse at least once the covenant for land conservation use, has reached the age of 65 or older, and has kept the property in the qualifying use under the renewal covenant for at least three years. Such election shall be in writing and shall not become effective until filed with the county board of tax assessors or boards of assessors, if applicable; or
    4. Any case in which a covenant is breached solely as a result of a qualified owner electing to discontinue the property in its qualifying use, provided such qualified owner entered into the covenant for forest land conservation use for the first time after reaching the age of 67 and has either owned the property for at least 15 years or inherited the property and has kept the property in the qualifying use under the covenant for at least three years. Such election shall be in writing and shall not become effective until filed with the county board of tax assessors where the property is located.
  19. Property which is subject to forest land conservation use assessment under this Code section shall be separately classified from all other property on the tax digest; and such separate classification shall be such as will enable any person examining the tax digest to ascertain readily that the property is subject to conservation use assessment under this Code section. Covenants shall be public records and shall be indexed and maintained in such manner as will allow members of the public to locate readily the covenant affecting any particular property subject to conservation use assessment under this Code section. Based on information submitted by the county boards of tax assessors, the commissioner shall maintain a central registry of conservation use property, indexed by qualified owners.
  20. The commissioner shall annually submit a report to the Governor, the Department of Agriculture, the Georgia Agricultural Statistical Service, the State Forestry Commission, the Department of Natural Resources, and the University of Georgia Cooperative Extension Service and the House Ways and Means, Natural Resources and Environment, and Agriculture and Consumer Affairs committees and the Senate Finance, Natural Resources and the Environment, and Agriculture and Consumer Affairs committees and shall make such report available to other members of the General Assembly, which report shall show the fiscal impact of the assessments provided for in this Code section. The report shall include the amount of assessed value eliminated from each county's digest as a result of such assessments; approximate tax dollar losses, by county, to all local governments affected by such assessments; and any recommendations regarding state and local administration of this Code section, with emphasis upon enforcement problems, if any, attendant with this Code section. The report shall also include any other data or facts which the commissioner deems relevant.
  21. A public notice containing a brief, factual summary of the provisions of this Code section shall be posted in a prominent location readily viewable by the public in the office of the board of tax assessors and in the office of the tax commissioner of each county in this state.
  22. At such time as the property ceases to be eligible for forest land conservation use assessment or when any ten-year covenant period expires and the property does not qualify for further forest land conservation use assessment, the qualified owner of the property shall file an application for release of forest land conservation use treatment with the county board of tax assessors where the property is located who shall approve the release upon verification that all taxes and penalties with respect to the property have been satisfied.  After the application for release has been approved by such board of tax assessors, the board shall file the release in the office of the clerk of the superior court in the county in which the original covenant was filed.  The clerk of the superior court shall file and index such release in the real property records maintained in the clerk's office.  No fee shall be paid to the clerk of the superior court for recording such release.  The commissioner shall by regulation provide uniform release forms.
  23. The commissioner shall have the power to make and publish reasonable rules and regulations for the implementation and enforcement of this Code section. Without limiting the commissioner's authority with respect to any other such matters, the commissioner may prescribe soil maps and other appropriate sources of information for documenting eligibility as a forest land conservation use property. The commissioner also may provide that advance notice be given to a qualified owner of the intent of a board of tax assessors to deem a change in use as a breach of a covenant. (Code 1981, § 48-5-7.7 , enacted by Ga. L. 2008, p. 297, § 2/HB 1211; Ga. L. 2009, p. 27, § 2/SB 55; Ga. L. 2009, p. 216, § 2A/SB 240; Ga. L. 2011, p. 285, § 1/HB 95; Ga. L. 2013, p. 655, § 2/HB 197; Ga. L. 2017, p. 9, § 2/HB 238; Ga. L. 2018, p. 119, § 4/HB 85.)

The 2017 amendment, effective April 17, 2017, deleted "or" at the end of subparagraph (q)(4)(B), substituted a semicolon for a period at the end of paragraph (q)(5), and added paragraphs (q)(6) and (q)(7).

The 2018 amendment, effective January 1, 2019, rewrote the introductory paragraph of paragraph (b)(2); rewrote the introductory paragraph of paragraph (c)(1); in subsection (d), substituted "ten years" for "15 years" in the first sentence and twice in the last sentence, and substituted "ninth year" for "fourteenth year" in the middle of the last sentence; and substituted "ten-year covenant" for "15 year covenant" in the first sentence of subsection (v).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, "subparagraph (b)(1)(C)" was substituted for "subparagraph (b)(1)(2)" in paragraph (c)(2).

Pursuant to Code Section 28-9-5, in 2010, "Code Section 48-5-7.4" was substituted for "Code Section 48-7-7.4" in the first sentence of subsection (f).

Editor's notes. - Ga. L. 2008, p. 297, § 5/HB, 1211 not codified by the General Assembly, provides that this Code section becomes effective on January 1, 2009, upon the ratification of a resolution at the November, 2008, state-wide general election, which resolution amends the Constitution so as to provide for the special assessment and taxation of forest land conservation use property and for local government assistance grants. The constitutional amendment (Ga. L. 2008, p. 1209) was ratified at the general election held on November 4, 2008.

Ga. L. 2009, p. 27, § 5/SB 55, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2018, p. 119, § 7/HB 85, not codified by the General Assembly, provides, in part, that the 2018 amendments to subsections (b), (c), (d), and (v) of this Code section shall become effective on January 1, 2019, only if an amendment to the Constitution of Georgia is ratified at the November, 2018, general election modifying constitutional prescriptions for forest land conservation use property and related assistance grants, permitting the withholding of a portion of assistance grants to provide for certain state administrative costs, and establishing qualified timberland property as a subclassification of tangible property for purposes of ad valorem taxation. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

Administrative Rules and Regulations. - Forest land protection, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-11.

OPINIONS OF THE ATTORNEY GENERAL

Administrative caps on assistance grants prohibited. - Because neither Ga. Const. 1983, Art. VII, Sec. I, Para. III nor the Forest Land Protection Act, O.C.G.A. § 48-5-7.7 , authorize or contemplate a cap on assistance grants based on the total exemption value of forest land conservation use property, the Department of Revenue would not be authorized to impose an administrative cap on assistance grants issued pursuant to the Forest Land Protection Act of 2008 in the manner proposed. 2016 Op. Att'y Gen. No. 16-5.

48-5-8. Manner and time of making state levy; notice on taxpayer's ad valorem tax bill.

Reserved. Repealed by Ga. L. 2018, p. 209, § 1/HB 729, effective July 1, 2018.

Editor's notes. - This Code section was based on Ga. L. 1851-52, p. 288, § 14; Code 1863, § 735; Code 1868, § 802; Code 1873, § 805; Code 1882, § 805; Civil Code 1895, § 771; Civil Code 1910, § 1011; Code 1933, § 92-5704; Code 1933, § 91A-1020, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2010, p. 9, § 3-1/HB 1055.

48-5-9. Persons liable for taxes on property.

Taxes shall be charged against the owner of property if the owner is known and against the specific property itself if the owner is not known. Life tenants and those who own and enjoy the property shall be chargeable with the taxes on the property.

(Civil Code 1895, § 778; Civil Code 1910, § 1018; Code 1933, § 92-110; Code 1933, § 91A-1021, enacted by Ga. L. 1978, p. 309, § 2.)

History of section. - This Code section is derived from the decisions in National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887); Burns v. Lewis, 86 Ga. 591 , 13 S.E. 123 (1891); Wells v. Mayor of Savannah, 87 Ga. 397 , 13 S.E. 442 (1891); Wells v. Mayor of Savannah, 107 Ga. 1 , 32 S.E. 669 (1899), aff'd, 181 U.S. 531, 21 S. Ct. 697 , 45 L. Ed. 986 (1901).

Law reviews. - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For comment on Bell v. Summerlin, 188 Ga. 648 , 4 S.E.2d 831 (1939), see 2 Ga. B. J. 54 (1940). For comment on Townsend v. McIntosh, 205 Ga. 643 , 54 S.E.2d 592 (1949), see 12 Ga. B. J. 205 (1949).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Statute is but a codification of the rulings of the Supreme Court in National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887); Burns v. Lewis, 86 Ga. 591 , 13 S.E. 123 (1891); and Wells v. Mayor of Savannah, 87 Ga. 397 , 13 S.E. 442 (1891). Lowe v. City of Atlanta, 191 Ga. 76 , 11 S.E.2d 891 (1940), later appeal, 194 Ga. 317 , 21 S.E.2d 171 (1942).

History of life tenant provision. - Latter part of this statute, referring to life tenants and others, who may own and enjoy property, was taken from the decision in National Bank v. Danforth, 80 Ga. 55 , 7 S.E. 546 (1887), written by Mr. Chief Justice Bleckley. Pursley v. Manley, 166 Ga. 809 , 144 S.E. 242 (1928).

Who may be owner. - Owner of property must be a natural person, a corporation, or a quasi-person or entity, such as a partnership. The law recognizes no other owners of property. "The estate of A.J. Miller" is not the name of a natural person, and does not import either a partnership or a corporation. Miller v. Brooks, 120 Ga. 232 , 47 S.E. 646 (1904).

Section does not apply to assessments for land drainage taxes. Pursley v. Manley, 166 Ga. 809 , 144 S.E. 242 (1928).

Real estate transfer tax imposed is not a tax on the property as such as is the ad valorem tax which is charged against the owner of the property or against the specific property. City of Columbus v. Ronald A. Edwards Constr. Co., 155 Ga. App. 502 , 271 S.E.2d 643 (1980).

Instructions. - Since the requested instruction was a correct statement of the law that a life tenant is bound to pay current taxes unless otherwise provided in the deed, and such charge was not adequately given to the jury, the verdict in favor of the life tenant on the issue of back taxes had to be set aside. Clark v. Childs, 253 Ga. 493 , 321 S.E.2d 727 (1984).

Cited in Milner v. Bivens, 255 Ga. 49 , 335 S.E.2d 288 (1985); Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003); Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 , 705 S.E.2d 678 (2011).

Persons Liable for Taxes

Liability for taxes on property which is given as security for a debt. - When the property owner conveys legal title thereto as security for a debt, retention of the equitable interest constitutes such substantial beneficial ownership as will render the owner liable for taxes thereon, and such equitable interest may be assigned. Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931); Anderson v. Alexander, 179 Ga. 511 , 176 S.E. 367 (1934); Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934).

Liability for taxes on notes given as collateral for demand loans. - Owner of customers' notes used as collateral for demand loans is legally obligated to pay the required tax on intangibles imposed. Yancey Bros. Co. v. United States, 319 F. Supp. 441 (N.D. Ga. 1970).

Private agreement as to liability for taxes. - Ordinarily, as between a life tenant and a remainderman, the former, as the person enjoying the property, should be chargeable with taxes, but when the deed reserves a life estate in the grantor, conveys the entire remainder to the grantees, and further expressly stipulates that the grantees should "pay all taxes," it was evidently intended to reverse the ordinary rule of liability as between the parties, and to require the grantees to pay all taxes of every kind that might be assessed against the property during the life of the grantor. Evans v. Brown, 196 Ga. 634 , 27 S.E.2d 300 (1943).

Rights of parties to private agreement as to tax liability upon tax sale of property. - While the grantor and grantee in a security deed may agree as between themselves as to which shall be liable for taxes upon the property conveyed, the complete title is nevertheless subject to taxation as a whole, and a sale made in pursuance of a proper assessment and execution would divest the interest and title of each of the parties, with the exception of the right of redemption. Real Estate Loan Co. v. Union City, 177 Ga. 55 , 169 S.E. 301 (1933); City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Payment of current taxes on land sold. - As a general rule, in the absence of any stipulation in a contract of sale relating to the payment of current taxes, when the sale occurs and the property is delivered subsequently to the assessment of the taxes, the payment of the current taxes devolves upon the vendor. Baker v. Smith, 135 Ga. 628 , 70 S.E. 239 (1911).

Effect of cloud upon title on duty to pay taxes. - If a previous and void sale, which was made against one without title or possession of the land, has the effect of casting a cloud upon one's title and this has not been removed, such person is not thereby relieved of one's duty to pay taxes. One's remedy, if any, is an action to cancel and remove the cloud upon the title. Haden v. City of Atlanta, 177 Ga. 869 , 171 S.E. 703 (1933).

Life tenant is responsible for return and payment of taxes. - Life tenant, in the absence of special stipulations or other circumstances, is responsible for returning and paying the applicable taxes on the land during the period of the tenant's occupancy, and the method of determining the amount of such taxes is by determining market value according to the yardstick laid down in former Code 1933, § 92-5702 (see now O.C.G.A. § 48-5-2 ). Loudermilk v. Cobb County Bd. of Tax Assessors, 155 Ga. App. 591 , 271 S.E.2d 723 (1980).

Effect of death of life tenant during taxable year. - Statute, so far as it relates to the rights and liabilities of individuals, clearly does not contemplate the death of the life tenant during a given taxable year, but refers only to living life tenants. Trust Co. v. Kenny, 188 Ga. 243 , 3 S.E.2d 553 (1939).

Taxpayer's liability when some but not all assessments are illegal. - If assessments made against the owner of property include assessments against some property not belonging to the owner, the owner cannot enjoin the sale of the owner's property thereunder without paying or offering to pay the proportion of the taxes lawfully charged against the owner's property. Haden v. City of Atlanta, 177 Ga. 869 , 171 S.E. 703 (1933).

Lease renewable forever. - Lessee under a lease for 101 years, renewable forever at the lessee's option, has a right both to possession and profits, which may be projected indefinitely into the future, and is chargeable with the tax thereon. Wright v. Central of Ga. Ry., 146 Ga. 406 , 91 S.E. 471 (1917), rev'd on other grounds, 248 U.S. 525, 39 S. Ct. 181 , 63 L. Ed. 401 , 250 U.S. 519, 40 S. Ct. 1 , 63 L. Ed. 1123 (1919).

Lease which creates determinable fee. - Lease of land to A for as long as A, A's heirs, or assigns shall pay a stipulated annual ground rent to the lessor or the lessor's heirs or assigns, and shall comply with the covenants therein stated, creates a base or determinable fee, and the property should be taxed to the lessee as owner. Penick v. Atkinson, 139 Ga. 649 , 77 S.E. 1055 , 46 L.R.A. (n.s.) 284, 1914B Ann. Cas. 842 (1913).

Possession as a basis for ascribing ownership for taxation purposes. - Taxing authorities are at liberty to assess property as belonging to an unknown owner, but not to ascribe ownership to any and every person indifferently. They can treat as the owner any person in possession when they are not able to fix ownership on anyone else, for possession is a mark of ownership. Townsend v. McIntosh, 205 Ga. 643 , 54 S.E.2d 592 (1949).

Taxpayer liable during inverse condemnation suit. - Taxpayer remained the legal owner of property after the taxpayer filed an inverse condemnation suit and was liable for taxes until the title to the property was delivered. Jamestown Assocs. v. Fulton County Bd. of Tax Assessors, 228 Ga. App. 360 , 492 S.E.2d 1 (1997).

Reasonability of tax sale purchaser's inferences from possession as to ownership and tax liability. - When nothing more appears, sale of property under a tax execution in personam against a life tenant passes only the life estate, but when the person named as defendant in the tax execution, that is, the life tenant, is in possession at the time of assessment and levy and sale, and it is proved upon the trial that the execution is for taxes upon the specific property only, then the purchaser at the tax sale is justified in assuming the purchaser is acquiring a fee. Townsend v. McIntosh, 205 Ga. 643 , 54 S.E.2d 592 (1949).

Tax deed purchaser responsible for taxes after tax sale. - Tax deed purchaser, not the church, a defendant in fi. fa., was obligated to pay ad valorem taxes that accrued after the tax sale and before redemption, and the tax commissioner could not use the excess funds to satisfy the buyer's tax obligation that occurred after the tax sale. Iglesia Del Dios Vivo Columna Y Apoyo De La Verdad La Luz Del Mundo, Inc. v. Downing, 321 Ga. App. 778 , 742 S.E.2d 742 (2013).

Sale of Property for Taxes

Tax sale of property in which defendant has no interest nor right to represent owner. - No property can be sold under a tax execution in personam as the property of the defendant therein, when the defendant neither has title nor possession, nor any right to represent the person who has the property; and a sale under these circumstances would be void as to the true owner. Haden v. City of Atlanta, 177 Ga. 869 , 171 S.E. 703 (1933).

For sale of minor's trust property under execution against trustee, see Bourquin v. Bourquin, 120 Ga. 115 , 47 S.E. 639 (1904).

Procedure upon discovery that tax sale involved property in which defendant had no interest. - When a municipal corporation, after causing an illegal and void sale against one without title or possession to the land sold, discovered the sale's invalidity and refunded to the purchaser the amount which the purchaser had paid, it then had the right to proceed in a proper manner to make an assessment against the true owner and to collect taxes by fieri facias in personam against the owner, upon the owner's failure to return the property for taxation. Haden v. City of Atlanta, 177 Ga. 869 , 171 S.E. 703 (1933).

Execution and sale against life tenant passes only life estate. - When property is sold under a tax execution against a life tenant in personam, only the life estate passes to the purchaser. Townsend v. McIntosh, 205 Ga. 643 , 54 S.E.2d 592 (1949).

Rights of purchaser at tax sale against lessor and lessee of property sold. - When owner of realty entered into a written contract with another by which the lessee, being placed in possession, obligated oneself to pay all taxes that might be assessed against the premises, and when the lessee, rather than the owner returned the property for taxation and taxes were assessed against the lessee in possession, and when on default in the payment of taxes the premises were levied on and sold as property of the lessee, the purchaser of the premises at a tax sale acquired the property divested of the owner's and lessor's title. Lowe v. City of Atlanta, 191 Ga. 76 , 11 S.E.2d 891 (1940), later appeal, 194 Ga. 317 , 21 S.E.2d 171 (1942).

Power of municipal tax officials to issue execution in rem. - In the absence of charter power, municipal officers in charge of levying and collecting taxes are without power to issue an execution in rem against land when the land's ownership is not in doubt. Martin v. Clark, 190 Ga. 270 , 9 S.E.2d 54 (1940).

Designation of owner or property in execution. - Owners have an interest in being properly designated in executions which issue for the collection of taxes upon the owners' property, or, if the owners cannot be designated with reasonable certainty, that the property shall be pointed out in the executions as authority for seizing the property irrespective of ownership, or as the property of some particular person. In all cases of doubt, the execution should specify the particular realty on which the tax accrued, and direct the officer to seize the property or so much of the property as is necessary to pay its own taxes. Miller v. Brooks, 120 Ga. 232 , 47 S.E. 646 (1904).

County ad valorem taxes paid from surplus of foreclosure. - Trial court properly ordered that county ad valorem taxes could be paid from surplus proceeds obtained from a foreclosure sale of the subject property, given that: (1) the taxes were chargeable as a taxpayer's personal debt or as a lien, extending not only to the subject property, but also to all property the taxpayer owned, and the foreclosure notice did not limit the commissioner's authority as to how to collect the taxes owed; and (2) the security deed in turn provided that upon a foreclosure sale of the property, the lender bank would apply any surplus proceeds to the person or persons legally entitled to the proceeds, which also included the tax commissioner. Mulligan v. Sec. Bank of Bibb County, 280 Ga. App. 248 , 633 S.E.2d 629 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Property sold under bond for title. - Purchaser/possessor of a piece of property under a bond for title can be subjected to ad valorem taxation for that parcel, and once the Board of Tax Assessors chooses to assess the property against the occupant, and not the seller of the property, the occupant should receive the tax notices required by O.C.G.A. § 48-5-306 , and be treated as "the taxpayer" entitled to appeal under O.C.G.A. § 48-5-311 . 1989 Op. Att'y Gen. U89-17.

Statute is not applicable in determining the extent of the homestead which should be granted to the occupant who owns a joint interest in the property. 1954-56 Op. Att'y Gen. p. 735.

Taxation by city of automobiles used within city limits by employees of nonresident owner. - City may not legally assess ad valorem taxes against automobiles owned by nonresidents although the automobiles are used within the city by employees of the owners. 1952-53 Op. Att'y Gen. p. 188.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 634.

C.J.S. - 84 C.J.S., Taxation, § 130 et seq.

ALR. - Liability for taxes accruing after execution of contract for sale of land and before conveyance, 12 A.L.R. 411 .

Taxation of chattels and conditional sale contracts or title retaining notes given in respect of them, 12 A.L.R. 566 .

Period covered by lessee's, sublessee's, or assignee's covenant to pay taxes or assessments, 97 A.L.R. 931 .

Name under which property of decedent should be assessed, 119 A.L.R. 383 .

Right of mortgagee or other lienor to acquire and hold tax title in his own right as against persons owning other interest or liens upon property, 140 A.L.R. 294 .

Liability of mortgagor or his grantee to mortgagee for loss or depreciation in value of mortgage security as result of failure to pay taxes, 154 A.L.R. 614 .

Duty to pay real property taxes as affected by time of commencement or termination of life estate, 8 A.L.R.4th 643.

48-5-9.1. Forms of payment.

The governing authority of each county or municipality may by appropriate resolution or ordinance elect to receive in payment of ad valorem taxes any form of payment.

(Code 1981, § 48-5-9.1 , enacted by Ga. L. 2010, p. 1104, § 9-2/SB 346.)

48-5-10. Returnable property.

All property shall be returned by the taxpayers for taxation to the tax commissioner or tax receiver as provided by law. Each return by a taxpayer shall be for property held and subject to taxation on January 1 next preceding each return.

(Ga. L. 1913, p. 123, § 1; Code 1933, § 92-6202; Code 1933, § 91A-1008, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For article, "Freeport Exemption from Property Taxes for Inventory Stored in Georgia But Destined for Shipment Out-of-State," 28 Ga. St. B. J. 108 (1991). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012).

JUDICIAL DECISIONS

First day of tax year controlled bankruptcy debtor's liability. - Chapter 13 debtor was liable for property taxes assessed against the property despite the fact that the debtor's lender was granted relief from stay. Under O.C.G.A. §§ 48-2-55 and 48-5-10 , the debtor remained personally liable for the taxes because the debtor was the title holder of the property on the first day of each tax year for which an unsecured priority claim was made. Waddy v. Fulton County Tax Comm'r (In re Waddy), Bankr. (Bankr. N.D. Ga. Sept. 23, 2010).

Cited in DeKalb County Bd. of Tax Assessors v. W.C. Harris & Co., 248 Ga. 277 , 282 S.E.2d 880 (1981); Georgia Marble Co. v. Whitlock, 260 Ga. 350 , 392 S.E.2d 881 (1990); Jamestown Assocs. v. Fulton County Bd. of Tax Assessors, 228 Ga. App. 360 , 492 S.E.2d 1 (1997); White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805 , 520 S.E.2d 708 (1999); Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003); Int'l Auto Processing, Inc. v. Glynn County, 287 Ga. App. 431 , 651 S.E.2d 535 (2007); Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 , 705 S.E.2d 678 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Personal property is generally subject to taxation in county where owner resides on January 1 of that year, unless the property is connected with some trade or business which is situated more or less permanently in another county. 1965-66 Op. Att'y Gen. No. 65-104.

Construing former Code 1933, §§ 92-6202 and 92-6208 (see now O.C.G.A. §§ 48-5-10 and 48-5-16 ) together, a dealer engaged in business in one county on January 1 who, subsequent to that date, removes the dealer's business to another county is liable under former Code 1933, § 92-6208 (see now O.C.G.A. § 48-5-16 ) to the first county for ad valorem taxes on all personal property of whatever kind, connected with or used in such business. The fact that the property was moved from the county after January 1 would not relieve the owner from taxation in the county in which the property was located on January 1. 1958-59 Op. Att'y Gen. p. 350.

Prorating tax liability of persons who are resident for only part of year. - Person resident in this state on January 1 but for only part of the year is liable for ad valorem taxation for the entire year since there is no provision for prorating of taxes. 1954-56 Op. Att'y Gen. p. 666.

Taxation of property bought or sold after January 1. - Owner must return and pay tax for a given year on property owned on January 1 of that year, even if subsequently sold, but is not required to return or pay tax for that year on property bought after January 1. 1954-56 Op. Att'y Gen. p. 666.

Tax commissioner not required to aid owner in shifting taxes to subsequent purchasers. - Tax commissioner is not required to handle an account in such a manner as to permit a firm owning property on January 1 to require subsequent purchasers of lots to pay ad valorem taxes due thereon. 1954-56 Op. Att'y Gen. p. 667.

Taxation of automobiles shipped into state after January 1. - Automobiles shipped into this state after January 1 of any year are not subject to ad valorem taxes for that year. If the automobiles are in the state on January 1, the person owning such automobiles on January 1 of any year is liable for ad valorem taxes thereon. 1952-53 Op. Att'y Gen. p. 427.

When taxation of annexed property may commence. - Property annexed by a city may be made subject to ad valorem taxation as of January 1 following the annexation. 1969 Op. Att'y Gen. No. 69-259.

Municipal corporation may tax property having a tax situs within the municipality's corporate limits on January 1 of the tax year; for example, property annexed into a city on February 10, 1970, would not be subject to 1970 taxes. 1970 Op. Att'y Gen. No. U70-96.

Tax lien on a transferred piece of property follows that property even if the property is transferred to a tax-exempt public entity. However, the original owner can still be held responsible for the tax liability. Accordingly, the county should not voluntarily prorate the taxes due on that property unless the county does so pursuant to a bargained for consideration in a binding agreement entered into in order to acquire the property. 1988 Op. Att'y Gen. No. U88-12.

Tax lien follows property which the county acquires by donation, purchase, or condemnation, if the full tax amount cannot be collected against the original owner. 1988 Op. Att'y Gen. No. U88-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 624.

C.J.S. - 84 C.J.S., Taxation, §§ 82, 541 et seq. 85 C.J.S., Taxation, §§ 991, 992.

48-5-11. Situs for returns by residents.

Unless otherwise provided by law, all:

  1. Real property of a resident shall be returned for taxation to the tax commissioner or tax receiver of the county where the property is located; and
  2. Personal property of a resident individual shall be returned for taxation to the tax commissioner or tax receiver of the county where the individual maintains a permanent legal residence.

    (Code 1933, § 91A-1010, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 23.)

JUDICIAL DECISIONS

Application to property outside state unconstitutional. - Application of O.C.G.A. § 48-5-11 to property permanently located outside the State of Georgia is an unconstitutional deprivation of due process of law. Marion v. Floyd County Bd. of Equalization, 270 Ga. 475 , 511 S.E.2d 512 (1999).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 624.

C.J.S. - 84 C.J.S., Taxation, § 433 et seq.

ALR. - Situs for property taxation as between different states or counties of personal property, or interest therein, held by trustees, executors, or administrators, 127 A.L.R. 379 ; 172 A.L.R. 341 .

48-5-12. Situs of returns by nonresidents.

Unless otherwise provided by law, all real and personal property of nonresidents shall be returned for taxation to the tax commissioner or tax receiver of the county where the property is located.

(Laws 1840, Cobb's 1851 Digest, p. 1073; Code 1863, § 760; Code 1868, § 827; Code 1873, § 831; Code 1882, § 831; Civil Code 1895, § 819; Civil Code 1910, § 1067; Code 1933, §§ 92-6205, 92-6403; Code 1933, § 91A-1009, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 22.)

OPINIONS OF THE ATTORNEY GENERAL

Effect of residence on tax situs of merchandise used in connection with a business. - Merchandise used in connection with a business permanently located in a county is taxable in that county regardless of the owner's residence. 1945-47 Op. Att'y Gen. p. 558.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 624.

C.J.S. - 84 C.J.S., Taxation, § 145 et seq.

ALR. - Situs for property taxation as between different states or counties of personal property, or interest therein, held by trustees, executors, or administrators, 127 A.L.R. 379 ; 172 A.L.R. 341 .

Succession tax at domicile of debtor or corporation as to credits or corporate stock belonging to estate of nonresident, 139 A.L.R. 1458 .

Domicile of debtor within state, or location therein of real property securing debt, as giving debt to nonresident a situs within state for purpose of property taxation, 160 A.L.R. 788 .

Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-13. Instruction for local tax officials and staff.

  1. As used in this Code section, the term "local tax officials and staff" means:
    1. All county tax collectors and county tax commissioners;
    2. All county appraisers and county appraisal staff; and
    3. All members of county boards of tax assessors.
  2. The commissioner shall prepare, instruct, operate, and administer courses of instruction deemed necessary to provide training of and continuing education to all local tax officials and staff and members of the county boards of equalization. Course materials for such training shall be reviewed not less than once every five years and updated if necessary. All such training materials shall be made available online, and the commissioner shall determine what training may be offered or available online instead of attended in person in order to reduce the cost to taxpayers to pay for such training.
  3. All such courses of instruction shall be open and made available by the commissioner to the public upon request and upon payment of such reasonable instruction fee as set by the commissioner and upon available space as determined by the commissioner.
  4. The commissioner is authorized to work with any organization or other professionals with expertise in providing instruction in property tax administration, property taxation, or related matters. (Code 1981, § 48-5-13 , enacted by Ga. L. 2010, p. 1104, § 4-1/SB 346.)

Editor's notes. - This Code section formerly pertained to notice to nonresidents or agents of receipt of returns and amount of tax due and the associated penalty. The former Code section was based on Ga. L. 1880-81, p. 45, §§ 3, 5; Code 1882, § 874d; Ga. L. 1882-83, p. 43, §§ 1-4; Ga. L. 1882-83, p. 47, § 1; Civil Code 1895, §§ 822, 823, 824, 825; Civil Code 1910, §§ 1071, 1072, 1073, 1074; Code 1933, §§ 92-6212, 92-6213, 92-6214; Code 1933, § 91A-1018; Ga. L. 1978, p. 309, § 2; and Ga. L. 1981, Ex. Sess., p. 8 and was repealed by Ga. L. 1992, p. 2411, § 1, effective April 20, 1992.

48-5-14. Liability of nonresidents, agents of nonresidents, and their property.

A nonresident person, all persons who return property for a nonresident, and the nonresident's property located in this state shall be liable for the taxes on the property.

(Laws 1804, Cobb's 1851 Digest, p. 1047; Code 1863, § 789; Code 1868, § 853; Code 1873, § 857; Code 1882, § 857; Civil Code 1895, § 854; Civil Code 1910, § 1112; Code 1933, § 92-6404; Code 1933, § 91A-1024, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Sale of nonresident's land. - When land is given in for taxation by the agent of the estate of a nonresident, which land is sold by the sheriff for the nonpayment of state and county taxes under an execution for the taxes against such agent, the purchaser at such sale acquires a valid title. John Doe v. Roe, 51 Ga. 453 (1874).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 145 et seq.

ALR. - Domicile of debtor within state, or location therein of real property securing debt, as giving debt to nonresident a situs within state for purpose of property taxation, 160 A.L.R. 788 .

48-5-15. Returns of taxable real property.

  1. All improved and unimproved real property in this state which is subject to taxation shall be returned by the person owning the real property or by his or her agent or attorney to the tax receiver or tax commissioner of the county where the real property is located.
  2. If the real property has a district, number, and section designation, the tax receiver or tax commissioner shall require the person making a return of the real property to return it by district, number, and section designation. If the real property has no designation by district, number, and section, it shall be returned by such description as will enable the tax receiver or tax commissioner to identify it.
  3. No tax receiver or tax commissioner shall receive any return of real property which does not designate the real property as provided in this Code section. The commissioner shall not allow any tax receiver or tax commissioner who receives returns in any manner other than as provided in this Code section any compensation or percentage for his services.

    (Ga. L. 1872, p. 77, § 1; Code 1873, § 873; Code 1882, § 873; Civil Code 1895, § 820; Civil Code 1910, § 1068; Code 1933, § 92-6206; Ga. L. 1964, p. 333, § 1; Code 1933, § 91A-1011, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1991, p. 1110, § 1; Ga. L. 1992, p. 1643, § 1; Ga. L. 2010, p. 564, § 1/HB 963.)

Editor's notes. - Ga. L. 1991, p. 1110, § 3(b), not codified by the General Assembly, provides, in part, that the 1991 amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 1991.

JUDICIAL DECISIONS

Failure to itemize specific property interests. - After an owner of mineral rights had entered into an agreement with the county where the property was located to pay lump-sum taxes without itemizing the specific property interests, the agreement did not meet the requirements of O.C.G.A. § 48-5-15 , nor did it constitute payment of taxes due within the meaning of O.C.G.A. § 44-5-168 . Georgia Marble Co. v. Whitlock, 260 Ga. 350 , 392 S.E.2d 881 (1990), cert. denied, 498 U.S. 1025, 111 S. Ct. 675 , 112 L. Ed. 2 d 667 (1991).

Underpayment of taxes based on automatic tax return. - Following a bench trial, an order was issued establishing the 1997 fair market value of the taxpayer's property at a value of $4,709,000.00, which was an amount greater than the value set by the board of equalization; however, when the taxpayer paid taxes in 1997, 1998, and 1999, the taxpayer did so based on the board of equalization's 1997 valuation and because the 1997 value of the taxpayer's property was finally determined to be $4,709,000.00, the taxpayer automatically returned the property in 1998 and 1999 at that value and, thus, the taxpayer underpaid the taxpayer's taxes for the 1997, 1998, and 1999 tax years and the tax assessors were entitled to summary judgment finding that the taxpayer had underpaid the taxpayer's taxes and owed additional sums. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855 , 605 S.E.2d 443 (2004).

Real estate tax transfer form not sufficient return. - Filing by the seller of property of a real estate tax transfer form that was not signed by the buyer, did not contain an oath as required by O.C.G.A. § 48-5-19 , and did not contain section numbers of the parcels of property was not sufficient to serve as a return of real property. CC Office Assocs. v. DeKalb County, 219 Ga. App. 101 , 464 S.E.2d 243 (1995).

Proof of agency required. - In performance of the commissioner's duty to examine tax returns before receiving the returns, a commissioner has discretion to reject returns signed by a person other than the owner, absent proof of authorization. Southern Tax Consultants, Inc. v. Scott, 267 Ga. 347 , 478 S.E.2d 126 (1996).

Cited in Int'l Auto Processing, Inc. v. Glynn County, 287 Ga. App. 431 , 651 S.E.2d 535 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Combined return of adjoining tracts. - Adjoining tracts of land, acquired at different times, can be combined and returned as one tract in a tax return. 1958-59 Op. Att'y Gen. p. 338.

Return of property lying on or across county line. - Owners of property lying on or across county lines must return to the tax receiver of each county the portion lying in such county. 1945-47 Op. Att'y Gen. p. 556; 1967 Op. Att'y Gen. No. 67-81.

Homestead exemption for land divided by county line. - If land is divided by a county line, the applicant for homestead exemption is entitled to the exemption in each of the counties in proportion to the value of property located therein, provided all other requirements for exemptions are met. 1967 Op. Att'y Gen. No. 67-81.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 624.

C.J.S. - 84 C.J.S., Taxation, §§ 436 et seq., 443 et seq.

ALR. - Liability for taxes accruing after execution of contract for sale of land and before conveyance, 12 A.L.R. 411 .

Conditional sales in relation to taxation, 110 A.L.R. 1499 .

Sufficiency of description of property on tax rolls or in tax proceedings, by reference to map, plat, or survey, 137 A.L.R. 184 .

48-5-15.1. Returns of real property and tangible personal property located on airport.

  1. All real property and tangible personal property shall be returned for taxation and subject to taxation as provided in this Code section where such property is located on the premises of an airport and:
    1. Such airport is divided by one or more county lines such that the airport is located in two or more counties; and
    2. Such airport is owned or operated by a local airport authority which authority functions on behalf of one of the counties within which the airport is located.
  2. For the purposes of this Code section, an authority shall be considered as functioning on behalf of a county where a majority of the members of the authority are members who meet any of the following descriptions:
    1. An authority member who is also a member of the county governing authority or an official or employee of the county;
    2. An authority member appointed by the county governing authority or appointed by an officer of the county;
    3. An authority member who is also a member of the governing authority of a city within the county or an official or employee of a city within the county; or
    4. An authority member appointed by the governing authority of a city within the county or appointed by an officer of a city within the county.
  3. All such real property and tangible personal property located on the premises of an airport as described in subsections (a) and (b) of this Code section shall be returned for taxation to the tax commissioner or tax receiver of the county on behalf of which the airport authority functions. All such real and tangible personal property shall be subject to taxation by only the county on behalf of which the airport authority functions and not by any other county.
  4. Nothing in this Code section shall apply with respect to any airport certificated under Title 14, Part 139, of the Code of Federal Regulations or shall apply with respect to the taxation of commercial airliners which shall be subject to Article 12 of this chapter and other applicable provisions of law. With respect to aircraft which would otherwise be subject to the provisions of Code Section 48-5-16 , the provisions of this Code section shall control over the provisions of Code Section 48-5-16 . Except as specifically provided otherwise in the first sentence of this subsection, this Code section shall control over any other conflicting provisions of this chapter; but nothing in this Code section shall be construed as taking away the tax-exempt status of any property which is otherwise exempted by law from ad valorem taxation. (Code 1981, § 48-5-15.1 , enacted by Ga. L. 1995, p. 1008, § 1.)

48-5-16. Return of tangible personal property in county where business conducted; exemptions; boats; aircraft.

  1. Any person who conducts a business enterprise upon real property, which is not taxable in the county in which the person resides or in which the person's office is located, shall return for taxation the tangible personal property of the business enterprise to the tax commissioner or tax receiver of the county in which is taxable the real property upon which the business enterprise is located or conducted.
  2. When the agent in this state of any person who is a resident of another state has on hand and for sale, storage, or otherwise merchandise or other tangible property, he shall return the property for taxation as provided in Code Section 48-5-12.
  3. This Code section shall not apply to public utilities and other companies required to make returns of their properties and franchises to the commissioner under Articles 9, 11, and 12 of this chapter.
    1. As used in this subsection, the term:
      1. "Boat" means every description of watercraft used or capable of being used as a means of transportation on the water.
      2. "Functionally located" means located in a county in this state for 184 days or more during the immediately preceding calendar year.  The 184 days or more requirement of this subsection shall mean the cumulative total number of days during such calendar year, which days may, but shall not be required to be, consecutive.
    2. Any person who owns tangible personal property in the form of a boat which is functionally located for recreational or convenience purposes in a county in this state other than the county in which such person maintains a permanent legal residence shall return such property for taxation to the tax commissioner or tax receiver of the county in which such property is functionally located.  Tangible personal property of a person which does not meet the 184 days or more requirement provided for in this subsection shall be returned for taxation in the manner provided for in Code Section 48-5-11.
    1. As used in this subsection, the term:
      1. "Aircraft" means any contrivance used or designed for navigation through the air; provided, however, that such term does not include commercial airliners.
      2. "Primary home base" means an airport where an aircraft is principally hangared or tied down and out of which its flights normally originate.
    2. Any person who owns tangible personal property in the form of an aircraft which has its primary home base in a county in this state other than the county in which such person maintains a permanent legal residence shall return such property for taxation to the tax commissioner or tax receiver of the county in which such primary home base is located. Such aircraft which does not have a primary home base in a county of this state other than the county in which the owner maintains a permanent legal residence shall be returned for taxation in the manner provided for in Code Section 48-5-11.

      (Ga. L. 1855-56, p. 275, § 1; Code 1863, §§ 756, 757, 759; Code 1868, §§ 823, 824, 826; Code 1873, §§ 827, 828, 830; Code 1882, §§ 827, 828, 830; Civil Code 1895, §§ 816, 818, 826; Ga. L. 1903, p. 15, § 1; Ga. L. 1904, p. 54, § 1; Civil Code 1910, §§ 1064, 1066, 1069, 1075; Ga. L. 1927, p. 56, § 8; Code 1933, §§ 92-6204, 92-6207, 92-6208, 92-6209; Ga. L. 1935, p. 11, § 8; Code 1933, § 91A-1012, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1992, p. 2480, § 1; Ga. L. 1994, p. 1776, § 1; Ga. L. 1995, p. 10, § 48.)

Law reviews. - For comment on Collins v. Mills, 198 Ga. 18 , 30 S.E.2d 866 (1944), see 7 Ga. B. J. 357 (1945).

JUDICIAL DECISIONS

Subsection (b) is not intended to create tax exemption. - Former Code 1933, § 92-101 (see now O.C.G.A. § 48-5-3 ) and the definition of "personal property" in former Code 1933, § 92-102 (see now O.C.G.A. § 48-1-2 ) declare in effect that the kinds of property mentioned in former Code 1933, § 92-6208 (see now O.C.G.A. § 48-5-16 ) shall be taxed in Georgia if within the state's jurisdiction. Manifestly § 92-6208 was not intended to create an exception to taxability or to exempt property of any kind that is otherwise taxable, merely because, if belonging to a nonresident, an agent does not have the property "on hand" in this state. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495 , 19 S.E.2d 396 (1942).

Requirement of subsection (e) of O.C.G.A. § 48-5-16 to return for taxation an aircraft in the county in which the aircraft has the aircraft's primary home base does not effectively create a prohibited separate class of tangible property in violation of the constitutional requirement for uniformity of taxation. Rogers v. DeKalb County Bd. of Tax Assessors, 269 Ga. 31 , 495 S.E.2d 33 (1998).

Requirements as to permanence of business location. - Personal property is ordinarily taxed in the county where the owner resides. In order for personal property to acquire a situs for taxation in some other county, it must be connected with some business enterprise that is situated more or less permanently in a different county as distinguished from an enterprise whose location is merely transitory or temporary. Joiner v. Pennington, 143 Ga. 438 , 85 S.E. 318 (1915); Collins v. Mills, 198 Ga. 18 , 30 S.E.2d 866 (1944) for comment, see, 7 Ga. B.J. 357 (1945).

What constitutes property used in a business enterprise. - When the contractor agreed in writing to maintain certain vending machines in operation in a given county, the location of such machines in the county was such a business enterprise of the contractor as to cause the personal property thus located in that county to be subject to ad valorem taxes in that county. Macon Coca-Cola Bottling Co. v. Evans, 214 Ga. 1 , 102 S.E.2d 547 (1958).

Apportionment of ad valorem taxes not required. - County was not required to apportion ad valorem taxes under O.C.G.A. § 48-5-543 since the aircraft had not been used for commercial purposes in the tax year and the owner was not an airline company. White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805 , 520 S.E.2d 708 (1999).

Evidence of "primary home base" of aircraft. - Even though an aircraft owner's principal place of business was in another state, the aircraft at issue was principally hangared at an airport within the county as shown by the number of days the aircraft was located at the airport and the number of flights originating there. White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805 , 520 S.E.2d 708 (1999).

O.C.G.A. § 48-5-16 does not require that the aircraft itself be physically present in a county on the first day of the calendar year. White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805 , 520 S.E.2d 708 (1999).

Consigned merchandise owned by out-of-state residents. - State ad valorem tax was properly applied to an agent for consigned merchandise owned by out-of-state residents but offered for sale in the state by the agent, notwithstanding that such jewelry customarily remained in the state only for brief periods. Brown & Co. Jewelry v. Fulton County Bd. of Assessors, 248 Ga. App. 651 , 548 S.E.2d 404 (2001).

Issue of taxability barred by collateral estoppel. - County board of tax assessors was collaterally estopped from re-litigating the issue of whether funeral vaults sold through pre-need burial packages but stored by their seller in the county were subject to ad valorem taxes under O.C.G.A. § 48-5-16 by a 2001 consent decree between the seller and the assessors that stated the vaults were not taxable. Morgan County Bd. of Tax Assessors v. Vantage Prods. Corp., 323 Ga. App. 823 , 748 S.E.2d 468 (2013).

Cited in Cornett Bridge, Inc. v. Hall County, 216 Ga. App. 397 , 454 S.E.2d 607 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Construing former Code 1933, §§ 92-6202 and 92-6208 (see now O.C.G.A. §§ 48-5-10 and 48-5-16 ) together, a dealer engaged in business in one county on January 1 who, subsequent to that date removes the dealer's business to another county, is liable under § 92-6208 to the first county for ad valorem taxes on all personal property of whatever kind, connected with or used in such business. The fact that the property was moved from the county after January 1 would not relieve the owner from taxation in the county in which the property was located on January 1. 1958-59 Op. Att'y Gen. p. 350.

Owner's residence is not tax situs for business merchandise if business permanently located elsewhere. - Merchandise used in connection with a business permanently located in a county is taxable in that county, regardless of the owner's residence. 1945-47 Op. Att'y Gen. p. 558.

Business location must be more or less permanent, not merely transitory or temporary. - Property which is temporarily located in a county other than that of the owner's residence, even though used to carry on a business, does not come within the exception provided for in this section and is taxable in the county in which its owner resides, when the property is moved from place to place according to where the owner decides that its operation would be most profitable to the owner. 1945-47 Op. Att'y Gen. p. 558.

Personal property is ordinarily taxed in the county where the owner resides. In order for personal property to acquire a situs for taxation in some other county, it must be connected with some business enterprise that is situated more or less permanently in a different county, as distinguished from an enterprise whose location is merely transitory or temporary. 1954-56 Op. Att'y Gen. p. 683; 1958-59 Op. Att'y Gen. p. 350.

Farm equipment located on a farm outside the municipality where the owner resides is taxable as personal property, but not by the municipality.

Situs for taxation of vehicle used in business. - Trucks which are used for business purposes elsewhere than the owner's place of residence, and which never enter the city limits but do not pay municipal taxes elsewhere, would be taxed at the residence of the owner unless such property acquires a taxable situs in some other county in connection with some business enterprise that is situated more or less permanently in certain counties. 1954-56 Op. Att'y Gen. p. 681.

When property is connected with some trade or business and that trade or business is situated more or less permanently in another county, then the tax situs is in the county where the business is situated. The fact that a vehicle is not in the county on January 1 does not cause the vehicle to be exempt from taxation. 1965-66 Op. Att'y Gen. No. 65-113.

Tax situs of vessels owned by navigation company. - Taxable situs of a vessel owned by a navigation company is not determined by the place where the owner may have paid taxes nor by the place where the vessel is registered, but is determined by the domicile of the owner. 1958-59 Op. Att'y Gen. p. 350 (See also subsection (d) added in 1992).

State does not have a special tax upon business inventories, but such property is taxable under the general laws relating to ad valorem taxation. 1952-53 Op. Att'y Gen. p. 186.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 624.

ALR. - Situs for property taxation as between different states or counties, of personal property, or interests therein, held by trustees, executors, or administrators, 67 A.L.R. 393 ; 127 A.L.R. 379 ; 172 A.L.R. 341 .

License or excise tax on merchandise brokers or persons performing similar functions as affected by commerce clause, 155 A.L.R. 239 .

Domicile of debtor within state, or location therein of real property securing debt, as giving debt to nonresident a situs within state for purpose of property taxation, 160 A.L.R. 788 .

48-5-17. Proceedings to determine county entitled to return and payment; collection pending determination; commissions.

    1. If a county claims to be entitled to the return and taxation of any property returned or about to be returned in another county, the county claiming to be so entitled may apply to the superior court of the county in which the property has been or is about to be returned, in a petition to which the taxpayer and all the counties claiming the taxes shall be made parties, for direction and judgment as to which county is entitled under the law to the return and taxes.
    2. If a county claims to be entitled to the return and taxation of any property returned or about to be returned in another county by any person to the commissioner, the county disputing the return may apply to the superior court of the county in which the taxpayer has located the property in the return to the commissioner for direction and judgment as to which county under the law is entitled to the return and taxes. All counties claiming the taxes, the taxpayer, and the commissioner shall be made parties to the action.
    3. The proceedings under this Code section shall be the same in all respects as in other actions seeking equitable relief except that the petition shall be triable at the first term of the court and, as in other cases, shall be reviewed on appeal.
    4. This subsection shall not affect the law relating to returns to be made to the commissioner other than by providing a venue for determining a dispute on tax rights as set forth in this subsection.
  2. If any officer having charge of the fiscal affairs of the county bringing the action can make the affidavit required by Code Section 9-10-51, the judge of the superior court before whom the action is brought shall change the venue to an adjoining county. The losing party in the contest shall pay all costs.
  3. The taxes due the state and the undisputed taxes due the counties contesting shall not be held up by an action brought pursuant to this Code section, and the restraint shall apply only to the taxes in dispute under the issue, which shall be plainly set forth in the petition.
  4. Pending the determination of the case, accruing taxes shall be collected by the officers of the county to which the return has been made by the taxpayer. Should another county be found to be entitled to the taxes, judgment shall be entered in favor of the county entitled to the taxes and against the county collecting the taxes for the portion of the taxes paid into the treasury of the collecting county.
  5. Should the amount of taxes recovered by an entitled county for any year exceed the amount that would have been assessed for that year on the return as made by the taxpayer had the return been made in the county entitled, the excess shall be returned to the taxpayer. Should the amount of taxes recovered fall short, execution shall be issued, as in the case of defaulting taxpayers, by the officer of the county entitled.
  6. No commission shall be paid to the tax receiver, tax collector, or tax commissioner on state and county taxes collected when an action concerning the collection is pending as provided in this Code section. The county's portion of the tax, together with commissions on state and county taxes allowed the tax receiver, tax collector, or tax commissioner shall be paid into the county treasury of the county collecting to await the outcome of the litigation. Upon the final determination, the officers of the county determined to be entitled to the taxes shall receive their legal commissions. The state taxes collected pending the action shall be forwarded to the commissioner by the officer collecting as though no such action were pending. Commissions allowed on state taxes shall be paid into the county treasury of the county collecting to await the determination of the action, as provided in this Code section.

    (Ga. L. 1903, p. 16, §§ 3, 4; Civil Code 1910, §§ 1079, 1080, 1081; Ga. L. 1913, p. 38, § 1; Code 1933, §§ 92-6218, 92-6219, 92-6220, 92-6221, 92-6222, 92-6223, 92-6224; Ga. L. 1946, p. 726, § 28; Code 1933, § 91A-1025, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2016, p. 883, § 3-12/HB 927.)

The 2016 amendment, effective January 1, 2017, substituted "reviewed on appeal" for "reviewed by appeal to the Supreme Court of Georgia" at the end of paragraph (a)(3). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

Law reviews. - For article on the 2016 amendment of this Code section, see 33 Ga. St. U. L. Rev. 205 (2016).

JUDICIAL DECISIONS

County not required to claim county is entitled to return and taxation. - Word "may" in the provision in this statute that a county may apply to the superior court should not be construed as having the force of "shall." That provision confers the right upon a county, when it is about to be deprived of taxes rightfully payable to it, to have that question settled as between itself and another county. It should not be so construed as to put it in the power of the landowner and taxpayer to force a county into litigation for the purpose of determining whether it is entitled to such taxes. Williams v. Wilkinson County, 146 Ga. 601 , 91 S.E. 571 (1917).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 433 et seq.

85 C.J.S., Taxation, § 1109 et seq.

ALR. - Situs for property taxation as between different governmental units within state of personal property or interests therein held by trustees, executors, or administrators, 129 A.L.R. 273 .

Constitutionality, construction, and application of statutes providing for impleading other taxing units in suit by taxing units for foreclosure of tax lien and the sale of the property free from lien of taxes due to such impleaded units, 134 A.L.R. 1286 .

48-5-18. Time for making tax returns.

Each tax commissioner and tax receiver shall open his or her books for the return of real or personal property ad valorem taxes on January 1 and shall close those books on April 1 of each year.

(Ga. L. 1913, p. 123, § 1; Code 1933, § 92-6201; Ga. L. 1945, p. 424, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 270, § 1; Code 1933, § 91A-1013, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 24; Ga. L. 1979, p. 538, § 1; Ga. L. 1981, p. 594, § 1; Ga. L. 1981, p. 1857, § 10; Ga. L. 1982, p. 537, § 1; Ga. L. 1982, p. 575, §§ 1, 8; Ga. L. 1982, p. 999, §§ 1, 3; Ga. L. 1982, p. 1108, § 1; Ga. L. 1983, p. 1849, § 1; Ga. L. 1984, p. 22, § 48; Ga. L. 1991, p. 6, § 1; Ga. L. 1991, p. 303, § 2; Ga. L. 1992, p. 1188, § 1; Ga. L. 1994, p. 237, § 2; Ga. L. 1996, p. 778, § 1; Ga. L. 2002, p. 1313, § 1; Ga. L. 2010, p. 1104, § 3-1/SB 346.)

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990).

JUDICIAL DECISIONS

City and county could not close their books prior to April 1 because neither Ga. Const. 1983, Art. IX, Sec. III, Para. I(a) nor provisions of the city charter satisfied the requirement of former subsection (e) of O.C.G.A. § 48-5-18 pertaining to the operation of a joint tax receiving or assessing program. Board of Tax Assessors v. Tom's Foods, Inc., 264 Ga. 309 , 444 S.E.2d 771 (1994).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 625.

48-5-19. Signature and declaration of persons making returns of taxable property.

  1. Each return of taxable property shall be signed by or for the person responsible for filing the return and shall contain or be verified by the following written declaration:

    "I do solemnly swear that I have carefully read (or have heard read) and have duly considered the questions propounded in the foregoing tax list, and that the value placed by me on the property returned, as shown by the list, is the true market value thereof; and I further swear that I returned, for the purpose of being taxed thereon, every species of property that I own in my own right or have control of either as agent, executor, administrator, or otherwise; and that in making this return, for the purpose of being taxed thereon, I have not attempted either by transferring my property to another or by any other means to evade the laws governing taxation in this state. I do further swear that in making this return I have done so by estimating the true worth and value of every species of property contained therein."

  2. The fact that a person appears to have signed a return of taxable property on behalf of a person required to file a return shall be prima-facie evidence that the person was authorized to sign on behalf of such person.
  3. Any person who shall make any false statement in any return of taxable property shall be guilty of false swearing, whether or not an oath is actually administered to him or her, if such statement shall purport to be under oath. On conviction of such offense, such person shall be punished as provided by Code Section 16-10-71.
    1. As used in this subsection, the term "digital signature" means a digital or electronic method executed or adopted by a party with the intent to be bound by or to authenticate a record, which is unique to the person using it, is capable of verification, is under the sole control of the person using it, and is linked to data in such a manner that if the data are changed the digital or electronic signature is invalidated.
    2. Notwithstanding any provision of law to the contrary, the commissioner is authorized to promulgate rules and regulations setting forth the procedure for satisfying the signature requirement for returns whether by electronic digital signature, voice signature, or other means, so long as appropriate security measures are implemented which assure security and verification of the signature procedure.

      (Ga. L. 1884-85, p. 28, § 3; Ga. L. 1886, p. 24, § 2; Civil Code 1895, § 834; Ga. L. 1909, p. 36, § 16; Civil Code 1910, § 1091; Code 1933, § 92-6216; Ga. L. 1964, p. 333, § 2; Code 1933, § 91A-1014, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1360, § 1.)

JUDICIAL DECISIONS

Section contemplates that the taxpayer must return every species of property which the taxpayer controls as agent or trustee. Douglas v. McCurdy, 154 Ga. 814 , 115 S.E. 658 (1923).

Oath is necessary part of return. - Oath prescribed by this statute is a part of the return of the taxpayer, and is necessary to make the return complete or of any probative value. McLendon v. Dunlap Hdwe. Co., 3 Ga. App. 206 , 59 S.E. 718 (1907).

Filing by the seller of property of a real estate tax transfer form that was not signed by the buyer, did not contain an oath as required by O.C.G.A. § 48-5-19 , and did not contain section numbers of the parcels of property was not sufficient to serve as a return of real property. CC Office Assocs. v. DeKalb County, 219 Ga. App. 101 , 464 S.E.2d 243 (1995).

Manner in which oath to be made. - Acts of the administering officer and of the affiant must be concurrent, and must conclusively indicate that it was the purpose of the one to administer and the other to take the oath in order to make a valid affidavit. Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965).

In order to make an affidavit, there must be present the officer and affiant and the paper, and there must be something done which amounts to the administration of an oath. The affiant must swear to the affidavit, and the fact of the affiant's swearing must be certified by a proper officer. Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965).

Presumption that taxpayer made oath as to return. - When the taxpayer was required to make an oath to the return, in the absence of any showing to the contrary, it must be presumed that the taxpayer did so. Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965).

Effect of oath administered by or affidavit subscribed before unqualified person. - Since it is required by this statute that the oath be administered by and the affidavit subscribed before the tax commissioner, the attempted performance by anyone else will be without force or validity unless such person were authorized by law to do it. Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965).

An attempted oath administered by one who is personally not qualified to administer the oath is abortive and in effect no oath. Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965).

Requirement that oath be statement by taxpayer rather than tax official. - Form of the oath prescribed by this statute and used in the printed form on the returns requires that the person making the return swear that "the value placed by me" - not that placed by the tax officials - "is the true market value thereof." Otherwise the returns are hearsay, without probative value, and should be excluded. Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965).

Proof of agency required. - In performance of the commissioner's duty to examine tax returns before receiving the returns, a commissioner has discretion to reject returns signed by a person other than the owner, absent proof of authorization. Southern Tax Consultants, Inc. v. Scott, 267 Ga. 347 , 478 S.E.2d 126 (1996).

Effect of writing without valid jurat. - In the absence of a valid jurat, a writing in the form of an affidavit has no force or validity, and amounts to nothing, whether standing alone or when construed in connection with other evidence. Gruber v. Fulton County, 111 Ga. App. 71 , 140 S.E.2d 552 (1965).

Underpayment of taxes based on automatic tax return. - Following a bench trial, an order was issued establishing the 1997 fair market value of the taxpayer's property at a value of $4,709,000.00, which was an amount greater than the value set by the board of equalization; however, when the taxpayer paid taxes in 1997, 1998, and 1999, the taxpayer did so based on the board of equalization's 1997 valuation and because the 1997 value of the taxpayer's property was finally determined to be $4,709,000.00, the taxpayer automatically returned the property in 1998 and 1999 at that value and, thus, the taxpayer underpaid the taxpayer's taxes for the 1997, 1998, and 1999 tax years and the tax assessors were entitled to a summary judgment finding that the taxpayer had underpaid the taxpayer's taxes and owed additional sums. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855 , 605 S.E.2d 443 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Requirement that oath state "fair market value" rather than "market value" or "book value." - Since the form of the oath requires that the taxpayer swear to the fair market value of the property returned, an oath which departs from this statutory form by allowing the taxpayer to swear to the book value of the taxpayer's property is not authorized by law; "market value" and "book value" are not synonymous. 1970 Op. Att'y Gen. No. U70-115.

48-5-20. Effect of failure to return taxable property; acquisition of real property by transfer; penalty for failure to make timely return.

    1. Any taxpayer of any county who returned or paid taxes in the county for the preceding tax year and who fails to return his property for taxation for the current tax year as required by this chapter shall be deemed to have returned for taxation the same property as was returned or deemed to have been returned in the preceding tax year at the same valuation as the property was finally determined to be subject to taxation in the preceding year.  Each such taxpayer shall also be deemed to have claimed the same homestead exemption and personal property exemption as allowed in the preceding year.
    2. Any taxpayer of any county who acquired real property by transfer in the preceding tax year for which a properly completed real estate transfer tax form has been filed and the real estate transfer tax required under Article 1 of Chapter 6 of this title has been paid, and where no subdivision of the real property has occurred at the time of transfer, shall be deemed to have returned for taxation the same real property as was acquired by transfer at the same valuation as the real property was finally determined to be subject to taxation in the preceding year.  Nothing in this paragraph shall be construed to relieve the taxpayer of the responsibility to file a new timely claim for a homestead exemption and personal property exemption or to file a timely return where improvements have been made to the real property since it was last returned for taxation.
  2. Any penalty prescribed by this title or by any other law for the failure of a taxpayer to return his property for taxation within the time provided by law shall apply only to the property:
    1. Which the taxpayer did not return prior to the expiration of the time for making returns; and
    2. Which the taxpayer has acquired since his last tax return or which represents improvements on existing property since his last return.
  3. Reserved.

    (Code 1933, § 92-6202.1, enacted by Ga. L. 1969, p. 960, § 1; Ga. L. 1970, p. 278, § 1; Code 1933, § 91A-1015, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1992, p. 1643, § 2; Ga. L. 1994, p. 237, § 2.)

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990). For survey article on real property law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 397 (2003).

JUDICIAL DECISIONS

Failure to itemize specific property interests. - After an owner of mineral rights entered into an agreement with the county where the property was located to pay lump-sum taxes without itemizing the specific property interests, the agreement did not meet the requirements of O.C.G.A. § 48-5-15(c) , nor did it constitute payment of taxes due within the meaning of O.C.G.A. § 44-5-168 . Georgia Marble Co. v. Whitlock, 260 Ga. 350 , 392 S.E.2d 881 (1990), cert. denied, 498 U.S. 1025, 111 S. Ct. 675 , 112 L. Ed. 2 d 667 (1991).

O.C.G.A. § 48-5-20 does not empower a county board of tax assessors to reassess property that has been automatically returned and the taxes paid as the equivalent of unreturned property, even though the property owner violated an affirmative duty to make an actual return. Cobb County Bd. of Tax Assessors v. Morrison, 249 Ga. App. 691 , 548 S.E.2d 624 (2001).

Failure to make return of improvements. - Automatic refiling of a prior return does not exempt property owners from the duty to make a return of any improvements or subdivision of the property; however, such provision does not empower a county board of tax assessors to treat such under returned fair market value as unreturned because no statute expressly grants such power. Cobb County Bd. of Tax Assessors v. Morrison, 249 Ga. App. 691 , 548 S.E.2d 624 (2001).

Failure to indicate fair market value on return. - When a taxpayer sold improvements on the taxpayer's property, then filed a return in which the taxpayer left blank the area for "market value," it was not entitled to a refund under O.C.G.A. § 48-5-380 , as under O.C.G.A. § 48-5-6 , returns had to state fair market value; a county was not required to interpret the taxpayer's silence on market value as a declaration that there was no value, and under O.C.G.A. § 48-5-20(a)(1), a taxpayer who failed to return taxable property in a given year was deemed to have returned the property at the same valuation as applied the preceding year. Int'l Auto Processing, Inc. v. Glynn County, 287 Ga. App. 431 , 651 S.E.2d 535 (2007).

Valuation of property not based on valuation of Form PT-61. - In connection with the purchase of real property at a tax sale, the value of the property shown on the Form PT-61 did not trump the county tax commissioner's valuation because the proper value to be assigned to the property was the same valuation as in prior years, not the amount shown on Form PT-61. In re Powell-Garvey Co., Bankr. (Bankr. S.D. Ga. June 13, 2006).

Right of arbitration as to property automatically returned. - If property is automatically returned under this statute, and no change is made by the tax assessors, then there is no legal right to arbitration. Security-Morosgo Apts., Inc. v. City of Atlanta, 230 Ga. 117 , 196 S.E.2d 17 (1973).

Document filed as a "class return" by taxpayers is ineffective, since there are no provisions of law for such a return. The members of that class of taxpayers who have the remedy of class arbitration and who do not file individual returns within the time provided by law are deemed to have returned their property at the assessment placed upon the property for the previous year. Callaway v. Carswell, 240 Ga. 579 , 242 S.E.2d 103 (1978).

Return held improper. - Trial court erred in awarding a property owner $7,515.00 in attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) against a county board of tax assessors after a jury valued the property in question substantially lower than the board's valuation; the record did not support the trial court's conclusion that the property was returned for taxation by operation of law pursuant to O.C.G.A. § 48-5-20(a)(2), and the board did not waive the board's objection to the fees because the trial court did not hold a hearing on the issue of the attorney's fees, O.C.G.A. § 9-11-46(a) , and the board therefore did not have an opportunity to object to the award. Fulton County Bd. of Tax Assessors v. Butner, 258 Ga. App. 68 , 573 S.E.2d 100 (2002).

Underpayment of taxes based on automatic tax return. - Following a bench trial, an order was issued establishing the 1997 fair market value of the taxpayer's property at a value of $4,709,000.00, which was an amount greater than the value set by the board of equalization; however, when the taxpayer paid taxes in 1997, 1998, and 1999, the taxpayer did so based on the board of equalization's 1997 valuation and because the 1997 value of the taxpayer's property was finally determined to be $4,709,000.00, the taxpayer automatically returned the property in 1998 and 1999 at that value and thus, the taxpayer underpaid the taxpayer's taxes for the 1997, 1998, and 1999 tax years and the tax assessors were entitled to summary judgment finding that the taxpayer had underpaid the taxpayer's taxes and owed additional sums. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855 , 605 S.E.2d 443 (2004).

Tax return not required. - As a taxpayer did not pay the prior year's taxes, the taxes paid by the taxpayer for the prior year were deemed the taxpayer's tax return for the tax year under O.C.G.A. § 48-5-20(a)(2), so the taxpayer was not required to file a separate tax return on the taxpayer's property, and the taxpayer's late return was a nullity; therefore, upon the taxpayer's successful appeal of an assessment of the taxpayer's property, an award of costs and attorneys fees was mandatory under O.C.G.A. § 48-5-311(g)(4)(B)(ii). Simmons v. Bd. of Tax Assessors, 268 Ga. App. 411 , 602 S.E.2d 213 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Applicability to claims to the increased homestead exemption. - General Assembly did not intend this statute to apply to persons claiming the increased homestead exemption provided for in Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV); this statute does not eliminate the requirement that persons claiming the increased homestead exemption file an annual application for such exemption. 1969 Op. Att'y Gen. No. 69-236; 1969 Op. Att'y Gen. No. 69-459.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 625.

48-5-21. Return and collection of taxes on property unlawfully exempted.

Each tax receiver and tax commissioner shall have all property which is required by law to be returned for taxes, whether or not exempted by the county authorities, returned for taxation. The tax collector or tax commissioner shall collect the taxes due upon the property.

(Ga. L. 1889, p. 35, § 2; Civil Code 1895, § 765; Civil Code 1910, § 1001; Code 1933, § 92-6203; Code 1933, § 91A-1016, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-22. Failure to have returned for taxation and to collect taxes on property pursuant to Code Section 48-5-21; penalty.

  1. It shall be unlawful for any tax receiver or tax commissioner to fail to:
    1. Have returned for taxation all property required by law to be returned for taxation pursuant to Code Section 48-5-21; or
    2. Collect taxes assessed on all property pursuant to Code Section 48-5-21.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1889, p. 35, § 3; Penal Code 1895, § 275; Penal Code 1910, § 279; Code 1933, § 92-9919; Code 1933, § 91A-9911, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 1130 et seq., 1148.

48-5-23. Collection and payment of taxes on tangible property in installments; authorization; alternate procedure.

    1. The governing authority of each county and of each municipal corporation is authorized to provide by appropriate resolution or ordinance for the collection and payment of ad valorem taxes, fees, or special assessments on tangible property other than motor vehicles in installments. If the governing authority of any county or municipal corporation elects to provide for installment payments, any ad valorem taxes, fees, or special assessments due the state, county, and county board of education or the municipality and any municipal board of education which are levied upon tangible property other than motor vehicles shall become due and payable as provided in this Code section.
    2. The resolution or ordinance required pursuant to this subsection shall be adopted by the governing authority of the county or municipal corporation on or before December 31 for the next succeeding tax year. Any governing authority of a county or municipal corporation electing to collect such taxes, fees, or special assessments in installments shall file with the commissioner a certified copy of the appropriate resolution or ordinance within ten days of its adoption. The resolution or ordinance shall continue in full force and effect in all subsequent tax years unless repealed by the governing authority of the respective county or municipal corporation, in which case the governing authority shall notify the commissioner of the repeal within ten days after such action is taken.
  2. Notwithstanding that the governing authority of any county or municipal corporation, pursuant to this Code section, provides for the collection and payment of ad valorem taxes, fees, or special assessments on tangible property other than motor vehicles in installments based on the fraction of such taxes, fees, or special assessments levied on the property for the preceding tax year, the governing authority of any county or municipal corporation is further authorized to provide by appropriate resolution or ordinance for the collection and payment of ad valorem taxes, fees, or special assessments on tangible property other than motor vehicles in installments with a single billing for the current tax year based on the current final tax digest as authorized by the commissioner pursuant to Code Section 48-5-345, or on a temporary digest authorized by the judge of superior court pursuant to Code Section 48-5-310. The resolution or ordinance required by this subsection shall be adopted by the governing authority of the county or municipal corporation on or before December 31 for the next succeeding tax year. The resolution or ordinance shall be filed with the commissioner and shall continue in full force and effect as provided in subsection (a) of this Code section. Notification of the repeal of the resolution or ordinance shall be made as provided in subsection (a) of this Code section.
  3. The resolution or ordinance providing for such taxes, fees, or special assessments due and payable in installments on tangible property shall establish the due dates for the installments.
  4. Nothing contained in this Code section shall be construed to impose any liability for the payment of any ad valorem taxes, fees, or special assessments upon any person for property which was not owned on January 1 of the applicable tax year.
    1. This Code section shall apply to all persons required by law to make annual tax returns of all their property in this state to the commissioner.
    2. The governing authority of each county and of each municipal corporation is authorized to collect taxes, fees, or special assessments in accordance with the installment provisions of subsection (c) of this Code section even though no assessment has been placed on the subject tangible property for the tax year for which the installments are being collected.
    3. Taxes, fees, or special assessments not paid when due under any installment authorized pursuant to this Code section shall bear interest at the rate provided by law for unpaid ad valorem taxes from the due date of any such installment. Any taxes, fees, or special assessments not paid in full by December 20 or 60 days from the date of billing, whichever comes later, of any year shall be subject to the penalties and interest provided by law.
  6. The governing authority of each county may by ordinance or resolution provide for an earlier due date for the final installment authorized by this Code section. When the governing authority elects to establish an earlier due date, the final installment shall bear interest at the rate specified in Code Section 48-2-40 from the earlier date so established.

    (Ga. L. 1974, p. 972, §§ 1-5; Ga. L. 1977, p. 622, §§ 1-5; Code 1933, § 91A-1028, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 28, 29; Ga. L. 1980, p. 10, § 12; Ga. L. 1996, p. 744, § 1; Ga. L. 2010, p. 1104, § 9-1/SB 346.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1999, "48-2-40" was substituted for "48-5-40" in the last sentence of subsection (f).

OPINIONS OF THE ATTORNEY GENERAL

Taxpayers who return their property for valuation to the commissioner are subject to this statute, which allows local governments to establish installment payments of ad valorem property taxes. 1975 Op. Att'y Gen. No. 75-112.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 727, 728.

C.J.S. - 85 C.J.S., Taxation, §§ 1035, 1044.

ALR. - Failure of property owner to make formal election to avail himself of privilege of paying taxes or special assessment in installments, 140 A.L.R. 1442 .

48-5-24. Payment of taxes to county in which returns are made; installment payments, interest, and penalty on delinquent tax payments in certain counties; executions.

  1. All resident and nonresident persons who are required or directed by law to return any property for taxation to a tax commissioner or tax receiver shall pay the taxes on the property to the county in which the property is required or directed by law to be returned.
  2. In all counties having a population of not less than 690,000 nor more than 800,000 according to the United States decennial census of 2010 or any future such census, the taxes shall become due in two equal installments. One-half of the taxes shall be due and payable on July 1 of each year and shall become delinquent if not paid by August 15 in each year. The remaining one-half of the taxes shall be due and payable on October 1 of each year and shall become delinquent if not paid by November 15 of each year. A penalty not to exceed 5 percent of the amount of each installment shall be added to each installment that is not paid before the installment becomes delinquent. Intangible taxes in one installment shall become due on October 1 of each year and shall become delinquent if not paid by December 31. A penalty not to exceed 5 percent of the amount of intangible taxes due shall be added to any installment that is not paid before it becomes delinquent. All taxes remaining unpaid as of the close of business on December 31 of each year shall bear interest at the rate specified in Code Section 48-2-40, but in no event shall an interest payment for delinquent taxes be less than $1.00. The tax collectors shall issue executions for delinquent taxes, penalties, and interest against each delinquent taxpayer in their respective counties. Notwithstanding the foregoing, the governing authority of any county subject to this subsection may change the tax due dates provided in this subsection if the county's tax digest is not approved pursuant to Code Section 48-5-271 before July 1 of any year.
    1. All ad valorem taxes, fees, service charges, and assessments owed by any taxpayer to any county in this state having a population of 900,000 or more according to the United States decennial census of 2010 or any future such census or to any municipality lying wholly or partially within such county and having a population of 350,000 or more according to the United States decennial census of 1970 or any future such census, which are not paid when due shall bear interest at the following rates until paid:
      1. The rate specified in Code Section 48-2-40 on the total amount of any such taxes, fees, service charges, or assessments which are not paid when due; and
      2. An additional rate of interest on the amount of such taxes, fees, service charges, and assessments which exceeds $1,000.00 equal to 1 percent per annum for each full calendar month which elapses between the date that the taxes, fees, service charges, and assessments first become due and the date on which they are paid in full. The total rate of interest determined under this paragraph shall not exceed 12 percent per annum or the rate specified in Code Section 48-2-40, whichever is more. The additional rate of interest shall not apply to amounts determined to be owed by a taxpayer pursuant to any arbitration, equalization, or similar proceeding, if brought in good faith by the taxpayer, provided that the taxpayer shall have previously paid to the county or municipality the amount of such liability which was not in dispute;
    2. The rates of interest provided in subparagraphs (A) and (B) of paragraph (1) of this subsection shall be determined on the date delinquent amounts are paid in full and interest at the rate so determined shall accrue from the date on which the amount or installment thereof first becomes due until the date on which the amount or installment thereof is paid in full. Determination of the rates of interest shall be made separately as to amounts owed by a taxpayer to separate taxing jurisdictions, and the determination shall be made separately as to each parcel of property owned by a taxpayer.
    3. The tax collectors, tax commissioners, or governing authority of any such county or municipality shall issue executions against such taxpayer owing taxes, fees, service charges, or assessments together with interest thereon as provided in this subsection when the same become delinquent.
  4. In all counties having a population of not less than 150,000 nor more than 180,000 or not less than 183,000 nor more than 216,000 or not less than 218,000 nor more than 445,000 according to the United States decennial census of 1990 or any future such census, a penalty of 10 percent of the tax due shall accrue on taxes not paid on or before December 20 of each year, and interest shall accrue at the rate specified in Code Section 48-2-40 on the total amount of unpaid taxes and penalty until both the taxes and penalty are paid.  The tax collectors shall issue executions for such taxes, penalty, and interest against each delinquent taxpayer in their respective counties.  The 10 percent penalty shall be paid over to the county fiscal authority to assist the county in paying the expense of collecting the delinquent taxes.
  5. In all counties having a population of not less than 680,000 nor more than 690,000 according to the United States decennial census of 2010 or any future such census, the taxes shall become due and payable on August 15 in each year and shall become delinquent if not paid by October 15 of each year. A penalty of 5 percent of the tax due shall accrue on taxes not paid on or before October 15 of each year, and interest shall accrue at the rate specified in Code Section 48-2-40 on the total amount of unpaid taxes and penalty until both the taxes and the penalty are paid. The tax collectors shall issue executions for delinquent taxes, penalties, and interest against each delinquent taxpayer in their respective counties. Nothing contained in this subsection shall be construed to impose any liability for the payment of any ad valorem taxes upon any person for property which was not owned on January 1 of the applicable tax year.

    (Ga. L. 1903, p. 16, § 1; Civil Code 1910, § 1078; Code 1933, § 92-6402; Code 1933, § 91A-1022, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 10; Ga. L. 1980, p. 710, § 1; Ga. L. 1981, p. 388, § 1; Ga. L. 1981, p. 533, § 1; Ga. L. 1981, p. 1857, § 11; Ga. L. 1982, p. 3, § 48; Ga. L. 1982, p. 936, § 1; Ga. L. 1983, p. 3, § 37; Ga. L. 1984, p. 22, § 48; Ga. L. 1991, p. 303, § 3; Ga. L. 1992, p. 1218, § 1; Ga. L. 1992, p. 1690, § 1; Ga. L. 2002, p. 1409, §§ 1, 2; Ga. L. 2002, p. 1473, § 1; Ga. L. 2012, p. 687, § 1/HB 634.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, "subparagraphs (A) and (B) of paragraph (1)" was substituted for "subparagraphs (1)(A) and (1)(B)" in the first sentence of paragraph (c)(2).

Editor's notes. - Ga. L. 1982, p. 936, § 2, not codified by the General Assembly, provided that that Act shall apply to all taxable years beginning on or after January 1, 1983.

Code Section 48-5-271, referred to in the last sentence of subsection (b) of this Code section, was repealed by Ga. L. 1988, p. 1763, § 3, effective January 1, 1989.

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 84 C.J.S., Taxation, § 433 et seq.

ALR. - Validity and effect of single assessment of separate parcels of real estate belonging to different owners, 144 A.L.R. 341 .

48-5-25. Proportionate payments of property taxes by owners and persons with interest in or on property.

The owner or the holder of any equity, lien, or interest in or on property returned or assessed with other property for taxes shall be allowed to pay the taxes assessed against any one or more pieces of such property: (1) when listed separately by the owner or assessor on the tax return or digest, according to the valuation shown by the return or assessment; or (2) when not listed separately on the tax return or digest by the owner or assessor, by paying the proportionate part of the taxes represented by such property according to the valuation in the return or assessment; that is to say, such proportionate part of all of the taxes represented by the return or assessment as the value of the separate piece or pieces of property upon which payment is being made bears to all of the property in such return or assessment. The officials charged with the collection of taxes for this state or for any subdivision of this state including, but not limited to, municipalities, counties, and all other subdivisions of this state, and any transferee of a tax lien shall be required to accept payment of the taxes when tender is made as provided in this Code section, shall issue a receipt showing the payment, and shall execute a release of the property from the lien for taxes. The official or transferee accepting the payment and releasing the property shall be paid a fee of 50 › for issuing the receipt and release.

(Ga. L. 1931, p. 122, § 1; Ga. L. 1933, p. 50, § 1; Code 1933, § 92-5712; Code 1933, § 91A-1030, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For comment on Brown v. Nash, 216 Ga. 303 , 116 S.E.2d 227 (1960), see 12 Mercer L. Rev. 425 (1961).

JUDICIAL DECISIONS

Holder of security interest. - O.C.G.A. § 48-5-25 applies when partial payment of past due ad valorem taxes are made by the holder of a security interest in the property upon which the tax is paid. Roberts v. Ford Motor Credit Co., 160 Ga. App. 827 , 288 S.E.2d 238 (1982).

An action for declaratory judgment is the appropriate remedy to enforce the rights of the party holding the security interest. Roberts v. Ford Motor Credit Co., 160 Ga. App. 827 , 288 S.E.2d 238 (1982).

Property under levy. - There is nothing in O.C.G.A. § 48-5-25 which requires a distinction to be made between property under levy but prior to sale and property "returned or assessed with other property." Roberts v. Ford Motor Credit Co., 160 Ga. App. 827 , 288 S.E.2d 238 (1982).

Word "property" in this statute means both real and personal property. Aldridge v. Federal Land Bank, 203 Ga. 285 , 46 S.E.2d 578 (1948).

Requirement that both real and personal taxes be paid for release. - When the purchaser, at the time the lien becomes effective and at the time one purchases the property, is not the owner or the holder of any equity, lien, or interest in the real property purchased, and when one purchases the property with knowledge of the existence of a tax lien against the property, covering both real and personal property taxes, the purchaser obtains no better title than the purchaser's grantor had since the purchaser's grantor could not have obtained a release of the real property without payment of both real and personal property taxes. Brown v. Nash, 216 Ga. 303 , 116 S.E.2d 227 (1960).

Effect of payment by cotenant of all taxes on jointly held property. - Since joint property is liable for all taxes, payment of the taxes by one cotenant is payment for all. Bank of Tupelo v. Collier, 191 Ga. 852 , 14 S.E.2d 59 (1941).

Subrogation and contribution rights of cotenant who pays taxes on common property. - When one tenant in common, in order to protect one's interest, pays a mortgage on the common property, one is entitled to be subrogated to the rights of the mortgagee and to enforce the mortgage as against one's cotenants, to the extent of their liability to contribute to the satisfaction of the mortgage. This principle of subrogation is applicable in favor of a cotenant who pays taxes on common property. Bank of Tupelo v. Collier, 191 Ga. 852 , 14 S.E.2d 59 (1941).

Availability of remedy when property levied upon after payment. - When the purchaser, under former Code 1933, § 92-5712 (see now O.C.G.A. § 48-5-25 ), was entitled to pay the pro rata part of taxes assessed against the property the purchaser purchased subsequent to the issuance of tax fieri facias, and when these fieri facias were levied upon the property purchased, had the purchaser had an adequate remedy at law by a claim under former Code 1933, § 92-7801 (see now O.C.G.A. § 48-3-24 ). Bibb County v. Mortgage Bond Co., 183 Ga. 402 , 188 S.E. 698 (1936).

Cited in ITT Bus. Serv. Corp. v. Roberts, 184 Ga. App. 764 , 362 S.E.2d 496 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Right of security deed holder to release upon payment of taxes. - Commissioner is required to release the last piece of property which secures a tax liability upon the security deed holder's tender of payment for the taxes owed on the real property even though unpaid personal property tax obligations remain outstanding and will become unsecured. 1987 Op. Att'y Gen. No. U87-2.

Section 48-5-26 not applicable to security deed holders. - O.C.G.A. § 48-5-26 only appears to supplement the general provisions of O.C.G.A. § 48-5-25 for the limited scope and purpose of addressing a narrow question of the rights that owners and transferees of real property have to obtain a release by paying taxes on selected parcels of property between the tax lien date and the date when the taxes actually become due; the law does not apply in cases involving security deed holders. 1987 Op. Att'y Gen. No. U87-2.

Word "property" as used in this statute embraces both realty and personalty. 1950-51 Op. Att'y Gen. p. 382.

Effect of this statute. - In effect, this statute compels the holder of the lien to resort to other property involved or owned by the person against whom the tax fieri facias issued, and upon which taxes have not been paid, for satisfaction of the remainder of the fieri facias, or lien. 1945-47 Op. Att'y Gen. p. 551.

When payment may be made. - Holder of the equity, interest, or lien has the right to pay a proportionate part of the taxes on the property in question, together with a proportionate part of the cost which had accrued up until the date of payment at any time prior to the sale under an execution of property which has been advertised for sale. 1960-61 Op. Att'y Gen. p. 476.

Statute permits a proportionate payment of taxes after fieri facias has been issued. 1958-59 Op. Att'y Gen. p. 377.

Owner of property may not pay portion of tax and thus obtain release of portion of property covered by lien. 1960-61 Op. Att'y Gen. p. 529.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 718, 719.

C.J.S. - 85 C.J.S., Taxation, § 1002 et seq.

ALR. - Taking mortgage in name of, or assigning it to, third person to evade taxation, as affecting its validity and enforceability, 21 A.L.R. 396 .

Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378 ; 65 A.L.R. 677 .

Period covered by lessee's, sublessee's, or assignee's covenant to pay taxes or assessments, 97 A.L.R. 931 .

Right of mortgagee or other lienor to acquire and hold tax title in his own right as against persons owning other interest or liens upon property, 140 A.L.R. 294 .

Liability of mortgagor or his grantee to mortgagee for loss or depreciation in value of mortgage security as result of failure to pay taxes, 154 A.L.R. 614 .

Tenant's interest in respect of building or other structure erected by him as separate unit for property tax apart from land, 154 A.L.R. 1309 .

Superiority of special or local assessment lien over earlier private lien or mortgage, where statute creating such special lien is silent as to superiority, 75 A.L.R.2d 1121.

48-5-26. Payment of taxes on real property by owners or transferees.

The owner of any real property located in this state, and the transferee of every owner who acquires title to real property within this state between the date on which the tax lien on the property vests and the date on which the tax evidenced by the tax lien shall become due and payable, shall have the right to pay the taxes assessed against any one or more lots, tracts, or parcels of the real property: (1) by paying the amount of tax assessed against such lot, tract, or parcel if the property was separately returned by the owner or, in the case of a transfer, by the transferor of the property; or (2) if the property was not separately returned, by paying that percentage of the total tax assessed which the value of the property sought to be released bears to the value of all the property returned by the owner of such property as of the date on which the tax lien vested. The officials charged with the collection of taxes for this state or any subdivision of this state including, but not limited to, municipalities and counties, and any transferee of a tax lien shall accept payment of the taxes assessed against one or more lots, tracts, or parcels of real property upon tender by the owner of such property, including any transferee of the real property who has obtained title to the property between the time when the lien vested and the time on which the taxes are payable, and shall execute a release as to the property without regard to whether or not the taxes assessed against any other property, real or personal, of the owner, the transferee of the real property, or the transferor of the owner have been paid. The official or transferee of the tax lien accepting the payment and releasing the property shall be paid a fee of $2.00 for issuing the receipt and release. No such official or transferee of the tax lien shall be required to release any one or more tracts of real property after a fi. fa. has been recorded on the general execution docket in the county where the property is located without first receiving the entire amount of past due taxes as reflected in the fi. fa. No such official or transferee shall be required to release the last or only remaining lot, parcel, or tract of real property until all personal property taxes owed by the owner have been paid.

(Ga. L. 1961, p. 160, § 1; Code 1933, § 91A-1031, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For comment on Brown v. Nash, 216 Ga. 303 , 116 S.E.2d 227 (1960), see 12 Mercer L. Rev. 425 (1961).

OPINIONS OF THE ATTORNEY GENERAL

Section not applicable to security deed holders. - O.C.G.A. § 48-5-26 only appears to supplement the general provisions of O.C.G.A. § 48-5-25 for the limited scope and purpose of addressing a narrow question of the rights that owners and transferees of real property have to obtain a release by paying taxes on selected parcels of property between the tax lien date and the date when the taxes actually become due; the statute does not apply in cases involving security deed holders. 1987 Op. Att'y Gen. No. U87-2.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 718, 719.

C.J.S. - 85 C.J.S., Taxation, §§ 1002 et seq., 1040.

ALR. - Different parts or parcels of land in same ownership as single unit or separate units for tax assessment purposes, 133 A.L.R. 524 .

48-5-27. Collection of taxes for former years.

Tax commissioners, tax receivers, and tax collectors shall receive returns and collect taxes due on returns for former years for which any person is in default. The taxes shall be assessed according to the law in force at the time the default occurred, and the fact of assessment according to the law in force at the time of default shall be specified in the digest.

(Laws 1813, Cobb's 1851 Digest, p. 1060; Code 1863, § 798; Code 1868, § 866; Code 1873, § 870; Code 1882, § 870; Civil Code 1895, § 855; Civil Code 1910, § 1113; Code 1933, § 92-6228; Code 1933, § 91A-1027, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

ALR. - Power after death of owner to spread property taxes against property omitted from tax rolls for years prior to his death, 89 A.L.R. 848 .

48-5-28. Priority of taxes over other claims; superiority of security deed.

  1. Except as otherwise provided in Code Section 53-7-91, taxes shall be paid before any other debt, lien, or claim of any kind. The property returned, the property held at the time of returning property, and the property held after the time of returning property shall always be subject to a lien for taxes.
  2. The title and operation of a security deed shall be superior to the taxes assessed against the owner of property when the tax represents an assessment upon property of the owner other than that property specifically subject to the title and operation of the security deed.

    (Laws 1804, Cobb's 1851 Digest, p. 1050; Code 1863, § 742; Code 1868, § 809; Code 1873, § 812; Code 1882, § 812; Civil Code 1895, § 883; Civil Code 1910, § 1140; Code 1933, § 92-5707; Ga. L. 1953, Nov.-Dec. Sess., p. 168, § 1; Code 1933, § 91A-1023, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 11.)

Cross references. - Liens, § 44-14-320 et seq.

Law reviews. - For annual survey of state and local tax law, see 35 Mercer L. Rev. 281 (1983). For comment on Brown v. Nash, 216 Ga. 303 , 116 S.E.2d 227 (1960), see 12 Mercer L. Rev. 425 (1961).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

What taxes included in term "lien for taxes." - The words "lien for taxes," as employed in former Civil Code 1910, §§ 1140, 3329, and 3333 (see now O.C.G.A. §§ 44-14-320 , 48-2-56 , and 48-5-28 ) were broad and sufficient to include taxes provided for by a subsequent statute for support of the state, counties, and municipal corporations located in the state, although such tax may not be ad valorem or based on property. Atlanta Trust Co. v. Atlanta Realty Corp., 177 Ga. 581 , 170 S.E. 791 (1933).

Power of General Assembly to pass laws regarding priority of claims. - Statute does not divest the General Assembly of power to pass other laws fixing the order of priority of other claims relative to taxes. Baggett v. Mobley, 171 Ga. 268 , 155 S.E. 334 (1930).

Applicability to sales taxes. - Provisions of former Code 1933, §§ 92-5707 and 92-5708 (see now O.C.G.A. §§ 48-2-56 and 48-5-28 ) dealt with situations where the lien for taxes represented an assessment upon property of such owner other than that property specifically covered by the security instrument, and since sales tax was not a property tax and was not assessed against the property of the owner, these provisions were not applicable to sales tax. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Property to which section applicable. - Statute applies to all property returned or held by a taxpayer that is subject to taxation under Ga. Const. 1877, Art. VII, Sec. II, Para. I (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III). Cason v. Aldred, 175 Ga. 256 , 165 S.E. 221 (1932).

Taxes are against property as well as owner. - Taxes are not only against the owner, but are against the property also, without reference to judgments, mortgages, sales, transfers, or encumbrances. The only concern as to the owner is to know against whom the assessment is to be made, but the tax or lien therefor is against the property. Verdery v. Dotterer, 69 Ga. 194 (1882); Wilson v. Boyd, 84 Ga. 34 , 10 S.E. 499 (1889); Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931); Carroll v. Richards, 50 Ga. App. 272 , 178 S.E. 178 (1934).

When lien takes effect. - Lien for taxes takes effect when, by law, in each and every year the property is made taxable, and not with the return of the property or the issuance of the execution. Wilson v. Boyd, 84 Ga. 34 , 10 S.E. 499 (1889).

No need to make return of no personalty before levying on land. - Statute changes the rule that personalty is to be first applied to taxes. It is not necessary for an officer, before levying on land for taxes, to make a return of no personal property to be found. Watson v. Swann, 83 Ga. 198 , 9 S.E. 612 (1889).

Parties cannot by contract defeat government right to collect taxes for which property would otherwise be liable. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Cited in ITT Bus. Serv. Corp. v. Roberts, 184 Ga. App. 764 , 362 S.E.2d 496 (1987); Denise v. Paxson, 261 Ga. 846 , 413 S.E.2d 433 (1992).

Priority Over Other Claims

Circular priorities involving tax and judgment liens and security deeds under Georgia law shall be established according to the following rules: (1) liens for taxes shall be paid prior to all other liens against property; (2) security deeds shall be paid prior to liens for state taxes if those tax liens are not for ad valorem taxes against the property which is the subject of the security deeds at issue; and (3) judgment lien holders shall be subordinated to the preceding claims. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Priority of tax lien over judgment creditor's lien. - Lien for municipal taxes which a city has upon property of a taxpayer is superior to the lien of a judgment creditor. This is especially true when execution has been issued against the defaulting taxpayer and entered upon the proper execution docket before the creditor's judgment was obtained. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383 , 73 S.E.2d 205 (1952).

Federal tax liens have priority over later assessed state tax liens, but federal liens are subordinate to prior filed liens of judgment creditors. Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

Effect of unrecorded tax lien. - Under Georgia law, taxes constitute a lien against the property, whether that lien is recorded or not. In re Consolidated S.E. Group, Inc., 75 Bankr. 102 (Bankr. N.D. Ga. 1987).

Effect of failure to record tax fieri facias. - Recording of the fieri facias issued by the commissioner on the general execution docket is not a condition precedent to the attachment of a lien for sales taxes. The only effect of failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

Effect of failure to record transfer of tax fieri facias. - Record of a transfer of a tax fieri facias is not necessary to preserve the lien as against the taxpayer nor is such record necessary to preserve the priority of the lien against others, except as to persons who may have purchased the property bona fide subsequently to the transfer. Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505 , 170 S.E. 504 (1933).

Priority of transferred tax executions. - When a married woman, using money from her separate estate, purchases tax executions, for taxes which are a lien on her husband's property, and where these executions are transferred to her by the proper authorities and duly recorded, they are liens on the husband's property, superior to any other lien against it. Atlanta Nat'l Bank v. Brown, 173 Ga. 213 , 159 S.E. 874 (1931).

Priorities as to payments from assets of liquidated or dissolved financial institution. - Priorities of payment established in Ga. L. 1927, p. 195, § 5 (see now O.C.G.A. § 7-1-202 ), which allow payment to depositors before payments of state tax, supersede the provisions of former Civil Code 1910, §§ 1140 and 3333 (see now O.C.G.A. §§ 48-2-56 and 48-5-28 ) which gave taxes priority over other debts. Felton v. McArthur, 173 Ga. 465 , 160 S.E. 419 (1931).

Priority of tax lien when lender has foreclosed and sold property under a lien. - When a lender took notes and bills of sale to secure a debt, but security instruments were not recorded until after the tax liens had been entered on the execution docket, the property covered under the security instruments was property of the debtor at the time the debtor became liable for the tax and the fact that the lender foreclosed on the property and purchased the property at the foreclosure sale did not divest the tax lien, and it was proper for the state to levy the execution upon the foreclosed property then in the possession of the lender. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Priority of lien acquired by cotenant upon payment of taxes on common property. - When one tenant in common, in order to protect that tenant's interest, pays taxes and assessments on the common property, the tenant is in equity entitled to a lien against the interest of the cotenant for the cotenant's share of the taxes and assessments, which lien has the same priority as that for the taxes and assessments paid. Since liens for taxes and assessments are superior to a security deed, the cotenant's lien for reimbursement from the cotenant is also superior to a security deed given by the cotenant, whether the lien arose before or after the execution of the security deed. Bank of Tupelo v. Collier, 191 Ga. 852 , 14 S.E.2d 59 (1941).

Apportionment of tax liability against properties in which multiple creditors have interests. - When each of two or more creditors of a common insolvent debtor has, relative to the other, the highest lien with respect to distinct property belonging to such debtor, and when there is outstanding against the debtor a tax execution issued generally, the burden of discharging such lien should, as a general rule, be apportioned among the creditors by requiring each of the separate properties to bear its proportionate part of the taxes, according to value. Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505 , 170 S.E. 504 (1933).

Mortgagee may foreclose before final judicial determination of mortgagor's tax liability. - It is inequitable to penalize a mortgagee for protecting the mortgagee's interest in the mortgaged property through foreclosure proceedings before a final judicial determination of the mortgagor's tax liability. If the mortgagee fails to protect the mortgagee's security interest in the property, and the mortgagor's tax exemption claim is decided against the mortgagee, the mortgagee's security interest would be inferior to the taxing authority's claim against the mortgagor for delinquent taxes. Ravenwood Church v. Starbright, Inc., 168 Ga. App. 870 , 310 S.E.2d 582 (1983).

Property Subject to Tax Lien

What property covered by tax lien. - Statute applies to all property of a taxpayer that is subject to taxation under the Constitution of Georgia. A lien for taxes due the state is against both the owner and the owner's property, regardless of judgments, mortgages, sales, transfers, or encumbrances of any kind. Phoenix Mut. Life Ins. Co. v. Appling County, 164 Ga. 861 , 139 S.E. 674 (1927); Armour Fertilizer Works v. Durrence, 176 Ga. 519 , 168 S.E. 572 (1933).

Property returned or held at time of giving in is subject to lien of the state, which cannot be divested by sale. Bibb Nat'l Bank v. Colson, 162 Ga. 471 , 134 S.E. 85 (1926).

Ownership of property at time of tax sale is entirely immaterial since a tax lien attaches to property subject to taxation from the time fixed by law for valuation of such property. Furthermore, taxes due the state are not only against the owner but against the property also, regardless of judgments, mortgages, sales, transfers, or encumbrances of any kind. City of Leesburg v. Forrester, 59 Ga. App. 503 , 1 S.E.2d 584 (1939).

Transfer of lien to specific property. - It is doubted that any officer would have the authority to transfer the lien of the state for taxes to a specific fund, and thus waive the lien as against the general property of the taxpayer. It is questioned further whether the failure of the sheriff to obey such demand, if made by some other officer, could have the effect of relegating the state to a rule or other action against the sheriff for a neglect of duty. Brown v. Roach, 31 Ga. App. 476 , 120 S.E. 813 (1923).

Lien unaffected by existence of other property which could be levied on. - That taxpayer is in possession of other property on which the tax fi. fa. could be levied does not affect the state's lien against the property in question. Brown v. Roach, 31 Ga. App. 476 , 120 S.E. 813 (1923).

Levy on property which has previously been alienated. - Taxing authorities are not required to limit the levy to property of the defendant in execution which has not been alienated at the time of the levy. Reynolds v. Hardin, 187 Ga. 40 , 200 S.E. 119 (1938), later appeal, 189 Ga. 589 , 6 S.E.2d 913 (1940).

Attachment of tax lien to property conveyed as security for a debt. - When an owner of land conveys the land by warranty deed as security for a debt, and in the succeeding year fails to return the land at the time the owner returns the owner's other property for state and county taxation for that year, and after default in payment execution is issued against the owner for state and county taxes on the basis of the owner's return of other property, the lien for such taxes will attach not only to the property included in the return but also to the land which the owner has conveyed as security for debt. Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363 , 160 S.E. 387 (1931).

Tax lien against property which is transferred after tax accrues. - Lien for all taxes is binding upon all property of the surviving obligee in the bond for title and upon the estate of the deceased obligee, such obligees being holders of the bond for title and possessing and using the property at the time of accrual of the tax. Graves v. Walker, 182 Ga. 644 , 186 S.E. 820 (1936).

Liability of subsequently acquired property for taxes. - Fact that the taxpayer has disposed of all property returned by the taxpayer in the years for which assessments were made against the taxpayer for the taxpayer's taxes does not discharge property subsequently acquired by the taxpayer from the lien for such taxes and from executions issued against the taxpayer for the enforcement thereof. People's Credit Clothing Co. v. City of Atlanta, 173 Ga. 653 , 160 S.E. 873 (1931).

When property which was perishable or expensive to keep was sold pursuant to former Civil Code 1910, §§ 6068 (see now O.C.G.A. § 9-13-163 ) and 6069 (see now O.C.G.A. § 9-13-164 ) the short order sale divested liens on the property, and the liens attached to the proceeds of such sale. This rule will not affect property covered by a tax lien of the state, which under former Civil Code 1910, § 1140 (see now O.C.G.A. § 48-5-28 ) was always subject, and a sale of which under former Civil Code 1910, § 1141 (see now O.C.G.A. § 48-2-57 ) did not divest the lien of the state for taxes. State Revenue Comm'n v. Rich, 49 Ga. App. 271 , 175 S.E. 394 (1934).

Order of liability of interests for payment of taxes. - When a fund representing both the title and the equity is before the court for distribution, the equity or interest of the grantor should first be subjected to the payment of the taxes, but when the equity is insufficient to pay the tax claims in full, since these taxes are superior to security deeds, the "title" fund must be used to pay the balance of the taxes in excess of the "equity" fund. Minchew v. Juniata College, 188 Ga. 517 , 4 S.E.2d 212 (1939).

Owner's failure to return property is no defense to one who purchases the property after lien accrues. - Failure of the owner of property levied on to return the property furnishes no defense to one who purchased from the owner after the lien for taxes accrued. Winn v. Butts, 127 Ga. 385 , 56 S.E. 406 (1907).

Second unauthorized tax sale did not affect fee simple title of buyer at first tax sale. - Although a county did not have the recognized statutory option of conducting a second tax sale in order to satisfy the remainder of the tax deficiency owed, and while the assignee who took the property as a result of the second tax sale might be entitled to a refund of the purchase price, the special master's recommendation to issue a decree of fee simple title in the underlying property to the buyer at the first tax sale was upheld on appeal. DRST Holdings, Ltd. v. Agio Corp., 282 Ga. 903 , 655 S.E.2d 586 (2008).

Priority of Security Deeds

Purpose of provisions relating to priority of security deeds. - Purpose of provisions relating to priority of tax liens and security deeds is to protect holders of security deeds and bills of sale to secure debt in certain instances from having the security levied upon because of taxes owed by the owner of the equity in the property since the taxes are not directly upon the property involved in the security instrument. Williams v. General Fin. Corp., 98 Ga. App. 31 , 104 S.E.2d 649 (1958).

Order of distribution of sale proceeds to tax lienors and security deed holders. - When, after the death of the grantor under security deeds, the equity of redemption is set apart to his widow and minor child, and thereafter the property is sold under an execution in favor of the first security deed holder, the year's support claim is entitled to the full amount of the equity of redemption, tax claims which attached to the property before the setting apart of the year's support are entitled to preference over the security deed holders to the extent that the tax claims are in excess of the portion of the taxes that could and should have been paid from the equity of redemption in the absence of a year's support, and the security deed holders are entitled to the full amount of their secured debt, less the taxes in excess of the equity of redemption. Minchew v. Juniata College, 188 Ga. 517 , 4 S.E.2d 212 (1939).

OPINIONS OF THE ATTORNEY GENERAL

What taxes included in term "lien for taxes." - Words "lien for taxes" used in former Code 1933, §§ 92-5707 and 92-5708 and Ga. L. 1937-38, Ex. Sess., p. 77, § 42 (see now O.C.G.A. §§ 48-2-56 and 48-5-28 ) have been broadly construed by the Supreme Court to include taxes, provided for by subsequent statute, for support of the state and counties and municipal corporations located in the state, although such taxes may not be ad valorem or based on property, and sales and use taxes. 1960-61 Op. Att'y Gen. p. 529.

Effect of transfer of property. - An ad valorem tax lien attaches to property and follows the property even into the hands of a bona fide purchaser for value; an attempted transfer of property to evade the tax would be void. 1970 Op. Att'y Gen. No. U70-208.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 794 et seq.

C.J.S. - 85 C.J.S., Taxation, § 976.

ALR. - Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378 ; 65 A.L.R. 677 .

48-5-29. Acquisition of jurisdiction by superior court in ad valorem property tax litigation; payment and distribution of property taxes; excess payments; underpayments.

  1. Before the superior court has jurisdiction to entertain any civil action, appeal, or affidavit of illegality filed under this title by any aggrieved taxpayer concerning liability for ad valorem property taxes, taxability of property for ad valorem property taxes, valuation of property for ad valorem taxes, or uniformity of assessments for ad valorem property taxes, the taxpayer shall pay the amount of ad valorem property taxes assessed against the property at issue for the last year for which taxes were finally determined to be due on the property, or, if less, the amount of the temporary tax bill issued pursuant to Code Section 48-5-311. For the purposes of this Code section, taxes shall not be deemed finally determined to be due on a property for a tax year until all appeals under Code Section 48-5-311 and proceedings for refunds under Code Section 48-5-380 have become final.
  2. Ad valorem taxes due under this Code section shall be paid to the tax collector or tax commissioner of the county where the property is located. If the property is located within any municipality, the portion of the payment due the municipality shall be paid to the officer designated by the municipality to collect ad valorem taxes.
  3. All taxes paid to the county tax collector or tax commissioner under this Code section shall be distributed to the state, county, county schools, and any other applicable taxing districts in the same proportion as the millage rate for each bears to the total millage rate applicable to the property for the current year. If the total millage rate has not been determined for the current year, the distribution shall be made on the basis of the millage rates established for the immediately preceding year.
  4. Any payment made by the taxpayer in accordance with this Code section which is in excess of his or her finally determined tax liability shall be refunded to the taxpayer. If the amount finally determined to be the tax liability of the taxpayer exceeds the amount paid under this Code section, the taxpayer shall be liable for the amount of the difference between the amount of tax paid and the amount of tax owed. The amount of difference shall be subject to the interest provided under subsection (g) of Code Section 48-5-311.

    (Ga. L. 1976, p. 1154, §§ 1-4; Code 1933, § 91A-1029, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 12; Ga. L. 2014, p. 672, § 2/HB 755.)

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990).

JUDICIAL DECISIONS

What taxes must be paid to satisfy jurisdictional requirement. - Statute supersedes the rule that a taxpayer need only tender the amount of taxes admitted to be due as the taxes become due. North By N.W. Civic Ass'n v. Cates, 241 Ga. 39 , 243 S.E.2d 32 , cert. denied, 439 U.S. 838, 99 S. Ct. 123 , 58 L. Ed. 2 d 134 (1978).

Penalties and interest became part of the "ad valorem taxes assessed against the property" such that tender of the past due principal only was insufficient to vest jurisdiction in the superior court for purposes of an ad valorem property tax appeal. Bannister v. Douglas County Bd. of Tax Assessors, 219 Ga. App. 68 , 464 S.E.2d 29 (1995).

Trial court order dismissing the taxpayers' appeal of the 2006 ad valorem valuation of certain real property was vacated and the case was remanded to the trial court to determine if the taxpayers had paid a sufficient amount of the 2005 taxes to cure the jurisdictional defect under O.C.G.A. § 48-5-29(a) , or whether the defect could no longer be cured. Lake Erma, LLC v. Henry County Bd. of Tax Assessors, 298 Ga. App. 733 , 681 S.E.2d 188 (2009), cert. denied, No. S09C1880, 2010 Ga. LEXIS 25 (Ga. 2010).

Cure of jurisdictional defect before motion to dismiss is filed. - When a jurisdictional defect, a failure to pay taxes based on the previous year's assessment prior to filing suit, is cured by the time the defendants' motion to dismiss for lack of jurisdiction is filed, the trial court has jurisdiction. Allright Parking of Ga., Inc. v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378 , 260 S.E.2d 315 (1979).

Statute does not apply to a complaint filed as a "class return" by taxpayers for the limited purpose of requiring the county board of tax assessors to enter into class arbitration with the taxpayers. A decision in the case will not determine tax liability, taxability of property, valuation of property, or uniformity of assessments for ad valorem property taxes. It merely determines whether the taxpayers may have class arbitration. Callaway v. Carswell, 240 Ga. 579 , 242 S.E.2d 103 (1978).

Failure to comply with O.C.G.A. § 48-5-29(a) . - Trial court did not err in dismissing for lack of jurisdiction the taxpayers' action seeking an interlocutory injunction to prohibit a county tax commissioner from collecting upon tax fi. fas. issued against their personal property based on their failure to pay ad valorem property taxes because the taxpayers were required to comply with O.C.G.A. § 48-5-29(a) , but the taxpayers did not pay all of their taxes; the taxpayers could not circumvent the requirement of § 48-5-29(a) by characterizing their complaint as a constitutional "due process" action rather than one arising under the Revenue Code because the complaint was squarely aimed at challenging their ad valorem property tax assessments. Coffman Grading Co. v. Forsyth County, 303 Ga. App. 836 , 695 S.E.2d 310 (2010).

Although the trial court correctly held that taxpayers had to pay certain taxes pursuant to O.C.G.A. § 48-5-29(a) , the court erred in failing to hold an evidentiary hearing to determine the amount taxpayers owed; because the taxpayers challenged the ad valorem taxes on the property for the years 2004 through 2008, the last year for which taxes were finally determined to be due was 2003, and in order for the trial court to entertain the action, the taxpayers had to pay an amount equal to the 2003 ad valorem taxes on the property for each of the challenged years, less the value of property already seized. Coffman Grading Co. v. Forsyth County, 303 Ga. App. 836 , 695 S.E.2d 310 (2010).

O.C.G.A. § 48-5-29(d) provides for a refund with interest. Clayton County Bd. of Tax Assessors v. City of Atlanta, 299 Ga. App. 233 , 682 S.E.2d 328 (2009).

Procedure pending appeal. - If, under O.C.G.A. § 48-2-18 , a utility had both subsection (c) and subsection (d) appeals proceeding simultaneously, and a local appeal was still pending when the subsection (c) appeal was concluded, the provisions for the payment of taxes during the pendency of an appeal would apply. Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

Cited in Allen v. Board of Tax Assessors, 247 Ga. 568 , 277 S.E.2d 660 (1981); Sibley v. Cobb County Bd. of Tax Assessors, 171 Ga. App. 65 , 318 S.E.2d 643 (1984).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 888 et seq. 85 C.J.S., Taxation, § 1204 et seq.

48-5-30. Filing extension for service personnel serving abroad.

Notwithstanding any provision of Code Section 48-5-7.1 or 48-5-7.4 to the contrary, a member of the armed forces of the United States serving outside the continental United States may file such member's initial or renewal application for special assessment at any time within a period of six months following the return of such member to the continental United States.

(Code 1981, § 48-5-30 , enacted by Ga. L. 2004, p. 455, § 1.)

Editor's notes. - This Code section formerly pertained to quarterly ad valorem tax billings in certain counties. The former Code section was based on Ga. L. 1982, p. 595, § 1 and was repealed by Ga. L. 1994, p. 237, § 2, effective July 1, 1994.

48-5-31. Prepayment by developer of ad valorem or school taxes; time of effect of prepayment agreements; use of prepayment proceeds for public purposes; forfeiture of excess of prepayment over taxes due; validation procedure.

  1. As used in this Code section, the term:
    1. "Developer" means a person constructing a development.
    2. "Development" or "development property" means a major industrial project which will employ at least 200 persons during construction or operation of the project.
    3. "Local board of education" means the county or area board of education, or in the case of an independent school district the board of education or other body, having authority over and responsibility for a school district.
    4. "Local government" means any county or any municipal corporation which has the authority to collect ad valorem taxes.
    5. "Program of public improvement" includes any or all projects for which a local government or local board of education is authorized by any provision of law to impose or recommend the imposition of taxes and shall include programs of school construction or expenditures for other educational purposes for which a local board of education is authorized by any provision of law to impose taxes.
    6. "School district" means any area, county, independent, or local school district within which all or any part of any development is located.
    7. "School tax" includes any tax authorized by any provision of law to be assessed by a local government or by a local board of education for educational purposes, including but not limited to the construction of schools and the repayment of bonds issued for such purposes.
  2. Notwithstanding any provision of law to the contrary, and subject to the conditions specified in this Code section, any developer may enter into an agreement with any local government or local board of education, or both, for the prepayment of ad valorem taxes or school taxes or both. Any such agreement may include programs of public improvements adopted by the local government or the local board of education, or any combination thereof, and shall be a lawful and binding contract enforceable by and against the local government, local board of education, developer, and the beneficial owners of any development property assessed for taxation which is the subject of a tax prepayment agreement.
  3. Each tax prepayment agreement shall become effective upon its adoption by resolution of the governing body of the local government or by resolution of the local board of education, or both, as the case may be, agreement by the developer, and the subsequent prepayment of taxes by the developer. Such tax prepayment agreement shall provide for the prepayment to the local government or the local board of education, or both, of not more than two times the estimated ad valorem tax, school tax, or both, which will be due for (1) the year in which the development is anticipated to be completed, (2) its first year of commercial use, or (3) its first year of productive use. The amount of taxes thus prepaid, without interest, shall be subsequently credited by the local government or local board of education, or both, against taxes due following an assessment of the development property by the county tax assessor or the Department of Revenue, as appropriate, in five equal annual installments beginning not earlier than the year described above for which the tax prepayment amount was calculated. In no event may the sum of credits exceed the amount of prepayment made.
  4. A local government may adopt by resolution of its governing authority or a local board of education may adopt by resolution a public improvement program to be included as part of tax prepayment agreements. Prepayment proceeds may be used for any public purpose except that the local government, local board of education, or both, may adopt a program of public improvements which is reasonably related to the anticipated increased demand for public services resulting from the development for which prepayment of taxes is made, to be funded in whole or in part by prepayment proceeds. The local government, local board of education, or both, may, by adoption of such program, provide that such funds shall be maintained in separate accounts and not be expended except for projects included in such program of public improvements.
  5. Notwithstanding any other provision of law, no tax prepayment shall create a debt of the local government or school district. To the extent that annual credits for prepaid taxes may exceed taxes due in any particular year pursuant to annual assessments of development property, the excess annual credit otherwise due that year shall be forfeited and in no event shall the developer or any other person be allowed to claim a refund of any part of a prepayment.
  6. The determination by any local government's governing authority, by any local board of education, or both as to the necessity for the public improvements to be funded by prepayments under a program established by a tax prepayment agreement shall be final and not subject to review.
  7. Nothing contained in this Code section shall be construed to require a local government, a local board of education, or any developer to enter into a tax prepayment agreement.
  8. Notwithstanding the fact that tax prepayments made in accordance with this Code section do not create a debt of any local government or school district, the validity of any such tax prepayment and the related tax prepayment agreement or agreements may be determined by application of the validation procedure set forth in Code Sections 36-82-73 through 36-82-83 . However, the petition filed in such validation proceeding pursuant to Code Section 36-82-75 shall be amended as appropriate to reflect that no bonds are being issued and no debt is being incurred, and the relevant tax prepayment agreement and program of public improvements shall be filed as an exhibit to the petition. (Code 1933, § 91A-1028.1, enacted by Ga. L. 1982, p. 2382, § 1; Code 1981, § 48-5-30 , enacted by Ga. L. 1982, p. 2382, § 2; Code 1981, § 48-5-31 , as redesignated by Ga. L. 1983, p. 3, § 37.)

Cross references. - Exemption of development authorities from taxation, § 36-62-3 .

Editor's notes. - This Code section, which was enacted as Code Section 48-5-30 [now repealed], was originally unofficially designated as Code Section 48-5-31, since Ga. L. 1982, p. 595, § 1 also enacted a Code Section 48-5-30. Ga. L. 1983, p. 3, § 37, effective January 25, 1983, officially redesignated this Code section as Code Section 48-5-31; reversed the designations of subsections (a) and (b); revised Code references in subsections (g) and (h); and substituted "36-82-75" for "36-82-21" in subsection (h).

48-5-32. Publication by county of ad valorem tax rate.

  1. As used in this Code section, the term:
    1. "Levying authority" means a county, a municipality, or a consolidated city-county governing authority or other governing authority of a political subdivision of this state that exercises the power to levy ad valorem taxes to carry out the governing authority's purposes.
    2. "Recommending authority" means a county, independent, or area school board of education that exercises the power to cause the levying authority to levy ad valorem taxes to carry out the board's purposes.
    3. "Taxing jurisdiction" means all the tangible property subject to the levy of a specific levying authority or the recommended levy of a specific recommending authority.
    1. Each levying authority and each recommending authority shall cause a report to be published in a newspaper of general circulation throughout the county and posted on such authority's website, if available:
      1. At least one week prior to the certification of any recommending authority to the levying authority of such recommending authority's recommended school tax for the support and maintenance of education pursuant to Article VIII, Section VI, Paragraph I of the Constitution; and
      2. At least one week prior to the establishment by each levying authority of the millage rates for ad valorem taxes for educational purposes and ad valorem taxes for purposes other than educational purposes for the current calendar year.
    2. Such reports shall be in a prominent location in such newspaper and shall not be included with legal advertisements, and such reports shall be posted in a prominent location on such authority's website, if available. The size and location of the advertisements shall not be grounds for contesting the validity of the levy.
  3. The reports required under subsection (b) of this Code section shall contain the following:
    1. For levying authorities, the assessed taxable value of all property, by class and in total, which is within the levying authority's taxing jurisdiction and the proposed millage rate for the levying authority's purposes for the current calendar year and such assessed taxable values and the millage rates for each of the immediately preceding five calendar years, as well as the proposed total dollar amount of ad valorem taxes to be levied for the levying authority's purposes for the current calendar year and the total dollar amount of ad valorem taxes levied for the levying authority's purposes for each of the immediately preceding five calendar years.  The information required for each year specified in this paragraph shall also indicate the percentage increase and total dollar increase with respect to the immediately preceding calendar year.  In the event the rate levied in the unincorporated area is different from the rate levied in the incorporated area, the report shall also indicate all required information with respect to the incorporated area, unincorporated area, and a combination of incorporated and unincorporated areas;
    2. For recommending authorities, the assessed taxable value of all property, by class and in total, which is within the recommending authority's taxing jurisdiction and the proposed millage rate for the recommending authority's purposes for the current calendar year and such assessed taxable values and the millage rates for each of the immediately preceding five calendar years, as well as the proposed total dollar amount of ad valorem taxes to be recommended for the recommending authority's purposes for the current calendar year and the total dollar amount of ad valorem taxes levied for the recommending authority's purposes for each of the immediately preceding five calendar years.  The information required for each year specified in this paragraph shall also indicate the percentage increase and total dollar increase with respect to the immediately preceding calendar year; and
    3. The date, time, and place where the levying or recommending authority will be setting its millage rate for such authority's purposes.
  4. The commissioner shall not accept for review the digest of any county which does not submit simultaneously a copy of such published reports for the county governing authority and the county board of education with such digest.  In the event a digest is not accepted for review by the commissioner pursuant to this subsection, it shall be accepted for review upon satisfactory submission by such county of a copy of such published reports.  The levies of each of the levying authorities other than the county governing authority shall be invalid and unenforceable until such time as the provisions of this Code section have been met. (Code 1981, § 48-5-32 , enacted by Ga. L. 1990, p. 889, § 1; Ga. L. 1991, p. 1903, § 7; Ga. L. 1993, p. 947, § 7; Ga. L. 2015, p. 1219, § 7/HB 202.)

The 2015 amendment, effective January 1, 2016, in subsection (b), added the present paragraph (1) and (2) designations and redesignated former paragraphs (1) and (2) as subparagraphs (A) and (B); in paragraph (b)(1), in the introductory language, added "and posted on such authority's website, if available" and substituted "one week" for "two weeks" in subparagraphs (b)(1)(A) and (b)(1)(B); and added ", and such reports shall be posted in a prominent location on such authority's website, if available" at the end of the first sentence in paragraph (b)(2).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, Code Section 48-5-32 as enacted by Ga. L. 1990, p. 1901, § 1 was renumbered as Code Section 48-5-33 [now repealed] because Ga. L. 1990, p. 889, § 1 had previously enacted a Code Section 48-5-32.

Editor's notes. - Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

48-5-32.1. Certification of assessed taxable value of property and method of computation; resolution or ordinance required for millage rate; advertisement of intent to increase property tax.

  1. As used in this Code section, the term:
    1. "Ad valorem tax" or "property tax" means a tax imposed upon the assessed value of real property.
    2. "Certified tax digest" means the total net assessed value on the annual property tax digest certified by the tax commissioner of a taxing jurisdiction to the department and authorized by the commissioner for the collection of taxes, or, in the case where the governing authority of a county whose digest has not been approved by the commissioner has petitioned the superior court of the county for an order authorizing the immediate and temporary collection of taxes, the temporary digest so authorized.
    3. "Levying authority" means a county, a municipality, or a consolidated city-county governing authority or other governing authority of a political subdivision of this state that exercises the power to levy ad valorem taxes to carry out the governing authority's purposes.
    4. "Mill" means one one-thousandth of a United States dollar.
    5. "Millage" or "millage rate" means the levy, in mills, which is established by the governing authority for purposes of financing, in whole or in part, the taxing jurisdiction's expenses for its fiscal year.
    6. "Millage equivalent" means the number of mills which would result when the total net assessed value added by reassessments is divided by the certified tax digest and the result is multiplied by the previous year's millage rate.
    7. "Net assessed value" means the taxable assessed value of property after all exemptions.
    8. "Recommending authority" means a county, independent, or area school board of education that exercises the power to cause the levying authority to levy ad valorem taxes to carry out the purposes of such board of education.
    9. "Roll-back rate" means the previous year's millage rate minus the millage equivalent of the total net assessed value added by reassessments:
      1. As calculated and certified to the commissioner by the tax commissioner for county and educational tax purposes; and
      2. As calculated by the collecting officer of the municipality for municipal tax purposes.
    10. "Taxing jurisdiction" means all the real property subject to the levy of a specific levying authority or the recommended levy of a specific recommending authority.
    11. "Total net assessed value added by reassessments" means the total net assessed value added to the certified tax digest as a result of revaluation of existing real property that has not been improved since the previous tax digest year.
  2. At the time of certification of the digest, the tax receiver or tax commissioner shall also certify to the recommending authority and levying authority of each taxing jurisdiction the total net assessed value added by reassessments contained in the certified tax digest for that tax digest year of the taxing jurisdiction.
    1. Whenever a recommending authority or levying authority shall propose to adopt a millage rate which does not exceed the roll-back rate, it shall adopt that millage rate at an advertised public meeting and at a time and place which is convenient to the taxpayers of the taxing jurisdiction, in accordance with the procedures specified under Code Section 48-5-32.
    2. In those instances in which the recommending authority or levying authority proposes to establish a general maintenance and operation millage rate which would require increases beyond the roll-back rate, the recommending authority or levying authority shall advertise its intent to do so and shall conduct at least three public hearings thereon, at least one of which shall commence between the hours of 6:00 P.M. and 7:00 P.M., inclusive, on a business weekday. The recommending authority or levying authority shall place an advertisement in a newspaper of general circulation serving the residents of the unit of local government and post such advertisement on the website of the recommending or levying authority, which shall read as follows:

      Simultaneously with this notice the recommending authority or levying authority shall provide a press release to the local media.

    3. The advertisement shall appear at least one week prior to each hearing, be prominently displayed, not be less than 30 square inches, and not be placed in that section of the newspaper where legal notices appear and shall be posted on the appropriate website at least one week prior to each hearing. In addition to the advertisement specified under this paragraph, the levying or recommending authority may include in the notice reasons or explanations for such tax increase.
    4. No recommending authority shall recommend and no levying authority shall levy a millage rate in excess of the proposed millage rate as established pursuant to paragraph (2) of this subsection without beginning anew the procedures and hearings required by this Code section and those required by Code Section 48-5-32.
    5. Any notice or hearing required under this Code section may be combined with any notice or hearing required under Article 1 of Chapter 81 of Title 36 or Code Section 48-5-32.
  4. Nothing contained in this Code section shall serve to extend or authorize any millage rate in excess of the maximum millage rate permitted by law or to prevent the reduction of the millage rate.
  5. The commissioner shall not accept a digest for review or issue an order authorizing the collection of taxes if the recommending authority or levying authority other than municipal governing authorities has established a millage rate that is in excess of the correct rollback without complying fully with the procedures required by this Code section. In the event a digest is not accepted for review by the commissioner pursuant to this subsection, it shall be accepted for review upon satisfactory submission by such authorities of such evidence. The levies of each of the levying authorities other than the county governing authority shall be invalid and unenforceable until such time as the provisions of this Code section have been met.
  6. The commissioner shall promulgate such rules and regulations as may be necessary for the administration of this Code section. (Code 1933, § 48-5-32.1 , enacted by Ga. L. 1999, p. 1043, § 1; Ga. L. 2000, p. 1270, § 1; Ga. L. 2006, p. 857, § 8/HB 1361; Ga. L. 2010, p. 1104, § 10-1/SB 346; Ga. L. 2017, p. 774, § 48/HB 323.)

"NOTICE OF PROPERTY TAX INCREASE

The (name of recommending authority or levying authority) has tentatively adopted a millage rate which will require an increase in property taxes by (percentage increase over roll-back rate) percent.

All concerned citizens are invited to the public hearing on this tax increase to be held at (place of meeting) on (date and time) .

Times and places of additional public hearings on this tax increase are at (place of meeting) on (date and time) .

This tentative increase will result in a millage rate of (proposed millage rate) mills, an increase of (millage rate increase above the roll-back rate) mills. Without this tentative tax increase, the millage rate will be no more than (roll-back millage rate) mills. The proposed tax increase for a home with a fair market value of (average home value from previous year's digest rounded to the nearest $25,000.00) is approximately $ (increase) and the proposed tax increase for nonhomestead property with a fair market value of (average nonhomestead property value from previous year's digest rounded to nearest $25,000.00) is approximately $ (increase). "

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (c)(3).

Editor's notes. - This Code section formerly pertained to certification of assessed taxable value of property and method of computation. This Code section was based on Ga. L. 1991, p. 1903, § 8 and was repealed by Ga. L. 1993, p. 947, § 8, effective April 13, 1993.

Ga. L. 1999, p. 1043, § 4, not codified by the General Assembly, provides that the Act is applicable to all assessments and proceedings commenced on or after January 1, 2000.

Ga. L. 2006, p. 857, § 9/HB 1361, not codified by the General Assembly, provides that: "Nothing in this Act shall impair or invalidate any redevelopment plan, redevelopment area, or tax allocation district in effect on May 5, 2006, or any bonds, notes or certificates thereof. Any redevelopment agency as defined in paragraph (6) of Code Section 36-44-3 having an existing tax allocation district to which the definition of 'ad valorem property taxes' provided for in Section 1 of this Act is effective may apply, in writing, to the state revenue commissioner for a determination or redetermination of the tax allocation increment base of such tax allocation district. Within a reasonable time, and not exceeding 60 days after such application, the state revenue commissioner shall certify to the redevelopment agency the tax allocation increment base, as defined by this Act, as of the effective date of the creation of such tax allocation district. Such certification shall supersede any prior certification and, unless amended pursuant to subsection (b) of Code Section 36-44-10, shall constitute the tax allocation increment base of the tax allocation district." Section 1 of this Act amended Code Section 36-44-3.

48-5-33. Inclusion of standing timber as part of real property.

Reserved. Repealed by Ga. L. 1991, p. 1903, § 9, effective July 1, 1991.

Editor's notes. - This Code Section was based on Ga. L. 1990, p. 1901, § 1.

Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the repeal of this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

ARTICLE 2 PROPERTY TAX EXEMPTIONS AND DEFERRAL

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-2 are included in the annotations for this article.

Construction of tax exemptions must not conflict with legislative intent. - Rule of strict construction of tax exemptions does not relieve a court of the duty of interpreting the exemption by the ordinary rules of construction in order to carry out the intention of the General Assembly and does not apply if there is no language in an Act justifying or requiring construction. A fair and reasonable construction of a statute or contract must always be adopted, giving the language used its ordinary meaning, and taking into consideration the purpose and spirit of the exemption as well as the public policy entertained at the time and the history of the times when the statute was passed. Turner v. Board of County Tax Assessors, 71 Ga. App. 374 , 31 S.E.2d 61 (1944) (decided under former Code 1933, Ch. 92-2).

Strict construction requires elimination of well-founded doubts, not mere possibility of doubt. - Rule that exemptions must be strictly construed in favor of the taxing power does not mean that if there is a possibility of a doubt it is to be at once resolved against the exemption. It simply means that if, after the application of all rules of interpretation for the purpose of ascertaining the intention of the General Assembly a well-founded doubt exists, then an ambiguity occurs which may be settled by the strict rule of construction. Turner v. Board of County Tax Assessors, 71 Ga. App. 374 , 31 S.E.2d 61 (1944) (decided under former Code 1933, Ch. 92-2).

Strict construction of tax exemptions does not require that the narrowest possible meaning be given to words descriptive of the exemption. Turner v. Board of County Tax Assessors, 71 Ga. App. 374 , 31 S.E.2d 61 (1944) (decided under former Code 1933, Ch. 92-2).

OPINIONS OF THE ATTORNEY GENERAL

Exception to penalty provided for in article. - Penalty provided in O.C.G.A. § 48-2-44(b) applies to all state and local ad valorem property taxes, except if original tax due is $500.00 or less and is on homestead property as defined in O.C.G.A. Art. 2, Ch. 5, T. 48. The penalty applies to no other taxes. 1981 Op. Att'y Gen. No. 81-86.

RESEARCH REFERENCES

ALR. - Exemption of part of building or part of its value for taxation, 159 A.L.R. 685 .

Tax exemption of real property as affected by time of acquisition of title by private owner entitled to exemption, 54 A.L.R.2d 996.

PART 1 T AX EXEMPTIONS

48-5-40. Definitions.

As used in this part, the term:

  1. "Applicant" means a person who is:
      1. A married individual living with his or her spouse;
      2. An individual who is unmarried but who permanently maintains a home for the benefit of one or more other individuals who are related to such individual or dependent wholly or partially upon such individual for support;
      3. An individual who is widowed having one or more children and maintaining a home occupied by himself or herself and the child or children;
      4. A divorced individual living in a bona fide state of separation and having legal custody of one or more children, when the divorced individual owns and maintains a home for the child or children; or
      5. An individual who is unmarried or is widowed and who permanently maintains a home owned and occupied by himself or herself; and
    2. A resident of this state as defined in paragraph (15) of Code Section 40-5-1, as amended.
  2. "Home for the aged" means a facility which provides residential services, health care services, or both residential services and health care services to the aged.
  3. "Homestead" means the real property owned by and in possession of the applicant on January 1 of the taxable year and upon which the applicant resides including, but not limited to, the land immediately surrounding the residence to which the applicant has a right of possession under a bona fide claim of ownership. The term "homestead" includes the following qualifications:
    1. The actual permanent place of residence of an individual who is the applicant and which constitutes the home of the family;
    2. Where the person who is the applicant holds the bona fide fee title (although subject to mortgage or debt deed), an estate for life, or under any bona fide contract of purchase providing for the conveyance of title to the applicant upon performance of the contract;
    3. Where the building is occupied primarily as a dwelling;
    4. Where the children of deceased or incapacitated parents occupy the homestead of their parents and one of the children stands in the relation of applicant. This subparagraph shall apply whether or not the estate is distributed;
    5. Where a husband or wife occupies a dwelling and the title of the homestead is in the name of the wife;
    6. In the event a dwelling house which is classed as a homestead is destroyed by fire, flood, storm, or other unavoidable accident or is demolished or repaired so that the owner is compelled to reside temporarily in another place, the dwelling house shall continue to be classed as a homestead for a period of one year after the occurrence;
    7. In the event an individual who is the applicant owns two or more dwelling houses, he shall be allowed the exemption granted by law on only one of the houses. Only one homestead shall be allowed to one immediate family group;
    8. Where property is owned and occupied jointly by two or more individuals all of whom occupy the property as a home and if the property is otherwise entitled to a homestead exemption, the homestead may be claimed in the names of the joint owners residing in the home. Where the property on which a homestead exemption is claimed is jointly owned by the occupant and others, the occupant or occupants shall be entitled to claim the full amount of the homestead exemption;
    9. The permanent place of residence of an individual in the armed forces. Any such residence shall be construed to be actually occupied as the place of abode of such individual when the family of the individual resides in the residence or when the family is forced to live elsewhere because of the individual's service in the armed forces;
    10. Absence of an individual from his residence because of duty in the armed forces shall not be considered as a waiver upon the part of the individual in applying for a homestead exemption. Any member of the immediate family of the individual or a friend of the individual may notify the tax receiver or the tax commissioner of the individual's absence. Upon receipt of this notice, the tax receiver or tax commissioner shall grant the homestead exemption to the individual who is absent in the armed forces;
    11. The homestead exempted must be actually occupied as the permanent residence and place of abode by the applicant awarded the exemption, and the homestead shall be the legal residence and domicile of the applicant for all purposes whatever;
    12. In all counties having a population of not less than 23,500 nor more than 23,675, according to the United States decennial census of 2010 or any future such census, where the person who is the applicant holds real property subject to a written lease; the applicant has held the property subject to such a lease for not less than three years prior to the year for which application is made; and the applicant is the owner of all improvements located on the real property;
    13. The deed reflecting the actual ownership of the property for which the applicant seeks to receive a homestead exemption must be recorded in the deed records of the county prior to the filing of the application for the homestead exemption; and
    14. Absence of an individual from such individual's residence because of health reasons shall not in and of itself be considered as a waiver upon the part of the individual in applying for a homestead exemption if all other qualifications are otherwise met. Any member of the immediate family of the individual or a friend of the individual may notify the tax receiver or the tax commissioner of the individual's absence. Upon receipt of this notice, the tax receiver or tax commissioner shall grant the homestead exemption to the individual who is absent for health reasons.
  4. "Hospital" means an institution in which medical, surgical, or psychiatric care is provided to individuals who are sick, injured, diseased, mentally ill, or crippled. "Hospital" does not include an institution licensed as a nursing home under the laws of this state.
  5. "Institutions of purely public charity," "nonprofit hospitals," and "hospitals not operated for the purpose of private or corporate profit and income" mean such institutions or hospitals which may have incidental income from paying patients when the income, if any, is devoted exclusively to the charitable purpose of caring for patients who are unable to pay and to maintaining, operating, and improving the facilities of such institutions and hospitals, and when the income is not directly or indirectly for distribution to shareholders in corporations owning such property or to other owners of such property.
  6. "Occupied primarily as a dwelling" means:
    1. The applicant or members of his family occupy the property as a home; or
      1. The applicant or members of his family occupy a portion of the property as a home;
      2. No more than one exemption may be claimed pursuant to this subparagraph in connection with the occupancy of one building, except in the case of a duplex or double occupancy dwelling when the line of division follows a natural and bona fide plan as to both land and building and the two units thus formed are separately owned and occupied.

        (Ga. L. 1878-79, p. 33, § 1; Code 1882, § 798; Civil Code 1895, § 762; Civil Code 1910, § 998; Ga. L. 1913, p. 122, § 1; Ga. L. 1919, p. 82, § 1; Code 1933, § 92-201; Ga. L. 1937-38, Ex. Sess., p. 145, §§ 7-9; Ga. L. 1939, p. 98, § 1; Ga. L. 1939, p. 99, §§ 1, 2; Ga. L. 1943, p. 103, §§ 1, 1A; Ga. L. 1943, p. 348, § 1; Ga. L. 1945, p. 435, § 3; Ga. L. 1945, p. 455, § 1; Ga. L. 1946, p. 12, § 1; Ga. L. 1947, p. 1183, §§ 1, 2; Ga. L. 1952, p. 265, § 1; Ga. L. 1952, p. 317, §§ 1, 2; Ga. L. 1955, p. 122, § 1; Ga. L. 1955, p. 262, § 1; Ga. L. 1965, p. 182, § 1; Ga. L. 1973, p. 19, § 2; Ga. L. 1973, p. 934, § 1; Ga. L. 1977, p. 1152, §§ 1, 2; Code 1933, § 91A-1101, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1267, § 1; Ga. L. 1981, p. 1857, § 13; Ga. L. 1992, p. 2058, §§ 1, 2; Ga. L. 1998, p. 550, § 1; Ga. L. 1998, p. 586, § 1; Ga. L. 1998, p. 1150, § 1; Ga. L. 2002, p. 835, § 1; Ga. L. 2006, p. 1104, § 1/HB 81; Ga. L. 2007, p. 47, § 48/SB 103; Ga. L. 2012, p. 687, § 2/HB 634.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, subparagraph (3)(M) as added by Ga. L. 1998, p. 550, § 1 was redesignated as subparagraph (3)(N), to become effective upon ratification by the voters as described in the Editor's notes set out below. Additionally, the "; or," added by Ga. L. 1998, p. 550, § 1 at the end of subparagraph (3)(L) was not implemented and the "and" added at the end of subparagraph (3)(L) by Ga. L. 1998, p. 586, § 1 was moved to the end of subparagraph (3)(M).

Editor's notes. - Ga. L. 1998, p. 586, § 2, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all taxable years beginning on or after January 1, 1999.

The statewide referendum (Ga. L. 1998, p. 550, § 2) which provided for continued homestead exemptions from ad valorem taxes for persons absent from their residence due to health reasons was approved by a majority of the qualified voters voting at the November 1998 general election.

The statewide referendum (Ga. L. 1998, p. 1150, § 4) which provided for an ad valorem tax exemption for livestock and crops was approved by a majority of the qualified voters voting at the 1998 November general election.

Law reviews. - For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For comment criticizing Elder v. Henrietta Eggleston Hosp. for Children, Inc., 205 Ga. 489 , 53 S.E.2d 751 (1949), holding hospital property exempt from taxation, even though income is derived therefrom, when income was applied exclusively to maintenance and charitable purposes, see 1 Mercer L. Rev. 111 (1949).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in Fulton County Bd. of Tax Assessors v. Visiting Nurse Health Sys. of Metro. Atlanta, Inc., 243 Ga. App. 64 , 532 S.E.2d 416 (2000).

Homestead

Requirements as to residence and domicile. - Requirement in former Code 1933, § 92-233(h) (see now subparagraph (3)(K) of O.C.G.A. § 48-5-40 ) that the exempted homestead be the legal residence and domicile of such person for all purposes means no more than is required by Ga. Const. 1877, Art. VII, Sec. II, Para. VII (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) which requires actual occupancy primarily as a residence or homestead. Turner v. Board of County Tax Assessors, 71 Ga. App. 374 , 31 S.E.2d 61 (1944).

Exemption when applicant's dependents occupy claimed property. - When an applicant for exemption maintains a house as a permanent residence, home, and place of abode, though the applicant's father and mother who are dependent on the applicant for support, although the applicant personally only occupies the house twice a year, the applicant is entitled to the homestead exemption, unless facts are shown which would deprive the applicant of the right to the exemption. Turner v. Board of County Tax Assessors, 71 Ga. App. 374 , 31 S.E.2d 61 (1944).

There is no limitation as to size or physical proportions of property to be embraced within the homestead provision, and it would seem that the purpose of Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) and former Code 1933, § 92-219 (see now O.C.G.A. § 48-5-44 ) in fixing a maximum valuation was to equalize the exemption as between applicants on the basis of value, regardless of the extent of the tract involved. Jones v. Johnson, 80 Ga. App. 340 , 55 S.E.2d 904 (1949).

Effect of use to which rural or farm homestead is put. - Reasonable intent of the homestead exemption provisions of the Constitution of Georgia and its statutes is to include in rural homesteads the entire tract of land upon which the house is situated, regardless of whether the land surrounding the dwelling is used simply as an extended approach to the building or put to agricultural uses. Jones v. Johnson, 80 Ga. App. 340 , 55 S.E.2d 904 (1949).

Farming not considered commercial or business enterprise for purposes of homestead exemption. - Owner of a farm located in this state, who resides in a house on the farm, is entitled to a homestead exemption as to the entire tract of land upon which the house is situated, to a value of $2,000.00 notwithstanding the fact that the owner devotes the land to agricultural purposes, since this is not such a use of the land as to amount to a commercial or business enterprise. Jones v. Johnson, 80 Ga. App. 340 , 55 S.E.2d 904 (1949).

Hospitals and Other Institutions of Charity

Exempt charitable institutions must be both pure charity and public charity. - Constitution of Georgia restricts tax exemption of institutions of charity to those and those only that are "purely" charity and also that are "public" charity. Georgia Osteopathic Hosp. v. Alford, 217 Ga. 663 , 124 S.E.2d 402 (1962).

Exemption of property used by charitable institution to produce money for charitable purposes. - Interpreting "private or corporate income" to mean any income which is not public, productive property used as capital to raise money to expend in charity is used for private income when the owner is a private individual, and for corporate income when the owner is a corporation. It is no more allowable under the Constitution for a charitable association to accumulate money by the use of exempt property, which money is to be disbursed in charity, than it is for a common citizen to do it. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Terms "private or corporate" are employed in contradistinction to "public." - Public property is not taxed, whether income is derived from the property or not; but private or corporate property, though the property is connected with the external, visible "institution," is not exempt if used for income since the income from such property must, by reason of the property's ownership, be either private or corporate; these terms being comprehensive enough to include all income whatsoever that is not public. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Exemption of hospital neither chartered as charity nor using property exclusively as such. - When a hospital is not chartered as a purely public charity, and when the hospital's property is not put to use as a purely public charity, and neither the hospital's income nor the hospital's surplus is used exclusively for purely public charity, the hospital does not bring itself within the strict requirements for the ad valorem tax exemption sought. St. Joseph Hosp. v. Bohler, 229 Ga. 577 , 193 S.E.2d 603 (1972).

For a nursing home to be tax exempt the nursing home must be purely charitable and public. Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

To qualify as public a nursing home need not be open to the entire public. It is sufficient that the nursing home be open to the classes for whose relief the nursing home is intended. Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

Effect of Act which expressly exempted hospitals of purely public charity. - When, by enacting former Code 1933, § 92-201 (see now O.C.G.A. § 48-5-41 ), the General Assembly exempted from taxation all of the property enumerated in Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV), using the identical language there employed, it fully exhausted its constitutional power to make exemptions, and the amending Act, Ga. L. 1947, p. 1183, which expressly exempted from taxation all hospitals of purely public charity added nothing to what the General Assembly had previously done by Ga. L. 1946, p. 12, § 1. Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489 , 53 S.E.2d 751 (1949).

Independent-living units exempt as home for aged. - Nonprofit charitable institution's independent-living units for the elderly were entitled to share the institution's longstanding tax exemption as a home for the aged because: (1) the institution was clearly a nonprofit home for the aged, which was defined in O.C.G.A. § 48-5-40(2) as a facility which provides residential services, health care services, or both residential services and health care services to the aged; (2) the institution had neither stockholders nor distributed income to private persons, was subject to Georgia laws regulating nonprofit and charitable corporations, and had been determined to be a tax-exempt organization under both federal and Georgia law; (3) the institution was a charitable one because supplying care for aged people was a charitable and benevolent purpose; and (4) the independent-living units were not held by the institution primarily for investment purposes. Bd. of Tax Assessors v. Baptist Vill., Inc., 269 Ga. App. 848 , 605 S.E.2d 436 (2004).

Hospital exempt when all income used for maintenance, operations, and furtherance of charitable purposes. - When a hospital is organized for charitable purposes, and uses all of the hospital's income from all sources including income from pay patients, exclusively for maintenance, operation, enlarging the hospital's charitable facilities, and for furtherance of the hospital's charitable purposes, with no part of the same distributable to anyone having an interest therein, the hospital is exempt within the meaning of Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV), an interpretation of that constitutional provision which accords with the intention of the framers of that document as shown in the Records of the Constitutional Commission 1943-1944, Vol. I, pp. 138-141, 388-395, 397, 528-531; Vol. II, pp. 58-59. Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489 , 53 S.E.2d 751 (1949).

Home for mentally handicapped held not exempt. - When over 70 percent of the operating costs of a home for mentally handicapped persons comes from the government or client fees, and private donations account for only 15 percent of the expenditures of the home, and when the families or residents or government agencies pay monthly fees on behalf of each resident, it is not sufficiently "public" in nature to be considered an institution of purely public charity. Annandale at Suwanee, Inc. v. Gwinnett County Bd. of Tax Assessors, 242 Ga. 241 , 248 S.E.2d 640 (1978).

Hospital with paying patients held not exempt. - When a hospital receives charitable patients without pay but it also charges for patients able to pay, the proportion being vastly in favor of the latter, the property in question is used for corporate income, and is not exempted from taxation. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Hospital which charges off uncollectable bills to charity. - When a hospital is operated generally for profit, and while there is some evidence that it does on occasion treat indigent patients, the general practice of the institution is to collect all that it can from its patients, and only charge off as charity those bills it is unable to collect, the hospital is engaged principally for noncharitable purposes and apparently chiefly for the benefit of its staff, and is not exempt from taxation. Georgia Osteopathic Hosp. v. Alford, 217 Ga. 663 , 124 S.E.2d 402 (1962).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Life tenant with remainderman responsible for ad valorem taxes. - Covenant contained in a deed conveying a life estate which makes the remainder interest responsible for paying the ad valorem taxes does not alter the ownership interests in the property for purposes of eligibility to claim the homestead exemptions allowed for the elderly. 1983 Op. Att'y Gen. No. U83-71.

Homestead exemption fixes a person's residence for voting purposes. 1981 Op. Att'y Gen. No. 81-33.

Exemption on automobile claimed by military personnel stationed in Georgia. - Member of the military stationed in Georgia may claim an exemption on the member's automobile pursuant to the Soldiers and Sailors Relief Act [50 U.S.C. App. § 574] regardless of the member's spouse's claiming homestead exemption on the spouse's house in Georgia, unless other conduct on the member's part establishes an intent to change the member's residency to Georgia. 1990 Op. Att'y Gen. No. U90-15.

Applicant

.

Husband and wife together constitute only one "applicant" and are entitled to only one exemption. 1958-59 Op. Att'y Gen. p. 343.

Homestead

.

Applicant must have duly recorded fee title, estate for life, or contract of purchase. - Applicant for a homestead exemption must have a right to possession under a bona fide claim of ownership, which contemplates duly recorded fee title, estate for life, or contract of purchase. 1948-49 Op. Att'y Gen. p. 370.

Exemption when owner occupies property on January 1, but not for entire year. - An applicant who owned and occupied real property as a home on January 1 of the taxable year and otherwise qualified for homestead exemption would be entitled to claim the property as exempt, even though the applicant ceased to occupy the property at any time after January 1 of the taxable year. 1954-56 Op. Att'y Gen. p. 750.

Exemption when owner occupies property less than full time. - Any person who owns and maintains a home, evidenced by the home being furnished, whose legal residence is in that particular county, and who may actually live outside of the county a part of the time in carrying out the person's work, is still entitled to a homestead exemption when the person has properly made application as provided by law. 1950-51 Op. Att'y Gen. p. 173.

Taxpayer who owns a residence and land surrounding the residence, but because of duties in occupation is required to be in another county except on weekends when the taxpayer occupies such residence is nevertheless entitled to a homestead exemption on property. 1954-56 Op. Att'y Gen. p. 750.

Applicability of other provisions as to exemption of joint interest. - Former Code 1933, § 92-110 (see now O.C.G.A. § 48-5-9 ) was not applicable in determining the extent of the homestead which should be granted to an occupant who owned a joint interest in the property. 1954-56 Op. Att'y Gen. p. 735.

Effect of failure of house loan to go through until after January 1. - When one moves into a house prior to January 1, but the loan does not go through until after January 1, one is entitled to the homestead exemption. 1958-59 Op. Att'y Gen. p. 344.

Since a husband and wife constitute one immediate family group, they are entitled to only one homestead exemption, even though each owns property which was previously entitled to an exemption. 1958-59 Op. Att'y Gen. p. 343.

Exemptions allowed to separated husband and wife. - Husband and wife who are separated, each residing on one's own property on January 1, are not each entitled to apply for a homestead exemption. 1958-59 Op. Att'y Gen. p. 344.

Taxpayer may claim a homestead exemption when members of the taxpayer's family occupy the home. 1957 Op. Att'y Gen. p. 295.

Exemption when house is occupied partly by owner and partly by tenant. - Person who with the person's family occupies a portion of the person's house as a dwelling may receive a homestead exemption, although the remainder is occupied by the person's tenants. 1945-47 Op. Att'y Gen. p. 563; 1954-56 Op. Att'y Gen. p. 731.

When owner stores personal possessions in a home which is rented to another while owner resides elsewhere, the owner is not entitled to a homestead exemption since the owner does not live in or occupy the property upon which the exemption is claimed. 1958-59 Op. Att'y Gen. p. 344.

Taxpayer who rents out property, but who retains portion for storage and visits the property several times weekly, is not entitled to a homestead exemption on the property. 1954-56 Op. Att'y Gen. p. 749.

Effect of operation of store in building occupied as a home. - Fact that an applicant for homestead exemption conducts a store in a building occupied by the applicant as a home would not affect the applicant's eligibility for such exemption. 1952-53 Op. Att'y Gen. p. 437.

Full homestead exemption is granted on tourist courts when the owner occupies a certain portion as a home. 1954-56 Op. Att'y Gen. p. 731.

Exemption of hotel to which is attached an apartment for owner's use. - When the owner of a hotel builds an apartment attached to the hotel and occupies the apartment as a home, the apartment attached to the hotel would become a part of the hotel. Therefore, the applicant who owns and occupies a portion of the hotel would be entitled to a homestead exemption up to the value of $2,000.00. 1954-56 Op. Att'y Gen. p. 731.

Exemption of farm lands rented to another. - Party who owns a farm, the assessed value of which does not exceed $2,000.00, and who rents the farm lands, but reserves the farmhouse and occupies the farmhouse as the party's home, is entitled to the homestead exemption on the farm lands. 1954-56 Op. Att'y Gen. p. 731.

Homestead exemption does not apply to other buildings not actually occupied by the taxpayer, although the total value of such buildings and the buildings so occupied by the taxpayer are not equal to the amount allowed the taxpayer as a homestead exemption. 1952-53 Op. Att'y Gen. p. 209.

Intent of provisions for persons in military service. - Former Code 1933, § 92-233(k) (see now subparagraph (3)(I) of O.C.G.A. § 48-5-40 ) was enacted to preserve the homestead exemption of a member of the armed services who is forced to be away from home during the member's military service. It is not intended to grant a homestead exemption to members of the armed services on property never occupied by the members or their families as a residence. 1957 Op. Att'y Gen. p. 296.

Persons in military service who establish domicile in this state are entitled to homestead exemption, and are liable for ad valorem taxation on personal property. 1954-56 Op. Att'y Gen. p. 737.

Both career and drafted members of the military services are entitled to a homestead exemption on property owned by the member's, but not occupied by the members due to such service. 1954-56 Op. Att'y Gen. p. 738.

Availability of homestead exemption to members of armed forces not residents of this state. - No person, whether a member of the armed services or not, who maintains a legal residence and votes in another state is eligible to claim a homestead exemption in this state since the homestead exemption law specifically states that the homestead shall be the legal residence and domicile of such person for all purposes whatsoever. 1954-56 Op. Att'y Gen. p. 737.

Exemption of property rented out while on military duty elsewhere. - Members of the armed services can continue to claim a homestead exemption on property rented out while stationed elsewhere because of service in the armed forces. 1954-56 Op. Att'y Gen. p. 736; 1967 Op. Att'y Gen. No. 67-131.

Effect of homestead claim by military personnel on liability for personal property tax. - Military personnel who claim a homestead exemption on real property owned in this state are declaring their intentions to become residents of this state and thus are subject to personal property tax. 1954-56 Op. Att'y Gen. p. 741; 1965-66 Op. Att'y Gen. No. 66-97.

Failure of person in military service to return to personal property in a county does not deprive a person of homestead exemption. 1954-56 Op. Att'y Gen. p. 739.

Owner who works farm but resides elsewhere cannot claim homestead exemption on farm. 1954-56 Op. Att'y Gen. p. 729.

Homestead exemption does not extend to rented property or vacant lots adjoining a homestead. 1958-59 Op. Att'y Gen. p. 339.

Exemption of land which is divided into lots. - Taxpayer is entitled to homestead exemption on residence and land immediately surrounding the residence, whether such land is divided into one or more lots. 1954-56 Op. Att'y Gen. p. 747.

Exemption of property which lies in more than one county. - If land lies in two counties, the applicant for homestead exemptions would have the right to file an application in each county in proportion to the value of the land located in such county, so long as the exemption does not exceed the total amount allowable by law. 1954-56 Op. Att'y Gen. p. 745; 1954-56 Op. Att'y Gen. p. 746.

Exemption of properties which are divided by railroads, rivers, or highways. - Fact that lands owned and occupied by the taxpayer are crossed by a highway would not affect the eligibility of a taxpayer for a homestead exemption thereon. 1952-53 Op. Att'y Gen. p. 437.

An island separated from a farm by a natural navigable tidewater river cannot be included as part of a homestead exemption. 1954-56 Op. Att'y Gen. p. 744.

Even though a portion of a tract of land is separated from the remainder by a railroad track, the owner is entitled to claim a homestead exemption on the entire tract. 1954-56 Op. Att'y Gen. p. 745.

Division of a tract of land by a public road, by a railroad, or by some other public utility would not affect the rights of the owner to claim as the owner's homestead exemption the property so divided. 1957 Op. Att'y Gen. p. 293.

Duplex dwelling would come under this statute; therefore, the exemption would be allowable to the owner of such a dwelling. 1948-49 Op. Att'y Gen. p. 363.

Owner who occupies a duplex will be entitled to claim a homestead exemption on the entire property regardless of the number of entrances thereto. 1954-56 Op. Att'y Gen. p. 731.

Test for exemption of duplex. - It is possible for two people to each claim an exemption of $2,000.00 on a duplex when the line of division follows a natural and bona fide plan as to both land and building, and the two units thus formed are separately owned and occupied. 1954-56 Op. Att'y Gen. p. 731.

House trailer and land immediately surrounding it qualify if owned and occupied by applicant. - Statute states that "homestead" means real property. Although a house trailer is not real property, when a person owns a trailer and the land on which it is located, and occupies the trailer as a home, the person would be entitled to claim the trailer and the land immediately surrounding the trailer as a homestead. 1954-56 Op. Att'y Gen. p. 729; 1954-56 Op. Att'y Gen. p. 887; 1958-59 Op. Att'y Gen. p. 342.

When the owner of a house trailer uses the trailer as the owner's residence and has the trailer mounted on a foundation similar to the foundation of a house but on land the owner does not own, the owner is not entitled to a homestead exemption. 1960-61 Op. Att'y Gen. p. 491.

Land qualifies when owned by applicant even if trailer not on permanent foundation. - If the house trailer is not on a permanent foundation but is located on land owned by the person residing in the trailer, the owner is entitled to a homestead exemption on the value of the land. A house trailer is not real property but moveable personal property; therefore, unless a house trailer has been mounted on a foundation similar to the foundation of a house, the trailer remains personal property. 1960-61 Op. Att'y Gen. p. 491.

When land on which trailer is parked is rented. - Person who owns a house trailer and rents the land on which the trailer is parked is not entitled to claim a homestead exemption on the house trailer. 1954-56 Op. Att'y Gen. p. 730; 1958-59 Op. Att'y Gen. p. 342.

When a farm has been incorporated there can be no homestead exemption either to the corporation or the owner of the stock. 1969 Op. Att'y Gen. No. 69-3.

Nature of homestead exemption granted to certain persons 65 or older. - Homestead exemption allowed under Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) to persons 65 years of age or over, provided the income limitation is met, is a personal right of only those persons 65 or over. When the homestead property is jointly owned, each owner may assert that owner's claim as an applicant for an exemption based only upon the interest the owner holds in the property. 1969 Op. Att'y Gen. No. 69-60.

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, § 83 et seq. 84 C.J.S., Taxation, § 252 et seq.

ALR. - Hospital as within tax exemption provision not specifically naming hospitals, 144 A.L.R. 1483 .

Tax on property held under executory contract with exempt vendor, 166 A.L.R. 595 .

Garage or parking lot as within tax exemption extended to property of educational, charitable, or hospital organizations, 33 A.L.R.3d 938.

Homes for the aged as exempt from property taxation, 37 A.L.R.3d 565.

Receipt of pay from beneficiaries as affecting tax exemption of charitable institutions, 37 A.L.R.3d 1191.

Prospective use for tax-exempt purposes as entitling property to tax exemption, 54 A.L.R.3d 9.

Availability of tax exemption to property held on lease from exempt owner, 54 A.L.R.3d 402.

Qualification of health care entities for federal tax exemption as charitable organization under 26 USCS § 501(c)(3), 134 A.L.R. Fed 395.

48-5-41. Property exempt from taxation.

  1. The following property shall be exempt from all ad valorem property taxes in this state:
      1. Except as provided in this paragraph, all public property.
      2. No public real property which is owned by a political subdivision of this state and which is situated outside the territorial limits of the political subdivision shall be exempt from ad valorem taxation unless the property is:
        1. Developed by grading or other improvements to the extent of at least 25 percent of the total land area and facilities are located on the property which are actively used for a public or governmental purpose;
        2. Three hundred acres or less in area;
        3. Located inside a county embracing all or part of a municipality owning such property; or
        4. That portion of any real property which has been designated as a watershed by the United States Soil and Water Conservation Service and used as a watershed by the political subdivision owning the property.
      3. Property which is owned by and used exclusively as the general state headquarters of a nonprofit corporation organized for the primary purpose of encouraging cooperation between parents and teachers to promote the education and welfare of children and youth, notwithstanding the fact that such nonprofit corporation may derive income from fees or dues paid by persons, organizations, or associations to affiliate with such nonprofit corporation, shall be considered to be an extension of the public schools of this state and such property shall be considered to be public property within the meaning of this paragraph.
      4. Property which is held by a Georgia nonprofit corporation whose income is exempt from federal income tax pursuant to Section 115 of the Internal Revenue Code of 1986 and held exclusively for the benefit of a county, municipality, or school district shall be considered to be public property within the meaning of this paragraph.
      5. Property which qualifies as a public-private transportation project pursuant to Code Section 32-2-80 which property is owned or leased by the state, a state agency, or another governmental entity and which is developed, operated, or held by a private partner shall be considered to be public property within the meaning of this paragraph.
      6. All interests in property on a campus of the Board of Regents of the University System of Georgia primarily used for student housing or parking held by a private party that is contractually obligated to operate such property primarily for the use or benefit of a public college or university shall be considered to be public property within the meaning of this paragraph, provided that such interest of the private party resulted from a competitive procurement.
    2. All places of burial;

      (2.1) (A) All places of religious worship.

      (B) All property owned by and operated exclusively as a church, an association or convention of churches, a convention mission agency, or as an integrated auxiliary of a church or convention or association of churches, when such entity is qualified as an exempt religious organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and such property is used in a manner consistent with such exemption under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended;

    3. All property owned by religious groups and used only for single-family residences when no income is derived from the property;
    4. All institutions of purely public charity;
      1. All property of nonprofit hospitals used in connection with their operation when the hospitals have no stockholders, have no income or profit which is distributed to or for the benefit of any private person, and are subject to the laws of this state regulating nonprofit or charitable corporations.
      2. Property exempted pursuant to this paragraph shall not include property of a nonprofit hospital held primarily for investment purposes or used for purposes unrelated to:
        1. Providing of patient care;
        2. Providing and delivery of health care services; or
        3. Training and education of physicians, nurses, and other health care personnel;
    6. All buildings erected for and used as a college, incorporated academy, or other seminary of learning;
    7. All funds or property held or used as endowment by colleges, nonprofit hospitals, incorporated academies, or other seminaries of learning when the funds or property are not invested in real estate;
    8. When used by or connected with any public library, all the real and personal property of such library and all the real and personal property of any other literary association;
    9. All books, philosophical apparatus, paintings, and statuary of any company or association which are kept in a public hall and which are not held as merchandise or for purposes of sale or gain;
    10. Reserved;
    11. All property used in or which is a part of any facility which has been installed or constructed at any time for the primary purpose of eliminating or reducing air or water pollution if such facilities have been certified by the Department of Natural Resources as necessary and adequate for the purposes intended;
      1. Property of a nonprofit home for the aged used in connection with its operation when the home for the aged has no stockholders and no income or profit which is distributed to or for the benefit of any private person and when the home is qualified as an exempt organization under the United States Internal Revenue Code, Section 501(c)(3), as amended, and Code Section 48-7-25, and is subject to the laws of this state regulating nonprofit and charitable corporations.
      2. Property exempted by this paragraph shall not include property of a home for the aged held primarily for investment purposes or used for purposes unrelated to the providing of residential or health care to the aged.
      3. For purposes of this paragraph, indirect ownership of such home for the aged through a limited liability company that is fully owned by such exempt organization shall be considered direct ownership;
      1. All property of any nonprofit home for the mentally disabled used in connection with its operation when the home for the mentally disabled has no stockholders and no income or profit which is distributed to or for the benefit of any private person and when the home is qualified as an exempt organization under the United States Internal Revenue Code of 1954, Section 501(c)(3), as amended, and Code Section 48-7-25, and is subject to the laws of this state regulating nonprofit and charitable corporations.
      2. Property exempted by this paragraph shall not include property of a home for the mentally disabled held primarily for investment purposes or used for purposes unrelated to the providing of residential or health care to the mentally disabled.
      3. For purposes of this paragraph, indirect ownership of such home for the mentally disabled through a limited liability company that is fully owned by such exempt organization shall be considered direct ownership.
      4. For purposes of this paragraph, the participation of a business corporation or other entity or person in the indirect ownership of such home for the mentally disabled, as a member of the limited liability company or limited partner of the partnership that is the direct owner of such home, for the purpose of providing financing for the construction or renovation of such home in return for a share of any tax credits pursuant to United States Internal Revenue Code of 1986, Section 42, as amended, and which relinquishes all ownership of such home upon the completion of its obligation under the financing agreement, shall not operate to disqualify such home for the exemption under this paragraph;
      1. Property which is owned by and used exclusively as the headquarters, post home, or similar facility of a veterans organization. As used in this paragraph, the term "veterans organization" means any organization or association chartered by the Congress of the United States which is exempt from federal income taxes but only if such organization is a post or organization of past or present members of the armed forces of the United States organized in the State of Georgia with at least 75 percent of the members of which are past or present members of the armed forces of the United States, and where no part of the net earnings of which inures to the benefit of any private shareholder or individual.
      2. Property which is owned by and used exclusively by any veterans organization which is qualified as a nonprofit organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and which has been organized for the purpose of refurbishing and operating historic military aircraft acquired from the federal government and other sources, making such aircraft airworthy, and putting such aircraft on display to the public for educational purposes; and
    15. Property that is owned by a historical fraternal benefit association and which is used exclusively for charitable, fraternal, and benevolent purposes. As used in this paragraph, the term "fraternal benefit association" means any organization qualified as an exempt organization under the United States Internal Revenue Code of 1954, Section 501(c)(10), as amended, where such organization has a representative form of government and a lodge system with a ritualistic form of work for the meeting of its chapters or other subordinate bodies and whose founding organization received its charter from the General Assembly of Georgia prior to January 1, 1880.
  2. The exemptions provided for in this Code section which refer to colleges, nonprofit hospitals, incorporated academies, or other seminaries of learning shall only apply to those colleges, nonprofit hospitals, incorporated academies, or other seminaries of learning which are open to the general public.
  3. The property exempted by this Code section, excluding property exempted by paragraph (1) of subsection (a) of this Code section, shall not be used for the purpose of producing private or corporate profit and income distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property shall be used exclusively for religious, educational, and charitable purposes or for either one or more of such purposes and for the purpose of maintaining and operating such religious, educational, and charitable institutions.
    1. Except as otherwise provided in paragraph (2) of this subsection, this Code section, excluding paragraph (1) of subsection (a) of this Code section, shall not apply to real estate or buildings which are rented, leased, or otherwise used for the primary purpose of securing an income thereon and shall not apply to real estate or buildings which are not used for the operation of religious, educational, and charitable institutions. Donations of property to be exempted shall not be predicated upon an agreement, contract, or other instrument that the donor or donors shall receive or retain any part of the net or gross income of the property.
    2. With respect to paragraph (4) of subsection (a) of this Code section, a building which is owned by a charitable institution that is otherwise qualified as a purely public charity and that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code and which building is used by such charitable institution exclusively for the charitable purposes of such charitable institution, and not more than 15 acres of land on which such building is located, may be used for the purpose of securing income so long as such income is used exclusively for the operation of that charitable institution.

      (Ga. L. 1878-79, p. 32, § 1; Code 1882, § 798; Civil Code 1895, § 762; Civil Code 1910, § 998; Ga. L. 1913, p. 122, § 1; Ga. L. 1919, p. 82, § 1; Code 1933, § 92-201; Ga. L. 1943, p. 348, § 1; Ga. L. 1946, p. 12, § 1; Ga. L. 1947, p. 1183, §§ 1, 2; Ga. L. 1955, p. 262, § 1; Ga. L. 1965, p. 182, § 1; Ga. L. 1967, p. 629, § 1; Ga. L. 1973, p. 19, §§ 1-3; Ga. L. 1973, p. 934, § 1; Ga. L. 1976, p. 639, § 1; Ga. L. 1977, p. 1152, §§ 1, 2; Code 1933, § 91A-1102, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 29A, 30; Ga. L. 1982, p. 3, § 48; Ga. L. 1984, p. 520, § 1; Ga. L. 1984, p. 1058, § 1; Ga. L. 1984, p. 1253, § 1; Ga. L. 1987, p. 191, § 9; Ga. L. 1994, p. 927, § 1; Ga. L. 1994, p. 965, § 1; Ga. L. 1995, p. 233, § 1; Ga. L. 1995, p. 1302, § 14; Ga. L. 1997, p. 963, § 1; Ga. L. 1998, p. 1015, § 1; Ga. L. 1998, p. 1150, § 2; Ga. L. 2001, p. 1098, § 3; Ga. L. 2006, p. 235, § 1/HB 173; Ga. L. 2006, p. 376, § 1/HB 848; Ga. L. 2007, p. 341, § 1/HB 445; Ga. L. 2010, p. 987, § 1/HB 1186; Ga. L. 2014, p. 679, § 1/HB 788; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 55, § 2/HB 196; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (a) and substituted "a historical" for "an historical" in paragraph (a)(15).

The 2017 amendments. The first 2017 amendment, effective January 1, 2019, substituted a period for the semicolon at the end of subparagraph (a)(13)(B); and added subparagraphs (a)(13)(C) and (a)(13)(D). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, inserted "the term" near the beginning of the second sentence of paragraph (a)(15).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2001, in subparagraph (a)(12)(C), the subparagraph "(C)" designation was capitalized and a semicolon was substituted for the period at the end of the subparagraph.

Editor's notes. - Ga. L. 1984, p. 520, § 2 and Ga. L. 1984, p. 1253, § 2, not codified by the General Assembly, provided that those Acts (which added subparagraph (a)(1)(C) and paragraph (a)(13), respectively) would become effective January 1, 1985, if approved at a referendum conducted in conjunction with the November 1984 general election, and would apply to all tax years beginning on or after January 1, 1985; otherwise, the amendments by those Acts would be void. Both amendments were approved by a statewide referendum held on November 6, 1984.

Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provided as follows: "In the event of any conflict between this Act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that that Act applies to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

The state-wide referendum (Ga. L. 1994, p. 927) which would have added a new paragraph (a)(10.1), concerning blueberry plants, was defeated at the general election in November, 1994.

The state-wide referendum (Ga. L. 1994, p. 965) which added paragraph (a) (14) was approved by a majority of the qualified voters voting at the general election held in November, 1994, and took effect January 1, 1995.

The state-wide referendum (Ga. L. 1995, p. 233) which added paragraph (a)(15) was approved by a majority of the qualified voters voting at the general election held in November, 1996, and took effect on January 1, 1997.

The state-wide referendum (Ga. L. 1998, p. 1015) which provided for an ad valorem tax exemption for church convention property was approved by a majority of the qualified voters voting at the November 1998 general election.

The state-wide referendum (Ga. L. 1998, p. 1150) which provided for an ad valorem tax exemption for livestock and crops was approved by a majority of the voters voting at the November 1998 general election.

The state-wide referendum (Ga. L. 2000, p. 813, § 2), which would have added a new paragraph (a)(16), relating to exemption from ad valorem taxation of property owned by an Elks Lodge, was defeated at the November 7, 2000 general election.

Ga. L. 2001, p. 1098, § 3, which amended this Code section, purported to amend Code Section 48-5-40 but actually amended Code Section 48-5-41.

The state-wide referendum (Ga. L. 2002, p. 994, § 2), which would have added a new paragraph (a)(16), relating to exemption from ad valorem taxation of property owned by a nonprofit corporation housing a medical museum or medical society, was defeated at the November, 2002 general election.

The state-wide referendum (Ga. L. 2002, p. 1057, §§ 1 and 2), which would have added a new paragraph (a)(16) and revised subsections (c) and (d), relating to exemption from ad valorem taxation of certain commercial fishing vessels, was defeated at the November, 2002 general election.

Ga. L. 2006, p. 235, § 2/HB 173, not codified by the General Assembly, provides that, if approved, the amendment to paragraph (a)(14) by that Act shall apply to all taxable years beginning on or after January 1, 2007.

The state-wide referendum (Ga. L. 2006, p. 235, § 2/HB 173), which designated former paragraph (a)(14) as subparagraph (a)(14)(A), inserted "or" at the end, and added subparagraph (a)(14)(B), relating to exemption from ad valorem taxation for veterans organizations which refurbish historic military aircraft, was approved by a majority of qualified voters at the November 7, 2006 general election.

The state-wide referendum (Ga. L. 2006, p. 376, § 2/HB 848), which designated former subsection (d) as paragraph (d)(1), and in paragraph (d)(1), added "Except as otherwise provided in paragraph (2) of this subsection," at the beginning, and added paragraph (d)(2) was approved by a majority of qualified voters at the November 7, 2006 general election.

The state-wide referendum (Ga. L. 2014, p. 679, § 3/HB 788), which added subparagraph (a)(1)(F), was approved by a majority of qualified voters at the November 4, 2014 general election.

Ga. L. 2017, p. 55, § 4/HB 196 provided for the amendment of paragraph (a)(13), effective January 1, 2019, upon approval by the voters at the November 2018 election. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

Law reviews. - For article discussing tax exemptions and deductions as incentives for establishment of foreign business in Georgia, see 27 Mercer L. Rev. 629 (1976). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article, "Tax-exempt Financing of Private Business: Structural Approaches," see 16 Ga. St. B. J. 8 (1979). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For annual survey of real property law, see 35 Mercer L. Rev. 257 (1983). For annual survey of state and local tax law, see 35 Mercer L. Rev. 281 (1983). For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For annual survey of state and local taxation, see 42 Mercer L. Rev. 421 (1990). For article, "Freeport Exemption from Property Taxes for Inventory Stored in Georgia But Destined for Shipment Out-of-State," see 28 Ga. St. B. J. 108 (1991). For survey article on real property law, see 59 Mercer L. Rev. 371 (2007). For note on discriminatory charitable trusts in Georgia, with regard to application of the cy pres doctrine, in light of Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486 , 15 L. Ed. 2 d 373 (1966), see 6 Ga. St. B. J. 428 (1970). For comment criticizing Elder v. Henrietta Egleston Hosp. for Children, Inc., 205 Ga. 489 , 53 S.E.2d 751 (1949), holding hospital property exempt from taxation, even though income is derived therefrom, when income was applied exclusively to maintenance and charitable purposes, see 1 Mercer L. Rev. 111 (1949). For comment on Delta Airlines v. Coleman, 219 Ga. 12 , 131 S.E.2d 768 (1963), see 26 Ga. B. J. 201 (1963). For comment as to tax exempt status of church administrative offices, in light of Leggett v. Macon Baptist Ass'n, 232 Ga. 27 , 205 S.E.2d 197 (1974), see 26 Mercer L. Rev. 361 (1974).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitution does not itself exempt anything, but only grants power to the General Assembly to exempt the enumerated property, expressly denying the legislature power to exempt any other. Trustees of Academy v. Bohler, 80 Ga. 159 , 7 S.E. 633 (1887) (See also, 6 Enc. Dig. 84).

Effect of Act not providing for enumerated exemptions. - Failure of an Act providing for a general tax, ad valorem on all property, to make any reference to the property permanently exempted from taxation by this statute, does not render the Act unconstitutional or make such property taxable thereunder. Blount v. Munroe, 60 Ga. 61 (1878).

Exemptions strictly construed and must follow intent of General Assembly. - Exemptions from taxation must be strictly construed, and an exemption will not be held to be conferred unless the terms under which the exemption is granted clearly and distinctly show that such was the intention of the General Assembly. Gold Kist, Inc. v. Jones, 231 Ga. 881 , 204 S.E.2d 584 (1974).

Construction following 2007 amendment. - In order for an institution to be granted a property tax exemption pursuant to O.C.G.A. § 48-5-41 (a)(4), the institution must satisfy certain factors (the owner must be an institution devoted entirely to charitable pursuits, the charitable pursuits of the owner must be for the benefit of the public, and the use of the property must be exclusively devoted to those charitable pursuits) and O.C.G.A. § 48-5-41 because the General Assembly must have intended to allow those institutions that otherwise qualify as a purely public charity to use their property to raise income from activities that are not necessarily charitable in nature so long as the primary purpose of the property was charitable and any income is used exclusively for the operation of that charitable institution, O.C.G.A. § 48-5-41(d)(1), (2); when the General Assembly passed the 2007 amendment, the General Assembly did not intend a change to the effect of O.C.G.A. § 48-5-41(d)(2) but only sought to make clear that, in order to be granted an exemption, any charitable institution must be otherwise qualified as a purely public charity, which includes meeting the requirement that the property be used exclusively for the charitable pursuits of the institution, and the 2007 amendment does not effect a change to existing law since a charitable institution, even before the 2007 amendment, had to qualify as a purely public charity under O.C.G.A. § 48-5-41(a)(4) because, according to the statutory terms, O.C.G.A. § 48-5-41(d)(2) would not even apply unless the former provision was first satisfied. Nuci Phillips Mem. Found. v. Athens-Clarke County Bd. of Tax Assessors, 288 Ga. 380 , 703 S.E.2d 648 (2010).

Statute is to be strictly construed. Brenau Ass'n v. Harbison, 120 Ga. 929 , 48 S.E. 363 , 1 Ann. Cas. 836 (1904); Mayor of Gainesville v. Brenau College, 150 Ga. 156 , 103 S.E. 164 (1920).

Since taxation is the rule and exemption is the exception, tax exemptions are to be strictly construed. Leggett v. Macon Baptist Ass'n, 232 Ga. 27 , 205 S.E.2d 197 (1974).

All exemptions from taxation must be strictly construed in favor of taxing authorities and against the taxpayer. Collins v. Mills, 198 Ga. 18 , 30 S.E.2d 866 (1944); Presbyterian Ctr., Inc. v. Henson, 221 Ga. 750 , 146 S.E.2d 903 (1966); Johnson v. Wormsloe Found., Inc., 228 Ga. 722 , 187 S.E.2d 682 (1972); Annandale at Suwanee, Inc. v. Gwinnett County Bd. of Tax Assessors, 242 Ga. 241 , 248 S.E.2d 640 (1978).

Exemptions not to be unreasonably construed. - While it is the rule that all grants of exemption from taxation must be strictly construed in favor of the state, and that nothing passes by implication, this rule must not be pushed to unreasonableness. Roberts v. Atlanta Baptist Ass'n, 240 Ga. 503 , 241 S.E.2d 224 (1978).

Requirements of subsections (c) and (d) of O.C.G.A. § 48-5-41 must also be complied with by any institution that qualifies under paragraph (a)(4) as an institution of purely public charity in order to entitle that institution to exemption from ad valorem taxation. York Rite Bodies v. Board of Equalization, 261 Ga. 558 , 408 S.E.2d 699 (1991).

Property not exempt during renovation. - Given the statutory language, binding precedents interpreting that language, and governing principles applicable when discerning entitlement to tax exemptions, the court was without authority to effectively expand upon the reaches of O.C.G.A. § 48-5-41(a)(4). The organization's cited "use" of the property during the property's renovation did not bring the property within the ambit of § 48-5-41(a)(4). H.O.P.E. Through Divine Interventions, Inc. v. Fulton County Bd. of Tax Assessors, 318 Ga. App. 592 , 734 S.E.2d 288 (2012).

Until property gets into form of enumerated items or articles, no exemption obtains. Trustees of Academy v. Bohler, 80 Ga. 159 , 7 S.E. 633 (1887).

Exemption is not release in personam, but in rem, and the res to which the release applies must be found and identified by the officer, or no exemption can be recognized. Trustees of Academy v. Bohler, 80 Ga. 159 , 7 S.E. 633 (1887).

Reviewing court lacked subject matter jurisdiction. - Reviewing court lacked subject matter jurisdiction to consider value and uniformity in an appeal of a decision of the Hall County Board of Equalization (BOE) as a hospital did not present those issues in the underlying administrative tax case, which was limited to O.C.G.A. § 48-5-41(a)(5), and its application; further, as there was no Hall County Board of Tax Assessors decision concerning value and uniformity that could have been appealed to the BOE, there was no appeal to the BOE on those issues that could have been waived by mutual agreement and initiated, instead, in the reviewing court under O.C.G.A. § 48-5-311(g)(1). Hall County Bd. of Tax Assessors v. Northeast Ga. Health Sys., 317 Ga. App. 389 , 730 S.E.2d 715 (2012).

It is the use made of private property which renders the property exempt or nonexempt, and not the purchase and sale thereof. Georgia Mausoleum Co. v. City of Dublin, 147 Ga. 652 , 95 S.E. 233 (1918).

Use of income derived from private property is not determinative of the property's exempt status. Trustees of Academy v. Bohler, 80 Ga. 159 , 7 S.E. 633 (1887); Massenburg v. Grand Lodge, F. & A.M., 81 Ga. 212 , 7 S.E. 636 (1888); Mundy v. Van Hoose, 104 Ga. 292 , 30 S.E. 783 (1898).

It is not the declared purpose of incorporation which determines whether corporate property is exempt. Baggett v. Georgia Conference Ass'n of Seventh Day Adventists, 157 Ga. 488 , 121 S.E. 838 (1924).

Extent of land exempted. - Buildings which are exempt from taxation under this statute embrace the land upon which such buildings are located and the land adjacent thereto necessary for their proper use. Mayor of Gainesville v. Brenau College, 150 Ga. 156 , 103 S.E. 164 (1920); Hurlbutt Farm v. Medders, 157 Ga. 258 , 121 S.E. 321 (1924); Baggett v. Georgia Conference Ass'n of Seventh Day Adventists, 157 Ga. 488 , 121 S.E. 838 (1924).

Scheme of exemption as to other than public property seems to be this: to exempt all that is used immediately and directly as a part of the establishment in the conduct of the regular business there carried on, but not such as may be devoted to other uses, such as farming, merchandising, manufacturing, etc., and from which profit or income is derived. Trustees of Academy v. Bohler, 80 Ga. 159 , 163, 7 S.E. 633 (1887).

Municipal bonds. - Bonds issued by a municipal corporation of this state, as evidence of a loan made to it, are instrumentalities of the government which creates the municipal corporation and are not taxable by this state or any county thereof while in the hands of a resident of this state. Penick v. Foster, 129 Ga. 217 , 58 S.E. 773 , 12 L.R.A. 1159 , 12 Ann. Cas. 346 (1907).

City not entitled to exemption. - When real property owned by a tax-exempt development authority was sold to a city, the city was not entitled to piggyback onto the authority's exemption; furthermore, the city's lease of the property to another city was not a governmental purpose under O.C.G.A. § 48-5-41 , as there was nothing in the record to indicate that the city entered into the lease in anything other than the city's proprietary capacity, and the lease was a profit-generating undertaking for the city. Clayton County Bd. of Tax Assessors v. City of Atlanta, 286 Ga. App. 193 , 648 S.E.2d 701 (2007), cert. denied, No. S07C1645, 2008 Ga. LEXIS 111 (Ga. 2008); overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 , 711 S.E.2d 51 (2011).

In a declaration suit, a city was properly determined not to be a local authority as that term is used in O.C.G.A. § 48-13-13(5) and, thus, was subject to the levy of occupation taxes by another municipality for the city's proprietary operations at the city's airport, which was in the other municipality's city limits, because the terms local authority and municipality were not the same under the statute. City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

Burden of proving a tax exemption under this statute is on party seeking exemption. See Thomas v. Northeast Ga. Council, Inc. BSA, 241 Ga. 291 , 244 S.E.2d 842 (1978).

Trial court's determination that a county board of tax assessors did not have to prove the board's assessment on a ministry's property by a preponderance of the evidence, under O.C.G.A. § 48-5-311(c) , was proper as the appellate procedure for assessments was based on both O.C.G.A. §§ 48-5-41 and 48-5-311(c) , which were read in pari materia; under O.C.G.A. § 48-5-41 , the ministry which was seeking the exemption had the burden of proof to show its entitlement, and the board had the burden of proof by a preponderance of the evidence that its assessment was correct under O.C.G.A. § 48-5-311(c). Lamad Ministries, Inc. v. Dougherty County Bd. of Tax Assessors, 268 Ga. App. 798 , 602 S.E.2d 845 (2004).

Whether property is subject to execution of judgment depends on whether subject to taxation. - It has been held that since the public welfare is a dominant consideration as to both exemption from taxation and immunity from suit, and since it is the prerogative of the legislature to declare the policy of the state touching the general welfare, the test as to whether property is subject to execution of a judgment is whether the property is subject to taxation. Mack v. Big Bethel A.M.E. Church, Inc., 125 Ga. App. 713 , 188 S.E.2d 915 (1972).

Mandamus for levy in case of illegal exemption. - If there has been an illegal exemption, and a refusal to levy, the levy may be compelled by mandamus. Ford v. Mayor of Cartersville, 84 Ga. 213 , 10 S.E. 732 (1890).

Attorney's law library. - An attorney's law library, which is maintained in connection with the practice of his or her profession, is not exempted from ad valorem taxation by Georgia's constitution, nor is the attorney's library exempted by any legislation enacted pursuant to the constitution. Clayton County Bd. of Tax Assessors v. King, 260 Ga. 495 , 397 S.E.2d 293 (1990).

Lending money to partnership is not charity. - Because an owner gave a limited partnership - in which an entity controlled by the owner had a nominal interest - a loan that was not expected to be repaid, the loan did not serve a charitable purpose and violated the owner's articles of incorporation; therefore, the owner was not entitled to an ad valorem tax exemption under O.C.G.A. § 48-5-41(a)(4). P'ship Hous. Affordable to Soc'y Everywhere, Inc. v. Decatur County Bd. of Tax Assessors, 312 Ga. App. 663 , 719 S.E.2d 556 (2011), cert. denied, No. S12C0523, 2012 Ga. LEXIS 667 (Ga. 2012).

Collateral estoppel. - Collateral estoppel prevented redundant litigation of the same question of a statute's application to a taxpayer's status; an earlier decision finding that an owner's real property was exempt from ad valorem taxes barred relitigation of the owner's tax exempt status. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960).

Cited in Teachers Retirement Sys. v. City of Atlanta, 249 Ga. 196 , 288 S.E.2d 200 (1982); J.A.T.T. Title Holding Corp. v. Roberts, 173 Ga. App. 902 , 328 S.E.2d 770 (1985); Marathon Inv. Corp. v. Spinkston, 281 Ga. 888 , 644 S.E.2d 133 (2007); Clayton County Bd. of Tax Assessors v. City of Atlanta, 299 Ga. App. 233 , 682 S.E.2d 328 (2009).

Public Property

Purpose of exemption. - Public property is not subject to taxation. This immunity rests upon the most fundamental principles of government; being necessary, that the functions of government be not unduly impeded, and that the government be not forced into the inconsistency of taxing itself in order to raise money to pay over to itself. Penick v. Foster, 129 Ga. 217 , 58 S.E. 773 , 12 L.R.A. 1159 , 12 Ann. Cas. 346 (1907); State v. Western & A.R.R., 136 Ga. 619 , 71 S.E. 1055 (1911).

What constitutes public property. - "Public property," in the sense it is used in the provision for rendering property exempt, means property belonging to the state, or the political divisions thereof, such as counties, cities, towns, and the like. Mundy v. Van Hoose, 104 Ga. 292 , 30 S.E. 783 (1898).

Public property embraces only such property as is owned by the state or some political division thereof, and title to which is vested directly in the state or one of the state's subordinate political divisions, or in some person holding exclusively for the benefit of the state or subordinate public corporation. Board of Trustees v. City of Atlanta, 113 Ga. 883 , 39 S.E. 394 , 54 L.R.A. 806 (1901); Culbreth v. Southwest Ga. Regional Hous. Auth., 199 Ga. 183 , 33 S.E.2d 684 (1945).

When property deemed dedicated to public use. - Mere use of one's property by a small portion of the public, even for an extended period of time, will not amount to a dedication of the property to a public use, unless it appears clearly that there was an intention to dedicate and that this dedication was accepted by the public for public use. Johnson v. Wormsloe Found., Inc., 228 Ga. 722 , 187 S.E.2d 682 (1972).

Showing of intent to dedicate to the public use. - An intention on the part of the owner to dedicate the owner's property to the public use must be shown in order to claim a tax exemption, whether such dedication is express or implied. When an implied dedication is claimed, the facts relied on must be such as to clearly indicate a purpose on the part of the owner to abandon the owner's personal dominion over the property and to devote the property to a definite public use. Johnson v. Wormsloe Found., Inc., 228 Ga. 722 , 187 S.E.2d 682 (1972).

Public property not taxed whether income derived or not. - Proviso in paragraph (5) (see now subsection (c)) of this statute, which excludes property used for purposes of private or corporate profit or income, does not apply to public property. Public property is not taxed, whether income be derived from the property or not. Trustees of Academy v. City Council, 90 Ga. 634 , 17 S.E. 61 , 20 L.R.A. 151 (1892).

Total acreage owned by one political subdivision inside another. - Tax exemption provided by subsection (a)(1)(B)(ii) of O.C.G.A. § 48-5-41 refers to total acreage owned by one political subdivision inside another, and not to the size of the individual tract of land under consideration. The total quantity of land owned within the territory must be aggregated for purposes of determining whether it amounts to 300 acres or less. City of Atlanta v. Clayton County Bd. of Tax Assessors, 189 Ga. App. 50 , 375 S.E.2d 75 (1988), cert. denied, 189 Ga. App. 911 , 375 S.E.2d 75 (1989).

Exemption of 300-acre parcels not an arbitrary classification. - Exemption of 300 acres or less from the provision for taxation of public real property owned by a city outside the city's territorial limits is not an arbitrary classification of property for taxation, because the quantity of land held by a city in a county which contains no part of the city has a reasonable relationship to the right of the county to subject the land to taxation. Since the finances of a county could be adversely affected by large quantities of tax exempt land within the county's boundaries, there must be some limit of acreage in order to distinguish a smaller tract from a larger tract, and consequently, such a classification does not offend Ga. Const. 1976, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. III, Para. II). City of Atlanta v. Spence, 242 Ga. 194 , 249 S.E.2d 554 (1978).

Leasehold estate severed from a fee in public property can be taxed. See Delta Air Lines v. Coleman, 219 Ga. 12 , 131 S.E.2d 768 , cert. denied, 375 U.S. 904, 84 S. Ct. 195 , 11 L. Ed. 2 d 145 (1963), for comment see 26 Ga. B.J. 201 (1963).

Lease of property in public airport. - Operation of central food and beverage commissary to furnish concessionaires open to the public within airport complex constituted a use of property for public purposes and was exempt from taxation. Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864 , 298 S.E.2d 544 (1982).

Public airport property leased to corporation, which property was used for provision of inflight meals, was subject to taxation where provisions of lease did not preserve the public's "rightful, equal, and uniform use" of the property as required by O.C.G.A. § 6-3-25 . Clayton County Bd. of Tax Assessors v. City of Atlanta, 164 Ga. App. 864 , 298 S.E.2d 544 (1982).

Expansion of city airport. - Parcel of land purchased by a city as part of a carefully orchestrated, governmentally approved plan to expand the city's airport was exempt from ad valorem taxation, pursuant to O.C.G.A. § 48-5-41(a)(1)(B), despite little activity on that particular parcel; the parcel should be considered a part of all of the land in conjunction with the airport since 25 percent of the airport was developed and contained facilities used for public purposes. City of Atlanta v. Clayton County Bd. of Tax Assessors, 284 Ga. App. 871 , 645 S.E.2d 42 (2007), cert. denied, 2007 Ga. LEXIS 708 (Ga. 2007); overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 , 711 S.E.2d 51 (2011).

Property leased to airline for airport facilities was public use. - Five parcels of property at a city-owned airport that were leased to an airline and used for hangars, flight kitchens, and air cargo were reasonably and uniformly used for the public convenience and welfare to facilitate the effective operation of the airport, and were therefore exempt from ad valorem taxation under O.C.G.A. § 48-5-41(a)(1)(B)(i). City of Atlanta v. Clayton County Bd. of Tax Assessors, 306 Ga. App. 381 , 702 S.E.2d 704 (2010), cert. denied, No. S11C0342, 2011 Ga. LEXIS 222 (Ga. 2011); overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 , 711 S.E.2d 51 (2011).

Public nature of authorities. - No private interest exists in the property of an authority. The members thereof may not use the property for private gain or income. An authority holds title only for the benefit of the state and the public, and an authority is an instrumentality of the state or a subordinate public authority or corporation of the state. Hospital Auth. v. Stewart, 226 Ga. 530 , 175 S.E.2d 857 (1970).

Hospital authority's leasehold interest in retirement facility was exempt. - Hospital authority's leasehold interest in a continuing care retirement facility was public property exempt from ad valorem taxation under O.C.G.A. § 48-5-41(a)(1); an earlier, unappealed superior court bond validation order found that it was a public project within the scope of the Hospital Authorities Law, O.C.G.A. § 31-7-70 et seq., and this finding was final and binding. Columbus, Ga. Bd. of Tax Assessors v. Medical Ctr. Hosp. Auth., 338 Ga. App. 302 , 788 S.E.2d 879 (2016).

Property held by a hospital authority is public property. - Property, the title to which is held directly by a hospital authority, is public property and, therefore, exempt from ad valorem taxation. Hospital Auth. v. Stewart, 122 Ga. App. 497 , 177 S.E.2d 270 (1970).

Effect of legal title vested in a trustee for the authority. - That legal title to property is vested in a trustee for a hospital authority does not deprive the property of the property's tax-exempt status. Hospital Auth. v. Stewart, 122 Ga. App. 497 , 177 S.E.2d 270 (1970).

Nonprofit hospital need not meet the definition of O.C.G.A. § 48-5-40(5) before the hospital can qualify for an exemption under paragraph (a)(5) of O.C.G.A. § 48-5-41 , since nonprofit hospitals qualifying under subsection (a)(5) are not a subclass wholly subsumed by the definition in § 48-5-40(5) . Douglas County v. Anneewakee, Inc., 179 Ga. App. 270 , 346 S.E.2d 368 (1986).

Fact that the children accepted by a psychiatric care hospital had to meet certain requirements before the children were eligible to be admitted and, thus, the facility was not open to the whole public, did not disqualify the hospital from tax exempt status since it was uncontroverted that the hospital was open to the whole of the classes for whose relief the hospital was intended or adapted. Douglas County v. Anneewakee, Inc., 179 Ga. App. 270 , 346 S.E.2d 368 (1986).

Building and stock of liquors owned by municipal corporation and operated by the corporation as a dispensary are "public property" within the meaning of this statute and, as such, are exempt from taxation. This is so although the town has no legal authority to maintain and operate a dispensary. Walden v. Town of Whigham, 120 Ga. 646 , 48 S.E. 159 (1904).

Armory. - Armory "owned" and occupied by a command of the volunteer military forces of the state is not within the exemption. Board of Trustees v. City of Atlanta, 113 Ga. 883 , 39 S.E. 394 , 54 L.R.A. 806 (1901).

Motor vehicle registration fee not considered tax on public property. - License fee provided for in the motor vehicle registration law is nothing more than a license fee and is not in essence a revenue raising measure, and, therefore, does not amount to the levying of a tax against public property. Burkett v. State, 198 Ga. 747 , 32 S.E.2d 797 (1945).

Places of Religious Worship

Construction of term "religious worship." - Words "religious worship" import a concept of a congregation assembling in a place open to the public to honor the Deity through reverance and homage. Leggett v. Macon Baptist Ass'n, 232 Ga. 27 , 205 S.E.2d 197 (1974).

Unorthodoxy will not serve to disqualify a religious group from tax exemption, as long as the group holds a sincere and meaningful belief in God occupying in the life of its possessors a place parallel to that occupied by God in traditional religions, and dedicates itself to the practice of that belief. Roberts v. Ravenwood Church of Wicca, 249 Ga. 348 , 292 S.E.2d 657 (1982).

What constitutes a place of religious worship. - A building is not necessary for a place to qualify as a place of worship. Neither is it necessary for a complete congregation to hold regularly scheduled services at one location. All one must show is that the property is used exclusively as a "place of religious worship." Columbus, Ga., By Bd. of Tax Assessors v. Outreach For Christ, Inc., 241 Ga. 2 , 243 S.E.2d 42 (1978) disapproved to the extent that it suggests that property must be used exclusively, rather than primarily, for religious worship in order to qualify for tax exemption, Roberts v. Ravenwood Church of Wicca, 249 Ga. 348 , 292 S.E.2d 657 (1982).

A place of public worship is not necessarily a church, nor is the term synonymous with a church. In the connection in which the words are used, the words mean the gathering of individuals for public worship, at whatever place the individuals may be, whether in the open air, under a tent, beneath an arbor, in a warehouse, and sometimes in an opera house. Roberts v. Atlanta Baptist Ass'n, 240 Ga. 503 , 241 S.E.2d 224 (1978).

Mere absence of some element of worship does not, alone or automatically, negative the place as a place of religious worship. Roberts v. Atlanta Baptist Ass'n, 240 Ga. 503 , 241 S.E.2d 224 (1978).

Only church properties enumerated in this statute are exempt from taxes, and all references to income relate solely to such exempted property. Church of God of Union Ass'y, Inc. v. City of Dalton, 216 Ga. 659 , 119 S.E.2d 11 (1961).

Primary use of property determines exempt status. - In applying the exemption authorized by Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) and former Code 1933, § 92-201 (see now O.C.G.A. § 48-5-41 ) to the facts in the individual case, the court must look to the use of the property, not merely the property's ownership, and must also look to the primary use of the property to determine whether the property is exempt from taxation. Leggett v. Macon Baptist Ass'n, 232 Ga. 27 , 205 S.E.2d 197 (1974).

Trial court's determination that a ministry was not entitled to the "place of religious worship" and "property owned and operated exclusively by a church" exemptions under O.C.G.A. § 48-5-41 was clearly erroneous as the trial court should have made a separate determination of exemption as to those portions of the ministry's property that were used primarily for a home for the elderly from those parts of the parcels of property which were primarily used as a place of religious worship; the exemption for a "place of religious worship" depended upon the primary purposes for which that property was used, which was shown to be within the exemption. Lamad Ministries, Inc. v. Dougherty County Bd. of Tax Assessors, 268 Ga. App. 798 , 602 S.E.2d 845 (2004).

Use of property, not ownership, determines exemption status. - Court of Appeals of Georgia finds no statutory requirement that the owner be the user of the property when dealing with a place of religious worship tax exemption; rather, it is the use of the property that governs the analysis of religious worship tax exemptions. DeKalb County Bd. of Tax Assessors v. Presbytery of Greater Atlanta, Inc., 320 Ga. App. 312 , 739 S.E.2d 764 (2013).

Trial court properly granted a property owner summary judgment because the non-cemetery portion of the property at issue qualified for a religious tax exemption under O.C.G.A. § 48-5-41(a) (2.1)(A) since no profit was realized from the lease of the property to another religious non-profit corporation. DeKalb County Bd. of Tax Assessors v. Presbytery of Greater Atlanta, Inc., 320 Ga. App. 312 , 739 S.E.2d 764 (2013).

Recreational facilities on land used for religious worship. - Land owned by a religious association was exempt from taxation as a place of religious worship, since, although recreational facilities on the property were secular in nature and fees were charged for their use, such use was shown to be intimately connected and intertwined with the religious activities to which the property was primarily dedicated. Pickens County Bd. of Tax Assessors v. Atlanta Baptist Ass'n, 191 Ga. App. 260 , 381 S.E.2d 419 (1989).

Exemption of property used primarily for profit or purposes other than operation of institution. - When church property is used primarily for either profit or purposes other than the operation of the institution, that property is not exempt from taxes. The fact that the property is used to make profit which will in turn be given or used by the church for church purposes in no degree confers tax exemption thereupon. Church of God of Union Ass'y, Inc. v. City of Dalton, 216 Ga. 659 , 119 S.E.2d 11 (1961).

Exemption primarily applies to buildings where public religious services are held. - Exemptions from taxation of places of religious worship, unless stated otherwise, are intended primarily to apply to buildings where congregations come together in a public forum for religious services. Leggett v. Macon Baptist Ass'n, 232 Ga. 27 , 205 S.E.2d 197 (1974).

When only a portion of a building is used for tax-exempt purpose, comparative value of portion used for tax-exempt purpose should be distinguished from remainder, with only that part used for tax-exempt purpose being spared taxation. Roberts v. Ravenwood Church of Wicca, 249 Ga. 348 , 292 S.E.2d 657 (1982).

Fact that residents of place of religious worship are charged a rental toward operating expenses does not destroy the religious nature of an otherwise religious institution. Roberts v. Ravenwood Church of Wicca, 249 Ga. 348 , 292 S.E.2d 657 (1982).

Test of whether requirements for exemption met. - Church falls squarely within statutory and constitutional exemptions when no dividends, income, or profits have been, or will be, distributable for profit or personal gain, since the property upon which the execution has been levied is a place of religious worship, used in maintaining and operating a church, since the income derived therefrom is used exclusively for religious purposes, and since the primary purpose of such real estate is not that of securing an income thereon, but of providing a meeting place and quarters for members of affiliate churches. Church of God v. City of Dalton, 213 Ga. 76 , 97 S.E.2d 132 (1957), later appeal, 216 Ga. 659 , 119 S.E.2d 11 (1961).

What constitutes real property used for profit. - Real property owned for profit by a church such as: (1) apartment buildings leased for rent by church; (2) property formerly used as a dining hall but now as an apartment rented to a widow who sometimes pays rent; and (3) lot and dwelling house rented sometimes to a widow who pays rent when the widow can is not exempt from taxation. Church of God of Union Ass'y, Inc. v. City of Dalton, 216 Ga. 659 , 119 S.E.2d 11 (1961).

City is authorized to impose sanitary service charges upon places of public worship because such charges are not within the exemption of this statute for places of religious worship. First Pentecostal Church v. City of Atlanta, 144 Ga. App. 718 , 242 S.E.2d 357 (1978).

Exemption from assessments. - Property occupied by a church and used solely for church purposes is not exempt from payment of local street improvement assessments. City of Atlanta v. First Presbyterian Church, 86 Ga. 730 , 13 S.E. 252 , 12 L.R.A. 852 (1891).

Rental of church parking lot did not qualify for tax exempt status. - Grant of summary judgment was affirmed because the parking lot lease agreement and its impact upon the church's use of the property supported the conclusion that the property was real estate rented, leased, or otherwise used for the primary purpose of securing an income thereon as contemplated by O.C.G.A. § 48-5-41(d)(1). First Congregational Church v. Fulton County Bd. of Tax Assessors, 320 Ga. App. 868 , 740 S.E.2d 798 (2013).

Cemeteries

Public policy to protect and encourage cemeteries arises out of the common wish of mankind to insure a fitting resting place for the dead, especially in crowded areas, while at the same time giving consideration to the safety of the living, and saving the public from the burden of maintaining them at the public's expense. Suttles v. Hill Crest Cem., 87 Ga. App. 343 , 73 S.E.2d 760 (1952).

Property to which exemptions for cemeteries is applicable. - Exemption accorded to cemetery lands may extend to all property used or held exclusively for the burial of the dead or for the care, maintenance, or upkeep of such property, and ordinarily applies to a columbarium, crematory, mausoleum or unsold lots, crypts, or niches, and covers permanent improvements placed on the land and necessary to the land's use as a burying ground. City of Atlanta v. Crest Lawn Mem. Park Corp., 218 Ga. 497 , 128 S.E.2d 722 (1962).

There is a distinction between those structures in which bodies are prepared for burial, and buildings necessary for the administration of the cemetery and maintenance of the burying grounds. The latter are exempt from taxation. City of Atlanta v. Crest Lawn Mem. Park Corp., 218 Ga. 497 , 128 S.E.2d 722 (1962).

Tombs or crypts in mausoleum, owned by a private corporation, having no value except for burial purposes, cannot be used for purposes of private or corporate profit or income, and are exempt from taxation, together with the ground where located. Georgia Mausoleum Co. v. City of Dublin, 147 Ga. 652 , 95 S.E. 233 (1918).

Exemption of area of cemetery tract for future needs. - When the evidence indicated that the number of burials was increasing each year, and that the undeveloped area of cemetery tract was not disproportionate to the future needs of the area from which the burials were made, the trial judge did not err in holding that the undeveloped portion of the area was exempt from taxation. City of Atlanta v. Crest Lawn Mem. Park Corp., 218 Ga. 497 , 128 S.E.2d 722 (1962).

Taxes to which exemptions applicable. - Unless the assessment is for general revenue purposes, it is not a tax for which the law grants an exemption to places of religious worship or burial. Crestlawn Mem. Park v. City of Atlanta, 235 Ga. 194 , 219 S.E.2d 122 (1975).

Special assessments not for revenue purposes are radically different from ad valorem taxes, and are not taxes within the meaning of the Constitution of Georgia. Crestlawn Mem. Park v. City of Atlanta, 235 Ga. 194 , 219 S.E.2d 122 (1975).

Sanitary service charge assessments levied by a city upon cemetery property are not taxes as contemplated by this statute. Crestlawn Mem. Park v. City of Atlanta, 235 Ga. 194 , 219 S.E.2d 122 (1975).

Preservation of a historical site in a tract of land dedicated to burial purposes would not change the land's character as a place of burial. City of Atlanta v. Crest Lawn Mem. Park Corp., 218 Ga. 497 , 128 S.E.2d 722 (1962).

Exemption when deed restricts use but land reserved for future use. - Under Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) and former Code 1933, § 92-201 (see now O.C.G.A. § 48-5-41 ) exempting "places of burial" from taxation, land acquired by a cemetery corporation under a deed containing a restriction that the land was to be used as a cemetery for human beings and for no other purpose was, under the facts stipulated, exempt from taxation, despite the fact that the land in question was being reserved for future needs. Suttles v. Hill Crest Cem., 87 Ga. App. 343 , 73 S.E.2d 760 (1952).

Institutions of Purely Public Charity

Constitutional restrictions on exemption of institutions of charity. - Constitution of Georgia restricts tax exemption of institutions of charity to those and those only that are purely charity and also that are public charity. Georgia Osteopathic Hosp. v. Alford, 217 Ga. 663 , 124 S.E.2d 402 (1962).

Scope of term "charity." - "Charity," as used in this statute, is not restricted to the relief of the sick or indigent, but extends to other forms of philanthropy or public beneficence, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement and happiness of mankind. Tharpe v. Central Ga. Council of BSA, 185 Ga. 810 , 196 S.E. 762 (1938); Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 , 170 S.E.2d 709 (1969); Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

A familiar meaning of the word "charity" is almsgiving, but as used in the law it may include substantially any scheme or effort to better the condition of society or any considerable part of society. Tharpe v. Central Ga. Council of BSA, 185 Ga. 810 , 196 S.E. 762 (1938); Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 , 170 S.E.2d 709 (1969); Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

Term "charity" used in this statute is to be construed in the statutes broad sense. The meaning includes substantially any scheme or effort to better the condition of society or any considerable part thereof. Camp v. Fulton County Medical Soc'y, 219 Ga. 602 , 135 S.E.2d 277 (1964).

What constitutes charitable institution generally. - Hospitals, almshouses, asylums for the insane, for the deaf and dumb, or the blind, orphan asylums, homes of various kinds, souphouses, etc., permanently established and open, without charge, to the whole public, or to the whole of the classes for whose relief they are intended or adapted, are institutions of the exempt order, irrespective of their ownership, and without regard to whether they have behind them, or connected with them, any institution in the personal or ideal sense of the term, or not. Trustees of Academy v. Bohler, 80 Ga. 159 , 161, 7 S.E. 633 (1887).

In determining whether property qualifies for exemption as an institution of "purely public charity" as set forth in paragraph (a)(4) of O.C.G.A. § 48-5-41 , three factors must be considered and must coexist. First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and, third, the use of the property must be exclusively devoted to those charitable pursuits. York Rite Bodies v. Board of Equalization, 261 Ga. 558 , 408 S.E.2d 699 (1991).

That the owner of property is a nonprofit institution, that its charter declares it to be a charitable institution, and that the institution serves a benevolent purpose does not necessarily lead to the conclusion that the institution is exempted from ad valorem taxation by paragraph (a)(4) of O.C.G.A. § 48-5-41 . The facts of each case must be viewed as a whole and all of the circumstances surrounding the institution must be considered. York Rite Bodies v. Board of Equalization, 261 Ga. 558 , 408 S.E.2d 699 (1991).

Charitable nature of institutions for the elderly. - Concept of charity is not confined to relief of the needy and destitute, for aged people require care and attention apart from financial assistance, and the supply of this care and attention is as much a charitable and benevolent purpose as the relief of their financial wants. Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 , 170 S.E.2d 709 (1969); Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

Nonprofit charitable institution's independent-living units for the elderly were entitled to share the institution's longstanding tax exemption as a home for the aged because: (1) the institution was clearly a nonprofit home for the aged, which was defined in O.C.G.A. § 48-5-40(2) as a facility which provides residential services, health care services, or both residential services and health care services to the aged; (2) the institution had neither stockholders nor distributed income to private persons, was subject to Georgia laws regulating nonprofit and charitable corporations, and had been determined to be a tax-exempt organization under both federal and Georgia law; (3) the institution was a charitable one because supplying care for aged people was a charitable and benevolent purpose; and (4) the independent-living units were not held by the institution primarily for investment purposes. Bd. of Tax Assessors v. Baptist Vill., Inc., 269 Ga. App. 848 , 605 S.E.2d 436 (2004).

"Charity" is broad enough to include use of property by Boy Scouts. - Word "charity," as used in former Code 1933, § 92-201 (see now O.C.G.A. § 48-5-41 ), and in Ga. Const. 1877, Art. VII, Sec. II, Para. II (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) was broad enough to include the use of property by the Boy Scout organization. Tharpe v. Central Ga. Council of BSA, 185 Ga. 810 , 196 S.E. 762 (1938).

An institution may be public even though the institution is not open to the whole public, if the institution is open to the whole of the classes for whose relief the institution is intended or adapted. Tharpe v. Central Ga. Council of BSA, 185 Ga. 810 , 196 S.E. 762 (1938); Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 , 170 S.E.2d 709 (1969); Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

Benevolent purpose alone insufficient. - An institution which serves a benevolent purpose is not necessarily a purely public charity. In order for an institution to qualify as a charitable institution for tax exemption under this statute, it must have as the institution's sole purpose and activity the dispensing of public charity. Camp v. Fulton County Medical Soc'y, 219 Ga. 602 , 135 S.E.2d 277 (1964).

An institution which serves a benevolent purpose is not necessarily a purely public charity. Rabun Gap-Nacoochee Sch. v. Thomas, 228 Ga. 231 , 184 S.E.2d 824 (1971); Georgia Congress of Parents & Teachers, Inc. v. Boynton, 239 Ga. 472 , 238 S.E.2d 113 (1977).

What property and obligations of a charity are exempt. - Property of an institution of purely public charity, and all debentures and revenue bonds issued by the institution, are exempt from all state and local taxation. Smith v. Hayes, 217 Ga. 94 , 121 S.E.2d 113 (1961).

Test for charitable immunity from taxation is nature of source of income. - Test for charitable immunity from suit is not the use to which the income is put, but the nature of the source from which the income is derived. This is the same test applied in determining the taxability of property. The scheme of exemption as to other than public property seems to be this: To exempt all that is used immediately and directly as a part of the establishment in the conduct of regular business there carried on, but not such as may be devoted to other uses, such as farming, merchandising, manufacturing, etc., and from which profit or income is derived. Mack v. Big Bethel A.M.E. Church, Inc., 125 Ga. App. 713 , 188 S.E.2d 915 (1972).

Sufficiency of allegation that property is exempt as that of a purely public charity. - Petition which alleges that property is dedicated to the education, uplift, and advancement of the early history of Atlanta, and is not used for any commercial purpose, fails to allege how the property is being used. In the absence of such allegation, the petition does not allege that the property is used for purely public charity, and fails to state a cause of action for exemption from taxation. Historic House Museum Corp. v. Camp, 223 Ga. 510 , 156 S.E.2d 361 (1967).

Property must be dedicated to charity and used exclusively as such. - Test for exemption as an institution of purely public charity under this statute is not whether the plaintiff is an organization of purely public charity, but whether the property itself is dedicated to charity and used exclusively as an institution of purely public charity. Mu Beta Chapter Chi Omega House Corp. v. Davison, 192 Ga. 124 , 14 S.E.2d 744 (1941); Georgia Osteopathic Hosp. v. Alford, 217 Ga. 663 , 124 S.E.2d 402 (1962); Historic House Museum Corp. v. Camp, 223 Ga. 510 , 156 S.E.2d 361 (1967); Johnson v. Wormsloe Found., Inc., 228 Ga. 722 , 187 S.E.2d 682 (1972).

No matter how high the ideals of an institution, nor how lofty the institution's purposes, in order to qualify as a charitable institution for tax purposes, the institution must have the sole purpose and activity of dispensing public charity. Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. 48 , 510 S.E.2d 844 (1999).

When the plaintiff's primary purpose was to collect, analyze, and disseminate industry lessons learned based on highly confidential surveys, since there was not a single disinterested director on the board, since members paid dues, since the plaintiff's offices were restricted to members and their guests, and since the public was expressly excluded from meetings, the facts indicated that the plaintiff did not exist for the sole purpose and activity of dispensing purely public charity. Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. 48 , 510 S.E.2d 844 (1999).

Nonexempt uses of property generally. - When property is used primarily for either profit or purposes other than the operation of the institution, the property is generally not exempt from taxes. Leggett v. Macon Baptist Ass'n, 232 Ga. 27 , 205 S.E.2d 197 (1974).

Income used for charitable purposes. - Under the Constitution of Georgia, productive property is taxable, even though the income be used for charitable purposes. Atlanta Masonic Temple Co. v. City of Atlanta, 162 Ga. 244 , 133 S.E. 864 (1926).

Insofar as charitable organizations are administrators and disbursers of purely public charity, their property permanently in use for that purpose is exempt from taxation. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

When charitable organizations are capitalists or proprietors engaged in acquiring money or effects to be disbursed, property of any and every kind from which their income is derived is subject to be taxed the same as property generally. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Latent ownership of property as basis for exemption. - Property owned by a charitable institution is not exempt from taxation unless the property is used for the purposes for which that institution was established. Mere latent ownership of property by an institution of public charity will not entitle the institution to an exemption in the absence of the required application of the property to the charitable goals of the owner. Thomas v. Northeast Ga. Council, Inc. BSA, 241 Ga. 291 , 244 S.E.2d 842 (1978).

Mere latent ownership of property by an institution of public charity will not entitle the property to an exemption. York Rite Bodies v. Board of Equalization, 261 Ga. 558 , 408 S.E.2d 699 (1991).

Property used to produce income to be expended in charity is not exempt since it is too remote from the ultimate charitable object. If property is allowed to be used as taxed property, it also is to be taxed. If the property competes in the common business and occupations of life with the property of other owners, the property must bear the tax which theirs bears, and the property is a noncharitable asset, not immune from execution of a judgment. Rabun Gap-Nacoochee Sch. v. Thomas, 228 Ga. 231 , 184 S.E.2d 824 (1971); Mack v. Big Bethel A.M.E. Church, Inc., 125 Ga. App. 713 , 188 S.E.2d 915 (1972).

Property used to produce income to be expended in charity is too remote from the ultimate charitable object to be exempt. Trustees of Academy v. Bohler, 80 Ga. 159 , 164, 7 S.E. 633 (1887).

Lands held in trust to appropriate the annual product to the erection of a poorhouse and the support of its inmates forever are not exempt. The poorhouse, when erected, will be exempt, but not detached property from which its support is to be derived. Trustees of Academy v. Bohler, 80 Ga. 159 , 7 S.E. 633 (1887).

Interpreting "private or corporate income" to mean any income which is not public, productive property used as capital to raise money to expend in charity is used for private income when the owner is a private individual, and for corporate income when the owner is a corporation. It is no more allowable under the Constitution of Georgia for a charitable association to accumulate money by the use of exempt property, which money is to be disbursed in charity, than it is for a common citizen to do it. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Terms "private or corporate" are employed in contradistinction to "public." - Public property is not taxed, whether income be derived from the property or not; but private or corporate property, though it be connected with the external, visible "institution," is not exempt if used for income, since the income from such property must, by reason of the property's ownership, be either private or corporate; these terms being comprehensive enough to include all income whatsoever that is not public. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Exemption of property which produces incidental income from operation of institution. - Provision that the exempt property not be used for purposes of private or corporate profit or income is not intended to destroy the exemption already granted when incidental income is derived from the operation of the charitable or educational institution. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Exemption of property used partly for income-producing purposes. - When the property of an institution of purely public charity is used partly for purposes of corporate income, the most that the corporation can claim is that the comparative value of the part used for income, and the part not so used, may be distinguished in making the institution's tax returns, and that the latter part by due apportionment of value, shall be spared from taxation. Massenburg v. Grand Lodge, F. & A.M, 81 Ga. 212 , 7 S.E. 636 (1888); Hurlbutt Farm v. Medders, 157 Ga. 258 , 121 S.E. 321 (1924).

When an institution is a purely public charity and meets the requirements of this statute, the portion of the institution's property which is being used as a home for the aged is tax exempt. However, if part of the building consists of two retail stores which are leased, that part would not be tax exempt, since the area where the stores are located is being used to gain rental and not for the primary purpose of operating the inn. Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 , 170 S.E.2d 709 (1969).

Use of real estate as affecting exemption for taxes. - "Used for the operation of such institution" means that the charitable institution itself must be carrying on an operation on the institution's real estate for the benefit of the public or for some other legitimate charitable purpose in order for such property to be exempt. Johnson v. Wormsloe Found., Inc., 228 Ga. 722 , 187 S.E.2d 682 (1972).

Merely making real estate available to other public or charitable institutions for their use is not sufficient to qualify for the tax exemption. Instead, the use of the property must be exclusively devoted to conduct that benefits the public by furthering the charitable pursuits of the property's owner. York Rite Bodies v. Board of Equalization, 261 Ga. 558 , 408 S.E.2d 699 (1991).

Income-producing real estate, not used directly in charitable activities, is a noncharitable asset and the defendant is liable to the extent of such noncharitable assets. Mack v. Big Bethel A.M.E. Church, Inc., 125 Ga. App. 713 , 188 S.E.2d 915 (1972).

Exemption of real property furnished to other public or charitable institutions. - Merely making real estate available to other public or charitable institutions for their use is not sufficient to qualify the property of a charitable institution for the tax exemption. Atlanta Masonic Temple Co. v. City of Atlanta, 162 Ga. 244 , 133 S.E. 864 (1926); Johnson v. Wormsloe Found., Inc., 228 Ga. 722 , 187 S.E.2d 682 (1972).

Use of property controls over declarations in charter in determining taxability. - Use to which property is put, not the declaration of purpose in the property owner's charter, determines the question of exemption from taxation. Georgia Osteopathic Hosp. v. Alford, 217 Ga. 663 , 124 S.E.2d 402 (1962); Georgia Congress of Parents & Teachers, Inc. v. Boynton, 239 Ga. 472 , 238 S.E.2d 113 (1977).

No matter how high the ideals of an institution, nor how lofty the institution's purposes, in order for the institution to qualify as a charitable institution for tax exemption under paragraph (a)(4) of O.C.G.A. § 48-5-41 , the institution must have the sole purpose and activity of dispensing public charity. York Rite Bodies v. Board of Equalization, 261 Ga. 558 , 408 S.E.2d 699 (1991).

Character of a corporation, as disclosed by the corporation's charter provisions and other evidence, will be considered in determining whether the use of the property is such as to exempt the property from taxation. Tharpe v. Central Ga. Council of BSA, 185 Ga. 810 , 196 S.E. 762 (1938).

Effect of declarations in charter and of nonprofit and noncommercial status. - That the organization is nonprofit, is not used for commercial purposes, and the organization's charter declares the organization to be a charitable and benevolent institution, does not make the organization a charitable institution. Nor does the fact that the organization may serve a benevolent purpose make the organization such. Historic House Museum Corp. v. Camp, 223 Ga. 510 , 156 S.E.2d 361 (1967).

Institution's efforts properly found not purely charitable. - Such diffuse public benefit as promoting excellence and the highest safety standards within the commercial nuclear power industry was secondary to the immediate pecuniary benefit of the plaintiff's members, predominantly commercial suppliers, and their shareholders, in an industry generating $12 billion in net profits, and the superior court correctly determined that the plaintiff's efforts were not purely charitable. Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. 48 , 510 S.E.2d 844 (1999).

Property of a private firefighting service was exempt as a "purely public charity." Chatham County Bd. of Tax Assessors v. Southside Communities Fire Protection, Inc., 217 Ga. App. 361 , 457 S.E.2d 267 (1995).

Exemption of hospital neither chartered as charity nor using property or income exclusively as such. - When a hospital is not chartered as a purely public charity, and when the hospital's property is not put to use as purely public charity, and neither the hospital's income nor the hospital's surplus is used exclusively for purely public charity, the hospital does not bring itself within the strict requirements for the ad valorem tax exemption sought. St. Joseph Hosp. v. Bohler, 229 Ga. 577 , 193 S.E.2d 603 (1972).

Tax exemption for health services corporation. - When appellee health services corporation offered evidence that the corporation provided the corporation's services to all in need, not just to those who could pay and evidence that, while most patients had some source of funds, their needs often exceeded those sources, and they were treated as uncompensated patients, some evidence supported the jury's verdict that the corporation qualified for a tax exemption as an institution of "purely public charity" under O.C.G.A. § 48-5-41(a)(4); thus, the appellant tax board's motions for a directed verdict against the corporation or for judgment notwithstanding the verdict were properly denied. Fulton County Bd. of Tax Assessors v. Visiting Nurse Health Sys. of Metro. Atlanta, Inc., 256 Ga. App. 475 , 568 S.E.2d 798 (2002).

That residents of an institution pay rent according to the residents' ability to pay does not destroy the charitable nature of the institution. Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

That residents of an inn for the elderly are charged rental toward operating expenses does not necessarily destroy the charitable nature of the institution, especially if payments made by the residents are insufficient to cover the direct operating expenses of the inn and all income is used for operation, maintenance, and enlarging the facilities, with no part of its income being distributed to any person with an interest therein. Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403 , 170 S.E.2d 709 (1969).

Effect of Act which expressly exempted hospitals of purely public charity. - When, by enacting former Code 1933, § 92-201 (see now O.C.G.A. § 48-5-41 ), the General Assembly exempted from taxation all of the property enumerated in Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) using the identical language there employed, it fully exhausted its constitutional power to make exemptions, and the amending Act, Ga. L. 1947, p. 1183, which expressly exempted from taxation all hospitals of purely public charity (see now O.C.G.A. § 48-5-40 ) added nothing to what the General Assembly had previously done by Ga. L. 1946, p. 12, § 1. Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489 , 53 S.E.2d 751 (1949) (commented on in 1 Mercer L. Rev. 111 (1949).

Hospital exempt when all income used for maintenance, operations, and furtherance of charitable purposes. - When a hospital is organized for charitable purposes, and uses all of the hospital's income from all sources, including income from pay patients, exclusively for maintenance, operation, enlarging the hospital's charitable facilities, and for furtherance of the hospital's charitable purposes, with no part of the same distributable to anyone having an interest therein, it is exempt within the meaning of Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV), an interpretation of that constitutional provision which accords with the intention of the framers of that document as shown in the Records of the Constitutional Commission 1943-1944, Vol. I, pp. 138-141, 388-395, 397, 528-531; Vol. II, pp. 58-59. Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489 , 53 S.E.2d 751 (1949), (commented on in 1 Mercer L. Rev. 111 (1949).

Home for mentally handicapped when private donations only a small percentage of income held not exempt. - Since over 70 percent of the operating costs of a home for mentally handicapped persons comes from the government or client fees, and private donations account for only 15 percent of the expenditures of the home, and since the families or residents or government agencies pay monthly fees on behalf of each resident, it is not sufficiently "public" in nature to be considered an institution of purely public charity. Annandale at Suwanee, Inc. v. Gwinnett County Bd. of Tax Assessors, 242 Ga. 241 , 248 S.E.2d 640 (1978).

Exempt status of hospital when proportion of paying patients vastly greater than charitable patients. - When a hospital receives charitable patients without pay but the hospital also charges for patients able to pay, the proportion being vastly in favor of the latter, the property in question is used for corporate income, and is not exempted from taxation. Richardson v. Executive Comm., 176 Ga. 705 , 169 S.E. 18 (1933).

Hospital which collects some patient fees and charges off uncollectable bills to charity held not exempt. - When a hospital is operated generally for profit, and while there is some evidence that the hospital does on occasion treat indigent patients, the general practice of the institution is to collect all that the institution can from the institution's patients, and only charge off as charity those bills the institution is unable to collect, the hospital is engaged principally for noncharitable purposes and apparently chiefly for the benefit of the institution's staff, and is not exempt from taxation. Central Bd. on Georgia Osteopathic Hosp. v. Alford, 217 Ga. 663 , 124 S.E.2d 402 (1962).

For a nursing home to be tax exempt, the nursing home must be purely charitable and public. Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627 , 171 S.E.2d 747 (1969).

Charges paid by Boy Scouts do not destroy charitable nature of that organization. - Under Georgia decisions, the fact that Boy Scouts are charged a sum sufficient only to pay for their food does not destroy the charitable nature of the institution nor prevent its exemption. Tharpe v. Central Ga. Council of BSA, 185 Ga. 810 , 196 S.E. 762 (1938).

Exemption of a headquarters facility available only to dues-paying members. - Use made of property sought to be exempt from ad valorem taxes is not such as could be said to be "purely public" charitable use when the property is a headquarters available only to those who pay dues. Georgia Congress of Parents & Teachers, Inc. v. Boynton, 239 Ga. 472 , 238 S.E.2d 113 (1977).

Legislative intent as to religious groups or institutions. - General Assembly did not intend that religious groups or institutions be considered charitable institutions for the purpose of this exemption. Presbyterian Ctr., Inc. v. Henson, 221 Ga. 750 , 146 S.E.2d 903 (1966).

Although religious institutions are, for some purposes, considered to be matters of charity, religious institutions are not necessarily considered such for all purposes, and the word "charity" itself is given a narrower meaning in tax exemption cases. Presbyterian Ctr., Inc. v. Henson, 221 Ga. 750 , 146 S.E.2d 903 (1966).

Since this statute elsewhere specifically exempts certain property owned by a seminary of learning and then exempts "all institutions of purely public charity," it appears that it was the intention of the drafters of the Constitution of Georgia that a seminary of learning not be considered as an institution of purely public charity for the purpose of this exemption. Rabun Gap-Nacoochee Sch. v. Thomas, 228 Ga. 231 , 184 S.E.2d 824 (1971).

Masons not qualified. - Although the Masons serve a benevolent purpose and pursue many public charities, because many of their activities and resources are used exclusively for the personal benefit of their group, it cannot be said that the group has the sole purpose and activity of dispensing public charity so as to qualify as a charitable institution for tax exemption under O.C.G.A. § 48-5-41(a)(4). Board of Equalization v. York Rite Bodies of Freemasonry, 209 Ga. App. 359 , 433 S.E.2d 299 (1993).

Home health care services organization was not a purely public charitable institution because the organization charged for services rendered, the amount of revenue generated suggested that the organization was not a purely public charity, and there was no evidence to support the conclusion that the organization used all the property at issue for charitable pursuits. Fulton County Bd. of Tax Assessors v. Visiting Nurse Health Sys. of Metro. Atlanta, Inc., 243 Ga. App. 64 , 532 S.E.2d 416 (2000).

Georgia School Board Association, a not for profit organization providing needed services to local school boards in exchange for fees and dues, is not a "purely public charity." Gwinnett County Bd. of Tax Assessors v. Georgia Sch. Bd. Ass'n, 211 Ga. App. 437 , 439 S.E.2d 666 (1994).

Garden center was not dispensing purely public charity because the evidence showed that the payment of member club dues and rent to the center resulted in the provision of substantial services and benefits not available to the general public. Cobb County Bd. of Tax Assessors v. Marietta Educ. Garden Ctr., Inc., 239 Ga. App. 740 , 521 S.E.2d 892 (1999).

Home for the aged exemption. - Ministry was entitled to a "home for the aged" exemption under O.C.G.A. § 48-5-41(a)(12)(A) as the ministry met all of the statutory conditions and there was no requirement that the home had to be a separate tax exempt corporation from the tax exempt organization that operated both a home for the aged and other tax exempt operations, such as a church, a radio ministry, and a counsel center. A Georgia nonprofit tax exempt corporation may receive tax exemption from ad valorem taxes when the corporation operates a home for the aged exclusively or when the corporation operates a home for the aged as well as other tax exempt activities. Lamad Ministries, Inc. v. Dougherty County Bd. of Tax Assessors, 268 Ga. App. 798 , 602 S.E.2d 845 (2004).

Memorial foundation exempt from ad valorem taxation. - Court of appeals erred in reversing an order affirming a decision of a county board of equalization to grant a memorial foundation an exemption from ad valorem taxation for the property on which the foundation's facility was located because the foundation established that the foundation qualified as a purely public charity pursuant to O.C.G.A. § 48-5-41(a)(4) and fulfilled the requirements in O.C.G.A. § 48-5-41(c) , (d)(1), and (2). The property the foundation owned was devoted entirely to charitable purposes; the charitable purposes of the foundation were for the benefit of the public, the foundation qualified as a purely public charity, the foundation provided evidence that all income obtained from the property was used in furtherance of the foundation's charitable services or to offset expenses incurred in the maintenance of the organization's property, and no part of the foundation's income was being distributed to any person with an interest therein. Nuci Phillips Mem. Found. v. Athens-Clarke County Bd. of Tax Assessors, 288 Ga. 380 , 703 S.E.2d 648 (2010).

Educational Institutions

It is the use of the property which renders the property exempt or nonexempt, not the use of the income derived from the property. Elder v. Atlanta-Southern Dental College, 183 Ga. 634 , 189 S.E. 254 (1936).

Discretion of institution as to what is necessary and proper to further the institution's objectives. - Some discretion must be given to the governing authorities of the institution to determine what buildings are necessary or proper to further their educational objectives. Elder v. Trustees of Atlanta Univ., 194 Ga. 716 , 22 S.E.2d 515 (1942).

Use of property controls over declarations in charter in determining taxability. - Use to which property of an educational institution is put, rather than the declaration of the institution's purpose found in the institution's charter, determines the question of exemption from taxation. Rabun Gap-Nacoochee Sch. v. Thomas, 228 Ga. 231 , 184 S.E.2d 824 (1971).

Effect of fees charged and used for institution. - Grounds, buildings, and other property occupied and used by the owner or owners thereof for conducting a college or school, for attendance upon which charges for board and tuition are arbitrarily made without any reference to the actual cost of conducting the school, are subject to taxation. Mundy v. Van Hoose, 104 Ga. 292 , 30 S.E. 783 (1898).

All buildings erected for and used as a college, incorporated academy, or other seminary of learning are exempt from taxation, even if in the operation of the institution, income is derived from tuition fees, since the fees themselves are not used for the purpose of private or corporate profit or income, but are appropriated to the maintenance of the institution. Linton v. Lucy Cobb Inst., 117 Ga. 678 , 45 S.E. 53 (1903); Brewer v. American Missionary Ass'n, 124 Ga. 490 , 52 S.E. 804 (1905).

Effect of right to convey property at will and make any desired use of income. - Property of a corporation having a capital stock formed for the business of conducting an educational institution, and which has the absolute ownership of all the realty and personalty employed in such enterprise, with the right to convey it at will and to make any desired disposition of the income derived from the fees charged for tuition and board is not exempt from taxation. Brenau Ass'n v. Harbison, 120 Ga. 929 , 48 S.E. 363 , 1 Ann. Cas. 836 (1904).

Institution for education of poor boys and girls. - Property of an institution for the education of worthy but poor boys and girls, instructing the boys and girls in general educational and agricultural subjects, if used for purely religious, charitable, and educational purposes, is not taxable, provided the institution's income is not used, nor intended to be used, as dividends or profits. City of Waycross v. Waycross Sav. & Trust Co., 146 Ga. 68 , 90 S.E. 382 (1916); See also, Hurlbutt Farm v. Medders, 157 Ga. 258 , 121 S.E. 321 (1924); Baggett v. Georgia Conference Ass'n of Seventh Day Adventists, 157 Ga. 488 , 121 S.E. 838 (1924).

Exemption of college fraternity houses. - Fraternity houses are buildings erected for and used as a college, and not used for the purpose of making either private or corporate income or profit for the university. The law of this state says that fraternity houses shall be exempt from taxes. Alford v. Emory Univ., 216 Ga. 391 , 116 S.E.2d 596 (1960).

Private corporation operating a fraternity on land owned in fee simple by that corporation was not entitled to the same tax exemptions as those fraternities and sororities located on real property belonging to the "college," and therefore constitutional equal protection rights were not implicated. Zach, Inc. v. Fulton County, 235 Ga. App. 478 , 509 S.E.2d 746 (1998), aff'd, 271 Ga. 411 , 520 S.E.2d 899 (1999).

Exemption found in paragraph (a)(6) of O.C.G.A. § 48-5-41 applies only to residential property owned by an educational institution or an "arm or extension" and did not apply to property owned by a company for use as a fraternity house. Zach, Inc. v. Fulton County, 271 Ga. 411 , 520 S.E.2d 899 (1999), affirming Zach, Inc. v. Fulton County, 235 Ga. App. 478 , 509 S.E.2d 746 (1998).

Residential buildings on university property. - When the university owns the property, residential buildings thereon may be "used as a college" and qualify for ad valorem tax exemption under paragraph (a)(6) of O.C.G.A. § 48-5-41 . Johnson v. Southern Greek Hous. Corp., 251 Ga. 544 , 307 S.E.2d 491 (1983).

Exemption of fraternity and sorority houses. - Property of nonprofit corporation, organized as an instrument of a state university, used to erect fraternity and sorority houses was exempt from ad valorem taxation under paragraph (a)(6) of O.C.G.A. § 48-5-41 . Johnson v. Southern Greek Hous. Corp., 251 Ga. 544 , 307 S.E.2d 491 (1983).

Private, nonprofit corporation owning a fraternity house on a college campus was not an "arm or extension" of the college and was not entitled to an ad valorem tax exemption. Zach, Inc. v. Fulton County, 226 Ga. App. 842 , 487 S.E.2d 602 (1997).

Term "seminary of learning," as applied in its general meaning, does not exclude an institution such as the Mechanical Trades Institute. J.A.T.T. Title Holding Corp. v. Roberts, 258 Ga. 519 , 371 S.E.2d 861 (1988).

Taxation of grounds and buildings. - While an educational institution may be exempt, some of the institution's grounds and buildings may be taxed if those grounds or buildings generate a private profit. J.A.T.T. Title Holding Corp. v. Roberts, 258 Ga. 519 , 371 S.E.2d 861 (1988).

Building used by aspiring artists to develop their abilities by practicing their craft did not qualify for a tax exemption. Atlanta Artists Ctr., Inc. v. Fulton County Bd. of Assessors, 245 Ga. App. 253 , 537 S.E.2d 701 (2000).

Farm Products

Obvious intent of the exemption for farm products is to relieve the farmer by giving the farmer a year after harvest in which to sell the farmer's products; therefore, during that period until the farmer sells the farmer's products, the farmer is exempt from ad valorem taxation thereupon. Gold Kist, Inc. v. Jones, 231 Ga. 881 , 204 S.E.2d 584 (1974).

Effect upon other laws. - Exemption does not change the general rule and policy of the state that personal property is taxable only at the domicile of the owner if a resident of this state. City of Blakely v. Hilton, 150 Ga. 27 , 102 S.E. 340 (1920).

No exemption for farm products sold or transferred for future sale. - Language of this statute does not contemplate an exemption for farm products either after an outright sale, or when placed in the hands of another for future sale or processing with advance payment to the producer. Gold Kist, Inc. v. Jones, 231 Ga. 881 , 204 S.E.2d 584 (1974).

Farm products may be levied on and sold for taxes due on other property. - Farm products which are themselves exempt from taxation may nevertheless be levied on and sold for taxes due upon other property of the same owner. Sumter County v. Hollis, 51 Ga. App. 410 , 180 S.E. 750 (1935).

Farm products already sold to a bona fide purchaser not subject to levy and sale. - While farm products which are themselves exempt from taxation for the next year after their production may nevertheless be levied on and sold for taxes due upon other property of the same owner, the products are not subject to such levy when there was a bona fide sale of the products by the grower to a third person within the exempted period, and if the fi. fa. against the producer was levied on the products after such sale. Sumter County v. Hollis, 51 Ga. App. 410 , 180 S.E. 750 (1935).

Taxability presumed if product not ordinarily classified as farm product. - Since according to its usual signification, the term "lumber" would not ordinarily be classified as a farm product; it would be presumed prima facie that it was not such a product and in the circumstances, it was not sufficient to allege in mere general terms that this lumber was a farm product and as such exempt from taxation. Collins v. Mills, 198 Ga. 18 , 30 S.E.2d 866 (1944).

For effect of failure to allege crop was grown by holder or upon holder's land, see City of Blakely v. Hilton, 150 Ga. 27 , 102 S.E. 340 (1920).

Hospitals

Home health care organization was not a hospital for purposes of exemption from ad valorem taxes. Fulton County Bd. of Tax Assessors v. Visiting Nurse Health Sys. of Metro. Atlanta, Inc., 243 Ga. App. 64 , 532 S.E.2d 416 (2000).

Whether hospital authority's property public depended on purpose. - Two bond validation orders pertaining to a hospital authority's establishment of a continuing care retirement center did not conclusively determine, for purposes of O.C.G.A. § 48-5-41(a)(1)(A), that the property was public property exempt from ad valorem taxation; remand was required for the trial court to address taxability. Columbus Board of Tax Assessors v. Medical Ctr. Hosp. Auth., 302 Ga. 358 , 806 S.E.2d 525 (2017).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Editor's notes. -.

Effect of claim of two or more similar exemptions. - If a taxpayer is qualified for and chooses to invoke the benefits of any one of the exemptions from any one of the types of ad valorem taxes, the taxpayer necessarily triggers the limitation clause of that exemption. Any attempt to take two or more similar exemptions would violate the limitation clause of each of the exemptions and cannot be done. 1974 Op. Att'y Gen. No. U74-83.

Corporation organized for both exempt and nonexempt purposes is not entitled to property tax exemption. 1960-61 Op. Att'y Gen. p. 515.

Effect of owner's character in determining use to which property put. - Owner's character, while not controlling, does play an important part in determining the nature of the use to which property is put. 1962 Op. Att'y Gen. p. 495.

Exemption of property owned by a mutual fund. - Neither former Code 1933, § 92-201 (see now O.C.G.A. § 48-5-41 ), Ga. L. 1937-38, Ex. Sess., p. 156, § 4 (see now O.C.G.A. § 48-6-27 (now repealed)), nor Ga. Const. 1945, Art. VII, Sec. I, Para. V (see now Ga. Const. 1983, Art. VII, Sec. I, Para. V) exempt from ad valorem taxation taxable property owned by a mutual fund. 1968 Op. Att'y Gen. No. 68-195.

Intangibles belonging to the trust fund administered by the Peace Officers' Association of Georgia are exempt from ad valorem taxes imposed by Georgia Law upon intangibles. 1967 Op. Att'y Gen. No. 67-338.

Discussion of what educational and religious institution property is exempt from taxation. - See 1952-53 Op. Att'y Gen. p. 181.

Public Property

.

Taxation of property transferred to municipality after January 1. - Property returned for taxation on January 1 and later sold to a municipality is not subject to be levied on for taxes in the hands of the municipality. 1954-56 Op. Att'y Gen. p. 680.

Liability for taxes on condemned property. - Under the law of eminent domain as the law now exists in this state, the payment of city or county taxes is not a proper element of damages in a condemnation case. The payment of property taxes is a responsibility of the landowner only so long as the landowner, in fact, owns the property. The property owner or condemnee would be responsible for payment of taxes up to the date of taking. After that time, the responsibility for the payment of these taxes would lie upon the condemning body, if in fact that body is an entity which would have the responsibility for payment of these taxes; all public property, however, is exempt from taxation by virtue of this statute. 1969 Op. Att'y Gen. No. 69-494.

Georgia Development Authority is exempt from the intangibles tax on its property, including its direct long term mortgage notes. The holder of long term mortgage notes is not exempt from paying intangibles tax on those notes when the Georgia Development Authority merely guarantees or insures payment. 1963-65 Op. Att'y Gen. p. 31.

Property held by the various agricultural commodity commissions is public property within the meaning of this statute and is exempt from taxation. 1977 Op. Att'y Gen. No. 77-29.

Exemption of property of the Agricultural Commodity Commission for Peanuts. - Property owned by the Agricultural Commodity Commission for Peanuts, a public corporation and an instrumentality of the state according to Ga. L. 1961, p. 301, § 8 (see now O.C.G.A. § 2-8-15 ), is public property, not used for the purpose of private or corporate profit and income and, therefore, it is exempt under former Code 1933, § 92-201 (see now O.C.G.A. § 48-5-41 ) from city and county ad valorem taxes. 1963-65 Op. Att'y Gen. p. 390.

Georgia Regional Hospital at Atlanta is not subject to DeKalb County property taxation because the hospital is owned by the state. 1970 Op. Att'y Gen. No. 70-205.

Corporation organized under the Cooperative Marketing Act, Ga. L. 1921, p. 139, § 1 (see now O.C.G.A. Art. 3, Ch. 10, T. 2), is required to make ad valorem tax returns. 1952-53 Op. Att'y Gen. p. 180.

Places of Religious Worship

.

Church is exempt from municipal taxes. 1945-47 Op. Att'y Gen. p. 414.

Land owned by a religious organization is exempt from taxation so long as the land is used for religious worship or as a recreational park for purely public charity. 1954-56 Op. Att'y Gen. p. 716.

Exemption of land leased for commercial purposes. - Land owned by a religious organization, which is normally tax exempt, is subject to taxation when leased for commercial purposes. 1954-56 Op. Att'y Gen. p. 716.

Exemption of camps for physical, mental, moral, and spiritual development of children. - Camp operated for the physical, mental, moral, and spiritual growth and development of young boys and girls is dedicated to a charitable use. That use is public if the camp is open to boys and girls generally or to all those of a particular religious faith. The fact that a charge is made does not destroy the charitable nature of the camp, provided the following conditions are met: (1) the camp property must not be used for the primary purpose of producing income; (2) any income received from the camp's use must be used exclusively for camp operation and maintenance; (3) such income must not be distributed to shareholders in the corporation owning camp, if owned by a corporation, or to other owners if not owned by a corporation; and (4) if the property was donated, the donation must not have been based upon an agreement providing that the donor shall receive any part of the net or gross income from the property's use. 1962 Op. Att'y Gen. p. 495.

Camp grounds owned and operated by Conference of Seventh-Day Adventists are exempt from taxation as an institution of purely public charity. 1962 Op. Att'y Gen. p. 499.

Motor vehicles owned by churches are not exempt from taxation. - 1957 Op. Att'y Gen. p. 287.

Cars used for transportation to and from church functions are not places of religious worship, and are, therefore, not exempt from state, county, and municipal property taxes. 1963-65 Op. Att'y Gen. p. 464.

Motor vehicles furnished by religious groups to ministers are not exempt from taxation. 1962 Op. Att'y Gen. p. 507.

Cemeteries

.

Cemeteries are exempt from property taxation, including land not yet sold as burial lots. 1960-61 Op. Att'y Gen. p. 474.

Character of owner as affecting exemption of cemetery property. - Property utilized as a cemetery or place of burial is exempt from taxation without regard for the fact that the property is owned by either a public or private corporation, or by individuals, collectively or severally. 1975 Op. Att'y Gen. No. U75-15.

Residences Owned by Religious Groups

.

Exemption of more than one residence. - Single family residence owned by a church is exempt from ad valorem taxes as long as no income is derived therefrom; the same rule applies when the church owns two or more residences. 1970 Op. Att'y Gen. No. U70-172.

Two single-family residences owned by a church, one of which is occupied rent-free by the pastor as the pastor's residence, and the other of which is occupied rent-free by the minister of education as that minister's residence, are both exempt from ad valorem taxes. 1970 Op. Att'y Gen. No. U70-94.

Trailer owned by a church, situated on church land, and used as a parsonage, is exempt from taxation. 1954-56 Op. Att'y Gen. p. 715.

Institutions of Purely Public Charity

.

Description in charter that an institution is charitable is not necessarily controlling; institution's tangible personal property is taxable when it appears proceeds may inure to the benefit of private person. 1962 Op. Att'y Gen. p. 523.

Exemption of fraternal organizations. - Fraternal organizations, such as American Legion, Veterans of Foreign Wars, and Moose are not exempt from payment of ad valorem taxes since they are not purely charitable organizations. 1962, Op. Att'y Gen. p. 481; 1962 Op. Att'y Gen. p. 501.

Masonic hall is exempt from state and county taxation. 1954-56 Op. Att'y Gen. p. 715.

Uses to which American Legion clubhouses are normally put are neither exclusively charitable nor public in nature. 1962 Op. Att'y Gen. p. 495.

American Legion clubs are not institutions of purely public charity as contemplated by this statute and, therefore, are not exempt from taxation. 1950-51 Op. Att'y Gen. p. 154; 1958-59 Op. Att'y Gen. p. 338.

Hall used to carry on normal activities of a fraternal benefit society is not exempt under this statute. 1962 Op. Att'y Gen. p. 495.

Test as to taxation of property belonging to private clubs depends upon property's use. - If the property itself is dedicated to and used for purely public charity, the property is not taxable, but if the property is used for purposes other than purely public charity, the property is taxable. 1958-59 Op. Att'y Gen. p. 338.

Exemption of property used for social purposes. - When the property of an organization, the nature of which is in part social, is used for social purposes, the property is not exempt since the property furthers the interest of the organization's members even though the property incidentally serves the community. 1969 Op. Att'y Gen. No. 69-392.

That a community swimming pool is operated by a nonprofit corporation does not authorize a municipality to exempt the facility from ad valorem taxes when the facility is not used as a purely public charity. The mere nonprofit nature of the operation is not sufficient to exempt the operation under this statute. 1971 Op. Att'y Gen. No. U71-46.

Exemption of fraternity houses. - Although a corporation's petition for charter describes the corporation as an institution of purely public charity, the corporation's property is not exempt from taxation under this statute, the property involved being a dwelling purchased for use as a place of residence by members of the local chapter of a Greek letter college fraternity, its use and occupancy being limited to those who are active members of the fraternity, who become members by invitation, and each member of the local chapter who resides at such chapter house paying to the local chapter a monthly fee for room and board, which charge is identical with the charges made by the educational institution at which such chapter is located for the use of its dormitories, where meals are furnished as well as rooms. 1958-59 Op. Att'y Gen. p. 338.

Nonprofit corporation which charges for furnishing housing to service organizations, the receipts from which are used for maintenance and mortgage payments, is not a public charity as to be exempt from city and county ad valorem taxes. 1970 Op. Att'y Gen. No. U70-34.

Educational Institutions

.

When a motel owned by a college is held or used as an endowment, such property is not exempt from ad valorem taxation because it is invested in real estate. 1969 Op. Att'y Gen. No. 69-362.

Farm Products

.

Term "farm products" is not limited to products of the soil, but also encompasses livestock and poultry, including laying hens, which are commonly regarded as agricultural products; such products are exempt from taxation so long as they meet other criteria of this statute. 1969 Op. Att'y Gen. No. 69-359.

"Farm products" does not include buildings and equipment used in farm operations. - Chickens, eggs, and honey are exempt from taxation for the year next after their production. However, the buildings and equipment used in these operations are not exempt from taxation. 1962 Op. Att'y Gen. p. 481.

When corporation buys eggs from third parties and sells the eggs to the public, the eggs would not be exempt from taxation because the eggs did not remain in the hands of the producer but were purchased from the producer by that corporation. 1967 Op. Att'y Gen. No. 67-159.

When corporation leases farms on which laying hens owned by the corporation are kept, and the farmer-lessor cares for the hens and oversees the egg production, but the farmer receives for the farmer's services a salary which is not dependent on egg production or price, the eggs are not subject to ad valorem taxation when in the hands of that corporation. 1967 Op. Att'y Gen. No. 67-159.

When corporation owns hens, and keeps the hens on the corporation's lands, and hires individuals to oversee the hens, the eggs would be exempt from ad valorem taxation for the year next after production. 1967 Op. Att'y Gen. No. 67-159.

Farm products in the hands of warehousemen who are not producers are not exempt from property taxation. 1969 Op. Att'y Gen. No. 69-283.

Baled cotton stored in a warehouse and owned by a warehouseman on January 1 is subject to ad valorem taxation. 1952-53 Op. Att'y Gen. p. 429.

Exemption of farm products owned by producer and stored by federal government. - Since farm products in the hands of the producer, within the year next after their production, and all property within the scope of federal ownership are exempt from taxation, farm products owned by the producer and stored by the federal government are not within the classification of properties taxable by a municipal corporation. 1963-65 Op. Att'y Gen. p. 238.

No exemption for agricultural property. - Municipality does not have the authority to exempt from city taxes real property located within the municipality's corporate limits and held for agricultural purposes. 1984 Op. Att'y Gen. No. U84-21.

Antipollution Equipment

.

Eligibility for exemption to be determined from all circumstances, not merely expressed intent. - Question of whether or not the property was installed or constructed for the primary purpose of reducing or eliminating air or water pollution rather than primarily for another purpose, such as increasing production, is not to be determined solely from the expressed intention of the taxpayer, but from all the circumstances of the case. The dominant purpose of the taxpayer is to be considered. 1969 Op. Att'y Gen. No. 69-325.

Incidental intent to control pollution insufficient for exemption. - Board of tax assessors must exempt property used in or as part of any facility which has been certified by a pollution control agency as necessary and adequate to eliminate or reduce air or water pollution, if the board of tax assessors finds from all the circumstances surrounding the case that the facility was installed for the primary purpose of eliminating or reducing pollution. If the board finds that the facility, even though certified, was not installed or constructed for that primary purpose, but for another purpose, such as increasing production with only an incidental intent to control pollution, then it must find that the exemption does not apply. 1969 Op. Att'y Gen. No. 69-325.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 234 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 293 et seq., 334 et seq.

ALR. - Necessity of acceptance of dedicated street to relieve it from taxation, 5 A.L.R. 1537 .

Taxation: exemption of parsonage or residence of minister or priest, 13 A.L.R. 1196 .

Construction of exemption of religious body or society from taxation or special assessment, 17 A.L.R. 1027 .

Exemption from taxation of property of fraternal or relief association, 22 A.L.R. 907 ; 83 A.L.R. 773 .

Exemption from taxation of property of labor organization, 23 A.L.R. 813 ; 172 A.L.R. 1070 .

Exemption of charitable organization from taxation or special assessment, 34 A.L.R. 634 ; 62 A.L.R. 328 ; 108 A.L.R. 284 .

Bond or warrant of governmental subdivision as subject of taxation or exemption, 44 A.L.R. 510 .

State or political subdivision as subject to license or sales tax, 60 A.L.R. 878 ; 67 A.L.R. 1310 ; 159 A.L.R. 365 .

Exemption from taxation of the property of a Y.M.C.A. or Y.W.C.A., 81 A.L.R. 1453 .

Property of one municipality within territorial limits of another as subject to taxation by latter, 81 A.L.R. 1518 ; 99 A.L.R. 1143 .

Injunction as proper remedy against tax on exempt property, 84 A.L.R. 1315 .

What are educational bodies or schools within contemplation of tax exemption provision, 95 A.L.R. 62 .

Reservation of option or conditions in conveyance which may operate to defeat or extinguish title of exempt grantee as affecting exemption of real estate from taxation, 98 A.L.R. 1372 .

Property located in one state, political subdivision, or municipality, but belonging to another, as subject to taxation therein, 99 A.L.R. 1143 .

Cooperative corporations or associations formed by producers of agricultural products as within provisions of taxing statute regarding agricultural products or producers, 100 A.L.R. 439 .

Who as between grantor and grantee, immediate or remote, is entitled to refund of tax or assessment for public improvement against land, 105 A.L.R. 698 .

Exemption of charitable organization from taxation or special assessment, 108 A.L.R. 284 .

What is a municipal corporation within constitutional or statutory tax exemption provisions, 108 A.L.R. 577 .

Tax exemption as affected by failure to claim or delay in claiming it for past years, 115 A.L.R. 1484 .

Exemption from taxation of property of Boy Scout or Girl Scout organization, 116 A.L.R. 378 .

Exemption of part of real property assessed or levied upon as a whole as affecting tax upon nonexempt part, 118 A.L.R. 861 .

Taxation of property owned by public body but not devoted to public or governmental use, 129 A.L.R. 480 .

Exemption of property or bonds of housing authority from taxation, 133 A.L.R. 365 ; 152 A.L.R. 239 .

Extent of area within tax exemption extended to property used for educational, religious, or charitable purposes, 134 A.L.R. 1176 .

Tax exemption of educational institutions as extending to athletic fields or property used for social or recreation purposes, 143 A.L.R. 274 .

Hospital as within tax exemption provision not specifically naming hospitals, 144 A.L.R. 1483 .

Tax exemption of property as affecting its inclusion in determining requisite consent of property owners to annexation territory, local improvement, bond issue, and other public activity, 146 A.L.R. 1260 .

Tax exemption of property of religious, educational, or charitable body as extending to property or income thereof used for publication or sale of literature, 154 A.L.R. 895 .

Distinction between governmental and proprietary functions of state or its agency as affecting taxation, 155 A.L.R. 423 .

Equitable title under executory contract for purchase of real property as sustaining exemption from taxation, 156 A.L.R. 1301 .

Exemption of part of building or part of its value from taxation, 159 A.L.R. 685 .

Property acquired by a taxing unit for delinquent taxes as exempt from taxation by another taxing unit, 162 A.L.R. 1119 .

Tax on property held under executory contract with exempt vendor, 166 A.L.R. 595 .

Scope and application of exemption of cemeteries from taxation, 168 A.L.R. 283 .

Consent to state taxation of federal property or instrumentalities as affecting exemption thereof under provision of State Enabling Act, Constitution, or statute, 168 A.L.R. 547 .

Construction of exemption of religious body or society from taxation or special assessment, 168 A.L.R. 1222 .

What is within tax exemption of machinery, tools, apparatus, etc., used in manufacturing, 172 A.L.R. 313 .

Exemption from taxation of property of labor organization, 172 A.L.R. 1070 .

Property used by personnel as living quarters or for recreation purposes as within contemplation of tax exemptions extended to property of religious, educational, charitable, or hospital organizations, 15 A.L.R.2d 1064; 55 A.L.R.3d 356; 55 A.L.R.3d 485; 61 A.L.R.4th 1105.

Exemption from taxation of municipally owned or operated stadium, auditorium, and similar property, 16 A.L.R.2d 1376.

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

What is a "scientific institution" within property tax exemption provisions, 34 A.L.R.2d 1221.

Tax exemption of real property as affected by time of acquisition of title by private owner entitled to exemption, 54 A.L.R.2d 996.

Exemption from taxation of college fraternity or sorority house, 66 A.L.R.2d 904.

Property used as dining rooms or restaurants as within tax exemptions extended to property of religious, educational, charitable, or hospital organizations, 72 A.L.R.2d 521.

Exemption from taxation of property of agricultural fair society or association, 89 A.L.R.2d 1104.

Exemption of public school property from assessments for local improvements, 15 A.L.R.3d 847.

Garage or parking lot as within tax exemption extended to property of educational, charitable, or hospital organizations, 33 A.L.R.3d 938.

Receipt of pay from beneficiaries as affecting tax exemption of charitable institutions, 37 A.L.R.3d 1191.

Tax exemption of property used by fraternal or benevolent association for clubhouse or similar purposes, 39 A.L.R.3d 640.

Prospective use for tax-exempt purposes as entitling property to tax exemption, 54 A.L.R.3d 9.

Availability of tax exemption to property held on lease from exempt owner, 54 A.L.R.3d 402.

Taxation: exemption of parsonage or residence of minister, priest, rabbi, or other church personnel, 55 A.L.R.3d 356.

Property tax: exemption of property leased by and used for purposes of otherwise tax-exempt body, 55 A.L.R.3d 430.

Tax exemption of property of educational body as extending to property used by personnel as living quarters, 55 A.L.R.3d 485.

Validity and construction of statute or ordinance allowing tax exemption for property used in pollution control, 65 A.L.R.3d 434.

What constitutes church, religious society, or institution exempt from property tax under state constitutional or statutory provisions, 28 A.L.R.4th 344.

What are educational institutions or schools within state property tax exemption provisions, 34 A.L.R.4th 698.

Exemption of public golf courses from local property taxes, 41 A.L.R.4th 963.

Exemption of nonprofit theater or concert hall from local property taxation, 42 A.L.R.4th 614.

Property tax: Effect of tax-exempt lessor's reversionary interest on valuation of nonexempt lessee's interest, 57 A.L.R.4th 950.

Exemption from real-property taxation of residential facilities maintained by hospital for patients, staff, or others, 61 A.L.R.4th 1105.

Nursing homes as exempt from property taxation, 34 A.L.R.5th 529.

When is property owned by state or local governmental body put to public use so as to be eligible for property tax exemption, 114 A.L.R.5th 561.

48-5-41.1. Exemption of qualified farm products and harvested agricultural products from taxation.

  1. As used in this Code section, the term:
    1. "Agricultural equipment" means farm tractors, combines, and all other farm equipment other than motor vehicles, whether fixed or mobile, which are owned by or held under a lease-purchase agreement and directly used in the production of farm products by a family owned qualified farm products producer.
    2. "Family owned farm entity" means a family corporation, a family partnership, a family general partnership, a family limited partnership, a family limited corporation, or a family limited liability company all of the interest of which is owned by one or more natural or naturalized citizens related to each other within the fourth degree of civil reckoning. It shall include an estate of which the devisees or heirs are one or more natural or naturalized citizens related to each other within the fourth degree of civil reckoning. It shall include a trust of which the beneficiaries are one or more natural or naturalized citizens related to each other within the fourth degree of civil reckoning. Such family owned farm entity must have derived 80 percent or more of its gross income from bona fide agricultural uses within this state within the year immediately preceding the year in which the exemption provided by this Code section is sought.
    3. "Family owned qualified farm products producer" means an individual or family owned farm entity primarily engaged in the direct cultivation of the soil, including soil removed from the land and placed in pots or containers, or operation of land for the production of qualified farm products. A family owned qualified farm products producer shall not include wholesalers, distributors, storage facility owners, manufacturers, processors, or other similar entities that primarily prepare qualified farm products for any intermediate or final market or that primarily operate to move or facilitate the movement of qualified farm products from a producer to any intermediate or final markets.
    4. "Farm products" means only those farm products eligible to qualify for exemption from ad valorem taxation pursuant to the former provisions of paragraph (10) of subsection (a) of Code Section 48-5-41 as it existed prior to January 1, 1999.
    5. "Harvested agricultural products" means only those harvested agricultural products eligible to qualify for exemption from ad valorem taxation pursuant to the former provisions of paragraph (10) of subsection (a) of Code Section 48-5-41 as it existed prior to January 1, 1999.
    6. "Initial production" means:
      1. When applied to a laying hen, a period beginning at the time the laying hen comes into production at age six months rather than a period beginning when the laying hen is hatched; or
      2. When applied to a brood cow, a period of nine months from the time the brood cow is able to conceive at age 12 months rather than a period beginning when the brood cow is born.
    7. "Lease-purchase agreement" means a financing agreement under which lessee payments are credited toward the purchase of agricultural equipment or that provides for a fixed amount purchase option to a lessee during the lease term. Under a lease-purchase agreement the title of ownership may remain with the lessor during the lease.
    8. "Producer" means any entity that produces farm products.
    9. "Qualified farm products" means livestock; crops; fruit or nut bearing trees, bushes, or plants; annual and perennial plants; Christmas trees; and plants and trees grown in nurseries for transplantation elsewhere. Qualified farm products shall not include standing timber.
  2. The following property shall be exempt from all ad valorem property taxes in this state:
    1. All farm products grown in this state and remaining in the hands of the producer during the one year beginning immediately after their initial production;
    2. Harvested agricultural products which have a planting-to-harvest cycle of 12 months or less, which are customarily cured or aged for a period in excess of one year after harvesting and before manufacturing, and which are held in this state for manufacturing and processing purposes;
    3. All qualified farm products grown in this state:
      1. Remaining in the hands of a family owned qualified farm products producer;
      2. Still in their natural and unprocessed condition, unless processed solely for further use in the production of other qualified farm products; and
      3. Not held for direct retail sale by someone other than the original family owned qualified farm products producer; and
    4. Agricultural equipment. (Code 1981, § 48-5-41.1 , enacted by Ga. L. 1998, p. 1150, § 3; Ga. L. 1999, p. 81, § 48; Ga. L. 2000, p. 950, § 1; Ga. L. 2001, p. 887, § 1; Ga. L. 2005, p. 140, § 1/HB 203; Ga. L. 2015, p. 947, § 1/HB 374; Ga. L. 2017, p. 482, § 1/HB 290.)

The 2015 amendment, effective July 1, 2015, added paragraph (c)(1) and designated the previously existing provisions of subsection (c) as paragraph (c)(2).

The 2017 amendment, effective July 1, 2017, added paragraph (a)(1); redesignated former paragraphs (a)(1) through (a)(5) as present paragraphs (a)(2) through (a)(6), respectively; added paragraph (a)(7); redesignated former paragraphs (a)(6) and (a)(7) as present paragraphs (a)(8) and (a)(9), respectively; deleted "and" at the end of paragraph (b)(2); substituted "; and" for a period at the end of subparagraph (b)(3)(C); added paragraph (b)(4); and deleted subsection (c), which read: "(c)(1) As used in this subsection, the term 'lease purchase agreement' means a financing agreement under which:

"(A) A family owned qualified farm products producer has possession and control of farm tractors, combines, or other farm equipment other than motor vehicles equipment and uses such farm equipment directly in the production of agricultural products; and

"(B) The payments made pursuant to such financing agreement are credited towards the purchase of such farm equipment.

"(2) Farm tractors, combines, and all other farm equipment other than motor vehicles, whether fixed or mobile, which are owned by or held under a lease purchase agreement and directly used in the production of agricultural products by family owned qualified farm products producers shall be exempt from all ad valorem property taxes in this state."

Editor's notes. - Ga. L. 1998, p. 1150, § 4, not codified by the General Assembly, provides that the Act is applicable to taxable years beginning on or after January 1, 1999.

The state-wide referendum (Ga. L. 1998, p. 1150) which exempted from ad valorem taxation livestock, crops, fruit or nut bearing trees, bushes, or plants; annual and perennial plants; Christmas trees, and plants and trees grown in nurseries for transplantation, was approved by a majority of the qualified voters voting at the November, 1998 general election.

The state-wide referendum (Ga. L. 2000, p. 950, § 2) which added subsection (c) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

The state-wide referendum (Ga. L. 2005, p. 140, § 2) which inserted language in subsection (c) was approved by a majority of the qualified voters voting at the general election held on November 7, 2006.

Law reviews. - For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 289 (2001).

48-5-41.2. Exemption from taxation of personal property in inventory for business.

All tangible personal property constituting the inventory of a business shall be exempt from state ad valorem taxation.

(Code 1981, § 48-5-41.2 , enacted by Ga. L. 2009, p. 674, § 1/HB 482; Ga. L. 2010, p. 878, § 48/HB 1387.)

Editor's notes. - The state-wide referendum (Ga. L. 2009, p. 674, § 1/HB 482), which enacted this Code section, was approved by a majority of qualified voters at the November 2, 2010 general election, and took effect January 1, 2011.

The state-wide referendum (Ga. L. 2010, p. 878, § 48(7)/HB 1387), provides that the 2010 amendment becomes effective on January 1, 2011, but only if an Act found at Ga. L. 2009, p. 674, is approved in a state-wide referendum conducted on the date of the November, 2010 state-wide general election. Ga. L. 2009, p. 674, was approved by a majority of the voters voting at the November 2, 2010 general election.

48-5-42. Exempt personalty.

All personal clothing and effects, household furniture, furnishings, equipment, appliances, and other personal property used within the home, if not held for sale, rental, or other commercial use, shall be exempt from all ad valorem taxation. All tools and implements of trade of manual laborers shall be exempt from all ad valorem taxation in an amount not to exceed $2,500.00 in actual value and all domestic animals shall be exempt from all ad valorem taxation in an amount not to exceed $300.00 in actual value.

(Ga. L. 1946, p. 12, § 1; Ga. L. 1971, p. 3, § 1; Code 1933, § 91A-1130, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 470, § 1.)

Editor's notes. - The state-wide referendum (Ga. L. 2000, p. 470, § 2), which amended this Code section by making exempt from ad valorem taxation tools and implements of trade of manual laborers in an amount not to exceed $2,500.00, was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

JUDICIAL DECISIONS

Tractor. - Tractor used in family garden for the direct support of members of the family was not taxable agricultural equipment. Denney v. Coweta County, 232 Ga. App. 440 , 502 S.E.2d 297 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Constitutional authority for exemptions. - Ga. L. 1946, p. 12, § 1 (see now O.C.G.A. §§ 48-5-42 and 48-5-44 ) are authorized by Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV). 1952-53 Op. Att'y Gen. p. 439.

Taxes to which exemption applicable. - Exemption provided by this statute applies to state, county, municipal, and school district ad valorem taxes, including taxes for the payment of principal and interest on bonds issued by a governmental instrumentality. 1948-49 Op. Att'y Gen. p. 694; 1952-53 Op. Att'y Gen. p. 439.

Exempt uses of domestic animals. - Domestic animal used within the home or in a capacity related to the home or family can be included within the property subject to a $300.00 personalty exemption from taxation; the phrase "within the home" means that the animals must be used for the direct support of the members of the family and not as income producing property. 1962 Op. Att'y Gen. p. 506.

Effect of claim of two or more similar exemptions. - If a taxpayer is qualified for and chooses to invoke the benefits of any one of the exemptions from any one of the types of ad valorem taxes, the taxpayer necessarily triggers the limitation clause of that exemption; any attempt to take two or more similar exemptions would violate the limitation clause of each of the exemptions and cannot be done. 1974 Op. Att'y Gen. No. U74-83.

Comparison of personal property exemption and homestead exemption. - Personal property ad valorem tax exemption differs from homestead exemption in that the former provides for an exemption of property up to $300.00 in value from all taxes, whereby the homestead exemption is exempt from all taxes, except taxes for school purposes and taxes to pay interest on and retire bonded indebtedness. 1962 Op. Att'y Gen. p. 500.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 235.

48-5-42.1. Personal property tax exemption for property valued at $7,500.00 or less.

  1. It is the intent of this Code section to exempt from the payment of ad valorem taxation certain tangible personal property on which the tax due does not exceed the reasonable cost of administering and collecting the tax.
  2. All tangible personal property of a taxpayer, except motor vehicles, trailers, and mobile homes, shall be exempt from all ad valorem taxation if the actual fair market value of the total amount of taxable tangible personal property owned by the taxpayer within the county, as determined by the board of tax assessors, does not exceed $7,500.00. (Code 1981, § 48-5-42.1 , enacted by Ga. L. 1986, p. 878, § 1; Ga. L. 1988, p. 13, § 48; Ga. L. 2001, p. 1218, § 1.)

Editor's notes. - The Act (Ga. L. 1986, p. 878) which enacted the exemption granted by this Code section and which became effective on January 1, 1987, and was applicable to all tax years beginning on or after January 1, 1987, was approved by a majority of the voters voting at the November, 1986 general election.

The state-wide referendum (Ga. L. 2001, p. 1218, § 2) which provided for an ad valorem tax exemption for tangible personal property not exceeding $7,500.00 total was approved by a majority of the qualified voters voting at the November, 2002 general election.

48-5-43. Exemption for fertilizers.

Consumers of commercial fertilizers shall not be required to return for taxation any commercial fertilizers or any manures commonly used by farmers and others as fertilizers if the land upon which the fertilizer is to be used has been properly returned for taxation.

(Ga. L. 1901, p. 65, § 1; Civil Code 1910, § 1090; Code 1933, § 92-203; Code 1933, § 91A-1103, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Georgia Fertilizer Act of 1997, § 2-12-1 et seq.

48-5-44. Exemption of homestead occupied by owner; effect of participation in rural housing program on homestead exemption; limits.

The homestead of each resident of this state actually occupied by the owner as a residence and homestead shall be exempted from all ad valorem taxation for state, county, and school purposes, except taxes levied by municipalities for school purposes and except to pay interest on and to retire bonded indebtedness, for as long as the residence and homestead is actually occupied by the owner primarily as a residence and homestead. The exemption shall not exceed $2,000.00 of the value of the homestead. Should the owner of a dwelling house on a farm who is already entitled to a homestead exemption participate in the program of rural housing and obtain a new house under contract with the local housing authority, he shall be entitled to receive the same homestead exemption as allowed before making the contract. Except as otherwise specifically provided by law, the value of all homestead property in excess of $2,000.00 shall remain subject to taxation. The exemption shall be returned and claimed in the manner prescribed by law. This exemption shall not apply to taxes levied by municipalities.

(Ga. L. 1946, p. 12, § 1; Ga. L. 1937-38, Ex. Sess., p. 145, §§ 6, 12, 14; Code 1933, § 91A-1110, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Exemption of homestead and other property from levy and sale, Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV and T. 44, C. 13.

JUDICIAL DECISIONS

There is no limitation as to size or physical proportions of property to be embraced within the homestead provision, and it would seem that the purpose of Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) and Ga. L. 1946, p. 12, § 1 (see now O.C.G.A. § 48-5-44 ) in fixing a maximum valuation was by so doing to equalize the exemption as between applicants on the basis of value, regardless of the extent of the tract involved. Jones v. Johnson, 80 Ga. App. 340 , 55 S.E.2d 904 (1949).

Effect of use to which rural or farm homestead is put. - Reasonable intent of the homestead exemption provisions of the Constitution of Georgia and its statutes is to include in rural homesteads the entire tract of land upon which the house is situated, regardless of whether the land surrounding the dwellings be used simply as an extended approach to the building or put to agricultural uses. Jones v. Johnson, 80 Ga. App. 340 , 55 S.E.2d 904 (1949).

Farming not considered commercial or business enterprise for purposes of homestead exemption. - Owner of a farm located in this state, who resides in a house on the farm, is entitled to a homestead exemption as to the entire tract of land upon which the house is situated, to a value of $2,000.00, notwithstanding the fact that the owner devotes the land to agricultural purposes, since this is not such a use of the land as to amount to a commercial or business enterprise. Jones v. Johnson, 80 Ga. App. 340 , 55 S.E.2d 904 (1949).

OPINIONS OF THE ATTORNEY GENERAL

Constitutional authority for exemptions. - Ga. L. 1946, p. 12, § 1 (see now O.C.G.A. §§ 48-5-42 and 48-5-44 ) are authorized by Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV). 1952-53 Op. Att'y Gen. p. 439.

Construction of provision in constitution for disabled veterans with other provisions. - Amendment to Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV), granting an exemption of $10,000.00 to disabled veterans, is to be read in pari materia with the original homestead provision in that constitutional provision. The statutes passed to carry the original provision into effect, former Code 1933, § 92-219 et seq. (see now O.C.G.A. § 48-5-40 et seq.) should also be applied to that amendment. 1960-61 Op. Att'y Gen. p. 492.

In determining whether an applicant is entitled to a homestead exemption, it is necessary to ascertain from all the facts available whether the applicant owned and occupied the home on January 1 and whether the home was being occupied as a permanent residence and place of abode and was the legal residence of the applicant for all purposes. 1967 Op. Att'y Gen. No. 67-11.

Property must be occupied by claimant as dwelling place. - Homestead exemption is allowed only for that property actually occupied by the claimant as a dwelling place. 1950-51 Op. Att'y Gen. p. 172.

Widow who owns a life estate in her dead husband's property is entitled to a homestead exemption. 1968 Op. Att'y Gen. No. 68-190.

Exemption of farm which lies in two counties. - Owner of a farm is entitled to claim an exemption on the entire farm. If the farm lies in two counties, the applicant has a right to file application in each of the counties in proportion to the acreage or value located therein and claim as exempt the property located in each county, so long as the total exemption does not exceed the sum of $2,000.00. 1958-59 Op. Att'y Gen. p. 342.

Exemption of house trailers. - If the house trailer is not on a permanent foundation but is located on land owned by the person residing in the trailer, the person is entitled to a homestead exemption on the value of the land. However, if the owner of a house trailer uses the trailer as the owner's residence and has the trailer mounted on a foundation similar to the foundation of a house, but on land the owner does not own, the owner is not entitled to a homestead exemption. 1960-61 Op. Att'y Gen. p. 491.

Exemption from taxes levied to pay principal and interest on bond indebtedness. - Exemption does not exempt property from taxes levied to pay the principal and interest on bonded indebtedness, whether past, present, or future. 1957 Op. Att'y Gen. p. 295.

Homestead exemption must be applied prior to collection of taxes for county school purposes as well as for other taxing purposes. 1962 Op. Att'y Gen. p. 504.

Liability of city residents for county school taxes after merger of school systems. - When an independent school system of a city was merged with the county school system in accordance with former Code 1933, §§ 32-1201, 32-1202 and 32-1203, (see now O.C.G.A. §§ 20-2-370 through 20-2-372 ), the homestead exemptions granted under Ga. L. 1937-38, Ex. Sess., p. 145, §§ 6, 12 and 14 (see now O.C.G.A. § 48-5-44 ) to the residents of the city would not become subject to the tax levied by the county for school purposes. In other words, the residents of the city would be on the same basis as residents of the county outside of the municipality with reference to school taxes. 1958-59 Op. Att'y Gen. p. 348.

Comparison of homestead exemption and personal property exemption. - Personal property ad valorem tax exemption differs from a homestead exemption in that the former provides for an exemption of property up to $300.00 in value from all taxes whereby a homestead exemption is exempt from all taxes, except taxes for school purposes and taxes to pay interest on and retire bonded indebtedness. 1962 Op. Att'y Gen. p. 500.

Effect of claim of two or more similar exemptions. - If a taxpayer is qualified for and chooses to invoke the benefits of any one of the exemptions from any one of the types of ad valorem taxes, the taxpayer necessarily triggers the limitation clause of that exemption; any attempt to take two or more similar exemptions would violate the limitation clause of each of the exemptions and cannot be done. 1974 Op. Att'y Gen. No. U74-83.

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homestead, § 18.

C.J.S. - 40 C.J.S., Homesteads, § 14 et seq.

ALR. - Tax exemption of property as affecting its inclusion in determining requisite consent of property owners to annexation territory, local improvement, bond issue, and other public activity, 146 A.L.R. 1260 .

Homestead exemption as extending to rentals derived from homestead property, 40 A.L.R.2d 897.

Prospective use for tax-exempt purposes as entitling property to tax exemption, 54 A.L.R.3d 9.

Availability of tax exemption to property held on lease from exempt owner, 54 A.L.R.3d 402.

48-5-44.1. Homestead exemption for resident residing in a municipal corporation that is located in more than one county; application required; renewal.

  1. For purposes of this Code section, the term:
    1. "Ad valorem taxes" means all ad valorem taxes for municipal purposes levied by, for, or on behalf of any municipality in this state, but excluding any ad valorem taxes to pay interest on and to retire municipal bonded indebtedness.
    2. "Adjusted base year value" means the previous adjusted base year value adjusted annually by 2.6 percent plus any change in homestead value, provided that no such change in homestead value shall be duplicated as to the same addition or improvement.
    3. "Change in homestead value" means value, including any final determination of value on appeal pursuant to Code Section 48-5-311 derived from additions or improvements to, or the removal of real property of, the homestead after the lowest base year value is determined.
    4. "Homestead" means homestead as defined and qualified in Code Section 48-5-40 with the additional qualification that it shall include only the primary residence and not more than five contiguous acres of land immediately surrounding such residence.
    5. "Lowest base year value" means:
      1. Among the 2016, 2017, and 2018 taxable years, the lowest assessed value, including any final determination of value on appeal pursuant to Code Section 48-5-311 of the homestead, with such assessed value being multiplied by 1.0423, which number represents inflation rate data for December, 2015, through December, 2017, with respect to an exemption under this Code section which is first granted to a person on such person's homestead in the 2019 taxable year or who thereafter reapplies for and is granted such exemption in the 2020 taxable year, or thereafter, solely because of a change in ownership to a joint tenancy with right of survival; or
      2. In all other cases, the lower of the assessed value, including any final determination of value on appeal pursuant to Code Section 48-5-311 of the homestead, from the taxable year immediately preceding the taxable year in which the exemption under this Code section is first granted to the most recent owner of such homestead or the assessed value, including any final determination of value on appeal pursuant to Code Section 48-5-311 of the homestead, from the taxable year in which the exemption under this Act is first granted to the most recent owner of such homestead, with respect to an exemption under this Code section which is first granted to a person on such person's homestead in the 2020 taxable year or who thereafter reapplies for and is granted such exemption in the 2021 taxable year, or thereafter, solely because of a change in ownership to a joint tenancy with right of survival.
    6. "Previous adjusted base year" means:
      1. With respect to an exemption under this Code section that is first granted to a person on such person's homestead, the lowest base year value; or
      2. In all other cases, the adjusted base year value as calculated in the taxable year immediately preceding the current year.
  2. When a resident of this state resides in a municipal corporation that is located in more than one county, that levies a sales tax for the purposes of a metropolitan area system of public transportation, and that has within its boundaries an independent school system, the homestead of each such resident actually occupied by the owner as a residence and homestead shall be exempted from ad valorem taxes for municipal purposes in an amount equal to the amount by which the current year assessed value, including any final determination of value on appeal pursuant to Code Section 48-5-311 of such homestead exceeds the adjusted base year value of the homestead.  The value of such property in excess of such exempted amount shall remain subject to taxation.
  3. The surviving spouse of the person who has been granted the exemption provided for in subsection (b) of this Code section shall continue to receive such exemption so long as such surviving spouse continues to occupy the home as a residence and homestead.
  4. A person shall not receive the homestead exemption granted by subsection (b) of this Code section unless such person or person's agent files an application with the tax receiver or tax commissioner of his or her respective municipality charged with the duty of receiving returns of property for taxation giving such information relative to receiving such exemption as will enable such tax receiver or tax commissioner to make a determination regarding the initial and continuing eligibility of such person for such exemption or has already filed for and is receiving a homestead exemption and such existing application provides sufficient information to make such determination of eligibility.  Such tax receiver or tax commissioner shall provide application forms for this purpose.
  5. The exemption shall be claimed and returned as provided in Code Section 48-5-50.1. Such exemption shall be automatically renewed from year to year so long as the owner occupies the residence as a homestead.  After a person or a person's agent has filed the proper application as provided in subsection (d) of this Code section, it shall not be necessary to make application thereafter for any year and the exemption shall continue to be allowed to such person.  It shall be the duty of any person granted the homestead exemption under subsection (b) of this Code section to notify the tax receiver or tax commissioner of the municipality in the event such person for any reason becomes ineligible for such exemption.
    1. Except as otherwise provided in paragraph (2) of this subsection, the homestead exemption granted by subsection (b) of this Code section shall be in addition to and not in lieu of any other homestead exemption applicable to ad valorem taxes for municipal purposes.
    2. The homestead exemption granted by subsection (b) of this Code section shall be in lieu of and not in addition to any other base year assessed value or adjusted base year value homestead exemption provided by local Act which is applicable to ad valorem taxes for municipal purposes.
  7. The exemption granted by subsection (b) of this Code section shall apply to all taxable years beginning on or after January 1, 2019.
  8. Any municipal corporation described in subsection (b) of this Code section shall be exempt from the provisions of subsections (c) and (e) of Code Section 48-5-32.1 . (Code 1981, § 48-5-44.1 , enacted by Ga. L. 2018, p. 235, § 1/HB 820.)

Effective date. - This Code section became effective January 1, 2019.

Editor's notes. - Ga. L. 2018, p. 235, § 3/HB820, not codified by the General Assembly, provides, in part, that this Code section becomes effective January 1, 2019, upon the ratification of the question presented to the voters at the November 6, 2018 election. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

48-5-45. Application for homestead exemption; unlawful to solicit fee to file application for homestead for another.

    1. An applicant seeking a homestead exemption as provided in Code Section 48-5-44 and qualifying under the provisions of Code Section 48-5-40 shall file a written application and schedule with the tax receiver or tax commissioner charged with the duty of receiving returns of property for taxation at any time during the calendar year subsequent to the property becoming the primary residence of the applicant up to and including the date for the closing of the books for the return of taxes for the calendar year.
    2. The failure to file properly the application and schedule on or before the date for the closing of the books for the return of taxes of a calendar year in which the taxes are due shall constitute a waiver of the homestead exemption on the part of the applicant failing to make the application for such exemption for that year.
  2. The owner of a homestead which is actually occupied by the owner as a residence and homestead shall not have to apply for the exemption more than once so long as the owner remains in continuous occupation of the residence as a homestead. The exemption shall automatically be renewed from year to year so long as the owner continuously occupies the residence as a homestead.
  3. It is unlawful for any person, firm, or corporation to solicit, either directly or by mail or advertisement, any other person for the purpose of filing on behalf of such other person the application and schedule for homestead exemption required by this Code section if a fee is charged for filing such application and schedule on behalf of such other person. A violation of this subsection shall be a misdemeanor.

    (Ga. L. 1937-38, Ex. Sess., p. 145, § 2; Ga. L. 1943, p. 101, § 1; Ga. L. 1945, p. 435, § 1; Ga. L. 1952, p. 317, § 1; Code 1933, § 91A-1111, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 538, § 2; Ga. L. 1979, p. 830, § 1,; Ga. L. 1981, p. 528, §§ 1; Ga. L. 1982, p. 3,§ 48; Ga. L. 1982, p. 531, § 2; Ga. L. 1982, p. 575, §§ 2. 9; Ga. L. 1982, p. 1108, § 2; Ga. L. 1983, p. 1849, §§ 2, 3; Ga. L. 1984, p. 22, § 48; Ga. L. 1992, p. 1190, § 1; Ga. L. 1994, p. 507, § 1; Ga. L 1997, p. 963, § 2; Ga. L. 1998, p. 1651, § 1; Ga. L. 2002, p. 1087, § 1; Ga. L. 2004, p. 455, § 2; Ga. L. 2008, p. 229, § 1/SB 159.)

Editor's notes. - Ga. L. 1979, p. 830, § 2 provides that in the event of any conflict between Ga. L. 1979, p. 830, and Ga. L. 1978, p. 309, the 1979 Act shall prevail.

Ga. L. 1997, p. 963, § 5, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 1998, p. 1651, § 2, not codified by the General Assembly, provides that the amendment to this Code section is applicable to taxable years beginning on or after January 1, 1999.

OPINIONS OF THE ATTORNEY GENERAL

Time for filing application for homestead exemption may not be extended. 1945-47 Op. Att'y Gen. p. 562.

Removal of owner from residence subsequent to January 1 does not make the owner ineligible to claim homestead exemption. 1954-56 Op. Att'y Gen. p. 748.

Automatic renewal applies only to home originally exempted. - Statute provides for automatic renewal of homestead exemption of the taxpayer so long as the taxpayer continues to occupy the previously exempted property as a home. If the applicant sells the applicant's home and occupies a new home, it would be necessary for the applicant to file a new application for homestead exemption. The automatic renewal is limited to the property actually exempted in the original instance so long as the owner continues to occupy the property as a home. 1954-56 Op. Att'y Gen. p. 748.

Exemption automatically renewed even if taxpayer files no return. - Homestead exemption of $2,000.00 need be applied for only one time. Even though the taxpayer fails to file a return, the assessor must credit the taxpayer with the $2,000.00 homestead exemption, so long as the taxpayer continues to occupy such property as the taxpayer's residence. 1957 Op. Att'y Gen. p. 293.

Application must be made and is not inferred solely from return. - Homestead exemption must be applied for and is not granted solely on the basis of information contained in the tax return. 1957 Op. Att'y Gen. p. 292.

When taxpayer originally applied for less than the full allowable homestead exemption, and when the taxpayer has not reapplied but relied on automatic renewal, and when the taxpayer's property has been revalued upward, the county board of assessors may raise the homestead exemption and should do so, as the taxpayer has not waived any part of the full exemption provided in Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV). 1963-65 Op. Att'y Gen. p. 142.

Absence from residence because of duty in the armed forces is not a waiver of the homestead exemption, provided the tax receiver or tax commissioner is notified. 1945-47 Op. Att'y Gen. p. 561.

Necessity for application and automatic renewal by persons in the armed service. - Statute provides that a person shall not be obligated to apply for the exemption but one time so long as such owner remains in continuous occupation of such residence as a homestead. This language would indicate that there must have been at least one application. However, when a homestead is granted without an application due to the fact that the taxpayer was in the armed services, since eligibility was established by virtue of being in the armed services, eligibility would continue so long as the taxpayer owns and occupies the property as a home. 1954-56 Op. Att'y Gen. p. 727.

Duty of taxpayer to make homestead application personally. - Filing of a homestead exemption is a personal privilege and a taxpayer who requested the tax receiver to make for the taxpayer a homestead exemption application, and who has not filed the taxpayer's return, is liable for the penalty. 1948-49 Op. Att'y Gen. p. 669.

It is necessary to file annually to obtain a homestead exemption on personal property. 1954-56 Op. Att'y Gen. p. 725; 1954-56 Op. Att'y Gen. p. 743.

Statute makes no provision for automatic renewal of a homestead exemption on personal property. In order to obtain a homestead exemption on personal property, it is necessary to make a tax return and file an application therefor as provided by law. 1954-56 Op. Att'y Gen. p. 742; 1957 Op. Att'y Gen. p. 293.

Penalty on late return is figured on tax due over and above homestead exemption. - After the taxpayer has once filed for a homestead exemption on real property, it is automatically renewed. Therefore, the penalty for filing a late return is on the tax due on property over and above the homestead exemption. 1954-56 Op. Att'y Gen. p. 725.

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, § 41.

48-5-46. Procedure for application.

  1. The application for the homestead exemption shall be furnished by the commissioner not later than February 1 of each year to the tax receiver or tax commissioner and municipal authorities, as the case may be, of the various counties.
  2. The application shall provide for:
    1. A statement of ownership of the homestead, a complete description of the property on which homestead exemption is claimed, when and from whom the property was acquired, the kind of title held, and the amount of liens, if any, and to whom due; and
    2. The approval of the application by the official so authorized.
  3. A form of oath shall be provided and shall be administered to the applicant seeking the homestead exemption. The oath may be administered and witnessed by the tax receiver, tax commissioner, any authorized deputy of the tax receiver or tax commissioner, or any individual authorized by law to administer oaths.
  4. The tax receiver or tax commissioner shall deliver to any interested person the forms prescribed for the exemption. The applicant must answer all questions correctly to be entitled to an approval of the application.
  5. The tax receiver or tax commissioner shall receive all applications for homestead exemption and shall file and preserve the applications. The application shall be filed with the tax receiver or tax commissioner as provided by law.

    (Ga. L. 1937-38, Ex. Sess., p. 145, §§ 3, 4; Code 1933, § 91A-1112, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Remedy when application lost or misplaced by tax officials. - Taxpayer whose application for homestead exemption has been lost or misplaced by the tax receiver or commissioner has a remedy in the courts. 1945-47 Op. Att'y Gen. p. 562.

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, §§ 12, 33 et seq., 65. 84 C.J.S., Taxation, §§ 419 et seq., 432.

48-5-47. Applications for homestead exemptions of individuals 65 or older.

  1. Article VII, Section II, Paragraph IV of the Constitution of the State of Georgia ratified in 1982 continued in effect as statutory law, until otherwise provided for by law, those types of exemptions from ad valorem taxation in effect on June 30, 1983. One such exemption is the homestead exemption granted to certain individuals 65 years of age or over by the seventh unnumbered subparagraph of Article VII, Section I, Paragraph IV of the Constitution of 1976. Pursuant to said provision of the Constitution ratified in 1982, the homestead exemption formerly granted by said provision of the Constitution of 1976 is superseded and modified as provided in subsection (b) of this Code section.
  2. Each person who is 65 years of age or over is hereby granted an exemption from all state and county ad valorem taxes in the amount of $4,000.00 on a homestead owned and occupied by him as a residence if his net income, together with the net income of his spouse who also occupies and resides at such homestead, as net income is defined by Georgia law, from all sources, except as hereinafter provided, does not exceed $10,000.00 for the immediately preceding taxable year for income tax purposes. For the purposes of this subsection, net income shall not include income received as retirement, survivor or disability benefits under the federal Social Security Act or under any other public or private retirement, disability or pension system, except such income which is in excess of the maximum amount authorized to be paid to an individual and his spouse under the federal Social Security Act, and income from such sources in excess of such maximum amount shall be included as net income for the purposes of this subsection. The value of the residence in excess of the above-exempted amount shall remain subject to taxation. Any such owner shall not receive the benefits of such homestead exemption unless he, or through his agent, files an affidavit with the tax commissioner or tax receiver of the county in which he resides, giving his age and the amount of income which he and his spouse received during the last taxable year for income tax purposes, and such additional information relative to receiving the benefits of such exemption as will enable the tax commissioner or tax receiver to make a determination as to whether such owner is entitled to such exemption. The tax commissioner or tax receiver shall provide affidavit forms for this purpose. Such applications shall be processed in the same manner as other applications for homestead exemption, and the provisions of law applicable to the processing of homestead exemptions, as the same now exists or may hereafter be amended, shall apply thereto. Provided, that after any such owner has filed the proper affidavit, as provided above, and has once been allowed the exemption provided in this subsection, it shall not be necessary that he make application and file the said affidavit thereafter for any year and the said exemption shall continue to be allowed to such owner. It shall be the duty of any such owner, however, to notify the tax commissioner or tax receiver in the event he becomes ineligible for any reason for the exemption provided in this subsection.
  3. The application for the homestead exemption of individuals 65 years of age or older provided for by subsection (b) of this Code section shall be in the form prescribed by the commissioner. The application shall require the applicant's social security number. The tax commissioner or tax receiver shall be authorized to have the statement of income of any claimant verified by the department upon sending the social security number of a claimant to the department.

    (Ga. L. 1972, p. 821, §§ 2, 3; Code 1933, § 91A-1115, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1984, p. 1058, § 2; Ga. L. 1988, p. 2, § 1; Ga. L. 1999, p. 81, § 48.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, "of 1976" was inserted following "Constitution" in the second sentence of subsection (a).

Pursuant to Code Section 28-9-5, in 1991, "in this subsection" was substituted for "herein" in the next-to-last sentence of subsection (b).

Editor's notes. - Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provides: "In the event of any conflict between this Act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

Ga. L. 1988, p. 2, § 3, not codified by the General Assembly, required the Secretary of State to call and conduct a referendum for the approval or disapproval of this Act on the date of and in conjunction with the 1988 presidential preference primary. The referendum was held on March 8, 1988, and the amendment of this Code section was approved by a vote of 655,019 to 144,603. Further, Section 3 also provided: "If a taxpayer files a proper affidavit on or before the last day for filing his or her tax return in 1988, then Sections 1 and 2 of this Act shall apply with respect to such taxpayer's 1988 and future ad valorem taxes; and otherwise Sections 1 and 2 of this Act shall apply to any taxpayer who has so filed a timely affidavit at any time thereafter. Nothing in this Act shall require any person who qualified for any homestead exemption under prior law to reapply in order to be allowed the exemption."

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homestead, § 13.

48-5-47.1. Homestead exemptions for individuals 62 or older with annual incomes not exceeding $30,000.00

  1. For purposes of this Code section, the term:
    1. "Ad valorem taxes" means all state ad valorem taxes and all county ad valorem taxes for county purposes levied by, for, or on behalf of a county, except for taxes to pay interest on and to retire bonded indebtedness.
    2. "Base year" means the taxable year immediately preceding the taxable year in which the exemption under this Code section is granted.
    3. "Homestead" as applied in this Code section shall mean the homestead as defined and qualified in Code Section 48-5-40, with the additional qualification that it shall include only the primary residence and not more than five contiguous acres of land immediately surrounding such residence.
    4. "Income" means federal adjusted gross income, as defined in the Internal Revenue Code of 1986, as amended, from all sources.
    5. "Senior citizen" means a person who is 62 years of age or over on or before January 1 of the year in which application for the exemption under this Code section is made.
  2. Each resident of a county who is a senior citizen is granted an exemption on that person's homestead from all ad valorem taxes in an amount equal to the amount of the assessed value of that homestead which exceeds the assessed value of that homestead for the taxable year immediately preceding the taxable year in which this exemption is first granted to such resident, if that person's income, together with the income of the spouse of such person and any other person who resides within such homestead, does not exceed $30,000.00 for the immediately preceding taxable year.  This exemption shall not apply to taxes assessed on improvements to the homestead or additional land that is added to the homestead after January 1 of the base year.  If any real property is removed from the homestead, the assessment in the base year shall be adjusted to reflect such removal and the exemption shall be recalculated accordingly.
  3. A person shall not receive the homestead exemption granted by subsection (b) of this Code section unless the person or person's agent files an application with the tax commissioner of the county giving the person's age and the amount of gross income which the person and the person's spouse and any other persons residing within such homestead received during the last taxable year, and such additional information relative to receiving such exemption as will enable the tax commissioner to make a determination as to whether such owner is entitled to such exemption.
  4. The commissioner shall provide application forms for the exemption granted by this Code section which shall require such information as may be necessary to determine the initial and continuing eligibility of the owner for the exemption.
  5. The exemption shall be claimed and returned as provided in Code Section 48-5-50.1.  The exemption shall be automatically renewed from year to year as long as the owner occupies the residence as a homestead.  After a person has filed the proper application as provided in subsection (c) of this Code section, it shall not be necessary to make application and file such affidavit thereafter for any year and the exemption shall continue to be allowed to such person.  It shall be the duty of any person granted the homestead exemption under this Code section to notify the tax commissioner of the county or the designee thereof in the event that person for any reason becomes ineligible for that exemption.
  6. The exemption granted by this Code section shall not apply to or affect any municipal taxes or county school district taxes for educational purposes.  The homestead exemption granted by this Code section shall be in lieu of and not in addition to any other homestead exemption applicable to county ad valorem taxes for county purposes.
  7. The exemption granted by this Code section shall apply to all taxable years beginning on or after January 1, 1995. (Code 1981, § 48-5-47.1 , enacted by Ga. L. 1994, p. 400, § 1; Ga. L. 1999, p. 81, § 48.)

Editor's notes. - Ga. L. 1994, p. 400, § 2, not codified by the General Assembly, provides, in part: "Unless prohibited by the federal Voting Rights Act of 1965, as amended, the Secretary of State shall call and conduct an election as provided in this section for the purpose of submitting this Act to the electors of the State of Georgia for approval or rejection." That Act was approved by the voters at the November 8, 1994 general election, so this Code section became effective January 1, 1995, pursuant to the provisions of that Act.

JUDICIAL DECISIONS

Cited in Chatham County Bd. of Tax Assessors v. Bock, 299 Ga. App. 257 , 682 S.E.2d 355 (2009).

48-5-48. Homestead exemption by qualified disabled veteran; filing requirements; periodic substantiation of eligibility; persons eligible without application; retroactive award.

  1. As used in this Code section, the term "disabled veteran" means:
    1. Any veteran who is a citizen and a resident of this state, who was discharged under honorable conditions, and who has been adjudicated by the United States Department of Veterans Affairs as having a service related disability that renders such veteran as being 100 percent totally disabled or as being less than 100 percent totally disabled but is compensated at the 100 percent level due to individual unemployability or is entitled to receive a statutory award from the United States Department of Veterans Affairs for:
      1. Loss or permanent loss of use of one or both feet;
      2. Loss or permanent loss of use of one or both hands;
      3. Loss of sight in one or both eyes; or
      4. Permanent impairment of vision of both eyes of the following status: central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends on angular distance no greater than 20 degrees in the better eye;
    2. An American veteran of any war or armed conflict in which any branch of the armed forces of the United States engaged, whether under United States command or otherwise, and that he or she is disabled due to the loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; due to blindness in both eyes, having only light perception, together with the loss or loss of use of one lower extremity; or due to the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without resort to a wheelchair;
    3. Any disabled veteran who is not entitled to receive benefits from the Department of Veterans Affairs but who qualifies otherwise, as provided for by Article VII, Section I, Paragraph IV of the Constitution of Georgia of 1976;
    4. An American veteran of any war or armed conflict who is disabled due to loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affects the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or
    5. A veteran becoming eligible for assistance in acquiring housing under Section 2101 of Title 38 of the United States Code as hereafter amended on or after July 1, 1999.
  2. Any disabled veteran as defined in any paragraph of subsection (a) of this Code section who is a citizen and resident of Georgia is granted an exemption of the greater of $32,500.00 or the maximum amount which may be granted to a disabled veteran under Section 2102 of Title 38 of the United States Code, as amended, on his or her homestead which such veteran owns and actually occupies as a residence and homestead, such exemption being from all ad valorem taxation for state, county, municipal, and school purposes. As of January 1, 2004, the maximum amount which may be granted to a disabled veteran under the above-stated federal law is $50,000.00. The value of all property in excess of the exempted amount cited above shall remain subject to taxation. The unremarried surviving spouse or minor children of any such disabled veteran as defined in this Code section shall also be entitled to an exemption of the greater of $32,500.00 or the maximum amount which may be granted to a disabled veteran under Section 2102 of Title 38 of the United States Code, as amended, on the homestead so long as the unremarried surviving spouse or minor children continue actually to occupy the home as a residence and homestead, such exemption being from all ad valorem taxation for state, county, municipal, and school purposes. As of January 1, 2004, the maximum amount which may be granted to the unremarried surviving spouse or minor children of any such disabled veteran under the above-stated federal law is $50,000.00. The value of all property in excess of such exemption granted to such unremarried surviving spouse or minor children shall remain subject to taxation.

    (b.1) The unremarried surviving spouse or minor children of any disabled veteran shall also be entitled to an exemption of the greater of $32,500.00 or the maximum amount on a homestead, or any subsequent homestead within the same county, where such spouse or minor children continue to occupy the home as a homestead, such exemption being from ad valorem taxation for state, county, municipal, and school purposes.

    1. Any disabled veteran qualifying pursuant to paragraph (1) or (2) of subsection (a) of this Code section for the homestead exemption provided for in this Code section shall file with the tax commissioner or tax receiver a letter from the Department of Veterans Affairs or the Department of Veterans Service stating the qualifying disability.
    2. Any disabled veteran qualifying pursuant to paragraph (3) of subsection (a) of this Code section for the homestead exemption provided for in this Code section shall file with the tax commissioner or tax receiver a copy of his DD form 214 (discharge papers from his military records) along with a letter from a doctor who is licensed to practice medicine in this state stating that he is disabled due to loss or loss of use of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; due to blindness in both eyes, having only light perception, together with the loss or loss of use of one lower extremity; or due to the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without resort to a wheelchair. Prior to approval of an exemption, a county board of tax assessors may require the applicant to provide not more than two additional doctors' letters if the board is in doubt as to the applicant's eligibility for the exemption.
    3. Any disabled veteran qualifying pursuant to paragraph (4) of subsection (a) of this Code section for the homestead exemption provided for in this Code section shall file with the tax commissioner or tax receiver a letter from a doctor who is licensed to practice medicine in this state stating the qualifying disability. Prior to approval of an exemption, a county board of tax assessors may require the applicant to provide not more than two additional doctors' letters if the board is in doubt as to the applicant's eligibility for the exemption.
    4. Any disabled veteran qualifying pursuant to paragraph (5) of subsection (a) of this Code section for the homestead exemption provided for in this Code section shall file with the tax commissioner or tax receiver a letter from the Department of Veterans Affairs or the Department of Veterans Service stating the eligibility for such housing assistance.
  4. Each disabled veteran shall file for the exemption only once in the county of his residence. Once filed, the exemption shall automatically be renewed from year to year, except as provided in subsection (e) of this Code section.  Such exemption shall be extended to the unremarried surviving spouse or minor children at the time of his death so long as they continue to occupy the home as a residence and homestead.  In the event a disabled veteran who would otherwise be entitled to the exemption dies or becomes incapacitated to the extent that he or she cannot personally file for such exemption, the spouse, the unremarried surviving spouse, or the minor children at the time of the disabled veteran's death may file for the exemption and such exemption may be granted as if the disabled veteran had made personal application therefor.
  5. Not more often than once every three years, the county board of tax assessors may require the holder of an exemption granted pursuant to this Code section to substantiate his continuing eligibility for the exemption. In no event may the board require more than three doctors' letters to substantiate eligibility.
  6. Any person who as of January 1, 1991, has applied and is eligible for the exemption for disabled veterans, their surviving spouses, and minor children formerly provided for by the sixth unnumbered subparagraph of Article VII, Section I, Paragraph IV of the Constitution of 1976; the exemption for disabled veterans provided for in Article VII, Section II, Paragraph V of the Constitution of 1983; or the exemption for disabled veterans formerly provided for by Code Section 48-5-48.3 as enacted by an Act approved April 11, 1986 (Ga. L. 1986, p. 1445), shall be eligible for the exemption granted by subsection (b) of this Code section without applying for such exemption.
    1. If a disabled veteran receives a final determination of disability from the United States Department of Veterans Affairs containing a retroactive period of eligibility, such disabled veteran or his or her surviving unremarried spouse or minor children shall be entitled to a refund of the ad valorem taxes paid during such period that he or she or his or her surviving unremarried spouse or minor children would have otherwise been exempt from such taxes pursuant to this Code section, provided that the refund shall only be for the three tax years preceding his or her or his or her surviving unremarried spouse's or minor children's application for the homestead exemption permitted by this Code section.
    2. Upon application for the homestead exemption provided by this Code section and submittal of proper documentation, each county and municipality shall consider the taxes paid by such disabled veteran or his or her surviving unremarried spouse or minor children under the circumstances provided in paragraph (1) of this subsection to be voluntarily or involuntarily overpaid and shall refund such taxes to such disabled veteran or his or her surviving unremarried spouse or minor children in accordance with Code Section 48-5-380.
    3. Upon final determination and approval of a period of prior eligibility, the county board of assessors shall immediately transmit such approval to the local tax commissioner and local municipal tax officer if applicable.  The tax commissioner and municipal tax officer shall be authorized to refund the proportionate amount of taxes from the entities for whom the taxes were collected for the tax years approved for the exemption.  Such refund shall not exceed three tax years and shall not include interest.

      (Ga. L. 1959, p. 170, § 1; Ga. L. 1964, p. 280, § 1; Ga. L. 1967, p. 813, § 1; Code 1933, § 91A-1116, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 15; Ga. L. 1983, p. 3, § 64; Ga. L. 1984, p. 22, § 48; Ga. L. 1984, p. 1058, § 3; Ga. L. 1985, p. 149, § 48; Ga. L. 1990, p. 45, § 1; Ga. L. 1990, p. 1858, § 1; Ga. L. 2000, p. 1223, § 1; Ga. L. 2004, p. 69, § 4; Ga. L. 2004, p. 417, § 1; Ga. L. 2009, p. 646, § 1/HB 304; Ga. L. 2015, p. 816, § 6/HB 48; Ga. L. 2016, p. 166, § 3/SB 258; Ga. L. 2016, p. 770, § 2/HB 862; Ga. L. 2017, p. 55, § 3/HB 196; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective July 1, 2015, substituted the present provisions of paragraph (a)(1) for the former provisions, which read: "A wartime veteran who was discharged under honorable conditions and who has been adjudicated by the Department of Veterans Affairs of the United States as being totally and permanently disabled and entitled to receive service connected benefits so long as he or she is 100 percent disabled and receiving or entitled to receive benefits for a 100 percent service connected disability;".

The 2016 amendments. The first 2016 amendment, effective April 26, 2016, in paragraph (a)(1), inserted "is a citizen and a resident of this state who" near the beginning, inserted "having a service related disability that renders such veteran as" in the middle, and substituted "or is entitled" for "and is entitled" near the end. The second 2016 amendment, effective May 3, 2016, made identical changes.

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, added subsection (g). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (a)(1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "subsection (e)" was substituted for "subsection (d)" in the second sentence of subsection (d).

Editor's notes. - Ga. L. 1984, p. 1058, § 3, effective July 1, 1984, purported to add a new subsection (d) at the end of this Code section. Since there was already a subsection designated as (d), the subsection added by the 1984 Act was redesignated as subsection (e) by Ga. L. 1985, p. 149, § 48.

Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provides: "In the event of any conflict between this Act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

Ga. L. 1990, p. 1858, § 3, not codified by the General Assembly, provides: "This Act is enacted pursuant to authority provided for in Article VII, Section II, Paragraph V of the Constitution."

Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004."'

Law reviews. - For article on the 2004 amendment of this Code section, see 21 Ga. St. U. L. Rev. 226 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code Section 48-5-48.3 are included in the annotations for this Code section.

Referendum is not required to implement the veterans' exemption provided by Ga. L. 1986, p. 1445, § 1. 1987 Op. Att'y Gen. No. 87-2 (rendered under former § 48-5-48.3 ).

48-5-48.1. Tangible personal property inventory exemption; application; failure to file application as waiver of exemption; denials; notice of renewals.

  1. Any person, firm, or corporation seeking a level 1 freeport exemption from ad valorem taxation of certain tangible personal property inventory when such exemption has been authorized by the governing authority of any county or municipality after approval of the electors of such county or municipality pursuant to the authority of the Constitution of Georgia or Code Section 48-5-48.2 shall file a written application and summary of property with the county board of tax assessors on forms furnished by such board. Such application shall be filed in the year in which exemption from taxation is sought no later than the date on which the tax receiver or tax commissioner of the county in which the property is located closes the books for the return of taxes.
  2. The application for the level 1 freeport exemption shall provide for:
    1. A summary, as prescribed by the department, of the inventory of goods in the process of manufacture or production which shall include all partly finished goods and raw materials held for direct use or consumption in the ordinary course of the taxpayer's manufacturing or production business in the State of Georgia;
    2. A summary, as prescribed by the department, of the inventory of finished goods manufactured or produced within the State of Georgia in the ordinary course of the taxpayer's manufacturing or production business when held by the original manufacturer or producer of such finished goods;
    3. A summary, as prescribed by the department, of the inventory of finished goods which on January 1 are stored in a warehouse, dock, or wharf, whether public or private, and which are destined for shipment outside the State of Georgia and the inventory of finished goods which are shipped into the State of Georgia from outside this state and which are stored for transshipment to a final destination outside this state. The information required by Code Section 48-5-48.2 to be contained in the official books and records of the warehouse, dock, or wharf where such property is being stored, which official books and records are required to be open to the inspection of taxing authorities of this state and political subdivisions thereof, shall not be required to be included as a part of or to accompany the application for such exemption; and
    4. A summary, as prescribed by the department, of the stock in trade of a fulfillment center which on January 1 is stored in the fulfillment center. The information required by Code Section 48-5-48.2 to be contained in the official books and records of the fulfillment center where such property is being stored, which official books and records are required to be open to the inspection of the taxing authorities of this state and political subdivisions thereof, shall not be required to be included as a part of or to accompany the application for such exemption.
    1. For purposes of this subsection, the term "file properly" shall mean and include the timely filing of the completed application for which exemption is sought on or before the due date specified in subsection (a) of this Code section. Any clerical error, including, but not limited to, a typographical error, scrivener's error, or any unintentional immaterial error or omission in the application shall not be construed as a failure to file properly.
    2. The failure to file properly the completed application shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to make the application for such exemption for that year as follows:
      1. The failure to report any inventory for which such exemption is sought in the summary provided for in the application shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to so report for that taxable year in an amount equal to the difference between fair market value of the inventory as reported and the fair market value finally determined to be applicable to the inventory for which the exemption is sought; and
      2. The failure to file timely such completed application shall constitute a waiver of the exemption until the first day of the month following the month such completed application is filed properly with the county tax assessor; provided, however, that unless such completed application is filed on or before June 1 of such year, the exemption shall be waived for that entire year.
  4. Upon receiving the application required by this Code section, the county board of tax assessors shall determine the eligibility of all types of tangible personal property listed on the application. If any property has been listed which the board believes is not eligible for the exemption, the board shall issue a letter notifying the applicant, not later than 180 days after receiving the application, that all or a portion of the application has been denied. The denial letter shall list the type and total fair market value of all property listed on the application for which the exemption has been approved and the type and total fair market value of all property listed on the application for which the exemption has been denied. The applicant shall have the right to appeal from the denial of the exemption for any property listed and such appeal shall proceed as provided in Code Section 48-5-311. Except as otherwise provided in subparagraph (c)(2)(A) of this Code section, the county board of assessors shall not send a second letter of notification denying the exemption of all or a portion of such property listed on the application on new grounds that could and should have been discerned at the time the initial denial letter was issued. If, however, the county board of tax assessors fails to issue a letter of denial within 180 days after receiving the taxpayer's application, then the freeport exemption sought in the application shall be deemed accepted in its entirety.
  5. If the level 1 freeport exemption has been granted to a taxpayer for a taxable year, the county board of tax assessors shall issue a notice of renewal to the taxpayer for the immediately following taxable year. Such notice of renewal shall be issued not later than January 15 of such immediately following taxable year to facilitate the filing of a timely completed application by the taxpayer for such taxable year. (Code 1981, § 48-5-48.1 , enacted by Ga. L. 1982, p. 1101, § 1; Ga. L. 1983, p. 3, § 37; Ga. L. 1984, p. 1371, § 1; Ga. L. 1992, p. 2482, § 1; Ga. L. 1997, p. 963, § 3; Ga. L. 1998, p. 128, § 48; Ga. L. 1998, p. 1120, § 1A; Ga. L. 1999, p. 81, § 48; Ga. L. 2004, p. 464, § 1; Ga. L. 2012, p. 249, § 1/HB 48; Ga. L. 2016, p. 731, § 1/HB 935; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 986, § 1/HB 888.)

The 2016 amendment, effective July 1, 2016, in subsection (b), deleted "and" at the end of paragraph (b)(2), substituted "; and" for a period at the end of paragraph (b)(3), and added paragraph (b)(4).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "January 1 is stored" for "January 1 are stored" in the first sentence of paragraph (b)(4).

The 2018 amendment, effective May 8, 2018, substituted "summary" for "schedule" in the middle of the first sentence of subsection (a) and near the middle of subparagraph (c)(2)(A); substituted "summary, as prescribed by the department," for "schedule" near the beginning of paragraphs (b)(1) through (b)(4); in paragraph (c)(1), substituted "completed application" for "application and complete schedule of the inventory" in the first sentence and added the second sentence; substituted "completed application" for "application and schedule" near the middle of the introductory paragraph of paragraph (c)(2), near the beginning of subparagraph (c)(2)(B), and near the end of the last sentence of subsection (e); in subparagraph (c)(2)(B), substituted "completed application is filed" for "application and schedule are filed" in the middle, and substituted "unless such completed application is filed" for "unless the application and schedule are filed" in the proviso; and, in subsection (d), inserted ", not later than 180 days after receiving the application," in the middle of the second sentence and added the last sentence.

Editor's notes. - Ga. L. 1997, p. 963, § 5, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2012, p. 249, § 5/HB 48, not codified by the General Assembly, provides for severability.

Law reviews. - For article, "Freeport Exemption from Property Taxes for Inventory Stored in Georgia But Destined for Shipment Out-of-State," see 28 Ga. St. B. J. 108 (1991).

JUDICIAL DECISIONS

Filings not required prior to statute. - When "freeport" exemption was approved by voters, and at all times relevant to the instant appeal there was no state statutory provisions specifying that the exemption from taxation which had otherwise been granted to inventories was conditioned upon the taxpayer's timely filing of an application therefor, the subsequent enactment of O.C.G.A. § 48-5-48.1 calling for a timely filing in order to obtain the exemption was intended to change the existing law; therefore, the procedure denying an exemption for untimely filings used by the county board of tax assessors prior to the statutory addition was not an authorized penalty under state law. TEC Am., Inc. v. DeKalb County Bd. of Tax Assessors, 170 Ga. App. 533 , 317 S.E.2d 637 (1984).

Failure to receive the application for exemption form does not excuse the taxpayer from meeting the taxpayer's burden to file the application. Rockdale County v. Finishline Indus., Inc., 238 Ga. App. 467 , 518 S.E.2d 720 (1999).

Waiver by untimely application. - When the only proof of timely mailing of applications for exemption was testimony of the corporation's tax specialist that the specialist placed the envelopes in the mailbox in the corporation's home office, and since the envelopes were not imprinted with U.S. Postal Service postmarks, but contained private postage meter stamps, the applications were untimely filed and the exemption was waived. Gwinnett County Bd. of Tax Assessors v. Makita Corp. of Am., 218 Ga. App. 175 , 460 S.E.2d 538 (1995).

Amended application. - It was arbitrary and capricious for a board of tax assessors to refuse, under O.C.G.A. § 48-5-48.1(c)(2)(B), to allow a taxpayer to retroactively amend a timely filed and valid freeport exemption when the board changed the board's valuation method. William L. Bonnell Co. v. Coweta County Bd. of Tax Assessors, 252 Ga. App. 151 , 556 S.E.2d 159 (2001).

Taxpayer's understatement of value of personal property did not preclude taking the freeport exemption. Georgian Art Lighting Designs, Inc. v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510 , 439 S.E.2d 687 (1993).

Since the parties stipulated that the county tax assessors board denied the taxpayer an exemption from ad valorem taxation of certain tangible personal property based on an undervaluation of its inventory, since the taxpayer properly filed for the exemption, and because statutory law stated that the exemption was waived for failing to report inventory, and not an undervaluation of inventory, the trial court properly granted summary judgment to the taxpayer on the issue of whether the county equalization board properly determined that the taxpayer was entitled to the exemption. Gwinnett County Bd. of Tax Assessors v. Std. Distrib. & Supply, 263 Ga. App. 128 , 587 S.E.2d 262 (2003).

Untimely filing of freeport application. - Court could find no statutory basis under state law to excuse an untimely filing of a freeport application by a debtor in bankruptcy. Scana Energy Mktg., Inc. v. Cobb Energy Mgmt. Corp., 259 Ga. App. 216 , 576 S.E.2d 548 (2002).

Freeport exemption did not apply. - Freeport exemption from ad valorem taxes did not apply to a taxpayer's inventory of barbecue grill bodies because the taxpayer's involvement with the grill bodies ended when the taxpayer sold the grill bodies to a producer of barbecue grills, and the final destination of the grill bodies was the producer's plant; the producer incorporated the grill bodies into finished barbecue grills, and it was the completed barbecue grills that the producer eventually shipped out of state. Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 , 705 S.E.2d 678 (2011).

Extension of time for filing not authorized. - County board of tax assessors was not authorized to extend the period of time for accepting applications beyond the date on which the books for the return of taxes in the county were closed. Committee for Better Gov't v. Black, 216 Ga. App. 173 , 453 S.E.2d 772 (1995).

What becomes of inventory not relevant to determination of exemption. - Under O.C.G.A. § 48-5-48.1(a) , the entity seeking the freeport exemption is required to file a written application and schedule of the property for which the exemption is sought; thus, the statutory scheme looks to the property, that is, the inventory, held by the taxpayer, and what becomes of the inventory in the hands of a purchaser from the taxpayer is not relevant to the determination of the availability of the freeport exemption. Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 , 705 S.E.2d 678 (2011).

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998); Delta Air Lines, Inc. v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225 , 539 S.E.2d 905 (2000); Gwinnett County Bd. of Tax Assessors v. Std. Distrib. & Supply, 263 Ga. App. 128 , 587 S.E.2d 262 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Waiver by untimely application. - Taxpayer who fails to file a timely application for the freeport inventory exemption in accordance with the requirements of O.C.G.A. § 48-5-48.1 has waived that exemption for the tax year. 1987 Op. Att'y Gen. No. U87-7.

RESEARCH REFERENCES

Deductibility of Home Office Expenses, 38 POF2d 555.

48-5-48.2. Level 1 freeport exemption; referendum.

  1. This Code section shall be known and may be cited as the "Level 1 Freeport Exemption."
  2. As used in this Code section, the term:
    1. "Destined for shipment to a final destination outside this state" means, for purposes of a level 1 freeport exemption, that portion or percentage of an inventory of finished goods which the taxpayer can establish, through a historical sales or shipment analysis, either of which utilizes information from the preceding calendar year, or other reasonable, documented method, is reasonably anticipated to be shipped to a final destination outside this state. Such other reasonable, documented method may only be utilized in the case of a new business, in the case of a substantial change in scope of an existing business, or in other unusual situations where a historical sales or shipment analysis does not adequately reflect future anticipated shipments to a final destination outside this state. It is not necessary that the actual final destination be known as of January 1 in order to qualify for the exemption.
    2. "Finished goods" means, for purposes of a level 1 freeport exemption, goods, wares, and merchandise of every character and kind but shall not include unrecovered, unextracted, or unsevered natural resources or raw materials or goods in the process of manufacture or production or the stock in trade of a retailer.
    3. "Foreign merchandise in transit" means, for purposes of a level 1 freeport exemption, any goods which are in international commerce where the title has passed to a foreign purchaser and the goods are temporarily stored in this state while awaiting shipment overseas.
    4. "Fulfillment center" means, for purposes of a level 1 freeport exemption, a business location in Georgia which is used to pack, ship, store, or otherwise process tangible personal property sold by electronic, Internet, telephonic, or other remote means, provided that such a business location does not allow customers to purchase or receive goods onsite at such business location.
    5. "Raw materials" means, for purposes of a level 1 freeport exemption, any material, whether crude or processed, that can be converted by manufacture, processing, or a combination thereof into a new and useful product but shall not include unrecovered, unextracted, or unsevered natural resources.
    6. "Stock in trade of a fulfillment center" means, for purposes of a level 1 freeport exemption, goods, wares, and merchandise held by one in the business of making sales of such goods when such goods are held or stored at a fulfillment center.
    7. "Stock in trade of a retailer" means, for purposes of a level 1 freeport exemption, finished goods held by one in the business of making sales of such goods at retail in this state, within the meaning of Chapter 8 of this title, when such goods are held or stored at a business location from which such retail sales are regularly made. Goods stored in a warehouse, dock, or wharf, including a warehouse or distribution center which is part of or adjoins a place of business from which retail sales are regularly made, shall not be considered stock in trade of a retailer to the extent that the taxpayer can establish, through a historical sales or shipment analysis, either of which utilizes information from the preceding calendar year, or other reasonable, documented method, the portion or percentage of such goods which is reasonably anticipated to be shipped outside this state for resale purposes.
  3. The governing authority of any county or municipality may, subject to the approval of the electors of such political subdivision, exempt from ad valorem taxation, including all such taxes levied for educational purposes and for state purposes, all or any combination of the following types of tangible personal property:
    1. Inventory of goods in the process of manufacture or production which shall include all partly finished goods and raw materials held by the taxpayer or the taxpayer's designated agent for direct use or consumption in the ordinary course of the taxpayer's manufacturing or production business in this state. The exemption provided for in this paragraph shall apply only to tangible personal property which is substantially modified, altered, combined, or changed in the ordinary course of the taxpayer's manufacturing, processing, or production operations in this state. For purposes of this paragraph, the following activities shall constitute substantial modification in the ordinary course of manufacturing, processing, or production operations:
      1. The cleaning, drying, pest control treatment, or segregation by grade of grain, peanuts or other oil seeds, or cotton;
      2. The remanufacture of aircraft engines or aircraft engine parts or components, meaning the substantial overhauling or rebuilding of aircraft engines or aircraft engine parts or components;
      3. The blending of fertilizer bulk materials into a custom mixture, whether performed at a commercial fertilizer blending plant, retail outlet, or any application site; and
      4. The substantial assembly of finished parts;
    2. Inventory of finished goods manufactured or produced within this state in the ordinary course of the taxpayer's manufacturing or production business when held by the original manufacturer or producer of such finished goods. The exemption provided for in this paragraph shall be for a period not exceeding 12 months from the date such property is produced or manufactured;
    3. Inventory of finished goods which, on January 1, are stored in a warehouse, dock, or wharf, whether public or private, and which are destined for shipment to a final destination outside this state and inventory of finished goods which are shipped into this state from outside this state and stored for transshipment to a final destination outside this state, including foreign merchandise in transit. The exemption provided for in this paragraph shall be for a period not exceeding 12 months from the date such property is stored in this state. Such period shall be determined based on application of a first-in, first-out method of accounting for the inventory. The official books and records of the warehouse, dock, or wharf where such property is being stored shall contain a full, true, and accurate inventory of all such property, including the date of the receipt of the property, the date of the withdrawal of the property, the point of origin of the property, and the point of final destination of the same, if known. The official books and records of any such warehouse, dock, or wharf, whether public or private, pertaining to any such property for which a freeport exemption has been claimed shall be at all times open to the inspection of all taxing authorities of this state and of any political subdivision of this state; or
    4. Stock in trade of a fulfillment center which, on January 1, is stored in a fulfillment center and which is made available to remote purchasers who may make such purchases by electronic, Internet, telephonic, or other remote means, and where such stock in trade of a fulfillment center will be shipped from the fulfillment center and delivered to the purchaser at a location other than the location of the fulfillment center. The exemption provided for in this paragraph shall be for a period not exceeding 12 months from the date such property is stored in this state. Such period shall be determined based on application of a first-in, first-out method of accounting for the inventory. The official books and records of the fulfillment center where such property is being stored shall contain a full, true, and accurate inventory of all such property, including the date of the receipt of the property and the date of the withdrawal of the property. The official books and records of any such fulfillment center pertaining to any such property for which a freeport exemption has been claimed shall be at all times open to the inspection of all taxing authorities of this state and of any political subdivision of this state.
  4. Whenever the governing authority of any county or municipality wishes to exempt such tangible property from ad valorem taxation, as provided in this Code section, the governing authority thereof shall notify the election superintendent of such political subdivision, and it shall be the duty of said election superintendent to issue the call for an election for the purpose of submitting to the electors of the political subdivision the question of whether such exemption shall be granted. The referendum ballot shall specify as separate questions the type or types of property as defined in this Code section which are being proposed to be exempted from taxation. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540.
  5. The governing authority of any county or municipality wherein an exemption has been approved by the voters as provided in this Code section may, by appropriate resolution, a copy of which shall be immediately transmitted to the state revenue commissioner, exempt from taxation 20 percent, 40 percent, 60 percent, 80 percent, or all of the value of such tangible personal property as defined in this Code section; provided, however, that once an exemption has been granted, no reduction in the percent of the value of such property to be exempted may be made until and unless such exemption is revoked or repealed as provided in this Code section. An increase in the percent of the value of the property to be exempted may be accomplished by appropriate resolution of the governing authority of such county or municipality, and a copy thereof shall be immediately transmitted to the state revenue commissioner, provided that such increase shall be in increments of 20 percent, 40 percent, 60 percent, or 80 percent of the value of such tangible personal property as defined in this Code section, within the discretion of such governing authority.
    1. If more than one-half of the votes cast on such question are in favor of such exemption, then such exemption may be granted by the governing authority commencing on the first day of any ensuing calendar year; otherwise, such exemption may not be granted. This paragraph is intended to clearly provide that following approval of such exemption in such referendum, such exemption may be granted on the first day of any calendar year following the year in which such referendum was conducted. This paragraph shall not be construed to imply that the granting of such exemption could not previously be delayed to any such calendar year.
    2. Exemptions may only be revoked by a referendum election called and conducted as provided in this Code section, provided that the call for such referendum shall not be issued within five years from the date such exemptions were first granted and, if the results of said election are in favor of the revocation of such exemptions, then such revocation shall be effective only at the end of a five-year period from the date of such referendum.
  7. Level 1 freeport exemptions effected pursuant to this Code section may be granted either in lieu of or in addition to level 2 freeport exemptions under Code Section 48-5-48.6.
  8. The commissioner shall by regulation adopt uniform procedures and forms for the use of local officials in the administration of this Code section. (Code 1981, § 48-5-48.2 , enacted by Ga. L. 1984, p. 1058, § 4; Ga. L. 1992, p. 2482, § 2; Ga. L. 1996, p. 926, § 1; Ga. L. 1998, p. 295, § 3; Ga. L. 1998, p. 1120, § 2; Ga. L. 2012, p. 249, § 2/HB 48; Ga. L. 2013, p. 83, § 1/HB 304; Ga. L. 2016, p. 731, § 2/HB 935; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 986, § 2/HB 888.)

The 2016 amendment, effective July 1, 2016, added paragraph (b)(4); redesignated former paragraph (b)(4) as present paragraph (b)(5); added paragraph (b)(6); redesignated former paragraph (b)(5) as present paragraph (b)(7); deleted "or" at the end of paragraph (c)(2); substituted "; or" for a period at the end of paragraph (c)(3); and added paragraph (c)(4).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, in the first sentence of paragraph (c)(4), substituted "January 1, is stored" for "January 1, are stored" and "which is" for "which are"; and revised punctuation in the first sentence of subsection (e).

The 2018 amendment, effective May 8, 2018, in paragraph (c)(1), inserted "by the taxpayer or the taxpayer's designated agent" in the middle of the first sentence and inserted "combined," in the middle of the second sentence; deleted "and" at the end of subparagraph (c)(1)(B); added "and" at the end of subparagraph (c)(1)(C); and added subparagraph (c)(1)(D).

Editor's notes. - Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provides: "In the event of any conflict between this Act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

Ga. L. 2012, p. 249, § 5/HB 48, not codified by the General Assembly, provides for severability.

Ga. L. 2013, p. 83, § 2/HB 304, not codified by the General Assembly, provided that the amendment to this Code section shall apply to all taxable years beginning on and after January 1, 2014.

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990). For article, "Freeport Exemption from Property Taxes for Inventory Stored in Georgia But Destined for Shipment Out-of-State," see 28 Ga. St. B. J. 108 (1991).

JUDICIAL DECISIONS

Purpose of statutory language. - By using the all-encompassing descriptive term "inventory of finished goods," instead of "tangible property," the General Assembly intended to include all classes of tangible property under the constitution without enumerating each so that there would be equal treatment to avoid constitutional implications as to equal protection, rational purpose, and disparate treatment. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

"For resale purposes", as used in O.C.G.A. § 48-5-48.2(a)(4), expressly excludes from the freeport exemption any merchandise sold at retail, regardless of whether the sale is made to a resident or nonresident of Georgia. Aircraft Spruce & Specialty Co. v. Fayette County Bd. of Tax Assessors, 294 Ga. App. 241 , 669 S.E.2d 417 (2008).

O.C.G.A. § 48-5-48.2 gives county discretion as to: (1) whether to submit the exemption issue to a voter referendum; (2) what types of inventory will be submitted to the voters for exemption; and (3) the percentage of the value of goods to be exempted. Levetan v. Lanier Worldwide, Inc., 265 Ga. 323 , 454 S.E.2d 504 (1995).

Accounting methods. - O.C.G.A. § 48-5-48.2(b)(1) and (2) did not require a particular accounting method to be used for valuation, so it was arbitrary and capricious to apply a particular accounting method to a taxpayer's freeport exemption application, because the application did not disclose a particular accounting method. William L. Bonnell Co. v. Coweta County Bd. of Tax Assessors, 252 Ga. App. 151 , 556 S.E.2d 159 (2001).

Grain merchandising and storage. - Under its pre-1998 version, O.C.G.A. § 48-5-48.2 did not apply to farm products stored for a grain merchandising and storage business. Board of Assessors v. McCoy Grain Exch., Inc., 234 Ga. App. 98 , 505 S.E.2d 832 (1998).

Evidence to show timely filing. - Without evidence of a United States post office postmark date to prove an application for freeport exemption was mailed timely, or other evidence to show compliance with an internal policy, the taxpayer was unable to prove the taxpayer's return was timely filed. DeKalb County Bd. of Tax Assessors v. Lanier Worldwide, Inc., 208 Ga. App. 435 , 430 S.E.2d 595 (1993).

Charge on risk of using mail system needed. - Because the instruction sheet for the application for freeport exemption makes it clear that the taxpayer bears the responsibility for ensuring that the postmark date is the same as the mailing date, the charge that one who selects the United States mail takes all the risks that are usually incident was relevant. DeKalb County Bd. of Tax Assessors v. Lanier Worldwide, Inc., 208 Ga. App. 435 , 430 S.E.2d 595 (1993).

Packaging materials are not "raw materials." Murray Bakery Prods., Inc. v. Board of Tax Assessors, 186 Ga. App. 559 , 367 S.E.2d 852 , aff'd, 258 Ga. 484 , 371 S.E.2d 393 (1988).

Merely assembling purchased packaging materials was not a substantial change of personal property in the ordinary course of a cookie maker's manufacturing business, and such materials did not qualify for the freeport exemption. Murray Bakery Prods., Inc. v. Board of Tax Assessors, 258 Ga. 484 , 371 S.E.2d 393 (1988).

Business involving both transportation and manufacture. - Fact that a company is in the transportation business is not fatal to the company's claim for a freeport exemption because the company functions as a manufacturer of aircraft parts and a remanufacturer of aircraft engines in the regular course of the company's business and those operations are located in this state. Delta Air Lines, Inc. v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225 , 539 S.E.2d 905 (2000).

Inventory sold from a taxpayer to a purchaser. - Under O.C.G.A. § 48-5-48.1(a) , the entity seeking the freeport exemption is required to file a written application and schedule of the property for which the exemption is sought; thus, the statutory scheme looks to the property, that is, the inventory, held by the taxpayer, and what becomes of the inventory in the hands of a purchaser from the taxpayer is not relevant to the determination of the availability of the freeport exemption. Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 , 705 S.E.2d 678 (2011).

Inventory being held for leasing purposes. - Computers owned by taxpayer and held in storage until leased to travel agencies, after the period of which lease the computers are returned to the taxpayer, were not "finished goods" being held for "final destination outside this state" within the meaning of O.C.G.A. § 48-5-48.2 , and therefore did not meet the requirements to qualify for the exemption under § 48-5-48.2 . Apollo Travel Servs. v. Gwinnett County Bd. of Supvrs., 230 Ga. App. 790 , 498 S.E.2d 297 (1998).

Inventory of finished goods. - Aircraft parts stored at the company and destined for shipment to airport stations outside Georgia qualified for the freeport exemption. The company was not required to prove that the parts were intended for resale. Delta Air Lines, Inc. v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225 , 539 S.E.2d 905 (2000).

Freeport exemption did not apply. - Freeport exemption from ad valorem taxes did not apply to a taxpayer's inventory of barbecue grill bodies because the taxpayer's involvement with the grill bodies ended when the taxpayer sold the grill bodies to a producer of barbecue grills, and the final destination of the grill bodies was the producer's plant; the producer incorporated the grill bodies into finished barbecue grills, and it was the completed barbecue grills that the producer eventually shipped out of state. Muscogee County Bd. of Tax Assessors v. Pace Indus., 307 Ga. App. 532 , 705 S.E.2d 678 (2011).

Res judicata and collateral estoppel as to exemption. - Following a final consent judgment, the factual and legal basis for freeport exemption for several previous years became res judicata as to what had been litigated, and collateral estoppel would apply on the exemption issue on future applications unless there was a substantial factual change. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

Doctrine of collateral estoppel applied to preclude the county board of tax assessors from relitigating a taxpayer's eligibility for the freeport exemption since there had been no change or development in the law. Gwinnett County Bd. of Tax Assessors v. GE Capital Computer Servs., 273 Ga. 175 , 538 S.E.2d 746 (2000).

Role of superior court. - It is initially the county board of tax assessors and, in the event of continued disagreement, the superior court, that must consider the taxpayer's showing and make an appropriate grant of freeport exemption if all conditions are satisfied. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

Motor vehicles and mobile homes. - While motor vehicles and mobile homes are classified as separate classes of tangible property for ad valorem purposes, the General Assembly did not intend to exclude this class of tangible property from the ambit of O.C.G.A. § 48-5-48.2 for purposes of freeport exemption. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

Aircraft engines in the process of remanufacture. - Process of "heavy maintenance," constituting the disassembly of the engine, the replacement of a number of expendable parts, the machine working of other parts to specification, its reassembly and testing over an approximate six to eight week period, is "substantial" for purposes of the exemption under O.C.G.A. § 48-5-48.2 . Delta Air Lines, Inc. v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225 , 539 S.E.2d 905 (2000).

Whether aircraft engines undergoing "light" maintenance were undergoing "substantial overhauling or rebuilding" for purpose of the exemption under O.C.G.A. § 48-5-48.2 is an issue meriting submission to a jury. Delta Air Lines, Inc. v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225 , 539 S.E.2d 905 (2000).

Out of state retail sales via telephone or Internet. - There was no merit to a taxpayer's argument that retail sales made via the telephone or Internet to out-of-state customers were not sales that occurred in Georgia. In determining whether a retail sale was made in Georgia, the court had to look to the location and conduct of the seller, rather than the location of the buyer, and here, all aspects of the retail sales made from the taxpayer's Georgia warehouse to Internet and telephone customers occurred in Georgia. Aircraft Spruce & Specialty Co. v. Fayette County Bd. of Tax Assessors, 294 Ga. App. 241 , 669 S.E.2d 417 (2008).

Cited in GE Capital Computer Servs. v. Gwinnett County Bd. of Tax Assessors, 240 Ga. App. 629 , 523 S.E.2d 651 (1999).

RESEARCH REFERENCES

ALR. - Validity, construction, and application of sales, use, and utility taxes on retail transactions of internet sellers and internet access providers, 30 A.L.R.6th 341.

48-5-48.3. Homestead exemption for senior citizens.

  1. As used in this Code section, the term:
    1. "Homestead" means homestead as defined and qualified in Code Section 48-5-40 with the additional qualification that it shall include only the primary residence and not more than ten contiguous acres of land immediately surrounding such residence.
    2. "Senior citizen" means a person who is 65 years of age or over on or before January 1 of the year in which application for the exemption under this Code section is made.
  2. Any person who is a senior citizen and resident of Georgia is granted upon application an exemption on his or her homestead which such person owns and actually occupies as a residence and homestead in an amount equal to the actual levy for state ad valorem taxation made pursuant to Code Section 48-5-8 with respect to that homestead, such exemption being from all ad valorem taxation for state purposes. The value of all property in excess of the exempted amount cited above shall remain subject to taxation.
  3. The exemption shall be claimed and returned in the same manner as otherwise required under Code Section 48-5-50.1. Each person shall file for the exemption only once in the county of his or her residence. Once filed, the exemption shall automatically be renewed from year to year.
  4. The exemption granted by this Code section shall not apply to or affect county taxes, municipal taxes, or school district taxes.
  5. The exemption granted by this Code section shall be in addition to and not in lieu of any other homestead exemption from state taxes. (Code 1981, § 48-5-48.3 , enacted by Ga. L. 2006, p. 376, § 3/HB 848; Ga. L. 2010, p. 878, § 48/HB 1387.)

Cross references. - Homestead exemptions, T. 44, C. 13.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, Code Section 48-5-48.3, as enacted by Ga. L. 2006, p. 1104, § 2/HB 81, was redesignated as Code Section 48-5-48.4.

Editor's notes. - Ga. L. 1990, p. 1858, § 2 provided for the repeal of the former Code section effective January 1, 1991, applicable to all taxable years beginning on or after that date. This Code section was based on Ga. L. 1986, p. 1445, § 1 and Ga. L. 1990, p. 45, § 1. For present provisions concerning homestead exemptions by qualified disabled veterans and certain surviving family members, see Code Section 48-5-48.

The state-wide referendum (Ga. L. 2006, p. 376, § 4/HB 848), which provided for a homestead exemption for senior citizens in an amount equal to the actual levy for state ad valorem tax purposes on the homestead, was approved by a majority of the qualified voters voting at the November 7, 2006 general election.

48-5-48.4. Homestead exemption for unremarried surviving spouse of peace officer or firefighter killed in the line of duty.

  1. As used in this Code section, the term:
    1. "Ad valorem taxes" means all state ad valorem taxes and all county, county school district, municipal, and independent school district taxes for county, county school district, municipal, or independent school district purposes including, but not limited to, taxes to retire bonded indebtedness.
    2. "Homestead" means homestead as defined and qualified in Code Section 48-5-40.
  2. Each resident of the state who is the unremarried surviving spouse of a peace officer or firefighter who was killed in the line of duty is granted an exemption on that person's homestead from all ad valorem taxes for the full value of that homestead.
  3. A person shall not receive the homestead exemption granted by subsection (b) of this Code section unless the person or person's agent files an affidavit with the tax commissioner of the county in which that person resides giving such information relative to receiving such exemption as will enable the tax commissioner to make a determination as to whether such person is entitled to such exemption. The tax commissioner shall provide affidavit forms for this purpose and shall require such information as may be necessary to determine the initial and continuing eligibility of the applicant for the exemption.
  4. The exemption shall be claimed and returned as provided in Code Section 48-5-50.1. The exemption shall be automatically renewed from year to year as long as the applicant occupies the residence as a homestead. After a person has filed the proper affidavit as provided in subsection (c) of this Code section, it shall not be necessary to make application and file such affidavit thereafter for any year and the exemption shall continue to be allowed to such person. It shall be the duty of any person granted the homestead exemption under this Code section to notify the tax commissioner or the designee thereof in the event that person for any reason becomes ineligible for that exemption.
  5. The exemption granted by this Code section shall be in lieu of and not in addition to any other homestead exemption from ad valorem taxes.
  6. The exemption granted by this Code section shall apply to all taxable years beginning on or after January 1, 2007. (Code 1981, § 48-5-48.4 , enacted by Ga. L. 2006, p. 1104, § 2/HB 81.)

Cross references. - Homestead exemptions, T. 44, C. 13.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, Code Section 48-5-48.3, as enacted by Ga. L. 2006, p. 1104, § 2/HB 81, was redesignated as Code Section 48-5-48.4.

Editor's notes. - The state-wide referendum (Ga. L. 2006, p. 1104, § 3/HB 81), which provided for a homestead exemption for the full value of the homestead with respect to all ad valorem taxes for the unremarried surviving spouse of a peace officer or firefighter who was killed in the line of duty, was approved by a majority of qualified voters at the November 7, 2006 general election.

48-5-48.5. Level 2 freeport exemption; application; filing; renewal.

  1. Any person, firm, or corporation seeking a level 2 freeport exemption from ad valorem taxation of certain tangible personal property inventory when such exemption has been authorized by the governing authority of any county or municipality after approval of the electors of such county or municipality pursuant to the authority of the Constitution of Georgia and Code Section 48-5-48.6 shall file a written application and summary, as prescribed by the department, of property with the county board of tax assessors on forms furnished by such board. Such application shall be filed in the year in which exemption from taxation is sought no later than the date on which the tax receiver or tax commissioner of the county in which the property is located closes the books for the return of taxes.
  2. The application for the level 2 freeport exemption shall provide for a summary, as prescribed by the department, of the inventory of finished goods held by one in the business of making sales of such goods in this state.
    1. For purposes of this subsection, the term "file properly" shall mean and include the timely filing of the application and complete summary, as prescribed by the department, of the inventory for which exemption is sought on or before the due date specified in subsection (a) of this Code section. Any clerical error, including, but not limited to, a typographical error, scrivener's error, or any unintentional immaterial error or omission in the application shall not be construed as a failure to file properly.
    2. The failure to file properly the application and summary, as prescribed by the department, shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to make the application for such exemption for that year as follows:
      1. The failure to report any inventory for which such exemption is sought in the summary, as prescribed by the department, provided for in the application shall constitute a waiver of the exemption on the part of the person, firm, or corporation failing to so report for that taxable year in an amount equal to the difference between fair market value of the inventory as reported and the fair market value finally determined to be applicable to the inventory for which the exemption is sought; and
      2. The failure to file timely such application and summary, as prescribed by the department, shall constitute a waiver of the exemption until the first day of the month following the month such application and summary, as prescribed by the department, are filed properly with the county tax assessor; provided, however, that unless the application and schedule are filed on or before June 1 of such year, the exemption shall be waived for that entire year.
  4. Upon receiving the application required by this Code section, the county board of tax assessors shall determine the eligibility of all types of tangible personal property listed on the application. If any property has been listed which the board believes is not eligible for the exemption, the board shall issue a letter notifying the applicant that all or a portion of the application has been denied. The denial letter shall list the type and total fair market value of all property listed on the application for which the exemption has been approved and the type and total fair market value of all property listed on the application for which the exemption has been denied. The applicant shall have the right to appeal from the denial of the exemption for any property listed, and such appeal shall proceed as provided in Code Section 48-5-311. Except as otherwise provided in subparagraph (c)(2)(A) of this Code section, the county board of assessors shall not send a second letter of notification denying the exemption of all or a portion of such property listed on the application on new grounds that could and should have been discerned at the time the initial denial letter was issued.
  5. If the level 2 freeport exemption has been granted to a taxpayer for a taxable year, the county board of tax assessors shall issue a notice of renewal to the taxpayer for the immediately following taxable year. Such notice of renewal shall be issued not later than January 15 of such immediately following taxable year to facilitate the filing of a timely application and summary, as prescribed by the department, by the taxpayer for such taxable year. (Code 1981, § 48-5-48.5 , enacted by Ga. L. 2012, p. 249, § 3/HB 48; Ga. L. 2018, p. 986, § 3/HB 888.)

The 2018 amendment, effective May 8, 2018, substituted "summary, as prescribed by the department," for "schedule" throughout this Code section; and added the last sentence of paragraph (c)(1).

Editor's notes. - Ga. L. 2012, p. 249, § 5/HB 48, not codified by the General Assembly, provides for severability.

48-5-48.6. Level 2 freeport exemption; referendum.

  1. This Code section shall be known and may be cited as the "Level 2 Freeport Exemption."
  2. As used in this Code section, the term "finished goods" means, for purposes of a level 2 freeport exemption, goods, wares, and merchandise of every character and kind constituting a business's inventory which would not otherwise qualify for a level 1 freeport exemption.
  3. The governing authority of any county or municipality may, subject to the approval of the electors of such political subdivision, exempt from ad valorem taxation, including all such taxes levied for educational purposes and for state purposes, inventory of finished goods.
  4. Whenever the governing authority of any county or municipality wishes to exempt such tangible property from ad valorem taxation, as provided in this Code section, the governing authority thereof shall notify the election superintendent of such political subdivision, and it shall be the duty of said election superintendent to issue the call for an election for the purpose of submitting to the electors of the political subdivision the question of whether such exemption shall be granted. The referendum ballot shall specify retail business inventory as the types of property as defined in this Code section which are being proposed to be exempted from taxation. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540.
  5. The governing authority of any county or municipality wherein an exemption has been approved by the voters as provided in this Code section may, by appropriate resolution, a copy of which shall be immediately transmitted to the state revenue commissioner, exempt from taxation 20 percent, 40 percent, 60 percent, 80 percent, or all of the value of such tangible personal property as defined in this Code section; provided, however, that once an exemption has been granted, no reduction in the percent of the value of such property to be exempted may be made until and unless such exemption is revoked or repealed as provided in this Code section. An increase in the percent of the value of the property to be exempted may be accomplished by appropriate resolution of the governing authority of such county or municipality, and a copy thereof shall be immediately transmitted to the state revenue commissioner, provided that such increase shall be in increments of 20 percent, 40 percent, 60 percent, or 80 percent of the value of such tangible personal property as defined in this Code section, within the discretion of such governing authority.
    1. If more than one-half of the votes cast on such question are in favor of such exemption, then such exemption may be granted by the governing authority commencing on the first day of any ensuing calendar year; otherwise, such exemption may not be granted. This paragraph is intended to clearly provide that following approval of such exemption in such referendum, such exemption may be granted on the first day of any calendar year following the year in which such referendum was conducted. This paragraph shall not be construed to imply that the granting of such exemption could not previously be delayed to any such calendar year.
    2. Exemptions may only be revoked by a referendum election called and conducted as provided in this Code section, provided that the call for such referendum shall not be issued within five years from the date such exemptions were first granted and, if the results of said election are in favor of the revocation of such exemptions, then such revocation shall be effective only at the end of a five-year period from the date of such referendum.
  7. Level 2 freeport exemptions effected pursuant to this Code section may be granted either in lieu of or in addition to level 1 freeport exemptions under Code Section 48-5-48.2.
  8. The commissioner shall by regulation adopt uniform procedures and forms for the use of local officials in the administration of this Code section. (Code 1981, § 48-5-48.6 , enacted by Ga. L. 2012, p. 249, § 3/HB 48.)

Editor's notes. - Ga. L. 2012, p. 249, § 5/HB 48, not codified by the General Assembly, provides for severability.

48-5-48.7. Determination of timely filing; recourse for improper determinations.

  1. Any document required to be filed under Code Section 48-5-48.1 or 48-5-48.5 shall be considered properly and timely filed if the postal date on the mailed document, whether metered or stamped, is on or before the date on which the tax receiver or tax commissioner of the county in which the property is located closes the book for the return of taxes.
  2. Any document properly and timely filed pursuant to subsection (a) of this Code section and incorrectly determined to be untimely filed, upon sufficient proof thereof, shall entitle the applicant to a credit against future ad valorem assessments from the county which improperly denied the applicant the exemption under Code Section 48-5-48.1 or 48-5-48.5 . (Code 1981, § 48-5-48.7 , enacted by Ga. L. 2018, p. 986, § 4/HB 888.)

Effective date. - This Code section became effective May 8, 2018.

48-5-49. Determination of eligibility of applicant; appeal.

  1. The official receiving an application for homestead exemption shall determine the eligibility of the applicant to claim the exemption and, whether the application is approved or disapproved, he shall then transfer the application to the county board of tax assessors for final determination by the board as to eligibility and value as provided by law.
  2. The applicant shall have the right of appeal from the decision of the board of assessors to the county board of equalization as provided in Code Section 48-5-311.

    (Ga. L. 1937-38, Ex. Sess., p. 145, § 5; Code 1933, § 91A-1113, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 31; Ga. L. 1981, p. 1857, § 14.)

JUDICIAL DECISIONS

Statute does not violate due process clause. - Ga. L. 1937-38, Ex. Sess., p. 145, § 5 (see now subsection (a) of O.C.G.A. § 48-5-49 ) does not deny taxpayers a chance to be heard before either the tax commissioner or the board of tax assessors. The rights of an applicant for a homestead exemption are further safeguarded by Ga. L. 1937-38, Ex. Sess., p. 145, § 5 (see now subsection (b) of O.C.G.A. § 48-5-49 ), allowing the right of appeal from a decision of the board. This statute is not, for any reason assigned, violative of the due process clause of the Constitution. Duncan v. Proctor, 195 Ga. 499 , 24 S.E.2d 791 (1943).

Statute does not violate homestead provisions of constitution. - Procedure contained in this statute, providing for determination of the eligibility of a resident to receive the homestead exemption, is not violative of Ga. Const. 1877, Art. VII, Sec. II, Para. VII (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV), upon which this statute is based. Duncan v. Proctor, 195 Ga. 499 , 24 S.E.2d 791 (1943).

Right to appeal. - County's recalculations of the taxpayers' homestead exemptions involved the value of the exemptions, bringing the taxpayers within O.C.G.A. § 48-5-49 , which permitted an appeal under O.C.G.A. § 48-5-311 . Since the county had not given the taxpayers notice under O.C.G.A. § 48-5-306 of the taxpayers' right to appeal, the taxpayers were entitled to equitable relief requiring the county to: (1) provide taxpayers with proper notice of and the right to appeal changes in the homestead exemptions; (2) stop collecting taxes referenced in bills sent without proper notice; and (3) refund any tax money collected based on bills issued without such notice. Fulton County Bd. of Tax Assessors v. Marani, 299 Ga. App. 580 , 683 S.E.2d 136 (2009), cert. denied, No. S09C2072, 2010 Ga. LEXIS 18 (Ga. 2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homestead, § 13 et seq.

C.J.S. - 40 C.J.S., Homesteads, § 41.

48-5-50. Homestead value credited with exemption; approval of correctness of value, exemption, and difference.

The value of the homestead as finally determined shall be credited with the homestead exemption provided by law. The homestead value, exemption, and difference, if any, shall be shown on the owner's tax return and the correctness of the value, exemption, and difference shall be approved on the return as provided by law.

(Ga. L. 1937-38, Ex. Sess., p. 145, § 10; Code 1933, § 91A-1114, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Effect of determination of value when contrary to law. - In the absence of a successful constitutional attack on this statute, the allowable homestead exemption should be credited on the assessed value of each taxpayer's land as such value was finally determined and fixed by those tax officials who were required by law to value the land, rather than on the fair market value. Kiker v. Pinson, 120 Ga. App. 784 , 172 S.E.2d 333 (1969).

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Homesteads, § 50.

48-5-50.1. Claim and return of constitutional or local law homestead exemptions from county taxes, county school taxes, or municipal or independent school district taxes.

  1. This Code section shall govern the procedure for returning and claiming homestead exemptions which are created by or pursuant to local laws or constitutional amendments which were not general amendments. If, however, such a constitutional amendment or local law contains provisions which are in conflict with this Code section, then such other provisions shall prevail over this Code section.
    1. If the homestead exemption is from county taxes or county school taxes, it shall be claimed and returned as provided in Code Sections 48-5-45, 48-5-46, 48-5-49, and 48-5-50.
    2. If the homestead exemption is from municipal or independent school district taxes, it shall be claimed and returned as provided in Code Sections 48-5-45, 48-5-46, and 48-5-50, except that any reference to the tax commissioner or tax receiver shall be deemed to refer to the municipal governing authority or its designee. The determination of eligibility of the applicant to claim the exemption shall be made by the municipal governing authority subject to appeal to the superior court. Any such appeal must be filed within 30 days after the final determination by the municipal governing authority and shall be a de novo proceeding.
    3. In addition to the provisions required by Code Section 48-5-46, the application for an exemption under this Code section may provide where necessary for an affidavit as to the age of the owner, the income of the owner and of each member of his family residing on the homestead, and such other information as may be necessary to determine eligibility of the owner for the exemption. The commissioner shall not be required to furnish specialized forms required by this Code section.

      (Code 1933, § 91A-1118, enacted by Ga. L. 1981, p. 117, § 1; Ga. L. 1984, p. 1058, § 5.)

Editor's notes. - Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provided as follows: "In the event of any conflict between this Act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 207 et seq.

C.J.S. - 84 C.J.S., Taxation, § 290.

48-5-51. Fraudulent claim of homestead exemption under Code Sections 48-5-44 through 48-5-50; penalty.

  1. It shall be unlawful for any person to:
    1. Make any false or fraudulent claim for exemption under Code Sections 48-5-44 through 48-5-50;
    2. Make any false statement or false representation of a material fact in support of a claim for exemption under Code Sections 48-5-44 through 48-5-50; or
    3. Assist another knowingly in the preparation of any false or fraudulent claim for exemption under Code Sections 48-5-44 through 48-5-50, or enter into any collusion with another by the execution of a fictitious deed, deed of trust, mortgage, or otherwise.
  2. Any person who violates this Code section shall be guilty of a misdemeanor. In addition, the property shall be taxed in an amount double the tax otherwise to be paid.

    (Ga. L. 1937-38, Ex. Sess., p. 145, § 11; Code 1933, § 91A-9906, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 512, 513, 514.

C.J.S. - 37 C.J.S., Fraud, §§ 12 et seq., 20, 25, 115, 123, 124, 132 et seq., 154 et seq. 84 C.J.S., Taxation, § 542 et seq. 85 C.J.S., Taxation, §§ 1715, 1723 et seq. 1742, 1785.

48-5-52. Exemption from ad valorem taxation for educational purposes of homesteads of qualified individuals 62 or older; application; replacement of revenue.

  1. The homestead of each resident of each independent school district and of each county school district within this state who is 62 years of age or older and,  for the purposes of all tax years beginning on or after January 1, 2003, whose net income together with the net income of the spouse who also occupies and resides at such homestead, as net income is defined by Georgia law from all sources, except as otherwise provided in this subsection, does not exceed $10,000.00 for the immediately preceding taxable year for income tax purposes, is exempted from all ad valorem taxes for educational purposes levied by, for, or on behalf of any such school system, including taxes to retire school bond indebtedness.  For the purposes of this subsection, net income shall not include income received as retirement, survivor, or disability benefits under the federal Social Security Act or under any other public or private retirement, disability, or pension system, except such income which is in excess of the maximum amount authorized to be paid to an individual and his or her spouse under the federal Social Security Act.  Income from such sources in excess of such maximum amount shall be included as net income for the purposes of this subsection. The exemption shall not exceed $10,000.00 of the homestead's assessed value.  Except as otherwise specifically provided by law, the value of that property in excess of such exempted amount shall remain subject to taxation.
    1. The exemption provided for in subsection (a) of this Code section shall not be granted unless an affidavit of the owner of the homestead, prepared upon forms prescribed by the commissioner for that purpose, is filed with either the tax receiver or tax commissioner, in the case of residents of county school districts, or with the governing authority of the owner's city, in the case of residents of independent school districts.
    2. The affidavit shall in the first year for which the exemption is sought be filed on or before the last day for making a tax return and shall show the:
      1. Age of the owner on January 1 immediately preceding the filing of the affidavit;
      2. Total amount of net income received by the owner and spouse from all sources during the immediately preceding calendar year; and
      3. Such additional information as may be required by the commissioner.
    3. Copies of all affidavits received or extracts of the information contained in the affidavits shall be forwarded to the commissioner by the various taxing authorities with whom the affidavits are filed. The commissioner is authorized to compare such information with information contained in any income tax return, sales tax return, or other tax documents or records of the department and to report immediately to the appropriate county or city taxing authority any apparent discrepancies between the information contained in any affidavit and the information contained in any other tax records of the department.
    4. After the owner has filed the affidavit and has once been allowed the exemption provided for in this Code section, it shall not be necessary to make application and file the affidavit thereafter for any year and the exemption shall continue to be allowed to such owner; provided, however, that it shall be the duty of any such owner to notify the tax commissioner or tax receiver in the event the owner becomes ineligible for any reason for the exemption provided for in this Code section.
  3. The homestead exemption granted by this Code section shall extend to and shall apply to those properties the legal title to which is vested in one or more titleholders when such property is actually occupied as a residence by one or more of the titleholders who possess the qualifications provided in subsection (a) of this Code section and who claim the exemption in the manner provided for in this Code section. The exemption shall also extend to those homesteads the title to which is vested in a personal representative or trustee if one or more of the heirs or beneficiaries residing on the property possess the qualifications provided for and claim the exemption in the manner provided in this Code section.
    1. The State Board of Education, when funds are specifically appropriated for the purpose of replacing revenue lost by local school systems as a result of this Code section, shall provide each school district in this state which, on July 1, 1974, had in effect a tax levy of 20 mills or more for educational purposes or was levying the maximum permissible tax authorized by law for educational purposes, with grants for educational purposes which shall equal the revenues lost by the school district due to the exemption provided by this Code section for property located within the school district.
    2. The State Board of Education may promulgate reasonable rules to carry out this subsection.

      (Ga. L. 1974, p. 183, §§ 1-4; Code 1933, § 91A-1117, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 16; Ga. L. 1984, p. 1437, § 1; Ga. L. 1988, p. 2, § 2; Ga. L. 2001, p. 1092, § 1; Ga. L. 2010, p. 564, § 2/HB 963.)

Editor's notes. - Ga. L. 1988, p. 2, § 3, not codified by the General Assembly, required the Secretary of State to call and conduct a referendum for the approval or disapproval of this Act on the date of and in conjunction with the 1988 presidential preference primary. The referendum was held on March 8, 1988, and the amendment of this Code section was approved by a vote of 655,019 to 144,603. Further, Section 3 also provided: "If a taxpayer files a proper affidavit on or before the last day for filing his or her tax return in 1988, then Sections 1 and 2 of this Act shall apply with respect to such taxpayer's 1988 and future ad valorem taxes; and otherwise Sections 1 and 2 of this Act shall apply to any taxpayer who has so filed a timely affidavit at any time thereafter. Nothing in this Act shall require any person who qualified for any homestead exemption under prior law to reapply in order to be allowed the exemption."

The state-wide referendum (Ga. L. 2001, p. 1092, § 1) which changed the income requirements for this ad valorem tax exemption was approved by a majority of the voters voting at the November, 2002 general election.

OPINIONS OF THE ATTORNEY GENERAL

Life tenant with remainderman responsible for ad valorem taxes. - Covenant contained in a deed conveying a life estate which makes the remainder interest responsible for paying the ad valorem taxes does not alter the ownership interests in the property for purposes of eligibility to claim the homestead exemptions allowed for the elderly. 1983 Op. Att'y Gen. No. U83-71.

Construction with homestead provisions in constitution. - Taxpayer who meets the qualifications of both this statute and Ga. Const. 1945, Art. VII, Sec. I, Para. IV (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV), relating to exemptions for persons 65 and over, would be entitled to an exemption of no more than $4,000.00 from state ad valorem taxes, $4,000.00 from county ad valorem taxes excluding those taxes levied for educational purposes, and $10,000.00 from ad valorem taxes levied for educational purposes. 1974 Op. Att'y Gen. No. U74-83.

Social security benefits are included in income for the purposes of determining a taxpayer's entitlement to the homestead exemption granted in this statute. 1974 Op. Att'y Gen. No. U74-83.

Effect of claim of two or more similar exemptions. - If a taxpayer is qualified for and chooses to invoke the benefits of any one of the exemptions from any one of the types of ad valorem taxes, the taxpayer necessarily triggers the limitation clause of that exemption; any attempt to take two or more similar exemptions would violate the limitation clause of each of the exemptions and cannot be done. 1974 Op. Att'y Gen. No. U74-83.

Applicable levy under subsection (d). - If the governing authority of a county has not set a tax levy for 1974 prior to July 1, 1974, then that tax levy which was set in 1973 is the levy in effect for purposes of this statute. 1974 Op. Att'y Gen. No. U74-73.

Effect of levy recommended and requested but not adopted by county prior to July 1, 1974. - When a county board of education has recommended and requested a certain levy prior to July 1, 1974, but such recommendation and request has not been officially adopted by the county governing authority prior to that date, the levy recommended and requested by the board is not in effect for purposes of this statute. 1974 Op. Att'y Gen. No. U74-73.

RESEARCH REFERENCES

Am. Jur. 2d. - 40 Am. Jur. 2d, Homestead, § 13.

C.J.S. - 84 C.J.S., Taxation, § 419 et seq.

ALR. - Tax exemption of property as affecting its inclusion in determining requisite consent of property owners to annexation territory, local improvement, bond issue, and other public activity, 146 A.L.R. 1260 .

Validity of statute or ordinance giving property tax exemption or favorable property tax rate to older persons, 45 A.L.R.3d 1147.

Construction of statute or ordinance giving property tax exemption or favorable property tax rate to older persons, 45 A.L.R.3d 1153.

Prospective use for tax-exempt purposes as entitling property to tax exemption, 54 A.L.R.3d 9.

Availability of tax exemption to property held on lease from exempt owner, 54 A.L.R.3d 402.

48-5-52.1. Exemption from ad valorem taxation for state, county, municipal, and school purposes of homesteads of unremarried surviving spouses of U.S. servicemembers killed in action.

  1. Any person who is a citizen and resident of Georgia and who is an unremarried surviving spouse of a member of the armed forces of the United States, which member has been killed in or has died as a result of any war or armed conflict in which the armed forces of the United States engaged, whether under United States command or otherwise, shall be granted a homestead exemption from all ad valorem taxation for state, county, municipal, and school purposes in the amount of the greater of $32,500.00 or the maximum amount which may be granted to a disabled veteran under Section 2102 of Title 38 of the United States Code, as amended.  As of January 1, 1999, the maximum amount which may be granted to a disabled veteran under the above-stated federal law is $43,000.00.  For the purposes of this Code section, the term "unremarried surviving spouse" of a member of the armed forces includes the unmarried widow or widower of a member of the armed forces who is receiving spousal benefits from the United States Department of Veterans Affairs. The exemption shall be on the homestead which the unremarried surviving spouse owns and actually occupies as a residence and homestead.  In the event such surviving spouse remarries, such person shall cease to be qualified to continue the exemption under this Code section effective December 31 of the taxable year in which such person remarries. The value of all property in excess of such exemption granted to such unremarried surviving spouse shall remain subject to taxation.
  2. In order to qualify for the exemption provided for in this Code section, the unremarried surviving spouse shall furnish to the tax commissioner of the county of residence documents from the Secretary of Defense evidencing that such unremarried surviving spouse receives spousal benefits as a result of the death of such person's spouse who as a member of the armed forces of the United States was killed or died as a result of a war or armed conflict while on active duty or while performing authorized travel to or from active duty during such war or armed conflict in which the armed forces of the United States engaged, whether under United States command or otherwise, pursuant to the Survivor Benefit Plan under Subchapter II of Chapter 73 of Title 10 of the United States Code or pursuant to any preceding or subsequent federal law which provides survivor benefits for spouses of members of the armed forces who were killed or who died as a result of any war or armed conflict.
  3. An unremarried surviving spouse filing for the exemption under this Code section shall be required to file with the tax commissioner information relative to marital status and other such information which the county board of tax assessors deems necessary to determine eligibility for the exemption. Each unremarried surviving spouse shall file for the exemption only once with the tax commissioner. Once filed, the exemption shall automatically be renewed from year to year, except that the county board of tax assessors may require annually that the holder of an exemption substantiate his or her continuing eligibility for the exemption. It shall be the duty of any person granted the homestead exemption under this Code section to notify the tax commissioner in the event that person for any reason becomes ineligible for such exemption.
  4. The exemption granted by this Code section shall be in lieu of and not in addition to any other exemption from ad valorem taxation for state, county, municipal, and school purposes which is equal to or lower in amount than such exemption granted by this Code section. If the amount of any other exemption from ad valorem taxation for state, county, municipal, and school purposes applicable to any resident qualifying under this Code section is greater than or is increased to an amount greater than the amount of the applicable exemption granted by this Code section, such other exemption shall apply and shall be in lieu of and not in addition to the exemption granted by this Code section.
  5. The exemptions granted by this Code section shall apply to the tax year beginning on January 1, 2001, and all tax years thereafter. (Code 1981, § 48-5-52.1 , enacted by Ga. L. 2000, p. 799, § 1; Ga. L. 2002, p. 868, § 1.)

Cross references. - Gold Star license plates, § 40-2-85.3 .

Editor's notes. - Ga. L. 2000, p. 799, § 2, provides that this Code section becomes effective January 1, 2001, only upon approval by the voters at the November 2000 general election. The constitutional amendment (Ga. L. 1999, p. 1275) was approved by a majority of the qualified voters voting at the general election held on November 7, 2000.

The state-wide referendum (Ga. L. 2002, p. 868, § 2) which provided for an ad valorem tax exemption from taxation for the surviving spouses of military personnel killed while serving in war or armed conflict was approved by a majority of the qualified voters voting at the November, 2002 general election.

Ga. L. 2002, p. 868, § 2, not codified by the General Assembly, provides that this Act shall apply to all tax years beginning on or after January 1, 2003.

RESEARCH REFERENCES

ALR. - Validity, construction and application of statutory and constitutional provisions exempting real property of persons in military service, or formerly in such service, from taxation, 7 A.L.R.7th 6.

48-5-53. Falsification of information required by Code Section 48-5-52; penalty.

  1. It shall be unlawful for any person willfully to falsify information required by the commissioner pursuant to Code Section 48-5-52, whether relating to age, income, or otherwise.
  2. Any person who violates subsection (a) of this Code section commits the offense of false swearing.

    (Ga. L. 1974, p. 183, § 6; Code 1933, § 91A-9907, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Penalty for false swearing, § 16-10-71 .

48-5-54. Application of homestead exemptions to properties with multiple titleholders and properties held by administrators, executors, or trustees.

  1. The exemptions granted to the homestead pursuant to this part shall extend to and shall apply to those properties the legal title to which is vested in one or more titleholders if actually occupied by one or more of such owners as a residence.  In such instances, such exemptions shall be granted to such properties if claimed in the manner provided by law by one or more of the owners actually residing on such property.  Such exemptions shall also extend to those homesteads the title to which is vested in an administrator, executor, or trustee if one or more of the heirs or cestui que uses residing on such property claims the exemption in the manner provided by law.  The provisions of this Code section shall also apply to exemptions granted to the homestead by any local law adopted after July 1, 1984, unless the local law expressly provides to the contrary.
  2. The failure to file properly the application and schedule shall not be cause for waiver of the exemption where such waiver arises because of an administrator's or executor's deed transferring the property to a surviving spouse. In such instances, the board of tax assessors shall give notice of its intent to deny the exemption as required by Code Section 48-5-49 , and the surviving spouse may make application for the amount of homestead exemption to which such applicant is entitled within 30 days from the date of the notice by the board of tax assessors. In the case of a base year assessed value homestead exemption, so long as the surviving spouse otherwise meets the requirements specified for such exemption and makes proper application under this subsection, upon approval of such application the exemption shall be continued with the same base year assessed value as had been established for the deceased spouse of such surviving spouse, unless otherwise provided by local law. (Code 1981, § 48-5-54 , enacted by Ga. L. 1984, p. 1058, § 6; Ga. L. 1985, p. 149, § 48; Ga. L. 1993, p. 1777, § 2; Ga. L. 2006, p. 1104, § 4/HB 81; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "so long as" for "as long as" in the third sentence of subsection (b).

Editor's notes. - Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provided as follows: "In the event of any conflict between this Act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

Ga. L. 2006, p. 1104, § 5/HB 81, not codified by the General Assembly, provides, in part, that the amendment to subsection (b) shall be applicable to all taxable years beginning on or after January 1, 2007.

The state-wide referendum (Ga. L. 2006, p. 1104, § 5/HB 81), which provided that, with respect to base year assessed value homestead exemptions, the surviving spouse of a deceased spouse who has been granted such a homestead exemption shall receive that exemption at the same base year valuation that applied to the deceased spouse so long as that surviving spouse continues to occupy the home as a residence and homestead, was approved by a majority of the qualified voters at the November 7, 2006 general election.

48-5-55. Continuation of constitutional exemptions from ad valorem taxes.

  1. Exemptions from ad valorem taxation granted by or pursuant to constitutional amendments other than general constitutional amendments of state-wide application, which exemptions were in effect on June 30, 1983, are continued in effect as statutory law until otherwise provided for by law.
  2. The provisions of this part shall not prohibit any otherwise lawful local Act from granting exemptions from ad valorem taxes other than state ad valorem taxes, which exemptions are in addition to or in place of the exemptions granted pursuant to this part. (Code 1981, § 48-5-55 , enacted by Ga. L. 1984, p. 1058, § 7.)

Editor's notes. - Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provided as follows: "In the event of any conflict between this Act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

48-5-56. Notice of homestead exemptions from ad valorem taxation to accompany bill for ad valorem taxes on real property.

Each bill for ad valorem taxes on real property other than property required to be returned to the commissioner shall contain or be accompanied by a notice in substantially the following form:

"Certain persons are eligible for certain homestead exemptions from ad valorem taxation. In addition to the regular homestead exemption authorized for all homeowners, certain elderly persons are entitled to additional homestead exemptions. The full law relating to each exemption must be referred to in order to determine eligibility for the exemption. If you are eligible for one of these exemptions and are not now receiving the benefit of the exemption, you must apply for the exemption not later than (insert date) in order to receive the exemption in future years. For more information on eligibility for exemptions or on the proper method of applying for an exemption, you may contact the office of the county tax receiver or county tax commissioner, which is located at : (insert address) and which may be contacted by telephone at : (insert telephone number).

If you feel that your property has been assigned too high a value for tax purposes by the board of tax assessors, you should file a tax return reducing the value not later than ________________ in order to have an opportunity to have this value lowered for next year's taxes. Information on filing a return can be obtained from the county tax receiver or tax commissioner at the above address and telephone number."

(Code 1981, § 48-5-56 , enacted by Ga. L. 1985, p. 1262, § 1.)

Editor's notes. - Ga. L. 1985, p. 1262, § 3, not codified by the General Assembly, provided that that Act would apply to tax bills and assessment notices mailed on or after January 1, 1986.

PART 2 T AX DEFERRAL FOR THE ELDERLY

48-5-70. Short title.

This part shall be known and may be cited as the "Tax Deferral for the Elderly Act."

(Code 1933, § 91A-2401, enacted by Ga. L. 1980, p. 1707, § 1.)

48-5-71. Definitions.

As used in this part, the term:

  1. "Gross household income" means all income, for all individuals residing within the homestead, from whatever source derived including, but not limited to, the following sources:
    1. Compensation for services including fees, commissions, and similar items;
    2. Gross income derived from business;
    3. Gains derived from dealings in property;
    4. Interest;
    5. Rents;
    6. Royalties;
    7. Dividends;
    8. Alimony and separate maintenance payments;
    9. Income from life insurance and endowment contracts;
    10. Annuities;
    11. Pensions;
    12. Income from discharge of indebtedness;
    13. Distributive share of partnership gross income;
    14. Income from an interest in an estate or trust; and
    15. Federal old-age, survivor, or disability benefits.
  2. "Homestead exemption" means a homestead exemption pursuant to Code Section 48-5-44 with respect to state, county, and school purpose ad valorem taxes as provided in Code Section 48-5-44 and a homestead exemption pursuant to a local Act with respect to municipal ad valorem taxes for municipal purposes as provided in any such local Act.
  3. "Household" means an individual or group of individuals living together in a room or group of rooms as a housing unit.
  4. "Tax official" means the tax collector or tax commissioner with respect to state, county, and school purpose ad valorem taxes pursuant to Code Section 48-5-44 and the municipal governing authority or designee thereof with respect to municipal ad valorem taxes for municipal purposes pursuant to any local Act homestead exemption.

    (Code 1933, § 91A-2402, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 2000, p. 533, § 1.)

48-5-72. Homestead tax deferral for individuals 62 or older; demonstration of compliance with part.

  1. Any individual aged 62 or older who is entitled to claim a homestead exemption may elect to defer payment of all or part of the ad valorem taxes levied on such individual's homestead by filing an annual application for tax deferral with the appropriate tax official on or before April 1 of the year for which the deferral is sought. If the homestead for which a deferral is requested has an assessed value for purposes of ad valorem taxation of $50,000.00 or more, the deferral may apply only to the taxes on that portion of the assessed value which is $50,000.00 or less.
  2. It shall be the burden of each applicant for a deferral to demonstrate affirmatively his compliance with the requirements of this part.

    (Code 1933, § 91A-2403, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 2000, p. 533, § 2.)

48-5-72.1. Alternative to tax deferral authorized by Code Section 48-5-72; burden on applicant to demonstrate compliance.

  1. As an alternative to the tax deferral authorized by Code Section 48-5-72, any individual aged 62 or older residing within any county of this state having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census who is entitled to claim a homestead exemption pursuant to Code Section 48-5-44 may elect to defer payment of all or any part of that portion of the ad valorem taxes levied on the individual's homestead which exceeds 4 percent of the individual's gross household income for the immediately preceding calendar year. An application for tax deferral under this Code section shall be filed annually with the tax collector or tax commissioner on or before April 1 of the year for which the deferral is sought. If an individual files for a tax deferral under this Code section, such individual shall not be authorized to file for a tax deferral under Code Section 48-5-72.
  2. The amount of the assessed value of the homestead and the amount of gross household income shall not limit the tax deferral authorized by this Code section. However, except for the provisions of Code Section 48-5-72 and paragraph (2) of Code Section 48-5-73, the provisions of this part shall apply to the tax deferral authorized by this Code section.
  3. It shall be the burden of each applicant for a deferral under this Code section to demonstrate affirmatively the applicant's compliance with this Code section and other provisions of this part. (Code 1981, § 48-5-72.1 , enacted by Ga. L. 1988, p. 466, § 1.)

48-5-73. Limitations on grant of homestead tax deferral.

No tax deferral in any one year shall be granted pursuant to Code Section 48-5-72:

  1. If the total amount of deferred taxes and interest plus the total amount of all other unsatisfied liens on the homestead exceeds 85 percent of the fair market value of the homestead as shown on the county tax digest for the immediately preceding tax year;
  2. If the applicant's gross household income for the immediately preceding calendar year exceeds $15,000.00;
  3. If the homestead for which the deferral is sought is subject to any lien, the terms of which are dictated by federal law, rule, or regulation prohibiting deferral of taxes; or
  4. With respect to taxes levied to retire bonded indebtedness or for special assessments.

    (Code 1933, § 91A-2404, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 24.)

48-5-74. Application for homestead tax deferral; oath; decision by tax official; notice; appeal to board of equalization; procedure; appeal to superior court; information on outstanding liens; proof of insurance.

  1. The application for deferral shall be made upon a form prescribed by the department and furnished by the appropriate tax official. The application form shall advise the applicant of the manner in which interest is computed. Each application form shall contain an explanation of the conditions to be met for approval and the conditions under which deferred taxes and interest become due, payable, and delinquent. Each application form shall clearly state that all deferrals pursuant to this part shall constitute a lien on the applicant's homestead.
  2. A form of oath shall be provided and shall be administered to the individual seeking the deferral. The oath may be administered by the appropriate tax official, any authorized deputy of the appropriate tax official, or any individual authorized by law to administer oaths.
    1. The appropriate tax official shall consider each annual application for homestead tax deferral within 30 days of the date the application is filed or as soon as practicable thereafter. If the appropriate tax official finds that the applicant is entitled to the tax deferral, such official shall approve the application and file the application in the permanent records. If the appropriate tax official finds that the applicant is not entitled to the deferral, such official shall send a notice of disapproval to the applicant giving the reasons therefor within 30 days of the filing of the application either by personal delivery or by registered or certified mail or statutory overnight delivery to the mailing address given by the applicant, and such official shall make a return on the original notice of the manner in which the notice was served on the applicant and shall file the return among the permanent records of such official's office. The original notice of disapproval sent to the applicant shall advise the applicant of the right to appeal the decision of the appropriate tax official to the board of equalization and shall inform the applicant of the procedure for filing an appeal.
    2. An appeal of the decision of the appropriate tax official to the board of equalization shall be in writing on a form prescribed by the department and furnished by the appropriate tax official. The appeal shall be filed with the board within 20 days after the applicant's receipt of the notice of disapproval. The board shall review the application and evidence presented to the appropriate tax official upon which the applicant based such applicant's claim for a tax deferral and, at the election of the applicant, shall hear the applicant in person or by agent in such applicant's behalf on such applicant's right to a homestead tax deferral. The board of equalization shall reverse the decision of the appropriate tax official and shall grant a homestead tax deferral to the applicant if in its judgment the applicant is entitled thereto, or it shall affirm the decision of the appropriate tax official. Such action by the board of equalization shall be final unless the applicant, appropriate tax official, or other lienholder files an appeal with the superior court of the county in which the property lies within 30 days from the date the taxpayer receives written notification of the decision of the board of equalization.
  4. Each application shall contain a list, and the current value, of all outstanding liens on the applicant's homestead.
  5. If proof of fire and extended coverage insurance has not been furnished with a prior application, each applicant shall furnish proof of such insurance in an amount which is in excess of the sum of all outstanding liens and deferred taxes and interest with a loss payable clause to the appropriate tax official.

    (Code 1933, § 91A-2407, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 27; Ga. L. 2000, p. 533, § 3; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the Act shall be applicable with respect to notices delivered on or after July 1, 2000.

48-5-75. Rate of interest on amount of deferred taxes; time of accrual of interest on deferred taxes.

  1. The amount of taxes deferred pursuant to this part shall accrue interest until paid at three-fourths of the rate specified in Code Section 48-2-40.
  2. Interest on taxes deferred pursuant to this part in any year shall begin accruing on the date the taxes were due in that year.

    (Code 1933, § 91A-2405, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 25.)

48-5-76. Deferred taxes and interest constitute prior lien; effect of award for year's support on liens for deferred taxes.

  1. The taxes and interest deferred pursuant to this part shall constitute a prior lien and shall attach as of the date and in the same manner and shall be collected as are other liens for taxes, as provided for under this title, but the deferred taxes and interest shall only be due, payable, and delinquent as provided in this part.
  2. Liens for taxes deferred under this part, except for any lien covering the then current tax year, shall not be divested by an award for year's support authorized pursuant to former Chapter 5 of Title 53 as such existed on December 31, 1997, if applicable, or Chapter 3 of Title 53.

    (Code 1933, § 91A-2406, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 26; Ga. L. 1998, p. 128, § 48; Ga. L. 2011, p. 752, § 48/HB 142.)

48-5-77. Annual notification to property owner of sum of deferred taxes and interest outstanding.

Each year, at the time the tax bills are mailed, the appropriate tax official shall notify each property owner to whom a homestead tax deferral has been previously granted of the accumulated sum of deferred taxes and interest outstanding.

(Code 1933, § 91A-2408, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 28; Ga. L. 2000, p. 533, § 4.)

48-5-78. Change in ownership or use of, or failure to maintain insurance on, tax-deferred homestead; payment of deferred taxes, interest, and unsatisfied liens.

  1. In the event that there is a change in use of tax-deferred property so that the owner is no longer entitled to a homestead exemption for the property, or if the owner fails to maintain the required fire and extended insurance coverage, the total amount of deferred taxes and interest for all previous years shall be due and payable either on the date on which the change in use occurs or on the date failure to maintain insurance occurs.
  2. In the event that there is a change in ownership of tax-deferred property, the total amount of deferred taxes and interest for all previous years shall be due and payable on the date the change in ownership occurs. When, however, the change in ownership is to a surviving spouse and the spouse is eligible for a homestead exemption on the property, the surviving spouse may continue the deferral of previously deferred taxes and interest pursuant to this part.
  3. During any year in which the total amount of deferred taxes, interest, and all other unsatisfied liens on a homestead exceeds 85 percent of the fair market value of the homestead, the appropriate tax official shall immediately notify the owner of the homestead that the portion of taxes and interest which exceeds 85 percent of the value of the homestead shall be due and payable within 30 days of receipt of the notice. Failure to pay the amount due shall cause the total amount of deferred taxes and interest also to become due and payable at the end of the 30 days.
  4. Each year, upon notification, each owner of property on which taxes and interest have been deferred shall submit to the appropriate tax official a list, and the current value, of all outstanding liens on the owner's homestead. Failure to respond to the notification within 30 days of its receipt shall cause the total amount of deferred taxes and interest to become due and payable at the end of the 30 days.
  5. All deferred taxes which are made due and payable by this Code section shall be delinquent and subject to interest in accordance with Code Section 48-5-75 at the end of 120 days following the date the deferred taxes become due and payable.

    (Code 1933, § 91A-2409, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 29; Ga. L. 2000, p. 533, § 5.)

48-5-79. Prepayment of deferred taxes and accrued interest; partial payments.

  1. All or part of the deferred taxes and accrued interest may be paid at any time to the appropriate tax official by:
    1. The owner of the property or the spouse of the owner; or
    2. The next of kin of the owner, heir of the owner, child of the owner, or any person having or claiming a legal or equitable interest in the property, provided that no objection is made by the owner within 30 days after the appropriate tax official notifies the owner of the fact that such payment has been tendered. Any payment made under this paragraph shall be deposited in a special escrow account for the 30 day period; and the appropriate tax official shall not make distribution of the amount under Code Section 48-6-74 while the funds are held in escrow.
  2. Any partial payment made pursuant to this Code section shall be applied first to accrued interest. By resolution of the appropriate county or municipal governing authority, a minimum amount of partial payment which may be accepted in the county or municipality pursuant to this part may be established. The required minimum payment shall not exceed $25.00.

    (Code 1933, § 91A-2410, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 30; Ga. L. 1982, p. 3, § 48; Ga. L. 2000, p. 533, § 6.)

48-5-80. Distribution of deferred tax and interest payments; duty to keep record of property and amount of payment.

When any deferred taxes or interest is collected, the appropriate tax official shall maintain a record of the payment, which record shall contain a description of the property and the amount of taxes or interest collected for the property. The appropriate tax official shall distribute payments received to the local tax jurisdictions to whom the taxes and interest are owed.

(Code 1933, § 91A-2411, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 2000, p. 533, § 7.)

OPINIONS OF THE ATTORNEY GENERAL

Distribution for accrued interest. - Interest accrued on delinquent taxes after collection by the tax commissioner but before the taxes are remitted to the state or locality should be distributed to the same political subdivision for which the underlying tax, penalty, and interest were collected from the taxpayer. 1987 Op. Att'y Gen. No. U87-6.

48-5-81. Payment by holder of deed to secure debt or by mortgagee; effect on right to foreclose.

If any holder of a deed to secure debt or any mortgagee elects to pay the taxes of an applicant who qualifies for and receives a tax deferral, such election shall not give the holder of the deed or the mortgagee the right to foreclose.

(Code 1933, § 91A-2415, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 32.)

48-5-82. Prohibition of clauses preventing applications for homestead tax deferral; exceptions.

Except with respect to requirements dictated by federal law, rule, or regulation, no mortgage, deed to secure debt, or other agreement may contain a provision, clause, or statement which prohibits the owner from claiming a real property tax deferral on his homestead. Any such provision, clause, or statement executed on or after July 1, 1980, is void and unenforceable.

(Code 1933, § 91A-2412, enacted by Ga. L. 1980, p. 1707, § 1.)

48-5-83. Construction of part.

Nothing in this part shall be construed to prevent the collection of personal property taxes which become a lien against tax-deferred property.

(Code 1933, § 91A-2413, enacted by Ga. L. 1980, p. 1707, § 1.)

48-5-84. Penalties for willfully filing incorrect information.

  1. The following penalties shall be imposed on any person who willfully files information required under Code Sections 48-5-72, 48-5-72.1, and 48-5-78 which is incorrect:
    1. The person shall pay the total amount of taxes and interest deferred, which amount shall immediately become due;
    2. The person shall be disqualified from filing a homestead tax deferral application for the next three years; and
    3. The person shall pay a penalty of 25 percent of the total amount of taxes and interest deferred.
  2. Any person against whom the penalties prescribed in this Code section have been imposed may appeal the penalties imposed to the county board of equalization within 30 days after the penalties are imposed.

    (Code 1933, § 91A-2414, enacted by Ga. L. 1980, p. 1707, § 1; Ga. L. 1981, p. 1857, § 31; Ga. L. 1988, p. 466, § 2.)

ARTICLE 3 COUNTY TAX OFFICIALS AND ADMINISTRATION

RESEARCH REFERENCES

ALR. - Exemption from taxation of the property of a Y.M.C.A. or Y.W.C.A., 34 A.L.R. 1067 ; 81 A.L.R. 1453 .

Homestead as subject to assessment for local improvements, 79 A.L.R. 712 .

Reservation of option or conditions in conveyance which may operate to defeat or extinguish title of exempt grantee as affecting exemption of real estate from taxation, 98 A.L.R. 1372 .

Constitutionality of statutes relieving property subject to assessment for improvements from all or part of such assessment, 105 A.L.R. 1169 .

Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597 .

Constitutionality, construction, and application of statutes which exempt from taxation mineral land or land used or suitable for growing of certain products or which discriminate in favor of such land, 126 A.L.R. 724 .

Enforcement against tax-exempt property of tax on nonexempt property or on owner of tax-exempt property, 159 A.L.R. 461 .

Tax exemptions and the contract clause, 173 A.L.R. 15 .

Statutory provision that specified fund or property shall be "exempt from taxation," "exempt from any tax," or the like, as exempting such property from estate or succession taxes, 47 A.L.R.2d 999.

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in Constitution, 61 A.L.R.2d 1031.

When is corporation, community chest, fund, foundation, or club "organized and operated exclusively" for charitable or other exempt purposes under Internal Revenue Code, 69 A.L.R.2d 871.

PART 1 T AX RECEIVERS

Cross references. - Consolidation of offices of tax receiver and tax collector into office of tax commissioner, Ga. Const. 1983, Art. IX, Sec. I, Para. III.

48-5-100. Election of tax receivers; term of office; commission; vacancy.

Reserved. Repealed by Ga. L. 1985, p. 489, § 1, effective July 1, 1985.

Editor's notes. - This Code section was based on Orig. Code 1863, §§ 841, 920; Code 1868, §§ 840, 919; Ga. L. 1872, p. 80, § 8; Code 1873, § 917; Code 1882, § 917; Ga. L. 1894, p. 40, § 1; Civil Code 1895, § 931; Civil Code 1910, § 1194; Ga. L. 1914, p. 47, § 1; Code 1933, § 92-4601; Code 1933, § 91A-1301, enacted by Ga. L. 1978, p. 309, § 2.

48-5-100.1. Assumption of duties by chief clerk upon death, resignation, incapacity, or inability of tax commissioner in certain counties; compensation; election of new tax commissioner.

Repealed by Ga. L. 1994, p. 237, § 2, effective July 1, 1994.

Editor's notes. - This Code section was based on Ga. L. 1982, p. 543, § 1.

Ga. L. 2013, p. 141, § 48/HB 79, deleted the reservation of this Code section, effective April 24, 2013.

48-5-101. Oath and bond for tax receivers.

Each elected or appointed tax receiver before entering on the duties of his office shall take and subscribe to the following oath in addition to the oath required of all civil officers:

"I swear that I will truly and faithfully perform the duties of receiver of returns of taxable property, or of persons or things specially taxed in the county to which I am appointed, as required of me by the laws, and will before receiving returns carefully examine each, and will to the best of my ability carry out all the requirements made upon me by the tax laws. So help me God."

At the time he takes the oath, the tax receiver shall give bond and security in a sum equal to one-fourth of the amount of the state tax supposed to be due from the county for the year in which he gives bond. No tax receiver shall be required to give a bond exceeding $10,000.00. The amount of the bond shall be determined by the commissioner before being sent out to the several counties.

(Orig. Code 1863, § 842; Ga. L. 1863-64, p. 124, § 1; Code 1868, § 921; Code 1873, § 918; Code 1882, § 918; Civil Code 1895, § 932; Ga. L. 1896, p. 38, § 1; Ga. L. 1901, p. 23, § 1; Civil Code 1910, § 1195; Code 1933, § 92-4602; Code 1933, § 91A-1302, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Official bonds, T. 45, C. 4.

JUDICIAL DECISIONS

No bond is required of a tax receiver to be payable to the county or to the probate judge. Fannin County v. Pack, 149 Ga. 703 , 102 S.E. 166 (1920).

Cited in Southern Tax Consultants, Inc. v. Scott, 267 Ga. 347 , 478 S.E.2d 126 (1996).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 159, 160. 85 C.J.S., Taxation, § 1040 et seq.

48-5-102. Liability of tax receivers and sureties; action on tax receiver's bond.

  1. Tax receivers and their sureties are liable on their bonds for all penalties or forfeitures they may incur under the law and for all losses, damages, or expenses the state may sustain by reason of their conduct.
  2. An action may be brought on a tax receiver's bond only when some emergency makes the action necessary.

    (Orig. Code 1863, §§ 843, 864; Code 1868, §§ 922, 943; Code 1873, §§ 919, 940; Code 1882, §§ 919, 940; Civil Code 1895, §§ 933, 972; Civil Code 1910, §§ 1196, 1239; Code 1933, §§ 92-4608, 92-4610; Code 1933, § 91A-1304, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Surety not liable for warrant exceeding legal commission when surety received none of such funds. - When no bond was given by the receiver to the ordinary (now county governing authority) or to the county, but the bond payable to the Governor as required by former Civil Code 1910, § 1195 (see now O.C.G.A. § 48-5-101 ) was given, conditioned generally for the faithful discharge of all the duties required of the receiver, and when the receiver, in the receiver's settlement with the ordinary, by mistake or otherwise, obtained a warrant on the county treasurer for a sum in excess of the receiver's legal commissions and received payment thereof out of county funds and retained that sum, and when the surety personally had never received any county funds, the ordinary (now county governing authority) was not authorized to issue an execution against the surety on the bond of the receiver. Fannin County v. Pack, 149 Ga. 703 , 102 S.E. 166 (1920).

OPINIONS OF THE ATTORNEY GENERAL

When a tax receiver is erroneously paid too much commission, the receiver is liable to the state and county for the excess. 1952-53 Op. Att'y Gen. p. 305.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 769, 942, 943.

C.J.S. - 20 C.J.S., Counties, § 211 et seq. 85 C.J.S., Taxation, § 1149 et seq.

ALR. - Effect of receiver's failure to discharge tax liens, 39 A.L.R. 1415 .

48-5-103. Duties of tax receivers.

It shall be the duty of the tax receiver to:

  1. Receive all tax returns within the time and in the manner prescribed by law;
  2. Make out and perfect the three digests plainly, legibly, and neatly in writing and in figures and to deposit the digests properly;
  3. Post and maintain a notice showing both the days on which his office is open for the purpose of receiving tax returns and also the office hours of his office;
  4. Receive tax returns at any time when a taxpayer applies to submit his returns, except that receipt at such time shall not reduce, eliminate, or otherwise affect any penalty, interest, or similar assessment otherwise due for any return not received as provided in paragraph (1) of this Code section;
  5. Designate, in the discretion of the tax receiver or tax commissioner, the board of assessors to receive tax returns as provided in paragraph (4) of this Code section or to receive applications for homestead exemptions from ad valorem tax, or both;
  6. Reserved;
  7. Enter upon the digests deposited with the governing authority of the county the county taxes levied according to law together with the rate percentage as fixed by the governing authority;
  8. Conform to the rules with which he is furnished and obey such orders as may be given by the commissioner;
  9. Enter upon the digest prepared by him an itemization of all properties exempt from taxation along with the owners of the properties and the reason the properties are exempt from taxation; and
  10. Perform all other duties the law requires and which necessarily under the law appertain to the office of tax receiver.

    (Laws 1804, Cobb's 1851 Digest, p. 1045; Laws 1807, Cobb's 1851 Digest, p. 1054; Laws 1812, Cobb's 1851 Digest, p. 1057; Laws 1813, Cobb's 1851 Digest, p. 1059; Ga. L. 1851-52, p. 290, §§ 9-13; Code 1863, § 844; Code 1868, § 923; Code 1873, § 920; Code 1882, § 920; Civil Code 1895, § 934; Civil Code 1910, § 1197; Code 1933, § 92-4611; Ga. L. 1962, p. 533, §§ 1, 2; Ga. L. 1970, p. 641, § 1; Code 1933, § 91A-1305, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1324, §§ 1, 2; Ga. L. 1992, p. 2411, § 2; Ga. L. 1993, p. 577, § 1; Ga. L. 1999, p. 81, § 48.)

JUDICIAL DECISIONS

Return of taxable property to county tax receiver. - All taxable property in Georgia is required to be returned by the taxpayer at the property's fair market value to the county tax receiver. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978).

No duty to collect or handle county funds. - Duties of receivers enumerated in this statute do not include the duty to collect or handle any county funds. Fannin County v. Pack, 149 Ga. 703 , 102 S.E. 166 (1920).

Cited in Southern Tax Consultants, Inc. v. Scott, 267 Ga. 347 , 478 S.E.2d 126 (1996); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998); Atkinson v. State, 263 Ga. App. 274 , 587 S.E.2d 332 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Duty of tax officials to cause under-returned property to be assessed. - Tax receiver, the tax collector, and the board of assessors have an independent duty to actively cause under-returned property to be placed on the digest and assessed for taxes. This duty applies to both real and personal property, including automobiles. 1963-65 Op. Att'y Gen. p. 113.

It is not proper for a county tax commissioner to store tax records at home. 1975 Op. Att'y Gen. No. U75-75.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 20 C.J.S., Counties, § 377 et seq. 85 C.J.S., Taxation, § 1130 et seq.

48-5-104. Refusal by tax receiver or tax commissioner to receive returns; penalty.

  1. It shall be unlawful for any tax receiver or tax commissioner to refuse to receive any return of taxes when the return is properly tendered in the presence of a witness and within the time required by law.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Orig. Code 1863, § 846; Code 1868, § 925; Code 1873, § 922; Code 1882, § 922; Ga. L. 1895, p. 63, § 2; Penal Code 1895, § 274; Penal Code 1910, § 277; Code 1933, § 92-9918; Code 1933, § 91A-9910, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1148.

48-5-105. Tax return forms furnished by commissioner to tax receivers and tax commissioners.

The commissioner shall adopt and furnish to each tax receiver and tax commissioner a sufficient number of forms to enable the tax receiver or tax commissioner to take the returns of the taxpayers of his county. The forms shall be designed so as to make the items contained in the forms correspond as nearly as practicable to the items on the digests as furnished to the tax receivers and tax commissioners.

(Ga. L. 1884-85, p. 28, § 1; Ga. L. 1886, p. 24, § 1; Civil Code 1895, § 835; Civil Code 1910, § 1093; Code 1933, § 92-6301; Code 1933, § 91A-1306, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-105.1. Uniform tangible personal property tax forms.

  1. The commissioner shall adopt by rule, subject to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," an appropriate form or forms for use on a uniform basis throughout the state for the return of tangible personal property.
  2. All returns of tangible personal property shall be made pursuant to the form or forms adopted by the commissioner pursuant to subsection (a) of this Code section.
  3. The commissioner shall furnish each appropriate local tax official a sufficient number of the forms adopted pursuant to this Code section to take the returns of the taxpayers of his county.
  4. In the content of the form adopted pursuant to subsection (a) of this Code section, nothing shall be included that would take from the county boards of tax assessors the authority to see that all taxable property within the county is assessed and returned at fair market value.

    (Code 1933, § 91A-1306.1, enacted by Ga. L. 1981, p. 1554, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 101 et seq., 123.

C.J.S. - 84 C.J.S., Taxation, §§ 602, 603, 604.

48-5-106. Time and manner of making and furnishing county tax digests.

The tax receiver or tax commissioner shall make out three legible county tax digests and when the tax returns have been finally adjusted and fixed as provided by law he shall furnish one copy of the revised and corrected digest to the commissioner, one to the county governing authority, and one to the tax collector.

(Ga. L. 1851-52, p. 291, § 13; Code 1863, § 781; Code 1868, § 845; Code 1873, § 849; Code 1882, § 849; Civil Code 1895, § 838; Civil Code 1910, § 1096; Ga. L. 1913, p. 123, § 1; Code 1933, § 92-6303; Code 1933, § 91A-1307, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Return to the tax receiver by the arbitrators of their award is sufficient compliance with this statute, and it is the tax receiver's duty to accept the return when properly made and offered. Clarkson v. Hair, 207 Ga. 699 , 64 S.E.2d 64 (1951).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1132.

48-5-107. Form and size, binding, and labeling of digests.

Reserved. Repealed by Ga. L. 2005, p. 529, § 1/HB 556, effective July 1, 2005.

Editor's notes. - This Code section was based on Laws 1845, Cobb's 1851 Digest, p. 1076; Code 1863, § 778; Code 1868, § 842; Code 1873, § 846; Code 1882, § 846; Civil Code 1895, § 836; Civil Code 1910, § 1094; Ga. L. 1913, p. 123, § 1; Code 1933, § 92-6304; Code 1933, § 91A-1308, enacted by Ga. L. 1978, p. 309, § 2.

48-5-108. Entry of returns in digests.

Land and interests in land, together with the returns of personal estates and other interests subject to taxation, shall be returned and set down in the digest in separate columns according to the classification furnished to the tax receivers and tax commissioners by the commissioner in each year, and the aggregate value of the property shall be extended.

(Ga. L. 1851-52, p. 290, § 13; Code 1863, § 780; Code 1868, § 844; Code 1873, § 848; Code 1882, § 848; Civil Code 1895, § 837; Civil Code 1910, § 1095; Code 1933, § 92-6305; Code 1933, § 91A-1309, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-109. Accumulation of statistical information on taxpayers by tax receivers and tax commissioners.

Each tax receiver and tax commissioner shall accumulate statistical information, in regard to taxpayers, of such nature as they deem to be of benefit to the commissioner. Nothing contained in this Code section shall preclude or prohibit the commissioner from collecting such information as he deems necessary and beneficial in discharging the official duties of his office.

(Ga. L. 1966, p. 393, § 1; Code 1933, § 91A-1310, enacted by Ga. L. 1978, p. 309, § 2.)

PART 2 T AX COLLECTORS

Cross references. - Consolidation of offices of tax receiver and tax collector into office of tax commissioner, Ga. Const. 1983, Art. IX, Sec. I, Para. III.

48-5-120. Election of tax collectors; term of office; commission; vacancy.

Reserved. Repealed by Ga. L. 1985, p. 489, § 2, effective July 1, 1985.

Editor's notes. - This Code section was based on Orig. Code 1863, §§ 851, 852; Code 1868, §§ 930, 931; Ga. L. 1872, p. 80, § 8; Code 1873, §§ 927, 928; Code 1882, §§ 927, 928; Ga. L. 1894, p. 40, § 1; Civil Code 1895, §§ 942, 943; Civil Code 1910, §§ 1204, 1205; Ga. L. 1914, p. 47, § 1; Code 1933, § 92-4701; Code 1933, § 91A-1320, enacted by Ga. L. 1978, p. 309, § 2.

48-5-121. Oath of office for tax collectors.

Each tax collector before entering on the duties of his office shall take and subscribe to the following oath in addition to the oath required of all civil officers: "I, ________, tax collector of the County of ________, do swear that I will faithfully discharge the duties required of me by law as tax collector, and that I will diligently collect all taxes required by law for me to collect and faithfully pay these over to the persons authorized to receive the same. So help me God."

(Orig. Code 1863, § 853; Code 1868, § 932; Code 1873, § 929; Code 1882, § 929; Civil Code 1895, § 944; Civil Code 1910, § 1206; Code 1933, § 92-4702; Code 1933, § 91A-1321, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1992, p. 2411, § 3; Ga. L. 1995, p. 10, § 48.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 159. 85 C.J.S., Taxation, § 1121.

48-5-122. Bonds for tax collectors and tax commissioners.

  1. Tax collectors and tax commissioners shall give bond and security for 40 percent of the state tax supposed to be due from the county for the year for which the officer is required to give bond. The amount of bond shall be determined by the commissioner before being sent to the several counties. The required bond shall not exceed $50,000.00.
  2. The tax collector or tax commissioner shall give a bond with sufficient security payable to the governing authority of the county and conditioned upon the faithful performance of his duties as tax collector or tax commissioner for the collection of the county taxes. Each bond shall be for an amount to be fixed by the county governing authority. The bond required of the tax collector or tax commissioner on behalf of the county shall not exceed $100,000.00.

    (Orig. Code 1863, § 854; Ga. L. 1863-64, p. 124, § 2; Code 1868, § 933; Code 1873, § 930; Code 1882, § 930; Civil Code 1895, § 945; Civil Code 1910, § 1207; Ga. L. 1925, p. 79, § 1; Ga. L. 1933, p. 47, § 1; Code 1933, § 92-4801; Ga. L. 1963, p. 253, § 1; Code 1933, § 91A-1323, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 34.)

Cross references. - Official bonds, T. 45, C. 4.

JUDICIAL DECISIONS

Constitutionality of local bond requirements. - An Act requiring the sureties on bonds of county officers in a certain county to be guaranty companies is violative of Ga. Const. 1877, Art. I, Sec. IV, Para. I (see now Ga. Const. 1983, Art. III, § VI, Para. IV) in that it is a local law on a subject for which there was provision by an existing general law at the time of the statute's adoption. Maloy v. Williams, 140 Ga. 376 , 78 S.E. 1054 (1913).

Effect of delay in executing bond. - When a tax collector does not give a bond until several months after the election, still, the bond then given stands in the place of the bond which should have been given. Therefore, when an execution was so issued and levied on the property of the sureties, it was error to dismiss the levy on the ground that the bond was not a statutory bond. County of Fulton v. Clarke, 73 Ga. 665 (1884).

Tax collector's bond binds the tax collector for a tax for school purposes as for other county taxes. If it be too small, that may be reason for legislative change, but not for injunction. Smith v. Bohler, 72 Ga. 546 (1884).

Security on bond to Governor not liable for county taxes. - Securities upon a tax collector's bond, payable to the Governor, conditioned for the faithful performance of the Governor's duty in the collection of the general tax of the state, are not liable to the ordinary (now county governing authority) for the failure of the tax collector to collect and pay over the county tax. Barlow v. Ordinary of Sumter County, 47 Ga. 639 (1873).

Payment for default as to county taxes deemed voluntary for subrogation purposes. - Bond payable to the Governor does not cover defalcation of county funds, and if the sureties pay for such defalcations, it is a voluntary payment, and they are not entitled to subrogation to the county's right against a bank alleged to have aided the tax collector. McWhorter v. Bank of Menlo, 160 Ga. 894 , 129 S.E. 433 (1925).

What constitutes breach of bond. - It is the duty of the tax collector, only when the tax collector is succeeded by another, to make final settlement for the taxes levied and chargeable for the year for which the tax collector was elected, and for the collection of which the tax collector has given bond. It is the failure to pay over taxes collected, not the date of the collection, which constitutes the breach of the bond. Fidelity Deposit Co. v. State, 148 Ga. 545 , 97 S.E. 536 (1918).

Liability of surety for defalcations in regard to registration and licensing of motor vehicles. - Surety on a bond given by a tax commissioner under this statute conditioned for the faithful performance of the commissioner's official duties as a tax commissioner is not liable for the commissioner's defalcations committed in the performance of the commissioner's duties and obligations as agent of the state revenue commissioner for the registration and licensing of motor vehicles. Sanders v. United States Fid. & Guar. Co., 108 Ga. App. 849 , 134 S.E.2d 831 (1964).

No breach of bond when county authorities on notice of tax commissioner's actions. - When the proper county authorities were fully put on notice as to the nature and the character of the tax commissioner's claims by the commissioner's reports, which reports were duly made and filed with them as provided by law, a breach of the commissioner's official bond, conditioned for the faithful performance of the commissioner's duties, was not established as a matter of fact or of law. Keen v. Lewis, 215 Ga. 166 , 109 S.E.2d 764 (1959).

OPINIONS OF THE ATTORNEY GENERAL

State revenue commissioner does not pay the premium on the bond that is payable to the state under this statute.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 160.

48-5-123. Approval, filing, and recording of bonds.

Upon submission, each bond for county taxes required by Code Section 48-5-122 must be approved by the governing authority of the county, filed in the governing authority's office, recorded in the book with other official bonds, and in all respects shall be an official bond.

(Orig. Code 1863, § 855; Code 1868, § 934; Code 1873, § 931; Code 1882, § 931; Civil Code 1895, § 946; Civil Code 1910, § 1208; Code 1933, § 92-4802; Code 1933, § 91A-1324, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Official bonds, T. 45, C. 4.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 160.

48-5-124. Liability of tax collectors, tax commissioners, and sureties; action on bond.

  1. Tax collectors, tax commissioners, and their sureties are liable on their bonds for all penalties or forfeitures they may incur under the law and for all losses, damages, or expenses the state may sustain by reason of their conduct.
  2. An action may be brought on a tax collector's or tax commissioner's bond only when some emergency makes the action necessary.

    (Orig. Code 1863, § 864; Code 1868, § 943; Code 1873, § 940; Code 1882, § 940; Civil Code 1895, § 972; Civil Code 1910, § 1239; Code 1933, § 92-4810; Code 1933, § 91A-1327, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769 et seq.

C.J.S. - 20 C.J.S., Counties, § 211 et seq. 85 C.J.S., Taxation, § 1149 et seq.

ALR. - Personal liability of tax collector of state or its subdivision for illegal taxes collected, 14 A.L.R.2d 383.

48-5-125. Collection before bond given and oath taken; penalty.

  1. It shall be unlawful for any tax collector or tax commissioner to collect or attempt to collect any tax before he has given and had approved the necessary bond and security and has taken the oaths of office.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Laws 1826, Cobb's 1851 Digest, p. 1026; Code 1863, § 839; Code 1868, § 918; Code 1873, § 916; Code 1882, § 916; Ga. L. 1895, p. 63, § 2; Penal Code 1895, § 273; Penal Code 1910, § 276; Code 1933, § 92-9917; Code 1933, § 91A-9909, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Official bonds, T. 45, C. 4.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 769, 771.

C.J.S. - 85 C.J.S., Taxation, § 1148.

48-5-126. Temporary appointee where tax collector or tax commissioner fails to give satisfactory bond.

  1. No tax collector or tax commissioner shall collect any county taxes until the bond required by Code Section 48-5-122 is given. If a tax collector or tax commissioner fails to give a bond or fails to give a bond satisfactory to the governing authority of the county, the governing authority may appoint some competent person to collect the county taxes.
  2. When an appointment is made as provided in subsection (a) of this Code section, the person appointed shall give the same bond as is required of a tax collector or tax commissioner. The appointee shall take an oath faithfully to collect and pay over the county taxes and in all respects shall have the same privileges, discharge the same duties, and incur the same penalties as the tax collector or tax commissioner would in collecting the county taxes.

    (Laws 1823, Cobb's Digest, p. 1065; Code 1863, §§ 856, 857; Code 1868, §§ 935, 936; Code 1873, §§ 932, 933; Code 1882, §§ 932, 933; Civil Code 1895, §§ 947, 948; Civil Code 1910, §§ 1209, 1210; Code 1933, §§ 92-4803, 92-4804; Code 1933, § 91A-1325, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Official bonds, T. 45, C. 4.

48-5-126.1. Training classes for county tax collectors and tax commissioners.

    1. It shall be the responsibility of each county tax collector or tax commissioner in this state who has never served in such office prior to January 1, 1982, to attend 40 hours of training classes pertaining to all areas of county taxation, particularly property taxation and motor vehicle titling and registration, during the initial term of office served by such local tax official.
    2. Of the 40 hours of required training classes, 20 hours of such classes shall be attended during the period between the election of the local tax official and the date such official assumes office.
    3. The remaining 20 hours of required training classes shall be attended during the first year of the local tax official's initial term of office (unless sickness, emergency, or some other unforeseen circumstance prohibits attendance during that year) at the seminar on county taxation and related matters held at the University of Georgia under the supervision of the Georgia Center for Continuing Education.
  2. In the event a county tax collector or tax commissioner who has never served in such office prior to January 1, 1982, assumes the office during a regular term of office, such local tax official shall be required to obtain special training and instruction from the Department of Revenue in lieu of the training requirements of subsection (a) of this Code section.
  3. Beginning January 1, 2005, each county tax collector or tax commissioner shall be required to attend 15 hours of training classes on county tax administration, property taxation, motor vehicle titling and registration, or related matters during each year of service as a county tax collector or tax commissioner. For the purposes of satisfying the requirements of this subsection, credit will be given for attendance of the county taxation seminar conducted by the University of Georgia under the supervision of the Georgia Center for Continuing Education or any seminar conducted by the Department of Revenue, the Georgia Association of Tax Officials, or other similarly qualified organization of affiliated tax officials, or certain management, supervisory, leadership, or accounting seminars that qualify for continuing education credits. This training shall be generally devoted to contemporary business and taxation practices and shall be germane to the duties and operational functions of the office of county tax collector or tax commissioner. This subsection shall not apply to a county tax collector or tax commissioner who is serving the first year of such official's initial term of office.
  4. The costs of attending the training classes required by this Code section shall be met by the payment of registration fees by each local tax official attending such classes. Each local tax official shall be reimbursed by such official's county for the amount of such fees and related travel expenses.
  5. The instructors for the training classes required by this Code section shall consist of representatives of the Department of Revenue, the Georgia Association of Tax Officials or other similarly qualified organization of affiliated tax officials, the Georgia Center for Continuing Education, or any other qualified persons with expertise in the field of county tax administration, property taxation, motor vehicle titling and registration, or related matters.
  6. The state revenue commissioner may adopt and enforce reasonable rules and regulations governing the establishment and administration of the training classes provided for by this Code section.
  7. The state revenue commissioner is authorized to work with officials and personnel of the Georgia Center for Continuing Education in establishing the training classes to be held at that institution.
  8. Any county tax collector or tax commissioner who, without good cause such as sickness or other emergency, fails to comply with the training requirements of this Code section may be subject to removal from office by the Governor.

    (Ga. L. 1981, p. 1022, §§ 1-3; Ga. L. 1982, p. 3, § 48; Ga. L. 1986, p. 502, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2004, p. 938, § 1; Ga. L. 2005, p. 334, § 29-1/HB 501; Ga. L. 2007, p. 47, § 48/SB 103.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619.

C.J.S. - 85 C.J.S., Taxation, § 1125.

48-5-127. Duties of tax collectors.

  1. It shall be the duty of the tax collector to:
    1. Collect diligently and pay promptly the funds allowed the state by law and the county taxes to the commissioner and the county treasurer, respectively;
    2. Have his insolvent lists allowed in the manner provided by law before final settlement with the commissioner;
    3. Post and maintain a notice showing both the days on which his office is open for the purpose of collecting taxes and also the office hours of his office;
      1. Pay the tax receiver his commissions upon the production of the commissioner's receipt for his digest together with a specification therein of the amount of commissions to which he is entitled; and
      2. Submit the tax receiver's receipts together with his receipts thereon to the commissioner before he shall be allowed credits for such commissions;
    5. Conform to such rules as may be furnished and obey such orders as may be given by the commissioner;
    6. Issue executions as provided by law for all taxes due the state or any county remaining unpaid after the time provided by law for payment;
    7. Keep a permanent qualification or voters' book and make up the registration lists, as provided by Article 6 of Chapter 2 of Title 21; and
    8. Perform all other duties that the law requires and which necessarily under the law appertain to the office of tax collector.
  2. The tax collector or tax commissioner and his agents, servants, and employees shall not be obligated to furnish a written receipt for the payment of any tax or license fee to any taxpayer or person making the payment when the payment is paid by check, money order, or other instrument payable or endorsed to bearer, payee, or endorsee, except when the taxpayer or person making the payment on behalf of the taxpayer demands a receipt.

    (Laws 1804, Cobb's 1851 Digest, p. 1046; Laws 1812, Cobb's 1851 Digest, p. 1058; Ga. L. 1857, p. 131, §§ 7-15; Ga. L. 1858, p. 102, § 1; Ga. L. 1862-63, p. 56, § 2; Code 1863, § 858; Code 1868, § 937; Ga. L. 1873, p. 5, §§ 3, 4; Code 1873, § 934; Ga. L. 1875, p. 120, § 1; Ga. L. 1878-79, p. 78, § 2; Code 1882, § 934; Civil Code 1895, § 949; Civil Code 1910, § 1211; Code 1933, § 92-4901; Ga. L. 1962, p. 532, § 1; Code 1933, § 91A-1328, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1390, § 1; Ga. L. 1981, p. 1906, § 1; Ga. L. 1982, p. 3, § 48; Ga. L. 1982, p. 996, §§ 1, 4; Ga. L. 1992, p. 2411, § 4.)

JUDICIAL DECISIONS

Duty to act with diligence in collection of taxes. - Diligence in collection requires that the tax commissioner do all things and take all steps which the commissioner may reasonably and lawfully do. Sanders v. Fulton County, 111 Ga. App. 434 , 142 S.E.2d 293 (1965).

Tax commissioner is presumed to have posted the notice required by this statute until the contrary appears. The tax commissioner is not required to accept taxes at any other time. Allen v. Thomas, 225 Ga. 650 , 171 S.E.2d 132 (1969).

Use of forms without tax collector's official signature. - When tax collector for convenience causes executions against tax defaulters to be printed, bearing the collector's official signature in print, but leaves blank spaces in which to write the names of persons against whom and the amount for which each should be issued, and places them in the collector's office, and the clerk fills out such executions appropriately against individual tax defaulters, and with the knowledge and consent of the tax collector they are delivered to the sheriff for enforcement, such action is a sufficient issuance of such executions delivered to the sheriff, and they and the levy thereof by the sheriff are not void on the ground that the printed papers were not signed by the hand of the tax collector or by someone in the collector's presence at the collector's request. Federal Land Bank v. Moultrie Banking Co., 178 Ga. 150 , 172 S.E. 455 (1934).

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998); Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003); Atkinson v. State, 263 Ga. App. 274 , 587 S.E.2d 332 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Justice of the peace plays no part in the actual collection of back taxes, either county or state. 1969 Op. Att'y Gen. No. 69-263.

Duty of tax officials to cause under-returned property to be assessed. - Tax receiver, the tax collector, and the board of assessors has an independent duty to actively cause under-returned property to be placed on the digest and assessed for taxes. This duty applies to both real and personal property, including automobiles. 1963-65 Op. Att'y Gen. p. 113.

Commissions on taxes which have not been collected. - Contrary to existing Georgia cases, the tax receiver is entitled to commissions on taxes which have not been collected. 1952-53 Op. Att'y Gen. p. 305.

It is not proper for a county tax commissioner to store tax records at home. 1975 Op. Att'y Gen. No. U75-75.

Collection of motor vehicle registration fees in Baldwin County. - Since Ga. L. 1964, Ex. Sess., p. 382 gives the governing authority of Baldwin County the authority to require motor vehicle registration fees, collect these fees, and promulgate the necessary rules and regulations, the governing authority can require the tax collector to collect the fees. 1968 Op. Att'y Gen. No. 68-51.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1130 et seq.

ALR. - Necessity of publishing list of lands delinquent for nonpayment of taxes, and effect of failure to publish list, 81 A.L.R. 1246 .

48-5-128. Transfer of duties from outgoing to incoming tax collector or tax commissioner.

When the tax collector or tax commissioner of any county is succeeded by another, the outgoing tax collector or tax commissioner shall no longer be authorized to collect taxes or enforce executions issued for the collection of taxes. All uncompleted duties in respect to the collection of taxes and enforcement of executions shall pass to the successor tax collector or tax commissioner as provided by Code Section 48-5-164.

(Ga. L. 1872, p. 80, § 8; Ga. L. 1873, § 1320; Code 1882, § 1320; Civil Code 1895, § 98; Ga. L. 1898, p. 41, § 1; Civil Code 1910, § 112; Ga. L. 1933, p. 78, § 10; Code 1933, § 92-4703; Code 1933, § 91A-1322, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1103.

48-5-128.1. Appointment in certain counties of chief deputy tax commissioner; filling vacancy in office of chief deputy; succession to office of tax commissioner.

  1. In all counties of this state having a population of 550,000 or more according to the United States decennial census of 1950 or any future such census and in which there exists the office of tax commissioner, the tax commissioner shall be required to appoint from among the assistants or deputies in his office a chief deputy. Upon making the appointment, the tax commissioner shall notify the county governing authority, which shall record a copy of the appointment upon its minutes. The tax commissioner shall appoint the chief deputy at his will and pleasure, such appointment in no event to extend beyond the term of office of the person making the appointment.
  2. If the person appointed as chief deputy resigns, if the appointment is revoked, or if for any other reason the appointment is vacant, the tax commissioner shall appoint a new chief deputy and shall notify the county governing authority of the new appointment. The county governing authority shall record a copy of the new appointment upon its minutes.
  3. If a vacancy occurs in the office of tax commissioner in any county specified in subsection (a) of this Code section, the person appointed as chief deputy by the tax commissioner and certified to the county governing authority, upon qualifying for the office of tax commissioner in the manner provided by law, shall succeed to the office of tax commissioner and fill the unexpired term of the tax commissioner of the county. (Code 1981, § 48-5-128.1 , enacted by Ga. L. 1982, p. 2107, § 49.)

48-5-129. Allowance of insolvent lists; reissuance of executions before allowance of insolvent lists.

  1. The insolvent lists of a tax collector or tax commissioner shall be allowed only by the county governing authority upon a return of the tax execution with entry by the proper legal officer of "no property."
  2. The county governing authority, if it has any reason to suspect the return of the officer to be incorrect in any particular, shall cause the execution to be sent out again for collection. Before the county governing authority allows any insolvent list, the officer in whose hands the tax fi. fas. have been placed for collection shall take an oath that he has made every effort in his power to collect the fi. fas. and that he verily believes the taxpayers on the list have no property from which the tax can be collected.

    (Orig. Code 1863, §§ 791, 792; Code 1868, §§ 855, 856; Code 1873, §§ 859, 860; Ga. L. 1878-79, p. 180, § 1; Code 1882, §§ 859, 860; Civil Code 1895, §§ 860, 861; Civil Code 1910, §§ 1118, 1119; Code 1933, §§ 92-7102, 92-7103; Code 1933, §§ 91A-1329, 91A-1330, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1135 et seq., 1160 et seq.

ALR. - Waiver of right of government to preference in the assets of insolvent debtor by taking security, 24 A.L.R. 1495 ; 83 A.L.R. 1119 .

48-5-130. Allocation of tax on insolvent lists; contents of list of insolvent taxpayers.

In making out the insolvent list, the county governing authority shall state how much is allowed the tax collector on account of the state tax and how much is allowed on the county tax and shall furnish the commissioner an alphabetical list of the names of insolvent taxpayers, the militia district in which each resides, and the amount of each fi. fa.

(Ga. L. 1861, p. 76, §§ 15, 19; Code 1868, § 857; Code 1873, § 861; Code 1882, § 861; Civil Code 1895, § 862; Ga. L. 1900, p. 42, § 1; Civil Code 1910, § 1120; Code 1933, § 92-7104; Code 1933, § 91A-1331, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1135.

ALR. - Waiver of right of government to preference in the assets of insolvent debtor by taking security, 24 A.L.R. 1495 ; 83 A.L.R. 1119 .

48-5-131. Retention of copy of insolvent list by county governing authority; collection of executions.

When the tax collector or tax commissioner has his insolvent list credited, it shall be the duty of the county governing authority allowing the list to retain a copy of the list and return the executions to the tax collector, who shall cause them to be placed in the hands of a levying officer for collection, to be levied and sales under the executions to be made in accordance with the laws governing sales under executions issued upon common-law judgments. The levying officer shall be entitled to the same fees as he is entitled to for other executions, plus 2 1/2 percent. After deducting the commission, the levying officer shall pay the balance to the tax collector or tax commissioner, who shall transmit the county's taxes to the county treasury and the state's taxes to the Office of the State Treasurer.

(Ga. L. 1857, p. 132, § 15; Ga. L. 1861, p. 76, § 19; Code 1868, § 858; Code 1873, § 862, 886a; Ga. L. 1880-81, p. 45, § 1; Code 1882, §§ 862, 886a; Civil Code 1895, §§ 863, 897; Civil Code 1910, §§ 1121, 1156; Code 1933, § 92-7105; Code 1933, § 91A-1332, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

JUDICIAL DECISIONS

Payment to county commissioner not effective as payment of fieri facias. - When an individual member of a board of commissioners of roads and revenues (now board of commissioners) received from a tax debtor money with which to pay a tax fieri facias against the latter, the individual received it as agent of the taxpayer, and the fieri facias was not paid until the money reached the officer having the power to collect, such board member having no such authority conferred on the member by law. Taylor v. Aultman, 177 Ga. 524 , 170 S.E. 355 (1933).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1135 et seq.

ALR. - Waiver of right of government to preference in the assets of insolvent debtor by taking security, 24 A.L.R. 1495 ; 83 A.L.R. 1119 .

48-5-132. Disposition of insolvent lists.

When insolvent lists are allowed, they shall be entered on the minutes, and the county governing authority shall furnish the tax collector certified copies of the lists and shall state in the certificates when and by what tribunal the lists were allowed.

(Orig. Code 1863, § 791; Code 1868, § 859; Code 1873, § 863; Code 1882, § 863; Civil Code 1895, § 864; Civil Code 1910, § 1122; Code 1933, § 92-7106; Code 1933, § 91A-1333, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

ALR. - Waiver of right of government to preference in the assets of insolvent debtor by taking security, 24 A.L.R. 1495 ; 83 A.L.R. 1119 .

48-5-133. Crediting tax collectors and tax commissioners with insolvent lists.

Tax collectors and tax commissioners under any circumstances shall not be allowed or credited with insolvent lists after executions are issued against them for taxes until they go to the commissioner and settle fairly and fully with him.

(Laws 1812, Cobb's 1851 Digest, p. 1059; Code 1863, § 793; Code 1868, § 861; Code 1873, § 865; Code 1882, § 865; Civil Code 1895, § 866; Civil Code 1910, § 1124; Code 1933, § 92-7107; Code 1933, § 91A-1334, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

ALR. - Waiver of right of government to preference in the assets of insolvent debtor by taking security, 24 A.L.R. 1495 ; 83 A.L.R. 1119 .

48-5-134. Extension of time to complete digests and pay taxes.

The time by which digests shall be completed, the taxes paid, and penalties incurred shall not apply in the case of tax receivers, tax collectors, and tax commissioners who have not been in office long enough to complete the work by the time specified. In all such cases, the officials shall comply with the requirements of the commissioner.

(Laws 1843, Cobb's 1851 Digest, p. 1074; Code 1863, § 794; Code 1868, § 862; Code 1873, § 866; Code 1882, § 866; Civil Code 1895, § 867; Civil Code 1910, § 1125; Code 1933, § 92-7108; Code 1933, § 91A-1335, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-135. Effect of collection or attempted collection of taxes before filing digest with commissioner.

If any tax collector or tax commissioner collects or attempts to collect any taxes before the tax receiver has completed and transmitted his digest to the commissioner, unless specially so ordered by the commissioner or allowed by special enactment, he shall forfeit to the state double the amount collected or attempted to be collected. Each forfeiture shall be collected by execution issued by the commissioner.

(Orig. Code 1863, § 838; Code 1868, § 917; Code 1873, § 915; Code 1882, § 915; Civil Code 1895, § 929; Civil Code 1910, § 1192; Code 1933, § 92-5601; Code 1933, § 91A-1346, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-136. Schedule of defaulters.

Reserved. Repealed by Ga. L. 1992, p. 2411, § 5, effective April 20, 1992.

Editor's notes. - This Code section was based on Ga. L. 1857, p. 130, § 7; Code 1863, § 796; Code 1868, § 864; Code 1873, § 868; Code 1882, § 868; Civil Code 1910, § 1127; Code 1933, § 92-7110; Code 1933, § 91A-1336; Ga. L. 1978, p. 309, § 2; Ga. L. 1981, Ex. Sess., p. 8; and Ga. L. 1992, p. 6, § 48.

48-5-137. Tax collectors and tax commissioners as ex officio sheriffs.

  1. Tax collectors and tax commissioners, upon the written consent of the sheriff of the county involved, may be ex officio sheriffs insofar as to enable them to collect taxes due the state and county by levy and sale under tax execution. Tax collectors or tax commissioners acting as ex officio sheriffs as provided in this Code section shall not be allowed to turn over any tax execution to the sheriffs or to any other levying officials of this state except when it becomes necessary for the purpose of enforcing the execution by sending it to a county other than that in which the execution was issued. Each tax collector or tax commissioner by virtue of his office shall have full power and authority to levy all tax executions issued by him as effectively as if done by the sheriffs of the counties.
  2. Each tax collector or tax commissioner when acting as an ex officio sheriff shall have full power to bring property to sale for the purpose of collecting taxes due the state and county. Additionally, he shall have all the powers vested in sheriffs for the advertisement of the property for sale, for the sale of the property, and for the making and delivery of all due and proper conveyances and bills of sale. All sales made by a tax collector or tax commissioner acting as an ex officio sheriff shall be valid and shall carry the title to property sold as fully and completely as if made by the sheriff of the county.
  3. All acts done and performed by tax collectors or tax commissioners by virtue of this Code section shall be done in conformity with the law in force governing the performance of the act done. All advertisements of property to be sold by a tax collector or tax commissioner acting as an ex officio sheriff, when the advertisements are required by law to be published in a newspaper, shall be published in the newspaper in which the sheriff's advertisements are published.
  4. In carrying out this Code section, tax collectors or tax commissioners shall have the power and authority to appoint one or more deputies with all the powers of the tax collectors or tax commissioners while acting as ex officio sheriffs in the levy and collection of taxes. Each deputy shall be required to give bond as may be required by the tax collectors or tax commissioners under the law. Each tax collector or tax commissioner shall be responsible for the acts of the deputy or deputies in the same manner and to the same degree as sheriffs are liable for the acts of their deputies.
  5. This Code section is supplemental to and cumulative of any general law of local application providing for tax collectors or tax commissioners to be ex officio sheriffs for the purposes provided in this Code section and is not in lieu of any such law to the extent that any such law conflicts with this Code section.
  6. With respect to a tax collector or tax commissioner or his deputy acting pursuant to this Code section in the county in which he holds office, the requirement of written consent of the sheriff shall not apply in counties within the following population brackets according to the United States decennial census of 1970 or any future such census:
    1. Not less than 300,000;
    2. Reserved.
    3. Reserved.
    4. Reserved.
    5. Reserved.
  7. Each tax collector or tax commissioner who is compensated on a salary basis and who is authorized to act as an ex officio sheriff under this Code section and whose office performs substantially all of the duties of the sheriff with respect to tax executions shall be entitled to a salary of $349.78 per month for his or her service as ex officio sheriff. Such compensation shall be in addition to any other compensation to which such tax commissioner or tax collector is entitled. Such additional compensation shall not be paid to any tax commissioner who is compensated solely by the fee system of compensation; but such compensation shall be paid to any tax commissioner who is compensated in part by fees and in part by a salary. Such compensation shall be paid in equal monthly installments from county funds.

    (Code 1933, § 92-4901.1, enacted by Ga. L. 1972, p. 822, § 1; Code 1933, § 91A-1337, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 713, § 1; Ga. L. 1982, p. 999, §§ 2, 4; Ga. L. 1985, p. 1115, § 1; Ga. L. 1985, p. 1492, § 1; Ga. L. 1994, p. 237, § 2; Ga. L. 1998, p. 1159, § 18; Ga. L. 2001, p. 902, § 19; Ga. L. 2006, p. 568, § 13/SB 450.)

JUDICIAL DECISIONS

Levying officer as necessary or indispensable party in action to cancel sheriff's deed. - Since levying officials under this statute have been held not to be necessary parties in proceedings to cancel a sheriff's deed to a purchaser of land by virtue of a sale under a tax fi. fa., there is clearly no authority upon which they could be found to be indispensable parties. Stith v. Hudson, 231 Ga. 520 , 202 S.E.2d 392 (1973) .

Tax commissioner's liability. - Tax commissioner, who was an ex-officio sheriff, under O.C.G.A. § 48-5-137 , could be subject to a money rule petition filed by the holder of county tax executions for refusing to pay those executions from the excess proceeds of tax sales of property; the holder could collect on the holder's execution from any property in which the taxpayer had an interest, which included the excess proceeds from the tax sale, before any payments to the taxpayer, under O.C.G.A. § 48-2-56(a) and (b), so it was error for the commissioner to refuse to pay the holder's claims. Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196 , 620 S.E.2d 447 (2005).

Property owner's claim for damages based on a county tax commissioner's failure to properly send notices required by O.C.G.A. §§ 9-13-13 , 48-3-3 , 48-3-9(a) , and 48-4-1 was barred by sovereign immunity; O.C.G.A. §§ 15-13-2 and 48-5-137 did not render the tax commissioner liable as an ex-officio sheriff because the notices did not constitute a "false return" or legal neglect to make a "proper return". Raw Properties, Inc. v. Lawson, 335 Ga. App. 802 , 783 S.E.2d 161 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Officers not eligible for membership in annuity and benefit fund. - Tax collectors and tax commissioners who become ex officio sheriffs under the provisions of O.C.G.A. § 48-5-137 are not thereby rendered "peace officers" eligible for membership in the Peace Officers' Annuity and Benefit Fund. 1982 Op. Att'y Gen. No. U82-9.

Principle of mandamus applies to require a county sheriff to levy and foreclose upon delinquent taxpayers when the sheriff has not consented in writing that the tax commissioner or tax collector perform such duty under this statute. 1973 Op. Att'y Gen. No. U73-16.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1160 et seq.

48-5-137.1. Advertising as additional cost of execution.

The costs of all advertisements of property to be sold under tax execution by a sheriff, or tax collector or tax commissioner acting as an ex officio sheriff, when such advertisements are required by law shall be an additional cost of the execution to be satisfied voluntarily by the defendant or by levy and sale of the property.

(Code 1981, § 48-5-137.1 , enacted by Ga. L. 1987, p. 1049, § 1.)

48-5-138. Cashbook to be kept by tax collectors and tax commissioners; recording disbursements; audit.

  1. Each tax collector and tax commissioner shall keep a record in the form of a cashbook in which he shall record all items of cash collected for taxes, the date collected, the amount collected, and the name of the person for whose taxes the cash was collected. All of such items, amounts, entries, and dates shall be entered on the debit side upon the lines and in the columns designated in the record book. The entries required to be made by this subsection shall be entered on the book kept for such purpose within 15 days after payment of taxes is received.
  2. Each tax collector and tax commissioner shall record in the cashbook all items of cash paid out by him to the authorities of the state or counties, designating whether to the state or the counties, to whom paid for either the state or county, the date each amount was paid, and the amount paid. All of such items, amounts, entries, and dates shall be entered on the credit side in the lines and columns designated in the record book.
  3. The tax collector or tax commissioner shall present the record book to the county governing authority at the times prescribed by law for making his report to the governing authority so as to permit checking and auditing of the book, to have the endorsement of the name and authority of the auditing official entered in the book, and to have the date of the entry noted. The checking, auditing, and signature of the governing authority auditing official in the record book shall at no time be construed as, nor is it intended to be, a binding or final settlement with the tax collector or tax commissioner. Each check, audit, and signature shall be evidence only that he has reported to the county governing authority as required by law and that the report checks and is in accord with the record book that the tax collector or tax commissioner is required to keep.
  4. The tax collector or tax commissioner shall make and file an accounting as required by Code Section 48-5-154. The record book shall be preserved by the tax collector or tax commissioner in the tax collector's or tax commissioner's office. The commissioner shall furnish the tax collectors and tax commissioners the book required pursuant to this Code section at the state's expense.
  5. Instead of the cashbook or record book specified in this Code section, a tax collector or tax commissioner is authorized to maintain a computerized list showing the information required under this Code section, which list shall be deemed to be such cashbook or record book for the purposes of this article.

    (Ga. L. 1910, p. 121, §§ 1-4; Code 1933, §§ 92-4902, 92-4903, 92-4904, 92-4905; Ga. L. 1968, p. 1115, § 1; Code 1933, § 91A-1338, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1324, §§ 3, 4; Ga. L. 2011, p. 99, § 92/HB 24.)

Editor's notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews. - For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 85 C.J.S., Taxation, § 1135.

ALR. - Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-5-139. Failure by tax collector or tax commissioner to keep cashbook; penalty.

  1. It shall be unlawful for a tax collector or tax commissioner to fail or refuse to keep a cashbook, as prescribed by this article.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1910, p. 123, § 5; Code 1933, § 92-9916; Code 1933, § 91A-9908, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-140. Accountability of tax collectors and tax commissioners to county governing authority; effect of failure to account; appointment of successor.

  1. It shall be the duty of the tax collector or tax commissioner to render annually to the county governing authority an account of his official actions respecting the county taxes and funds and to make his books, vouchers, accounts, and all things pertaining to his office available for inspection by the county governing authority.
    1. The failure or refusal of any tax collector or tax commissioner to render the account required by subsection (a) of this Code section after being so notified by the governing authority of the county shall constitute malpractice in office. Conviction for such malpractice shall subject the offender to removal from office.
    2. Pending the continuance of the failure or refusal of the tax collector or tax commissioner to render the account after the notice by the governing authority, the governing authority shall suspend the tax collector or tax commissioner from duty and an interim tax collector or tax commissioner shall be appointed as provided in Code Section 48-5-211 to collect the county taxes during the suspension and until the question of removal can be passed upon and decided by the proper tribunal. Proper bonds as provided by law shall be taken from the person so appointed.
    3. The power given by this Code section to inquire into the affairs of the tax collector or tax commissioner and to suspend him from office in certain cases shall in no way affect the tax collector's or tax commissioner's own liability or that of the sureties of his official bond.

      (Ga. L. 1882-83, p. 82, §§ 1, 2; Civil Code 1895, §§ 418, 419; Civil Code 1910, §§ 527, 528; Code 1933, §§ 92-4906, 92-4907; Code 1933, § 91A-1339, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1992, p. 2411, § 7.)

JUDICIAL DECISIONS

County governing authority acts in judicial or quasi-judicial capacity. - In a proceeding under former Civil Code 1910, § 527 or § 528 (see now O.C.G.A. § 36-6-22 or O.C.G.A. § 48-5-140 ), the ordinary (now county governing authority) acted in a judicial or quasi-judicial capacity. Riner v. Flanders, 173 Ga. 43 , 159 S.E. 693 (1931).

RESEARCH REFERENCES

ALR. - Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-5-141. Periodic payment to proper officials of money collected by tax collector or commissioner, sheriff, or constable.

  1. The tax collector or tax commissioner, sheriff, and constables in each county having a population of 30,000 or more shall each week pay over to the proper county officials as required by law the county taxes including, but not limited to, any interest, penalties, or other amounts due the county which they have collected during the week. Such payment shall be made at the same time as the report required by Code Section 48-5-142 and shall be for the period covered by the report.
  2. The tax collector or tax commissioner, sheriff, and constables in each county having a population of less than 30,000 shall every two weeks pay over to the proper county officials as required by law the county taxes including, but not limited to, any interest, penalties, or other amounts due the county which they have collected during the two weeks. Such payment shall be made at the same time as the report required by Code Section 48-5-142 and shall be for the period covered by the report.

    (Ga. L. 1890-91, p. 105, § 1; Civil Code 1895, § 955; Civil Code 1910, § 1222; Ga. L. 1925, p. 81, § 3; Code 1933, §§ 92-4910, 92-4913; Code 1933, § 91A-1340, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1984, p. 962, § 1; Ga. L. 1986, p. 10, § 48.)

JUDICIAL DECISIONS

Fiduciary relationship not created. - Tax commissioner who pled guilty to violations of O.C.G.A. §§ 48-5-141 , 48-5-142 , and 48-5-148 was not a fiduciary of the county for purposes of deciding bankruptcy dischargeability. These Code sections created a bailor/bailee relationship, and did not designate the commissioner as a fiduciary, or impose fiduciary-like duties. Utica Mut. Ins. Co. v. Johnson, 203 Bankr. 1017 (Bankr. S.D. Ga. 1997).

OPINIONS OF THE ATTORNEY GENERAL

Distribution of accrued interest. - Interest accrued on delinquent taxes after collection by the tax commissioner but before the taxes are remitted to the state or locality should be distributed to the same political subdivision for which the underlying tax, penalty, and interest were collected from the taxpayer. 1987 Op. Att'y Gen. No. U87-6.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 85 C.J.S., Taxation, §§ 1140, 1141.

48-5-142. Weekly report of taxes collected by tax collector or tax commissioner to county governing authority.

  1. The tax collector or tax commissioner in each county having a population of 30,000 or more shall make a weekly report to the governing authority of the county of the aggregate amount of taxes collected for the state and the amount collected for the county and shall swear that the report is a correct report of the taxes collected.
  2. The tax collector or tax commissioner in each county having a population of less than 30,000 shall make a report every two weeks to the county governing authority of the aggregate amount of taxes collected during the two-week period. Each report shall separately specify the amount collected for the state and the amount collected for the county. The tax collector or tax commissioner shall swear that the report is a correct report of the taxes collected.

    (Ga. L. 1890-91, p. 105, § 4; Ga. L. 1892, p. 89, § 1; Civil Code 1895, § 956; Civil Code 1910, § 1223; Ga. L. 1925, p. 79, § 4; Code 1933, §§ 92-4911, 92-4914; Code 1933, § 91A-1341, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Fiduciary relationship not created. - Tax commissioner who pled guilty to violations of O.C.G.A. §§ 48-5-141 , 48-5-142 , and 48-5-148 was not a fiduciary of the county for purposes of deciding bankruptcy dischargeability. These Code sections created a bailor/bailee relationship, and did not designate the commissioner as a fiduciary, or impose fiduciary-like duties. Utica Mut. Ins. Co. v. Johnson, 203 Bankr. 1017 (Bankr. S.D. Ga. 1997).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1135.

ALR. - Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-5-143. Monthly remittance of state taxes to commissioner.

  1. Except as provided by subsection (b) of this Code section, the tax collector or tax commissioner of each county shall pay over to the commissioner at least once a month all state taxes which he has collected. Each monthly payment shall be made on or before the fifteenth day of each calendar month.
  2. A tax collector or tax commissioner may pay over state taxes which he has collected on a more frequent basis than once a month when he so desires.

    (Ga. L. 1925, p. 79, § 2; Code 1933, § 92-4912; Ga. L. 1977, p. 1162, § 3; Code 1933, § 91A-1342, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 84 C.J.S., Taxation, §§ 759, 772.

48-5-144. Furnishing report forms by commissioner.

The commissioner shall have prepared and shall furnish the several tax collectors and tax commissioners suitable forms on which to make their reports.

(Ga. L. 1896, p. 35, § 5; Civil Code 1910, § 1217; Code 1933, § 92-4915; Code 1933, § 91A-1343, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-145. Effect of neglect of duty by tax collector or tax commissioner.

If any tax collector or tax commissioner fails or refuses to make payment, if he makes a false return, or if he fails or refuses to file the report as required, it shall be the duty of the commissioner or the county governing authority to report such facts to the Governor. The Governor shall cause a notice of the failure, refusal, or making of a false return to be served on the tax collector or tax commissioner for him to show cause why he should not be removed from office. If the tax collector or tax commissioner fails to make a proper excuse within ten days, it shall be the duty of the Governor to remove the offending official.

(Ga. L. 1892, p. 89, § 1; Civil Code 1895, § 957; Civil Code 1910, § 1224; Ga. L. 1925, p. 79, § 5; Code 1933, § 92-4916; Code 1933, § 91A-1344, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Liability of officer charged with collection of taxes for failure to note in title register delinquency in payment of taxes or assessments charged upon registered land, § 44-2-176 .

JUDICIAL DECISIONS

Cited in DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349 , 751 S.E.2d 827 (2013).

RESEARCH REFERENCES

ALR. - Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-5-146. Receipt of checks or money orders by tax commissioner or tax collector; liability for unpaid checks or money orders; penalty.

  1. No tax commissioner or tax collector shall be personally liable for unpaid checks or money orders received in payment of taxes and license fees when:
    1. The county governing authority has authorized the receipt of personal, company, certified, treasurer's, or cashier's checks, or bank, postal, or express money orders in payment of taxes and license fees;
    2. The tax commissioner or tax collector has received such checks or money orders to the extent and under the conditions prescribed by the governing authority;
    3. The tax commissioner or tax collector has made written demand for payment by the taxpayer on whose account the unpaid check or money order was tendered within 30 days after the notification to the tax commissioner or tax collector of the dishonor of the check or money order; such demand shall be sent by certified mail or statutory overnight delivery to the taxpayer's last address as it appears on the latest records of the tax commissioner or tax collector; and
    4. In all cases where payment is not received within 20 days after the mailing of the demand specified in paragraph (3) of this subsection, the tax commissioner or tax collector has initiated within 40 days after such mailing at least one of the rights and remedies allowed him by law for the enforcement of the collection and payment of taxes and license fees.
  2. A check or money order, when authorized, shall be deemed to be payment as of the time it is received by the tax commissioner or tax collector, provided the check or money order is duly paid upon presentation to the drawee. The time of receipt as shown by the records of the tax commissioner or tax collector shall be prima facie correct as to the time of actual receipt.
  3. If a check or money order so received is not duly paid, the person on whose account the check or money order was tendered shall remain liable for the payment of the tax or license fee and for all legal penalties and additions to the same extent as if the check or money order had not been tendered. Delay in the presentation of a check or money order for payment shall not remove this liability.
  4. If any certified check, treasurer's check, cashier's check, or money order so received is not duly paid, the tax commissioner or tax collector, in addition to the right to exact payment from the party originally obligated for the payment, shall have a lien for the amount of the check or money order upon all assets of the bank or trust company on which drawn or for the amount of the money order upon all the assets of the issuer of the money order. The amount of the lien shall be paid out of the assets of the bank, trust company, or issuer in preference to any other claims whatsoever against the bank, trust company, or issuer.
  5. If any check or money order tendered to the tax commissioner or tax collector as payment of any tax or license fee is not duly paid when presented to the drawee or issuer for payment, in addition to any other penalties provided by law, there shall be paid as a penalty by the person who tendered the check or money order upon notice and demand of the tax commissioner or tax collector, in the same manner as tax, an amount equal to 1 percent of the amount of the check or money order, except that, if the amount of the check or money order is less than $500.00, the penalty under this Code section shall be the lesser of $5.00 or the amount of the check or money order. This subsection shall not apply if the person who tendered the check or money order shows to the satisfaction of the tax commissioner or tax collector that it was tendered in good faith and with reasonable cause to believe it would be duly paid.

    (Ga. L. 1976, p. 1044, § 1; Code 1933, § 91A-1347, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section is applicable with respect to notices delivered on or after July 1, 2000.

Cross references. - Commercial paper, T. 11, A. 3.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769, 779.

C.J.S. - 85 C.J.S., Taxation, § 1140 et seq.

48-5-147. Use of lock box system for mailed tax returns and payments.

  1. The governing authority of each county, municipality, and other political subdivision of the state may enter into a contract for a lock box system with any bank in this state to have the bank receive, process, and deposit mailed tax returns and payments.
  2. In any county of this state in which the county tax collector or tax commissioner receives mailed tax payments or otherwise collects taxes for the county as well as for one or more municipalities lying wholly or partially within the county, the county tax collector or tax commissioner may enter into a contract for a lock box system described by subsection (a) of this Code section on behalf of the county and any such municipality, provided such contract is approved by the governing authority of the county and by the governing authority of any municipality whose tax payments are covered by such contract. A tax collector or tax commissioner and any such officer's surety shall not be liable for any tax payments mailed directly to a bank as the depository under a contract for a lock box system authorized by this subsection. Any contract for a lock box system under this subsection shall require a detailed accounting by the depository of all tax payments received by the depository and shall provide for such other matters as may be necessary to fully protect the interests of the taxpayers, tax officials, and local governing authorities affected by the contract for a lock box system.

    (Ga. L. 1977, p. 672, § 1; Code 1933, § 91A-1348, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 374, § 1.)

48-5-148. Interest on unpaid taxes; rate; record of interest and taxes collected.

    1. Except as otherwise expressly provided for by law, ad valorem taxes due the state or any county remaining unpaid on December 20 in each year shall bear interest at the rate specified in Code Section 48-2-40 from December 20, and each tax collector and tax commissioner shall collect the interest on unpaid taxes and account for such interest in his final settlement.
    2. The minimum interest payment on unpaid taxes shall be $1.00.
    3. In the discretion of the tax commissioner, a taxpayer shall have the option of receiving notices of taxes due via electronic transmission in lieu of, or in addition to, receiving a paper bill via first-class mail. The tax bill shall be transmitted to the taxpayer via e-mail, with delivery or read receipt requested, in portable document format using all e-mail addresses provided by the taxpayer, and the date shown on such transmission shall serve as a postmark. In any instance where such transmission proves undeliverable, the tax commissioner shall mail a bill to the address of record as found in the county board of tax assessors' records. Each taxpayer shall be afforded 60 days from date of postmark to make full payment of taxes due before the taxes shall bear interest as provided in this Code section. The time period for payment provided for by this paragraph shall not apply in those counties in which a lesser time has been provided by law.
  2. Each tax collector and tax commissioner shall keep a record showing the amount of interest collected from delinquent or defaulting taxpayers, the date upon which the taxes and interest were collected, and the name of the person from whom the tax and interest were collected.
  3. Any provision of law (except Code Section 48-5-511) to the contrary notwithstanding, in each county having a population of not less than 71,500 nor more than 73,000 according to the United States decennial census of 1990 or any future such census, all ad valorem taxes due the county and the state remaining unpaid on November 20 of each year shall bear interest at the rate specified in Code Section 48-2-40 from November 20. On November 20 of each year, the local tax officials shall issue executions against each delinquent or defaulting taxpayer in their respective counties and shall otherwise comply with subsection (a) of Code Section 48-5-161.
  4. Any provision of law except Code Section 48-5-511 to the contrary notwithstanding, in each county having a population of not less than 71,500 and not more than 75,000 according to the United States decennial census of 1990 or any future such census, all ad valorem taxes due the county and the state remaining unpaid on October 20 of each year shall bear interest at the highest legal rate provided by law from that date. On October 20 of each year, the local tax officials shall issue executions against each delinquent or defaulting taxpayer in their respective counties and shall otherwise comply with subsection (a) of Code Section 48-5-161.

    (Ga. L. 1917, p. 197, §§ 1, 2; Code 1933, §§ 92-5001, 92-5003; Ga. L. 1970, p. 446, § 1; Ga. L. 1972, p. 3921, § 2; Ga. L. 1975, p. 835, § 1; Code 1933, § 91A-1349, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 538, § 3; Ga. L. 1980, p. 10, § 13; Ga. L. 1981, p. 1857, §§ 17, 18; Ga. L. 1982, p. 575, §§ 3, 10; Ga. L. 1983, p. 3, § 37; Ga. L. 1984, p. 22, § 48; Ga. L. 1992, p. 1189, § 1; Ga. L. 1992, p. 1211, § 1; Ga. L. 2015, p. 1219, § 8/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of paragraph (a)(3) for the former provisions, which read: "After notices of taxes due are mailed out, each taxpayer shall be afforded 60 days from date of postmark to make full payment of taxes due before the taxes shall bear interest as provided in this Code section. This paragraph shall not apply in those counties in which a lesser time has been provided by law."

JUDICIAL DECISIONS

Fiduciary relationship not created. - Tax commissioner who pled guilty to violations of O.C.G.A. §§ 48-5-141 , 48-5-142 , and 48-5-148 was not a fiduciary of the county for purposes of deciding bankruptcy dischargeability. These Code sections created a bailor/bailee relationship, and did not designate the commissioner as a fiduciary, or impose fiduciary-like duties. Utica Mut. Ins. Co. v. Johnson, 203 Bankr. 1017 (Bankr. S.D. Ga. 1997).

Statute applies to taxes legally due. - Statute, providing for the payment of interest on taxes remaining unpaid after December 20 in each year, applies to taxes that are legally due for each year. Alexander v. Blackmon, 233 Ga. 235 , 210 S.E.2d 736 (1974) .

Interest on taxes owed by bank which accrued after bank's failure. - When a bank fails and goes into the hands of the superintendent of banks (now Department of Banking and Finance) for liquidation, the assets in the superintendent's (now department's) possession in the next year are subject to ad valorem taxation for that year, according to the general rule as to taxation. Taxes so accruing, after the bank fails, are payable as such, with interest from maturity, and do not constitute a mere expense of administration to be paid by the superintendent (now department) without interest. Tharpe v. Gormley, 184 Ga. 605 , 192 S.E. 211 (1937).

Postmarks are not required on tax bills or notices mailed out by the county; the reference to the "date of the postmark" in paragraph (a)(3) is merely for the purpose of providing a computational marker for measuring when the county is authorized to charge interest after the statutory due date and, therefore, even though taxpayers received tax notices without postmarks, the county was authorized to assess penalties and interest on taxes more than 90 days past due. Averett v. Troup County, 219 Ga. App. 74 , 464 S.E.2d 32 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Counties mailing tax bills October 22 or later. - Paragraph (a)(3) supersedes the December 20 due date in counties which mail their tax bills on or after October 22, assuming that a period of less than 60 days has not been provided for by law. 1982 Op. Att'y Gen. No. U82-19.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 742.

C.J.S. - 85 C.J.S., Taxation, §§ 1738, 1750 et seq.

48-5-149. Rate of interest and penalty on delinquent ad valorem taxes in certain counties; application during appeal of assessment.

Reserved. Repealed by Ga. L. 1994, p. 237, § 2, effective July 1, 1994.

Editor's notes. - This Code section was based on Code 1933, § 91A-1349.1, enacted by Ga. L. 1980, p. 353, § 1; Ga. L. 1983, p. 752, § 1.

48-5-150. Alternative provisions for interest and final settlements; rate of interest; reports; forfeiture of commissions.

  1. The governing authority of any county, with the approval of the tax collector or tax commissioner, may provide by resolution that all taxes due the state or the county remaining unpaid either on November 15 or December 1 in each year as specified in such resolution shall bear interest at the rate specified in Code Section 48-2-40 from the date specified in the resolution. The tax collector or tax commissioner shall collect the interest on the unpaid taxes and account for such interest in his final settlement.
  2. On the date specified in the resolution in each year in the counties in which the governing authority, with the approval of the tax collector or tax commissioner, has changed the date on which state and county taxes are due, the tax collector or tax commissioner shall furnish to the commissioner and to the county governing authority a report showing the amount of state taxes and the amount of county taxes remaining unpaid on the tax digest. Every 30 days thereafter until a final settlement is made with both the state and the county, the tax collector or tax commissioner shall furnish to the commissioner and the county governing authority a report showing the amount of state taxes collected and the amount of county taxes collected after the date specified in the resolution to the date of rendering the report. Each report shall show also the amount of interest collected from delinquent or defaulting taxpayers.
  3. Each tax collector or tax commissioner in counties in which the governing authority, with the approval of the tax collector or tax commissioner, has changed the date on which state and county taxes are due shall make final settlements with both the state and the county within four months after the date specified in the resolution of the year in which the taxes become due, unless the time for the settlement is extended by the commissioner as authorized by Code Section 48-5-154. Upon failure of any tax collector or tax commissioner to make final settlement within the time provided in this subsection, the tax collector or tax commissioner shall forfeit one-fourth of his commissions unless some good and sufficient reason rendering the making of the final settlement impossible is given.

    (Code 1933, §§ 92-5001.1, 92-5002.1, 92-5004.1, enacted by Ga. L. 1975, p. 1252, §§ 1-3; Code 1933, § 91A-1357, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 14; Ga. L. 1990, p. 289, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 742.

C.J.S. - 85 C.J.S., Taxation, §§ 1738, 1750 et seq.

48-5-151. Interest payments by tax collectors and tax commissioners.

All interest collected by tax collectors and tax commissioners shall be paid by them to the state and county at the time and in the manner that taxes are required to be paid.

(Ga. L. 1917, p. 197, § 5; Code 1933, § 92-5005; Code 1933, § 91A-1358, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Distribution of accrued interest. - Interest accrued on delinquent taxes after collection by the tax commissioner but before the taxes are remitted to the state or locality should be distributed to the same political subdivision for which the underlying tax, penalty, and interest were collected from the taxpayer. 1987 Op. Att'y Gen. No. U87-6.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1142.

48-5-152. Effect of failure to collect interest and make reports and settlements; penalty.

The failure or refusal of any tax collector or tax commissioner to carry out any of the provisions contained in Code Section 48-5-148, 48-5-150, 48-5-151, or 48-5-153 shall constitute malpractice in office. A conviction for such malpractice shall subject the offender to removal from office.

(Ga. L. 1917, p. 197, § 6; Code 1933, § 92-5006; Code 1933, § 91A-1359, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 235 et seq.

48-5-153. Reports of unpaid taxes by tax collector and tax commissioner to commissioner and county governing authority; final settlement period.

  1. On December 20 in each year each tax collector or tax commissioner shall furnish to the commissioner and to the county governing authority, upon the request of either, a report showing the amount of state taxes and the amount of county taxes remaining unpaid on the tax digest and, every 30 days thereafter until a final settlement is made with both the state and the county, shall furnish to the commissioner and the governing authority, upon the request of either, a report showing the amount of state taxes collected and the amount of county taxes collected from December 20 to the date of rendering the report. Each report shall also show the amount of interest collected from the delinquent or defaulting taxpayers.
  2. Each tax collector or tax commissioner shall make final settlements of accounts with both the state and the county and shall pay over all amounts due the state and county within four months from December 20 of the year in which taxes become due, unless the time for the settlement is extended by the commissioner as authorized by Code Section 48-5-154. Upon failure of any tax collector or tax commissioner to make final settlement and payment within the time provided in this subsection, the tax collector or tax commissioner shall forfeit one-fourth of his commissions unless some good and sufficient reason rendering the timely making of the final settlement impossible is given.
  3. With respect to any county operating on a fiscal year basis, the settlement period of subsection (b) of this Code section shall be within four months following the end of such fiscal year.

    (Ga. L. 1917, p. 197, §§ 2, 4; Ga. L. 1933, p. 78, § 10; Code 1933, §§ 92-5002, 92-5004; Code 1933, § 91A-1350, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 37; Ga. L. 1990, p. 1324, § 5; Ga. L. 1991, p. 668, § 2.)

Cross references. - Duty of officers charged with collection of taxes to note in title register any delinquent taxes or assessments charged upon registered land, § 44-2-176 .

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 85 C.J.S., Taxation, §§ 1135, 1137.

ALR. - Effect of certificate or statement of treasurer or other public official regarding unpaid taxes or assessments against specific property, 107 A.L.R. 568 ; 21 A.L.R.2d 1273.

Effect of certificate, statement (or refusal thereof), or error by tax collector or other public officer regarding unpaid taxes or assessments against specific property, 21 A.L.R.2d 1273.

48-5-154. Annual accounting reports; citations for default, negligence, or bad faith; approval in whole or in part.

Annually on or before April 20, unless the time is extended by the commissioner for cause which the commissioner deems sufficient, each tax collector or tax commissioner shall make and file an accounting with the commissioner as to state taxes and with the governing authority of his county as to county taxes for the preceding year, in which the accounts of the tax collector or tax commissioner shall be fully stated and uncollected items on the digest of the preceding year shall be listed in detail. The tax collector or tax commissioner shall set opposite each item the reason why the item has not been collected and the name of the officer in whose hands the tax execution is or, if no execution has been issued, the reason why it has not been issued, and such further information as the commissioner or the county governing authority, as the case may be, shall require. If the commissioner or the county governing authority finds that all collections made up to the date of the accounting have been properly accounted for by the tax collector or tax commissioner, an order to that effect shall be entered by the commissioner or the county governing authority. If it appears that there is any default in accounting for collections made, the tax collector or tax commissioner and his sureties shall be promptly cited as provided by law to make good the default. The commissioner and the county governing authority shall have the jurisdiction and power to correct all errors in the digests, to order abatement or cancellation of taxes erroneously assessed, and to make other adjustments in the digests of a similar nature and to reflect the same in the account as stated. Regarding uncollected items not relieved against in the manner stated, the commissioner or the county governing authority, as the case may be, shall ascertain whether failure to collect the item or any part of the item has been due to negligence or bad faith on the part of the tax collector or tax commissioner. If the commissioner or the county governing authority is of the opinion that there is sufficient evidence of negligence or bad faith to justify a citation as for a default, a citation shall be issued against the tax collector or tax commissioner and his sureties. Otherwise, and unless a default appears in the proper accounting for collections made by the tax collector or tax commissioner, the accounts of the tax collector or tax commissioner shall be approved. If an account is disapproved in part, if there are uncollected items with respect to the failure of collection of which no negligence or bad faith on the part of the tax collector or tax commissioner appears, the commissioner or county governing authority shall approve them and in detail shall state in what part the account is approved and in what part and for what reasons the account is not approved. An approved account or approved part of an account shall be prima facie conclusive of its correctness as of the date of the approval and, unless its correctness is challenged in a citation or in an action brought within two years from the date of the approval, shall be absolutely conclusive of the correctness of the account or of the approved parts of the account as of the date of the approval.

(Ga. L. 1933, p. 78, § 10; Code 1933, § 89-827; Code 1933, § 91A-1351, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 85 C.J.S., Taxation, § 1137.

ALR. - Effect of certificate or statement of treasurer or other public official regarding unpaid taxes or assessments against specific property, 107 A.L.R. 568 ; 21 A.L.R.2d 1273.

Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

Effect of certificate, statement (or refusal thereof), or error by tax collector or other public officer regarding unpaid taxes or assessments against specific property, 21 A.L.R.2d 1273.

48-5-155. Removal or suspension of tax collector or tax commissioner failing to account or defaulting; opportunity for hearing; citation.

If any tax collector or tax commissioner fails to submit his account for settlement by April 20 or within such further time, not exceeding four months, as is allowed by the commissioner or, if on examination of the account, defaults are ascertained which are not promptly cured by the tax collector or tax commissioner, the commissioner or the county governing authority shall report such facts to the Governor who, after giving the tax collector or tax commissioner opportunity to be heard (unless the tax collector or tax commissioner absconds or absents himself from the state or otherwise cannot be given notice), shall have the power to suspend him or remove him from office; and the commissioner and the county governing authority shall proceed to cite the delinquent tax collector or tax commissioner and his surety.

(Ga. L. 1933, p. 78, § 10; Code 1933, § 89-828; Code 1933, § 91A-1352, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Cited in DeKalb County Sch. Dist. v. Ga. State Bd. of Educ., 294 Ga. 349 , 751 S.E.2d 827 (2013).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 227 et seq.

48-5-156. Surety's right to demand release from future liability; office vacated by failure to provide new bond; liability of new surety.

The surety on the bond of the tax collector or tax commissioner shall also have the right to report the failure to account for the default alleged by the commissioner or the county governing authority to the Governor and to demand a release from future liability on the bond of the tax collector or tax commissioner. The Governor, upon such demand, shall order the tax collector or tax commissioner to make a new bond or bonds within a time to be set, not exceeding 30 days. Upon the tax collector's or tax commissioner's default in so doing, the Governor shall declare the officer removed and the office vacant. Upon the office being declared vacant or upon the new bond being given, the moving surety shall be discharged from all future liability. Unless the Governor requires that the sureties on the new bond shall assume concurrent liability with the sureties on the old bond, the sureties on the new bond shall be liable only for future defaults and the sureties on the old for the preexisting defaults.

(Ga. L. 1933, p. 78, § 10; Code 1933, § 89-829; Code 1933, § 91A-1353, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1149.

ALR. - Liability of sureties on bond of tax collector for illegal or unauthorized acts of latter toward individual taxpayer, 127 A.L.R. 857 .

48-5-157. Transfer of executions to tax collector, tax commissioner, or surety held liable for failure to collect taxes; subrogation.

If a tax collector, tax commissioner, or his sureties are held liable on proceedings by citation, on appeal, or in any other action for having failed by reason of his negligence or bad faith to collect any taxes, the tax collector or tax commissioner, or his surety paying off any liability thus established, shall be entitled to have the tax execution or executions transferred to him. If the execution or executions relate both to state and county taxes, the commissioner and the county governing authority, or either of them, may make the transfer as to both state and county taxes and any other tax included in the execution. As to such taxes, the tax collector, tax commissioner, or his surety paying the judgment, order, or decree fixing liability for the taxes shall be subrogated to all the rights of the state, county, and other public body for whose benefit the tax was levied.

(Ga. L. 1933, p. 78, § 10; Code 1933, § 89-831; Code 1933, § 91A-1355, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 83 C.J.S., Subrogation, § 1 et seq. 85 C.J.S., Taxation, §§ 1137, 1146.

ALR. - Liability of sureties on bond of tax collector for illegal or unauthorized acts of latter toward individual taxpayer, 127 A.L.R. 857 .

48-5-158. Nonliability of tax collector, tax commissioner, and surety for failure to collect taxes.

Neither a tax collector, tax commissioner, nor his surety shall be liable for failure to collect any state, county, or other taxes from delinquent taxpayers if he or his surety shall make it appear that:

  1. By reason of the insolvency of the taxpayer, the tax collector or tax commissioner could not by ordinary care and diligence collect the tax;
  2. The tax collector or tax commissioner with ordinary diligence issued execution and placed it in the hands of the sheriff or other officer having power to levy the execution, and that failure to realize the money on the execution was due to no fault of the tax collector or tax commissioner;
  3. The failure to collect the taxes promptly was due to obedience to instructions from the commissioner as to state taxes or from the county governing authority as to county taxes; or
  4. He was prevented from the collection of the taxes by legal proceedings.

    (Ga. L. 1933, p. 78, § 13; Code 1933, § 89-834; Code 1933, § 91A-1356, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1137, 1146, 1153.

ALR. - Liability of sureties on bond of tax collector for illegal or unauthorized acts of latter toward individual taxpayer, 127 A.L.R. 857 .

48-5-159. False reports of taxes collected by tax collector or tax commissioner pursuant to this article; penalty.

  1. It shall be unlawful for any tax collector or tax commissioner to make out a false return or report of the amount of taxes collected which is required to be reported by this article.
  2. Any person who violates subsection (a) of this Code section commits the offense of false swearing.

    (Ga. L. 1892, p. 89, § 1; Penal Code 1895, § 265; Penal Code 1910, § 268; Code 1933, § 92-9921; Code 1933, § 91A-9912, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1135, 1148.

48-5-160. Duty of tax collectors and tax commissioners to keep stub book of tax receipts.

Reserved. Repealed by Ga. L. 1990, p. 1324, § 6, effective July 1, 1990.

Editor's notes. - This Code section was based on Ga. L. 1884-85, p. 66, § 1; Civil Code 1895, § 961; Civil Code 1910, § 1228; Code 1933, § 92-5101; Code 1933, § 91A-1360, enacted by Ga. L. 1978, p. 309, § 2.

48-5-161. Issue of execution; execution docket; levy administration fee; collection; inspection by grand jury.

  1. Each tax collector or tax commissioner shall keep an execution docket. On December 20 in each year, unless further time is allowed as provided by law, he shall issue execution against each delinquent or defaulting taxpayer in his county and enter the names of delinquent or defaulting taxpayers on the docket together with an itemized statement of the taxes covered by the execution.
  2. When executions have been issued, it shall be the duty of the officer issuing the execution to place the execution in the hands of an officer authorized by law to collect the execution and make an entry on his execution docket of the name of the officer and the date of delivery.
    1. The officer in whose hands the execution is placed shall proceed at once to collect the execution and, when the execution is paid by the defendant voluntarily or by levy and sale, the officer shall enter the amount collected including all costs, commissions, interest, and penalties as provided by law on the execution. The officer shall return the execution to the tax collector or tax commissioner with the amount of tax collected. The tax collector or tax commissioner shall at once copy the entry of the officer on his or her execution docket and file the execution in his or her office.
      1. As used in this paragraph, the term "costs" includes, but is not limited to, title examination expenses, certified mail expenses, reasonable attorney's fees, or other such necessary research expenses.
      2. Once an execution is issued against a delinquent or defaulting taxpayer, the sheriff or ex officio sheriff shall collect, in addition to any other costs, commissions, interest, and penalties, the actual expenses incurred by the county in issuing the execution and administering the levy by imposing a levy administration fee which shall be 5 percent of the delinquent tax or $250.00, whichever is the lesser. Regardless of any other provision of this paragraph, however, no such levy administration fee shall be less than $50.00.
    3. The levy administration fee provided by paragraph (2) of this subsection shall likewise be charged and collected when the execution is enforced through garnishment as provided for in Code Section 48-3-12.
  4. Each tax collector or tax commissioner shall submit his respective execution docket and cashbook to the grand jury at the spring term of the superior court of his county. It shall be the duty of the grand jury to inspect thoroughly the docket and book and to report on them by general or special presentment.

    (Ga. L. 1884-85, p. 66, §§ 2-5; Civil Code 1895, §§ 962, 963, 964, 965; Civil Code 1910, §§ 1229, 1230, 1231, 1232; Code 1933, §§ 92-5102, 92-5103, 92-5104, 92-5105; Code 1933, § 91A-1361, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 19; Ga. L. 1982, p. 1114, §§ 1, 2; Ga. L. 1983, p. 575, § 1; Ga. L. 1987, p. 965, § 1; Ga. L. 1990, p. 1324, § 7; Ga. L. 2009, p. 216, § 2B/SB 240.)

Editor's notes. - Ga. L. 1987, p. 965, § 2, not codified by the General Assembly, provided that that Act shall apply with respect to executions issued on or after July 1, 1987.

JUDICIAL DECISIONS

Attorneys fees. - Statute does not constitute authorization for adding attorney fees to the principal, interest, and costs. Money v. Thompson & Green Mach. Co., 155 Ga. App. 566 , 271 S.E.2d 699 (1980) .

Presumption as to timely performance of duties by tax officials. - When the defendant county fiscal and taxing authorities are required by law to perform all of the acts sought to be enjoined by the taxpayer (increasing valuation of taxpayers' property, compiling and transmitting tax digest and levying taxes) on or before December 20, and when the court refuses to restrain the authorities from performing those official duties at the proper time, it would be presumed, unless the contrary appears, that the returns were timely and properly performed by the authorities. Kight v. Gilliard, 215 Ga. 152 , 109 S.E.2d 599 (1959).

Effect of failure to enter execution on docket. - Mere deposit of execution was in the clerk's office and entry of filing thereon is ineffective unless the execution was actually entered on the docket. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Failure to attach unsigned receipt to execution. - Failure of the tax collector to attach an unsigned receipt to the execution does not render the execution void but only irregular. Wilson v. Herrington, 86 Ga. 777 , 13 S.E. 129 (1891).

Claims for taxes should be enforced within seven years from the date when the taxes are due and when executions could have been issued therefor, unless within such time an execution is issued and entered on the general execution docket, as in the case of judgments. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Action to enjoin enforcement of execution when execution barred. - When execution for collection of taxes was barred, the taxpayer was no longer bound for the taxes, and the taxpayer could maintain an action to enjoin enforcement of the execution and for its cancellation. The taxpayer was not estopped from doing so because the taxpayer owned the property for the entire year for which the taxes involved were due, failed to make a return of the property for such year, and had not paid or offered to pay the taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Priority of tax claims over recorded deeds, mortgages, and liens. - Provisions of former Code 1933, § 67-2501 (see now O.C.G.A. § 44-2-2 ), declaring effective from the date of filing "deeds, mortgages, and liens of all kinds," as against third persons acting in good faith and without notice have no application to claims for taxes. Suttles v. Dickey, 192 Ga. 382 , 15 S.E.2d 445 (1941).

Collection of expenses of execution and levy. - City was not authorized to collect the expenses of execution and levy until the levy was made; hence, because the city failed to show that the city was authorized to collect a $75.00 fee for expenses incurred in connection with the tax execution prior to a levy, the trial court properly found in favor of a taxpayer as to the issue. Mayor of City of Fort Valley v. Grills, 282 Ga. App. 397 , 638 S.E.2d 830 (2006).

Court of appeals did not err in finding that no levy occurred that would have authorized the imposition and collection of fees pursuant to O.C.G.A. § 48-5-161(c)(2) because it correctly recognized that the execution documents on which a county tax commissioner relied did not show a valid levy occurred when although the commissioner pointed repeatedly to documents reflecting unsigned and undated executions that were recorded in the execution docket, there was 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 court of appeals also recognized properly that no levy occurred when a collection agent for the county was told to begin "phase two" of the collection process because nothing in the record reflected a physical tacking of a valid notice of execution of levy on the real property in issue. Huff v. Harpagon Co., LLC, 286 Ga. 809 , 692 S.E.2d 336 (2010).

Because there was no valid levy, a fee discussion by the court of appeals constituted an improper advisory opinion in that the court of appeals attempted to determine in the abstract how O.C.G.A. § 48-5-161 (c)(2) had to be construed; the construction to be given the fees provision in § 48-5-161 was not properly before the court of appeals. Huff v. Harpagon Co., LLC, 286 Ga. 809 , 692 S.E.2d 336 (2010).

Cited in Nat'l Tax Funding, L.P. v. Harpagon Co., 277 Ga. 41 , 586 S.E.2d 235 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Application of penalty provisions. - Penalty and fees provided in O.C.G.A. §§ 48-2-44 and 48-5-161 would apply to unpaid ad valorem taxes which were assessed in 1981, 1982, and 1983 as follows: When the statutory prerequisites of § 48-2-44 have been met, a penalty of 10 percent of the amount of tax due and not timely paid would apply to ad valorem taxes which were unpaid after July 1, 1981. In addition, a 10 percent execution fee would apply to ad valorem tax executions issued on or after July 1, 1982, and before March 15, 1983. In keeping with the reasoning employed in Ops. Att'y Gen. 81-76 and 82-72, only those executions issued on or after March 15, 1983, the effective date of § 48-5-161 , as amended by Ga. L. 1983, p. 575, would not be subject to a 10 percent execution fee, but the amount collected on these executions would include all costs, commissions, interest, and penalties as provided by law. 1984 Op. Att'y Gen. No. U84-25.

Ten percent execution fee is automatic and mandatory, and must be collected whenever conditions set forth in subsection (c) of O.C.G.A. § 48-5-161 are satisfied. 1982 Op. Att'y Gen. No. 82-72.

Ten percent execution fee applies only to executions issued on or after July 1, 1982. 1982 Op. Att'y Gen. No. 82-72.

When fee arises. - Ten percent execution fee arises upon issuance of execution (ordinarily December 20 of the tax year in question). 1982 Op. Att'y Gen. No. 82-72.

Who may collect fee. - Ten percent execution fee is collectible by whoever is authorized to collect other amounts specified in execution. 1982 Op. Att'y Gen. No. 82-72.

Execution fee and penalty cumulative. - If circumstances set forth in each section are met, the penalty provided by O.C.G.A. § 48-2-44(b) and execution fee provided by subsection (c) of O.C.G.A. § 48-5-161 are cumulative in nature. 1982 Op. Att'y Gen. No. U82-37.

Delinquent municipal taxes. - Execution fee provided for in O.C.G.A. § 48-5-161 does not apply to executions issued for delinquent municipal taxes. 1983 Op. Att'y Gen. No. 83-7.

Number of executions immaterial to penalty amount. - Because the 10 percent penalty imposed by O.C.G.A. § 48-5-161 as to ad valorem tax executions issued on or after July 1, 1982, and before March 15, 1983, is based on the amount of tax due, the number of executions which have been issued are immaterial to the amount of the penalty. 1984 Op. Att'y Gen. No. U84-25.

Local school systems were entitled to a proportionate share of funds raised through imposition of the execution fee on delinquent taxes collected through execution, under former subsection (c) of O.C.G.A. § 48-5-161 . 1983 Op. Att'y Gen. No. 83-20.

48-5-162. Penalties for violations of subsection (a) of Code Section 48-5-161.

For a violation of any of the provisions of subsection (a) of Code Section 48-5-161, the tax collector or tax commissioner so violating shall forfeit all or such part of his commissions as the grand jury of the county shall recommend. If the tax collector or tax commissioner fails to pay over the penalty imposed, it shall be enforced against the tax collector or tax commissioner and his sureties by the commissioner as provided by law for defaulting tax collectors, and a 20 percent penalty of the amount of the penalty set by the grand jury shall be added to such penalty.

(Ga. L. 1884-85, p. 66, § 6; Civil Code 1895, § 966; Civil Code 1910, § 1233; Code 1933, § 92-5106; Code 1933, § 91A-1362, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1991, p. 94, § 48.)

48-5-163. Fee for issuing tax executions; allowance of costs on executions.

Reserved. Repealed by Ga. L. 2017, p. 738, § 2/HB 375, effective July 1, 2017.

Editor's notes. - This Code section was based on Code 1933, § 91A-1361.1, enacted by Ga. L. 1979, p. 5, § 38A.

48-5-164. Duties of successor tax collector or tax commissioner as to performing uncompleted duties of outgoing collector or commissioner; distribution of commissions; liability.

  1. In case a tax collector or tax commissioner has been succeeded in office by another person, a list of the uncollected items of tax appearing in the account of the outgoing tax collector or tax commissioner at the time of the accounting shall be furnished by the commissioner or the county governing authority to the tax collector or tax commissioner who succeeds the outgoing tax collector or tax commissioner.
    1. Each tax collector or tax commissioner to whom a list is furnished as provided in subsection (a) of this Code section shall pay to the outgoing tax collector or tax commissioner, as the taxes are collected, one-half of the commissions and retain for his services one-half, the commissions to be calculated as if the amounts had been collected by the outgoing tax collector or tax commissioner.
    2. Reserved.
  3. The outgoing tax collector or tax commissioner shall no longer have the right or the duty to collect the taxes uncollected during his term or to enforce the executions issued for the taxes, but all uncompleted duties with respect to the enforcement and collection of the taxes shall pass to his successor.
  4. The outgoing tax collector or tax commissioner and his sureties or his bond shall be discharged upon his delivery to his successor of the books and papers in his office which relate to the uncollected taxes, except for defaults existing prior to that time.

    (Ga. L. 1933, p. 78, § 10; Code 1933, § 89-830; Code 1933, § 91A-1354, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 38; Ga. L. 1994, p. 237, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 772.

C.J.S. - 85 C.J.S., Taxation, § 1130 et seq.

ALR. - Liability of sureties on bond of tax collector for illegal or unauthorized acts of latter toward individual taxpayer, 127 A.L.R. 857 .

48-5-165. Duty of tax collector to instruct taxpayers that negotiable instruments are to be made payable to county tax office.

It shall be the duty of each tax collector, whether acting on behalf of the county, municipality, board of education, or as an agent of the state, to instruct the taxpayers that any check, money order, or other similar bankable paper for the payment of taxes shall be made payable to the county tax office to which the taxes are due, rather than to the tax collector. The tax collector shall not be required, however, to return to the taxpayer a check or money order for the payment of taxes that is not made payable to the taxing entity in strict conformity with the instructions.

(Code 1981, § 48-5-165 , enacted by Ga. L. 1985, p. 537, § 1; Ga. L. 1986, p. 274, § 1; Ga. L. 1990, p. 1495, § 1.)

PART 3 C OMPENSATION

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-53 are included in the annotations for this part.

Tax commissioner's compensation. - Salary of the tax commissioner must either be established by former Code 1933, Ch. 92-53 (see this part), which sets the minimum compensation for tax commissioners, or by local legislation, whichever results in a higher salary. 1977 Op. Att'y Gen. No. U77-8.

48-5-180. Rate of commissions; commissions where tax collector or tax commissioner is on salary; commission from fee for sale or transfer of motor vehicle license and plate in certain counties.

  1. The commissions to be allowed to each tax receiver and tax collector of state and county taxes shall be as provided in the following schedule:       Net Tax Digest Amount                                    Rate of Commission       Up to and including $6,000.00 .......................................... 6%       Over $6,000.00 and not exceeding $14,000.00 ............................ 5%       Over $14,000.00 and not exceeding $24,000.00 ........................... 4%       Over $24,000.00 and not exceeding $36,000.00 ........................... 3%       Over $36,000.00 and not exceeding $52,000.00 ....................... 2 1/2%       Over $52,000.00 and not exceeding $76,000.00 ........................... 2%       Over $76,000.00 ................................................... 1 3/4%.
  2. Subsection (a) of this Code section shall not apply to any county where the tax collector, tax receiver, or tax commissioner is on a salary basis only.
    1. Except as otherwise provided in this subsection and as far as tax collectors and tax commissioners are concerned, the rates and schedules prescribed by subsection (a) of this Code section shall apply to the first 90 percent of the ad valorem net digests collected by the tax collector or tax commissioner. On all taxes collected in excess of 90 percent of the total of taxes due according to the net tax digest, the tax collector's or tax commissioner's commission shall be 10 percent of all such collections, irrespective of the schedule and rates in subsection (a) of this Code section.
    2. The governing authority of the county may provide by appropriate resolution that the tax collector's or tax commissioner's commission shall be 10 percent of all taxes collected in excess of 80 percent of the total taxes due according to the net tax digest.
    3. Except as otherwise provided in this paragraph, the tax collector or tax commissioner shall be entitled to and shall receive such commissions as provided in this subsection even though he is paid on a salary basis. In those counties where the tax collector or tax commissioner is paid on a salary basis and his salary is $8,000.00 or more per annum, the tax collector or tax commissioner shall not be entitled to the commissions provided for in this subsection unless the local Act placing the tax collector or tax commissioner on a salary or an amendment of such Act specifically provides that the tax collector or tax commissioner shall receive the commissions, in which event the tax collector or tax commissioner shall be entitled to receive the commissions as provided for in this subsection. If such Act does not so specifically provide, the commissions shall be county funds and shall not be received by the tax collector or tax commissioner.

      (Orig. Code 1863, §§ 850, 860; Ga. L. 1863-64, p. 16, § 1; Code 1868, §§ 929, 939; Code 1873, §§ 926, 936, 936a; Ga. L. 1878-79, p. 25, § 1; Code 1882, §§ 926, 936, 936a; Civil Code 1895, §§ 940, 967, 968; Civil Code 1910, §§ 1202, 1232, 1235; Ga. L. 1918, p. 110, § 1; Code 1933, § 92-5301; Ga. L. 1937-38, Ex. Sess., p. 297, §§ 1-3; Ga. L. 1939, p. 370, § 1; Ga. L. 1951, p. 815, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 234, §§ 1-4; Ga. L. 1955, p. 176, § 1; Ga. L. 1965, p. 626, § 1; Ga. L. 1971, p. 2897, § 1; Ga. L. 1973, p. 2624, § 1; Code 1933, § 91A-1370, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1982, p. 996, §§ 2, 5; Ga. L. 1984, p. 22, § 48; Ga. L. 1990, p. 8, § 48; Ga. L. 1994, p. 237, § 2; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "Net Tax Digest Amount" for "Net Digest Amount" in subsection (a), revised language in paragraph (c)(1), and deleted subsections (d) and (e) formerly designated as reserved.

JUDICIAL DECISIONS

History and intent of section. - For a discussion of the history and intent of this section, particularly as to subsection (a), see Bruce v. County of Troup, 92 Ga. App. 786 , 90 S.E.2d 60 (1955), disapproved on other grounds, Laurens County v. Keen, 214 Ga. 32 , 102 S.E.2d 697 (1958).

Section inapplicable to returns made exclusively to commissioner. - Statute has no application to returns made exclusively to the comptroller-general (now commissioner) in which case they are not entered on the tax-receiver's digest. Glynn County v. Dubberly, 148 Ga. 290 , 96 S.E. 566 (1918).

Collection of tax as prerequisite to commission thereon. - Tax receivers and tax collectors are only entitled to commissions on such taxes as are actually collected. Clements v. Peerless Woolen Mills, 197 Ga. 296 , 29 S.E.2d 175 (1944).

Former county tax collector has no vested right in commissions on taxes and whether the collector is entitled to commissions is determined at the time the tax is collected. Hale v. Davison, 231 Ga. 505 , 202 S.E.2d 411 (1973).

Compensation of county tax commissioner. - O.C.G.A. § 48-5-183 controlled over a local act upon which a tax commissioner relied since, for the commissioner's entire tenure, the commissioner's minimum salary under that section was higher than that provided in the local act, as well as higher than the maximum salary permitted in order to receive fees pursuant to O.C.G.A. §§ 40-2-33 and 48-5-180 . Brown v. Liberty County, 271 Ga. 634 , 522 S.E.2d 466 (1999).

County may not deprive tax commissioner of fees to which commissioner is entitled. - Fees or commissions payable by the state to the county tax collector or tax commissioner for collecting taxes, as provided by this statute, belong to such officer. Accordingly, since the board of county commissioners in a resolution fixing the salary of the county tax commissioner provided that the commissioner should be paid a stated salary, but that any fees and commissions to which the tax commissioner might be entitled under the law from the state should be deducted therefrom, the provision for such deduction was contrary to law and without force and effect, the tax commissioner being entitled to such fixed salary from the county and in addition thereto the fees or commissions due the commissioner from the state. Bruce v. County of Troup, 92 Ga. App. 786 , 90 S.E.2d 60 (1955), disapproved on other grounds, Laurens County v. Keen, 214 Ga. 32 , 102 S.E.2d 697 (1958).

No commission for school taxes. - Statute does not embrace a provision for paying the tax receiver commissions for any services in connection with the levy of the county-wide tax for school purposes raised under the school laws. Board of Educ. v. Drake, 157 Ga. 8 , 121 S.E. 645 (1923); Hurst v. Board of Comm'rs, 157 Ga. 648 , 122 S.E. 45 (1924).

OPINIONS OF THE ATTORNEY GENERAL

Construction of section. - Former Code 1933, §§ 92-5301 (see subsections (a) and (b) of this section) and Ga. L. 1937-38, Ex. Sess., p. 297, § 3 (see subsection (c) of this section) must be construed together; the net digest is used in order to determine the commissions which may be due a tax collector or tax commissioner over 90 percent of the commissioner's net digest, or over 80 percent of the net digest in case a resolution is passed in accordance with this statute. 1957 Op. Att'y Gen. p. 261.

Construction with other provisions. - Proviso that no tax collector's or tax commissioner's salary shall be increased during the commissioner's present term contained in former Code 1933, §§ 92-5306 to 92-5309 (see now O.C.G.A. § 48-5-183 ) applied only to those tax collectors and tax commissioners who were compensated by salary; "present term" meant only the term which was being served by salaried tax collectors or tax commissioners on July 1, 1976; the base salary set in former Code 1933, § 92-5301 (see now O.C.G.A. § 48-5-180 ) was replaced by that set in former Code 1933, §§ 92-5306 to 92-5309 (see now § 48-5-183 ). 1976 Op. Att'y Gen. No. U76-64.

Compensation provided for in this statute does not apply to school taxes on which the compensation is fixed. 1970 Op. Att'y Gen. No. U70-163.

Statute applies only to the state and county tax digest and not to the school tax digest. 1968 Op. Att'y Gen. No. 68-401; 1970 Op. Att'y Gen. No. U70-17.

No commission for collection of school tax. - Tax commissioner is not entitled to receive a 10 percent commission on collections after 90 percent of the net digest has been collected on school tax. 1967 Op. Att'y Gen. No. 67-425.

Applicability to taxes for bond retirement and provision for sick and poor. - Statute provides a commission of 10 percent on all taxes collected in excess of 90 percent of the total taxes due and does not make any exception for taxes levied to retire bonds or taxes levied to provide for the sick and poor of the county. 1954-56 Op. Att'y Gen. p. 880.

When taxes are finally collected after many years and the tax commissioner is on salary basis, no commissions are due any tax commissioner since salary basis was put into effect and no past collector or commissioner has any vested interest in commissions on taxes the collector did not collect. 1962 Op. Att'y Gen. p. 569.

Extra commission available only if appropriate resolution adopted. - Statute, when properly applied to salaried tax commissioners, only extends the commission of 10 percent of the taxes collected in excess of 90 percent of the total taxes due or the excess over 80 percent, if an appropriate resolution has been adopted. 1979 Op. Att'y Gen. No. U79-11.

Increase in commissions received by county governing authority. - Governing authority of a county cannot, by resolution, increase the commissions which it receives to an amount greater than the amount which the tax collector or tax commissioner was receiving at the time the commissioner was placed on a salary only basis of compensation. 1979 Op. Att'y Gen. No. 79-67.

Compensation when resolution passed before tax official placed purely on salary basis. - If an "appropriate resolution" establishing the commission to be 10 percent of all taxes collected in excess of 80 percent has been passed by the governing authority of a county prior to the tax collector or tax commissioner of the county being placed purely on a salary basis of $8,000.00 or more, then the county is entitled to the same commissions the tax collector or tax commissioner would receive if not on a salary basis, i.e., 10 percent of the excess of 80 percent. 1974 Op. Att'y Gen. No. U74-42.

Manner for obtaining payment of commissions. - Since the provisions of former Code 1933, § 92-5305 (see now O.C.G.A. § 48-5-182 ) were clear in their meaning, a tax receiver under its provisions was entitled to receive from the tax collector the commissions provided for in former Code 1933, § 92-5301 (see now O.C.G.A. § 48-5-180 ) on "net digests" upon the presentation to the tax collector or tax commissioner the "Receipt for Digest and Commission Voucher," from the first money collected on the net digests it covers. 1948-49 Op. Att'y Gen. p. 385.

When a tax commissioner is entitled to commissions the commissioner may retain the commissions and is not required to pay the commissions over to either the state or county for subsequent return. 1969 Op. Att'y Gen. No 69-462.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1127, 1128.

48-5-181. Deductions of default and insolvent lists for net amount of digests.

In arriving at the net amount of the digest, the default list shall be deducted in the case of tax receivers and the insolvent list shall be deducted in the case of tax collectors.

(Laws 1847, Cobb's 1851 Digest, p. 1079; Ga. L. 1851-52, p. 288, § 19; Code 1863, § 738; Code 1868, § 805; Code 1873, § 808; Code 1882, § 808; Civil Code 1895, § 774; Civil Code 1910, § 1014; Code 1933, § 92-5302; Code 1933, § 91A-1371, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-182. Payment of commissions to tax receivers.

The tax collector shall pay to the tax receiver his commissions due by the state and by the county, but only upon the production of the commissioner's receipt for the tax receiver's net digest and only with a specification in the digest of the amount of commissions to which the tax receiver is entitled. The tax collector shall submit the tax receiver's receipts with his receipts thereon to the commissioner before the tax collector is allowed credits for such commissions.

(Ga. L. 1937-38, Ex. Sess., p. 297, § 4; Code 1933, § 91A-1372, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Meaning of this statute is simple, plain, and clear. - Language of this statute consists of common, ordinary words, and there is nothing therein to show that any unusual meaning is to be attached to the terms employed. 1948-49 Op. Att'y Gen. p. 385.

Construction of term "net digest." - "Net digest" means the remaining taxable property after nontaxable property, such as homestead exemption, has been deducted from the total digest. 1952-53 Op. Att'y Gen. p. 305.

Commissions on taxes that have not been collected. - Contrary to existing Georgia cases, the tax receiver is entitled to commissions on taxes which have not been collected. 1952-53 Op. Att'y Gen. p. 305.

Issuance of execution and delivery to sheriff does not entitle tax collector to fees. - Tax collector is not entitled to the collector's fees merely after the issuance of a tax execution and delivery thereof to the sheriff, but such fees may only be paid after collection of such execution. 1952-53 Op. Att'y Gen. p. 297.

Manner for obtaining payment of commissions. - Since the provisions of Ga. L. 1937-38, Ex. Sess. p. 297, § 4 (see now O.C.G.A. § 48-5-182 ) are clear in its meaning, a tax receiver under its provisions is entitled to receive from the tax collector the commissions provided for in former Code 1933, § 92-5301 (see now O.C.G.A. § 48-5-180 ) on "net digests" upon the presentation to the tax collector or tax commissioner the "Receipt for Digest and Commission Voucher," from the first money collected on the net digests it covers. 1948-49 Op. Att'y Gen. p. 385.

48-5-183. Salaries of tax collectors and tax commissioners.

  1. Nothing contained in this Code section shall apply to any tax commissioner or tax collector who is compensated by the fee system of compensation in lieu of a fixed salary. On and after January 1, 1995, no tax collector or tax commissioner in a county having a population of 45,000 or more shall be entitled to fees authorized by Code Section 48-5-180 or Code Section 40-2-33.
    1. Any other law to the contrary notwithstanding, except for the provisions of paragraph (2) of this subsection, the minimum annual salary of each tax collector and tax commissioner who is compensated by an annual salary shall be fixed according to the population of the county in which he or she serves, as determined by the United States decennial census of 2000 or any future such census; provided, however, that such annual salary shall be recalculated in any year following a census year in which the Department of Community Affairs publishes a census estimate for the county prior to July 1 in such year that is higher than the immediately preceding decennial census. Each such officer shall receive an annual salary, payable in equal monthly installments from the funds of his or her county, of not less than the amount fixed in the following schedule:
    2. Whenever the state employees subject to compensation plans authorized and approved in accordance with Code Section 45-20-4 receive a cost-of-living increase or general performance based increase of a certain percentage or a certain amount, the amounts fixed in the minimum salary schedule in paragraph (1) of this subsection, in subsection (g) of Code Section 48-5-137, and, where applicable, in subsection (c) of Code Section 21-2-213, or the amounts derived by increasing each of said amounts through the application of longevity increases pursuant to subsection (d) of this Code section, where applicable shall be increased by the same percentage or same amount applicable to such state employees. If the cost-of-living increase or general performance based increase received by state employees is in different percentages or different amounts as to certain categories of employees, the amounts fixed in the minimum salary schedule in paragraph (1) of this subsection, in subsection (g) of Code Section 48-5-137, and, where applicable, in subsection (c) of Code Section 21-2-213, or the amounts derived through the application of longevity increases, shall be increased by a percentage or an amount not to exceed the average percentage or average amount of the general increase in salary granted to the state employees. The Office of Planning and Budget shall calculate the average percentage increase or average amount increase when necessary. The periodic changes in the amounts fixed in the minimum salary schedule in paragraph (1) of this subsection, in subsection (g) of Code Section 48-5-137, and, where applicable, in subsection (c) of Code Section 21-2-213, or the amounts derived through the application of longevity increases, as authorized by this paragraph shall become effective on the first day of January following the date that the cost-of-living increases received by state employees become effective; provided, however, that if the cost-of-living increases or general performance based increases received by state employees become effective on January 1, such periodic changes in the amounts fixed in the minimum salary schedule in paragraph (1) of this subsection, in subsection (g) of Code Section 48-5-137, and, where applicable, in subsection (c) of Code Section 21-2-213, or the amounts derived through the application of longevity increases as authorized by this paragraph, shall become effective on the same date that the cost-of-living increases or general performance based increases received by state employees become effective.
    3. The county governing authority may supplement the minimum annual salary of the tax commissioner in such amount as it may fix from time to time; but no tax commissioner's compensation supplement shall be decreased during any term of office. Any prior expenditure of county funds to supplement the tax commissioner's salary in the manner authorized by this paragraph is ratified and confirmed. Nothing contained in this paragraph shall prohibit the General Assembly by local law from supplementing the annual salary of the tax commissioner.
  3. In any county in which more than 50 percent of the population of the county according to the United States decennial census of 1990 or any future such census resides on property of the United States government which is exempt from taxation by this state, the population of the county for the purpose of subsection (b) of this Code section shall be deemed to be the total population of the county minus the population of such county which resides on property of the United States government.
  4. The amounts provided in paragraph (1) of subsection (b) of this Code section, subsection (g) of Code Section 48-5-137, and, where applicable, Code Section 21-2-213, as increased by paragraph (2) of subsection (b) of this Code section, shall be increased by multiplying said amounts by the percentage which equals 5 percent times the number of completed four-year terms of office served by any tax collector or tax commissioner after December 31, 1976, effective the first day of January following the completion of each such period of service. This Code section shall not be construed to affect any local legislation except where the local legislation provides for a salary lower than the salary provided in this Code section, in which event this Code section shall prevail. This Code section shall not be construed to reduce the salary of any tax collector or tax commissioner in office on July 1, 1991; provided, however, that successors to such tax collectors and tax commissioners in office on July 1, 1991, shall be governed by the provisions of this Code section. The minimum salaries provided for in this Code section shall be considered as salary only. Expenses for deputies, equipment, supplies, copying equipment, and other necessary and reasonable expenses for the operation of a tax collector's or tax commissioner's office shall come from funds other than the funds specified as salary in this Code section.
  5. Notwithstanding any other provisions of this Code section, any tax collector or tax commissioner who, prior to July 1, 1979, was entitled to the commissions allowed by Code Section 40-2-33 may elect to receive the salary he or she was receiving prior to July 1, 1979, together with such commissions relating to the sale of motor vehicle license plates in lieu of the minimum salary provided in subsection (b) of this Code section.
  6. Notwithstanding any other provisions of this Code section, any tax collector or tax commissioner who, prior to January 1, 1980, was receiving a salary lower than the applicable minimum salary provided by subsection (b) of this Code section pursuant to a local law but who also was receiving certain fees and commissions in addition thereto may elect to be excluded from this Code section.
  7. Except as otherwise provided in subsection (f) of this Code section, any local Acts in effect on or enacted subsequent to January 1, 1980, which deal with the compensation of the various tax collectors or tax commissioners, shall remain in full force and effect, except in those instances where such local Acts provide for a salary which is less than the minimum salary provided in subsection (b) of this Code section, in which event this Code section shall prevail.
  8. This Code section shall not be construed so as to place any tax collector or tax commissioner who is on the fee system of compensation on January 1, 1980, on a salary system of compensation. Any such officer who is compensated under the fee system of compensation on January 1, 1980, shall continue to be compensated pursuant to the fee system of compensation until the General Assembly abolishes by local Act the fee system of compensation for such officer and places him or her on an annual salary equal to or greater than the minimum annual salary provided in this Code section.

    (Ga. L. 1976, p. 988, § 104; Ga. L. 1977, p. 187, § 1; Code 1933, § 91A-1373, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 1250, § 3; Ga. L. 1980, p. 547, § 2; Ga. L. 1982, p. 2244, §§ 1, 2; Ga. L. 1983, p. 3, § 37; Ga. L. 1984, p. 22, § 48; Ga. L. 1985, p. 456, § 1; Ga. L. 1987, p. 366, § 1; Ga. L. 1988, p. 931, § 4; Ga. L. 1989, p. 801, § 4; Ga. L. 1991, p. 94, § 48; Ga. L. 1992, p. 1478, § 7; Ga. L. 1994, p. 620, § 6; Ga. L. 1998, p. 128, § 48; Ga. L. 1998, p. 1159, § 19; Ga. L. 1999, p. 782, § 1; Ga. L. 2001, p. 902, § 20; Ga. L. 2006, p. 568, § 14/SB 450; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-90/HB 642.)

Population Minimum Salary ---------- -------------- 0 - 5,999 $ 29,832.20 6,000 - 11,889 40,967.92 11,890 - 19,999 46,408.38 20,000 - 28,999 49,721.70 29,000 - 38,999 53,035.03 39,000 - 49,999 56,352.46 50,000 - 74,999 63,164.60 75,000 - 99,999 67,800.09 100,000 - 149,999 72,434.13 150,000 - 199,999 77,344.56 200,000 - 249,999 84,458.82 250,000 - 299,999 91,682.66 300,000 - 399,999 101,207.60 400,000 - 499,999 105,316.72 500,000 or more 109,425.84

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, the word "become" was substituted for "becomes" near the end of paragraph (b)(2).

Editor's notes. - Ga. L. 1988, p. 931, § 5, not codified by the General Assembly, provided that this Code section applies to cost-of-living adjustments received by employees in the classified service of the state merit system after the effective date [April 5, 1988].

Code Section 1-3-4.1 provides that no general Act providing for an increase in the compensation of tax collectors and tax commissioners shall be effective until the first day of January following passage of the Act. However, Ga. L. 1994, p. 620, § 7, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the governor [March 31, 1994] or upon its becoming law without such approval."

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Law reviews. - For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000).

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. § 48-5-183 is not unconstitutionally vague as the statute gives sufficient notice of the statute's coverage to counties and their tax commissioners and the statute's provisions cannot be called meaningless or contradictory. Brown v. Liberty County, 271 Ga. 634 , 522 S.E.2d 466 (1999).

Section controls over local Acts. - O.C.G.A. § 48-5-183 controlled over a local Act upon which a tax commissioner relied since, for the commissioner's entire tenure, the commissioner's minimum salary under that statute was higher than that provided in the local act, as well as higher than the maximum salary permitted in order to receive fees pursuant to O.C.G.A. §§ 40-2-33 and 48-5-180 . Brown v. Liberty County, 271 Ga. 634 , 522 S.E.2d 466 (1999).

Commissioner taking office after July 1, 1979. - Trial court did not err in construing a local act, providing that a county commissioner was entitled to retain motor vehicle license plate fees as part of the commissioner's compensation, to be applicable only to the then incumbent commissioner and not to the commissioner's successor; subsection (e) of O.C.G.A. § 48-5-183 must be read to disapprove the continuation of such method of compensation for any tax commissioner taking office after July 1, 1979. Weldon v. Board of Comm'rs, 212 Ga. App. 885 , 443 S.E.2d 513 (1994).

Tax commissioner's personnel decisions not state functions. - Madison County tax commissioner was not acting as an arm of the state for purposes of U.S. Const., amend 11, when making the decision to terminate an employee; although the tax commissioner was an elected state constitutional officer pursuant to Ga. Const. 1983, Art. IX, Sec. I, Para. III, and the tax commissioner's office was not a division of Madison County or its governing authority pursuant to Ga. Const. 1983, Art. IX, Sec. II, Para. I, since the tax commissioner's duties included both state functions and county functions to be performed within Madison County and, with regard to personnel administration, the state distinguished between employees of the county and employees of elected county officials, Ga. Const. 1983, Art. IX, Sec. II, Para. I(c)(1), and so the tax commissioner, and not the county, defined certain work regulations for the tax commissioner's employees, a fact that did not transform the tax commissioner's administration of personnel into a state function, however, because, although state law provided the tax commissioner with the authority to manage office personnel, the state exercised little control over the use of that authority. Epps v. Watson, U.S. (M.D. Ga. May 25, 2006), aff'd, 492 F.3d 1240 (11th Cir. 2007).

As for funding, O.C.G.A. § 48-5-183 provided that the county, not the state, funded the tax commissioner's office expenses, including personnel expenses, and gave the tax commissioner the authority to set employee salaries, limited to the budget provided by the county; based on these considerations, the court found that the Madison County tax commissioner did not wear a "state hat" when making personnel decisions for the tax commissioner's office. Epps v. Watson, U.S. (M.D. Ga. May 25, 2006), aff'd, 492 F.3d 1240 (11th Cir. 2007).

Cited in Montgomery County v. Sharpe, 261 Ga. App. 389 , 582 S.E.2d 545 (2003).

OPINIONS OF THE ATTORNEY GENERAL

For discussion of the effect of this statute on local legislation, see 1980 Op. Att'y Gen. No. U80-8.

Cost-of-living increases for sheriffs, probate judges, clerks of superior court, tax collectors, and tax commissioners adopted by the State Personnel Board for fiscal year 1989-1990 should take the same form as the corresponding cost-of-living increases for classified employees of the Merit System, so that those salaries less than $18,000 in the schedules for sheriff, clerk, probate judge, tax collector, and tax commissioner would be increased $450, the rest 2 1/2 percent. 1989 Op. Att'y Gen. 89-33.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1127, 1128.

48-5-183.1. Monthly contingent expense allowance for the operation of the office of the tax commissioner.

In addition to any salary, fees, or expenses now or hereafter provided by law, the governing authority of each county is authorized to provide as contingent expenses for the operation of the office of tax commissioner, and payable from county funds, a monthly expense allowance of not less than the amount fixed in the following schedule:

Population Minimum Salary ---------- -------------- 0 - 11,889 $ 100.00 11,890 - 74,999 200.00 75,000 - 249,999 300.00 250,000 - 499,999 400.00 500,000 or more 500.00

(Code 1981, § 48-5-183.1 , enacted by Ga. L. 2001, p. 902, § 21.)

PART 4 D ELINQUENT TAX OFFICIALS

48-5-200. Issuance of process against tax receiver, tax collector, or tax commissioner indebted in any way to state.

The commissioner may issue execution or other legal process against a tax receiver, tax collector, or tax commissioner when or if the tax receiver, tax collector, or tax commissioner:

  1. Receives commissions which he is not entitled to receive or retain;
  2. Becomes possessed in any other manner of any money belonging to the state; or
  3. Incurs any liability to the state.

    (Orig. Code 1863, § 828; Code 1868, § 907; Code 1873, § 905; Code 1882, § 905; Civil Code 1895, § 921; Civil Code 1910, § 1184; Code 1933, § 92-5501; Code 1933, § 91A-1381, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Overpayments which tax receiver refuses to repay bear interest. - When a tax receiver is paid by the county authorities larger amounts than are due the receiver and refuses to pay back such excess, interest should be charged. Glynn County v. Dubberly, 148 Ga. 290 , 96 S.E. 566 (1918); answer conformed to, 22 Ga. App. 603 , 96 S.E. 992 (1918).

Tax receivers not subject to 20 percent penalty. - There is no statute putting the tax receiver on the same basis as the tax collector in this respect, nor do the same reasons exist for exacting a penalty of 20 percent as in case of defaulting tax collectors. Glynn County v. Dubberly, 148 Ga. 290 , 96 S.E. 566 (1918); answer conformed to, 22 Ga. App. 603 , 96 S.E. 992 (1918).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1144, 1145.

48-5-201. Issuance of executions against tax collector or tax commissioner upon failure to settle accounts; allowance of credits; interest only on amount of default.

If any tax collector or tax commissioner fails to settle his accounts with the commissioner as provided by law, the commissioner shall issue execution against the tax collector or tax commissioner and his sureties for the principal amount, together with interest at the rate of 20 percent per annum on the amount. If upon a final settlement it appears that the tax collector or tax commissioner was entitled to credits at the time he is required by law to settle, the commissioner may allow the credits and charge interest only on the amount for which the tax collector or tax commissioner is in default, together with all the costs and attorney's fees incurred by reason of the issuance of the execution.

(Laws 1823, Cobb's 1851 Digest, p. 1025; Code 1863, §§ 832, 833; Code 1868, §§ 911, 912; Code 1873, §§ 909, 910; Code 1882, §§ 909, 910; Ga. L. 1889, p. 52, § 1; Civil Code 1895, § 924; Civil Code 1910, § 1187; Code 1933, § 92-5504; Code 1933, § 91A-1383, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Constitutionality of § 48-5-201 as construed together with § 36-6-27 . - Former Code 1910, § 585 (see now O.C.G.A. § 36-6-27 ), insofar as the statute authorized the board of commissioners of roads and revenues (now county governing authority) to include in such an execution attorney's fees under former Civil Code 1910, § 1187 (see now O.C.G.A. § 48-5-201 ), was unconstitutional and void because the statute was violative of the due process of law clauses of the Constitution of the State of Georgia and of the United States in that no provision is made giving the county treasurer and the sureties on the treasurer's bond an opportunity to be heard as to the amount or reasonableness of such fees, and the law does not otherwise provide for any method of attack thereon. It is further unconstitutional and void because the statute was in violation of Ga. Const. 1877, Art. I, Sec. I, Paras. I and XXIII (see now Ga. Const. 1983, Art. I, Sec. II, Paras. II and III) in that the determination of what attorney's fees incurred are reasonable and the assessment of such fees are judicial functions and cannot be delegated to an administrative official. The effect of this ruling is to preclude collection by the county of interest at the rate of 20 percent per annum and attorney's fees, under § 1187, if that were applicable under the provisions contained in former Civil Code 1910, § 585 (see now O.C.G.A. § 36-6-27). Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595 , 173 S.E. 720 (1934).

Statute is applicable when a fi. fa. is issued by the board of commissioners against the tax collector for moneys claimed to be due the county. McWhorter v. Chattooga County, 154 Ga. 289 , 114 S.E. 203 (1922).

Not available against usurper of tax collector's power. - Comptroller general (now commissioner) is only authorized to issue executions against tax collectors, and their securities, when in default. When the state, by the state's agent, procures a judgment declaring one as usurper, exercising the duties of the office of tax collector without warrant or authority; then, the comptroller general (now commissioner), as its agent cannot legally issue an execution to collect for the state from the comptroller general, as tax collector, the amount of money alleged to have been received by the comptroller general as such usurper, and which the comptroller general had already been ordered by judgment to pay over to the clerk of the superior court of the comptroller general's county. Hartley v. State, 3 Ga. 233 (1847).

Liability of county treasurer. - Under former Civil Code 1895, § 469 (see now O.C.G.A. § 36-6-27 ), construed with former Civil Code 1895, § 924 (see now O.C.G.A. § 48-5-201 ), a county treasurer was liable for the 20 percent penalty imposed by that section. Lamb v. Dart, 108 Ga. 602 , 34 S.E. 160 (1899).

Subrogation of surety. - When the comptroller general (now commissioner) issued an execution against a defaulting tax collector and the tax collector's sureties, for money due the state for taxes collected and not paid over, such sureties have the right to pay off the execution, or the balance due thereon, and to control the same as against the property of their principal, or property which the tax collector owned at the time of the execution of the tax collector's bond. Irby v. Livingston, 81 Ga. 281 , 6 S.E. 591 (1888).

Enforceable against otherwise exempt property. - Homestead set apart under Ga. Const. 1868, Art. VII (see now Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) for the family of a tax collector is liable for the collector's default in paying over to the state taxes collected by the tax collector. Davis v. State, 60 Ga. 76 (1878).

Execution against a defaulting tax collector and the collector's sureties is an execution for taxes in the true intent and meaning of the Constitution of Georgia, and may be enforced against personalty set apart and exempt from ordinary judgments, executions, and decrees, in possession of the collector or the collector's sureties. Cahn v. Wright, 66 Ga. 119 (1880).

Provisions of former Code 1933, § 89-833 (see now O.C.G.A. § 45-8-7 ) as to interest supersede those of former Code 1933, § 92-5504 (see now O.C.G.A. § 48-5-201 ), providing for interest at the rate of 20 percent per annum on the principal amount against the tax collector and the collector's sureties. Employers Liab. Assurance Corp. v. Lewis, 101 Ga. App. 802 , 115 S.E.2d 387 (1960).

Provision for 20 percent interest is highly penal. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Date from which interest accrues. - When a defalcation occurs in the office of county treasurer, the statutory interest of 20 percent per annum, specified in this statute to be charged against the treasurer and the surety on the treasurer's bond, should be calculated from the date of demand for payment or the equivalent of demand such as the issuance of execution and the like, and not from the date of defalcation when no such demand is made at that time. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Distinction between principal and surety with regard to payment of interest. - Former Civil Code 1910, §§ 585 and 1187 (see now O.C.G.A. §§ 36-6-27 and 48-5-201 ) draws no distinction between the principal and surety with regard to payment of interest, but the interest specified in the statute is to be charged against both principal and surety. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Applicability to county treasurers and their bondsmen. - Provisions of former Civil Code 1910, § 1187 (see now O.C.G.A. § 48-5-201 ), relating to issuance of executions against defaulting county tax collectors and their bondsmen, were by former Civil Code 1910, § 585 (see now O.C.G.A. § 36-6-27 ) made applicable to the issuance of executions against defaulting county treasurers and their bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Affidavit of illegality not available to county treasurers and their bondsmen. - Ga. L. 1915, p. 55, §§ 1-3 (see now O.C.G.A. § 48-5-203 ) amends the law in relation to issuance of executions against county tax collectors so as to afford a remedy by affidavit of illegality, but that section does not extend so far as to afford such remedy to county treasurers and their bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Liability of county treasurer and surety when bank in which tax receipts held is insolvent. - When a county treasurer, in making an accounting with the treasurer's successor, delivers a check representing public funds which the treasurer has in a bank, and the check is accepted in lieu of cash, and upon acceptance and presentation of such check by the payee, credit therefor is transferred by the bank to the new treasurer, the fact that the bank may be insolvent at the time of such transaction does not necessarily show a default by the officer making such accounting, but in equity the transaction should be treated as a transfer of money, to the extent of the amount which the bank could and would have paid in cash, if cash had been demanded. Under this principle, the petition of a surety company alleged a good defense against the enforcement of the execution, and upon the hearing for injunction the evidence made an issue of fact as to the existence of such defense. Board of Comm'rs v. Massachusetts Bonding & Ins. Co., 175 Ga. 584 , 165 S.E. 828 (1932), later appeal, Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595 , 173 S.E. 720 (1934).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1144, 1145, 1149, 1150.

ALR. - Time from which interest begins to run on fidelity or public officer's bond, 57 A.L.R.2d 1317.

48-5-202. Direction to sheriffs of executions against tax collectors, tax receivers, and tax commissioners; suspension of collection; property bound; proceedings of sale.

  1. All executions and other process against tax collectors, tax receivers, and tax commissioners shall be directed to all and singular the sheriffs of the state and shall be executed by the sheriffs, their lawful deputies, or other officers lawfully in their stead.
  2. Executions issued pursuant to subsection (a) of this Code section shall not be suspended or delayed by any judicial interference except as provided in Code Section 48-5-203. The Governor, however, may suspend collection until the next meeting of the General Assembly but no longer.
  3. The property of tax collectors, tax commissioners, and their sureties shall be bound from the time the bonds are executed for the payment of taxes collected and for the discharge of their duties.
  4. The proceedings in selling property under such executions shall be the same as under executions issued from the superior court.

    (Laws 1804, Cobb's 1851 Digest, pp. 1051, 1052; Code 1863, §§ 834, 835, 836, 837; Code 1868, §§ 913, 914, 915, 916; Code 1873, §§ 911, 912, 913, 914; Code 1882, §§ 911, 912, 913, 914; Civil Code 1895, §§ 925, 926, 927, 928; Civil Code 1910, §§ 1188, 1189, 1190, 1191; Ga. L. 1917, p. 198, § 1; Code 1933, §§ 92-5508, 92-5509, 92-5510, 92-5511; Code 1933, § 91A-1385, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Prohibition against entertaining affidavit of illegality is constitutional. - Courts are prohibited from entertaining an affidavit of illegality to an execution proceeding against a defaulting tax collector and the collector's sureties. The prohibition is constitutional. Eve v. State, 21 Ga. 50 (1857).

Date and priority of county's lien on property of tax collector and collector's surety. - From the day of execution of the bond by the tax collector and collector's surety, the county has a lien upon the collector's property and that of the collector's surety, subject only to the superior lien of the state for taxes due the state. Lamar County Advisory Bd. v. McCalley, 181 Ga. 329 , 182 S.E. 6 (1935).

Priority of county's lien on property of tax collector and collector's surety. - When, in an equitable proceeding between the parties with claims to the proceeds of performance bonds deposited with the state by a surety for a county tax collector, no claimant having obtained any judgment prior to the equitable proceeding, and when a county intervened in such equitable proceeding with its claim for loss sustained by default of its tax collector prior to the equitable proceeding, the county was entitled in equity, by virtue of the superior lien given it by the General Assembly, to priority in payment from bond proceeds. Lamar County Advisory Bd. v. McCalley, 181 Ga. 329 , 182 S.E. 6 (1935).

Liability of otherwise exempt property. - Setting apart of a homestead to the family of a tax collector out of the collector's property does not protect the property from liability to an execution issued by the comptroller general (now commissioner) against the collector and the collector's sureties for a default. Brooks v. State, 54 Ga. 36 (1875).

Defendant cannot levy execution against codefendant or cosurety. - When one of the defendants in an execution is the sheriff of the county, the sheriff is a party at interest, and cannot levy the execution upon the property of the cosurety and codefendant. The disability of the levying officer being apparent on the face of the papers, the levy may be dismissed on motion of the claimant. State v. Jeter, 60 Ga. 489 (1878).

Subrogation of surety. - When the sureties for a defaulting tax collector pay off the execution against the collector and take control of the execution, they are subrogated to the rights of the state, and become entitled to the same lien that the state has on all the property of the principal at the time the principal gave the bond. Irby v. Livingston, 81 Ga. 281 , 6 S.E. 591 (1888).

Remedies available to one who claims one is not bound on tax collector's bond. - Mandamus will not lie as a remedy to compel a sheriff to accept an affidavit of illegality filed to an execution issued by the comptroller general (now commissioner) against a tax collector in default and the collector's bondsmen, and levied on the property of one of the alleged bondsmen, who avers in one's affidavit of illegality that one did not sign the tax collector's bond, or authorize anyone else to do so for the tax collector. In such case, an equitable petition for injunction is an available remedy when filed by a bondsman. Webb v. Newsom, 138 Ga. 342 , 75 S.E. 106 (1912).

When execution may be resisted in judicial proceedings. - Tax executions may be resisted in judicial proceedings when there is an unconstitutional exaction, because what is then called a tax is no tax, since the law does not impose the tax or authorize the execution, for the same reason, and since the defendants did not occupy the official positions alleged in the execution. Mayo v. Renfroe, 66 Ga. 408 (1881).

Money raised by execution cannot be diverted by judicial interference. - Money raised by a sheriff, under an execution issued by the comptroller general (now commissioner) against a delinquent tax collector, cannot be diverted, by judicial interference, from the payment of such execution. The sheriff cannot be required by rule to pay the money to the plaintiff in a judgment older than the comptroller's (now commissioner's) process. The sheriff's duty is to remit to the comptroller (now commissioner) without delay. Goldsmith v. Kemp, 58 Ga. 106 (1877).

No authority for requiring sheriff to hold money pending court decision. - Whenever a sheriff has money in the sheriff's hands collected from a defaulting tax collector, it is the sheriff's duty to pay the money over to the comptroller general (now commissioner) at once. There is no lawful authority for any person to give the sheriff notice to hold it up until the person's claim to the fund can be passed upon by a court. Wilson v. Wright, 83 Ga. 38 , 9 S.E. 834 (1889).

Neither taxpayer's agent's fraud nor suit on agent's bond is ground for interference. - Courts will not entertain jurisdiction to enjoin an execution against a defaulting agent of a railroad on the ground that there is a suit pending, at the instance of the state, against the defaulting agent and their securities on their bond, or on the ground that the amount for which the agent is a defaulter was fraudulently used and embezzled by the agent. Scofield v. Perkerson, 46 Ga. 325 (1872).

Courts have no power to prescribe evidentiary requirements for issuance of executions. - Issuing of executions by the comptroller general (now commissioner) to collect the public revenue due to the state is the act of the executive department of the government. The courts have no power to prescribe the kind or sufficiency of the evidence which shall be necessary to authorize the process of execution to issue against defaulting officers or agents, or to restrain that department in pursuing this course. Scofield v. Perkerson, 46 Ga. 350 (1872).

OPINIONS OF THE ATTORNEY GENERAL

Priority of state's lien over security deed. - State has lien on property for faithful performance of duties superior to that of the security deed given after the tax collector goes into office. 1962 Op. Att'y Gen. p. 572.

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, § 106 et seq. 85 C.J.S., Taxation, §§ 1144, 1145.

48-5-203. Affidavit of illegality to execution against tax collector, tax commissioner, and sureties; trial; damages for delay; appeal.

  1. Whenever the commissioner issues an execution against any defaulting tax collector or tax commissioner and the sureties on his official bond, as set forth in Code Section 48-5-201, the tax collector, tax commissioner, or any surety on his bond at any time after the issuance of the execution and before a sale thereunder may file an affidavit of illegality to the execution. The affidavit shall state any matters of defense which would be available in denial of either the alleged default or of the amount of the default as stated in the execution and shall be returned to be tried in and disposed of by the superior court of the county in which the tax collector or tax commissioner held office in the same manner as provided by law for the trial and disposition of such issues generally.
  2. Code Section 9-13-128, authorizing the jury to assess damages for delay upon the trial of an issue formed on an affidavit of illegality, shall be applicable to the affidavit of illegality provided for in subsection (a) of this Code section.
  3. Upon any final decision by the superior court on the issue made by the affidavit of illegality, either party may file an appeal and carry the case to the appellate court as in cases of injunction.

    (Ga. L. 1915, p. 55, §§ 1-3; Code 1933, §§ 92-5505, 92-5506, 92-5507; Code 1933, § 91A-1384, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Affidavit of illegality not available to county treasurers and their bondsmen. - Statute amends the law in relation to issuance of executions against county tax collectors so as to afford a remedy by affidavit of illegality, but this statute does not extend so far as to afford such remedy to county treasurers and their bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, § 288 et seq.

48-5-204. Authority to vacate commissions of defaulting tax collectors, tax commissioners, or tax receivers; filling vacancies.

The Governor may vacate the commissions of defaulting tax collectors or tax commissioners or of tax receivers failing or refusing to do their duty, to give bond, or to take the oath required by law. In any such event, the vacancy shall be filled in the manner prescribed for other vacancies.

(Laws 1826, Cobb's 1851 Digest, p. 1260; Code 1863, § 839; Code 1868, § 918; Code 1873, § 916; Code 1882, § 916; Civil Code 1895, § 930; Civil Code 1910, § 1193; Code 1933, § 92-5602; Code 1933, § 91A-1386, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Section does not violate constitutional removal procedures. - Statute authorizing the Governor to vacate the commission of defaulting tax collectors is not inconsistent with Ga. Const. 1868, Art. IX (see now Ga. Const. 1983, Art. IX, Sec. I, Para. III) which provides that the county officers shall be removable on conviction for malpractice in office. State ex rel. Lennard v. Frazier, 48 Ga. 137 (1873).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1121.

48-5-205. Penalties for incomplete or improper digests.

  1. If a tax receiver or tax commissioner fails to have his or her digest completed and deposited by September 1 in each year, unless excused by provisions of law or by the commissioner, such tax receiver or tax commissioner shall forfeit one-tenth of his or her commissions for each week's delay. If the delay extends beyond 30 days, such tax receiver or tax commissioner shall forfeit one-half of his or her commissions. If the delay extends beyond the time when the Governor and commissioner fix the rate percentage, such tax receiver or tax commissioner shall forfeit all such tax receiver's or tax commissioner's commissions.
  2. If a tax receiver or tax commissioner fails to make out his digest in the manner prescribed by law or fails to comply with the directions given him by the commissioner in making out his digest, he shall forfeit one-half his commissions.
  3. If the digest is made out so badly as not to fulfill the purpose of the tax laws, the tax receiver or tax commissioner shall forfeit all his commissions and shall be removed from office by the governing authority of the county upon the request of the commissioner.

    (Orig. Code 1863, §§ 825, 826, 827; Code 1868, §§ 904, 905, 906; Code 1873, §§ 902, 903, 904; Code 1882, §§ 902, 903, 904; Civil Code 1895, §§ 918, 919, 920; Civil Code 1910, §§ 1181, 1182, 1183; Code 1933, §§ 92-5401, 92-5402, 92-5403; Code 1933, § 91A-1380, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2015, p. 1219, § 9/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of subsection (a) for the former provisions, which read: "If a tax receiver or tax commissioner fails to have his digest completed and deposited by August 1 in each year, unless excused by provisions of law or by the commissioner, he shall forfeit one-tenth of his commissions for each week's delay. If the delay extends beyond 30 days he shall forfeit one-half of his commissions. If the delay extends beyond the time when the Governor and commissioner fix the rate percentage, he shall forfeit all his commissions." See Editor's notes for applicability.

Editor's notes. - Ga. L. 2015, p. 1219, § 27(c)/HB 202, not codified by the General Assembly, provides, in part, that Sections 9, 12, and 15 of this Act shall be applicable to all appeals filed on or after January 1, 2016.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1142.

48-5-206. Liability of tax receiver or tax commissioner for making false entry of a return or for causing taxpayer to pay more than lawful tax.

Repealed by Ga. L. 1992, p. 2411, § 6, effective April 20, 1992.

Editor's notes. - This Code section was based on Laws 1804, Cobb's 1851 Digest, p. 1052; Code 1863, §§ 829, 830; Code 1868, §§ 908, 909; Code 1873, §§ 906, 907; Code 1882, §§ 906, 907; Civil Code 1895 §§ 922, 923; Civil Code 1910, §§ 1185, 1186; Code 1933, §§ 92-5502, 92-5503; Code 1933, § 91A-1382; enacted by Ga. L. 1978, p. 309, § 2 and Ga. L. 1981, Ex. Sess., p. 8.

PART 5 C OUNTY TAX OFFICIALS

48-5-210. County tax receivers, tax collectors, and tax commissioners; election; qualifications for office; vacancies in office.

  1. County tax receivers, tax collectors, and tax commissioners shall be elected by the voters of their respective counties at the time and in the manner provided by law. Each such officer shall be elected for a term of four years.
    1. No person shall be eligible to offer for election to or hold the office of tax receiver, tax collector, or tax commissioner unless the person:
      1. Is a citizen of the United States;
      2. Is a resident of the county in which the person seeks office for at least two years prior to qualifying for election to the office and remains a resident of such county during the term of office;
      3. Is a registered voter;
      4. Has attained the age of 25 years prior to the date of qualifying for election to the office, but this subparagraph shall not apply to any person who was holding the office of tax receiver, tax collector, or tax commissioner on July 1, 1981;
      5. Has obtained a high school diploma or its recognized equivalent, but this subparagraph shall not apply to any person who was holding the office of tax receiver, tax collector, or tax commissioner on April 1, 1986; and
      6. Has not been convicted of a felony offense or any offense involving moral turpitude contrary to the laws of this state, any other state, or the United States.
    2. Each person offering as a candidate for the office of tax receiver, tax collector, or tax commissioner shall file an affidavit with the officer before whom such person has qualified to seek the office of tax receiver, tax collector, or tax commissioner prior to or at the time of qualifying as a candidate. The affidavit shall affirm that the person meets all the qualifications required by paragraph (1) of this subsection. (Code 1981, § 48-5-210 , enacted by Ga. L. 1985, p. 489, § 3; Ga. L. 1986, p. 495, § 1; Ga. L. 1986, p. 1229, § 1; Ga. L. 1989, p. 1091, § 7.)

48-5-211. Interim and emergency filling of vacancies in office of tax receiver, collector, or commissioner.

  1. Except as otherwise provided in Code Section 48-5-212, as soon as a vacancy occurs in the office of county tax receiver, tax collector, or tax commissioner, the judge of the probate court shall appoint a qualified person to discharge the duties of such officer until the vacancy is filled.
  2. When a vacancy occurs as provided in subsection (a) of this Code section and it is not more than six months from the time the election can be called by the county election superintendent and held until the existing term will expire, the person or persons appointed shall discharge the duties of the office for the balance of the term and there shall be no special election.
  3. Except as otherwise provided in this chapter, if from any sudden emergency there is a vacancy and a proper person cannot immediately be appointed, the judge of the probate court or his clerk shall act as county tax receiver, tax collector, or tax commissioner.
  4. Except as provided in subsection (b) of this Code section, when a vacancy occurs as provided in subsection (a) of this Code section, the election superintendent of the county where it occurs shall call and conduct a special election in the manner provided for in Chapter 2 of Title 21.
  5. The person elected pursuant to subsection (d) of this Code section shall hold office for the unexpired term. The returns of the election shall be made to the Secretary of State. Such person shall be commissioned by the Governor. (Code 1981, § 48-5-211 , enacted by Ga. L. 1986, p. 1229, § 2; Ga. L. 1988, p. 586, § 5; Ga. L. 1988, p. 1449, § 1.)

Code Commission notes. - Two 1988 Acts amended this Code section. Subsection (a) is set out as amended by Ga. L. 1988, p. 1449, § 1. Subsections (b)-(e) are set out as amended by Ga. L. 1988, p. 586, § 5.

Editor's notes. - Ga. L. 1988, p. 586, § 7, not codified by the General Assembly, provided that the 1988 amendment of this Code section applied to any vacancy occurring on or after March 30, 1988.

48-5-212. Chief deputy tax receiver, collector, or commissioner; appointment; duties; assumption of duties of tax commissioner.

  1. Except as otherwise provided in Code Section 48-5-128.1, the tax receiver, tax collector, or tax commissioner of any county shall be authorized to appoint a chief deputy tax receiver, chief deputy tax collector, or chief deputy tax commissioner, provided that such person has met the same training requirements as enumerated in Code Section 48-5-126.1.  Such chief deputy shall have the duties prescribed by the appointing tax official and the authority prescribed in this Code section.
  2. Except as otherwise provided in Code Section 48-5-128.1 , in any county in which a chief deputy tax commissioner has been appointed pursuant to subsection (a) of this Code section and said chief deputy meets all qualifications for the office of tax commissioner, the chief deputy tax commissioner shall assume the duties of the office of the tax commissioner upon the death, resignation, incapacity, or inability of such tax commissioner of any such county to serve. Such chief deputy shall serve until such time as the incapacity or inability of such tax commissioner is removed or until January 1 following the next succeeding general election which occurs more than 60 days after the occurrence of the vacancy or the expiration of the remaining term of office, whichever occurs first. The chief deputy tax commissioner shall receive no additional compensation for performing the duties of such tax commissioner except in cases involving the death or resignation of such tax commissioner, in which case the chief deputy shall receive the same compensation, paid in the same manner, as such tax commissioner would have received less any longevity raises received by the previous tax commissioner. If the next succeeding general election is not one at which county officers are elected and is more than 60 days after the occurrence of the vacancy and unless the incapacity or inability of such tax commissioner is removed prior to such election, a duly qualified person shall be elected tax commissioner at a special election held at the same time as the general election. The person so elected shall take office on January 1 following such election and shall serve for the remainder of the unexpired term of office. (Code 1981, § 48-5-212 , enacted by Ga. L. 1988, p. 1449, § 2; Ga. L. 1991, p. 365, § 1; Ga. L. 1994, p. 237, § 2; Ga. L. 1998, p. 1159, § 20.)

Editor's notes. - Both Ga. L. 1988, p. 586, § 5 and Ga. L. 1988, p. 1449, § 2 enacted a Code Section 48-5-212. The version of Code Section 48-5-212 enacted by Ga. L. 1988, p. 1449, § 2 is set out above.

ARTICLE 4 COUNTY TAXATION

Cross references. - Grants to counties for road construction and maintenance, as such grants relate to relief of ad valorem taxation on tangible property in county, § 36-17-20 et seq.

RESEARCH REFERENCES

ALR. - Limitation of power to tax as limitation of power to incur indebtedness or vice versa, 97 A.L.R. 1103 .

Constitutionality and construction of statute which provides for the use of the general funds or credit of the municipality in event of default or delay in payment of, or inability to collect, or insufficiency of, special assessments for local improvements, 135 A.L.R. 1287 .

48-5-220. Purposes of county taxes.

County taxes may be levied and collected for the following public purposes:

  1. To pay the expenses of administration of the county government;
  2. To pay the principal and interest of any debt of the county and to provide a sinking fund for the payment of the principal and interest;
  3. For educational purposes upon property located outside of independent school systems, as provided in Article VIII of the Constitution of this state;
  4. To build and repair public buildings and bridges;
  5. To pay the expenses of courts and the maintenance and support of inmates, to pay sheriffs and coroners, and to pay for litigation;
  6. To build and maintain a system of county roads;
  7. For public health purposes in the county and for the collection and preservation of records of vital statistics;
  8. To pay county police;
  9. To support indigent individuals;
  10. To pay county agricultural and home demonstration agents;
    1. To provide for payment of old age assistance to aged individuals in need and for the payment of assistance to needy blind, assistance to dependent children, and other welfare benefits.
    2. No individual shall be entitled to assistance as provided in this paragraph who does not qualify for assistance in every respect as provided by law prescribing the qualifications for beneficiaries.
    3. No indebtedness or liability against the county shall ever be created for the purpose stated in this paragraph when the indebtedness or liability is in excess of amounts reasonably expected to be raised by county taxes levied as provided by law;
  12. To provide for fire protection of forest lands and for the conservation of natural resources;
  13. To provide hospitalization and medical or other care for the indigent sick people of the county;
  14. To acquire, improve, and maintain airports, public parks, and public libraries;
  15. To provide for workers' compensation and retirement or pension funds for officers and employees;
  16. To provide reasonable reserves for public improvements as may be fixed by law;
  17. To pay pensions and other benefits and costs under a teacher retirement system or systems;
  18. For school lunch purposes, upon property located outside of independent school systems as provided in Article VIII of the Constitution of this state, to provide for payment of costs and expenses incurred in the: purchase, replacement, and maintenance of school lunchroom equipment; purchase of school lunchroom supplies; transportation, storage, and preparation of foods; and all other costs and expenses incurred in the operation of school lunch programs;
  19. To provide for ambulance services within the county;
  20. To provide for financial assistance to county or joint county and municipal development authorities for the purpose of developing trade, commerce, industry, and employment opportunities. No tax for this purpose shall exceed one mill per dollar upon the assessed value of the taxable property in the county levying the tax; provided, however, that the authority to levy and collect a tax for the purpose described in this paragraph shall not be deemed to be an exclusive authorization and shall not prevent any county from exercising any power granted to it pursuant to any constitutional amendment, whether general or special, to levy any ad valorem tax for the purpose of providing financial assistance to any county or joint county and municipal development authority. The exceptions to the one mill per dollar tax limitation contained in the proviso of the preceding sentence shall not be construed so as to affect any action pending in court on February 20, 1984;
  21. To provide for public health and sanitation including, but not limited to, water pollution control projects, sewage treatment facilities, storm and sanitary sewer facilities, and water supply facilities; and
  22. To provide for financial assistance to county children and youth commissions providing children and youth services, including but not limited to, the study of the needs, issues, and problems relating to children and youth; the gathering of data, identification of problem areas, and planning and implementation of programs for dealing with problems of children and youth; and the dissemination of information relating to issues of children and youth.

    (Code 1933, § 92-3701; Ga. L. 1937-38, Ex. Sess., p. 292, § 1; Ga. L. 1939, p. 200, § 1; Ga. L. 1939, p. 201, § 1; Ga. L. 1941, p. 318, § 1; Ga. L. 1946, p. 87, § 1; Ga. L. 1958, p. 370, § 1; Ga. L. 1962, p. 458, §§ 1, 2; Ga. L. 1970, p. 582, § 1; Ga. L. 1972, p. 922, § 1; Ga. L. 1977, p. 845, § 1; Ga. L. 1978, p. 2006, § 1; Code 1933, § 91A-1201, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 32; Ga. L. 1984, p. 807, § 1; Ga. L. 1988, p. 1748, § 1; Ga. L. 1990, p. 793, § 1; Ga. L. 1999, p. 81, § 48.)

Cross references. - Provisions regarding employment of county agricultural and home demonstration agents, § 20-2-62 .

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 548, and former Code 1873, § 514, former Code 1882, § 514, and former Civil Code 1895, § 404, former Civil Code 1910, § 513 are included in the annotations for this Code section.

Intent is to cover same purposes as expressed in Constitution. - Statute is intended to cover the same purposes expressed in Ga. Const. 1877, Art. VII, Sec. VI, Para. II (see now Ga. Const. 1983, Art. IX, Sec. IV, Para. I-III), although the language is not the same as that employed in the Constitution. Richter v. Bacon, 145 Ga. 408 , 89 S.E. 367 (1916) (decided under former Civil Code 1910, § 513).

Section intended to inform public as to use of county funds. - Statute is of great importance, and ordinaries (now county governing authority) and treasurers who neglect to conform to this salutary law are greatly to blame. By the division of the funds into as many as nine or ten smaller funds, the public are made aware of the uses to which the taxes are to be applied, and a far better control over the public money is secured. Mitchell v. Speer, 39 Ga. 56 (1869) (decided under former Code 1868, § 548).

When a tax is levied for any one of the purposes set forth in this statute it includes all items named in that purpose. Central of Ga. Ry. v. Wright, 35 Ga. App. 144 , 132 S.E. 449 (1926), aff'd, 165 Ga. 43 , 139 S.E. 909 (1927) (decided under former Civil Code 1910, § 513).

Identification of purposes for which tax levied. - It is sufficient if each item of a tax levy under this statute gives the percent of the tax levied under that item, and it is not necessary that the percent levied for each separate purpose expressed in the item be stated. Southern Ry. v. Whitfield County, 38 Ga. App. 703 , 145 S.E. 668 (1928) (decided under former Civil Code 1910, § 513).

Publication of treasurer's annual statement not covered by section. - Publication of the treasurer's annual statement required by former Code 1895, § 460 (see now O.C.G.A. § 36-6-14 ) was not a court expense and as such a legal charge against the county by virtue of former Civil Code 1895, § 404. Howard v. Early County, 104 Ga. 669 , 30 S.E. 880 (1898) (decided under former Civil Code 1895, § 404).

Amendment of levy when item of levy is indefinite but not void. - When an item of a tax levy under this statute is indefinite but not void, it may be clarified and made definite by an amendment which does not change the purpose or the amount of the original levy. This is true even though the generality of taxpayers have paid their taxes and the amendment is made after the property of a protesting taxpayer has been levied on under a tax fi. fa., and an affidavit of illegality has been interposed to the levy. Southern Ry. v. Whitfield County, 38 Ga. App. 703 , 145 S.E. 668 (1928) (decided under former Civil Code 1910, § 513).

Scope of and payment for legal county debts. - Term "legal indebtedness" (now "debt"), properly construed, includes legal liabilities other than current expense and bonded debt. A legal indebtedness on the part of a county arises whenever a county by contract receives either material or services of value, to be paid for out of available funds in the hands of the treasurer or out of the proceeds of taxes that have been or may be lawfully levied during the year in which such contracts are made. When a county has not paid such a demand and there is no available fund in the treasury with which to pay the demand, the county authorities may during a subsequent year levy a tax for the discharge of such liabilities. A county may levy taxes to pay legal indebtedness of the county due, or to become due, or past due. Atlanta Distrib. Terms., Inc. v. Board of Comm'rs of Rds. & Revenues, 177 Ga. 250 , 170 S.E. 52 (1933) (decided under former Civil Code 1910, § 513).

Applicability to accumulated indebtedness. - Under the terms "due" and "past due" in former Civil Code 1910, § 513(1) (see now paragraph (2) of this Code section) was embraced, necessarily, the accumulated indebtedness of the county. Indebtedness of the county due or past due may possibly be more extensive, in the last analysis of those expressions, than "accumulated indebtedness," but "accumulated indebtedness" cannot be more extensive than the aggregate of the indebtedness which is due and that which is past due. Consequently, a tax for the purpose of paying accumulated indebtedness is provided for exclusively under the statute. Central of Ga. Ry. v. Wright, 35 Ga. App. 144 , 132 S.E. 449 (1926), aff'd, 165 Ga. 43 , 139 S.E. 909 (1927) (decided under former Civil Code 1910, § 513).

Unpaid lawful current expenses are accumulated debts. - Unpaid lawful current expenses incurred in one year, which were not discharged by payment, and for which county warrants were legally issued, are accumulated debts of the county falling within the statute. Southern Ry. v. Fulton County, 170 Ga. 248 , 152 S.E. 567 (1930) (decided under former Civil Code 1910, § 513).

Extra and special taxes excluded from computation of limitation on debt for certain purposes. - No extra or special taxes provided by local or general laws as fixed charges upon the particular county are to be included in computing limitations on debt so as to affect or prevent the levy of such taxes as may be necessary to pay the county's legal indebtedness and the county's current expenses. Alabama G.S.R.R. v. Harrison, 54 Ga. App. 368 , 188 S.E. 49 (1936).

Whether a bridge is built and repaired from funds raised under this statute does not determine whether the bridge is a public bridge. Early County v. Fain, 2 Ga. App. 288 , 58 S.E. 528 (1907) (decided under former Civil Code 1895, § 404).

Limitation on taxes assessed for building, erecting, or repairing bridges. - There is no limitation on the amount of taxes which may be assessed and collected within the year for the purpose of building and repairing bridges within the counties of this state, excepting the cost of erecting the bridges. Settle v. Howell, 174 Ga. 792 , 164 S.E. 189 (1932) (decided under former Civil Code 1910, § 513).

Provision for advertising of orders is directory, not mandatory. - Provision of former Civil Code 1910, § 515, in reference to advertising the order levying county taxes was directory and not mandatory, and a failure to comply with such provision did not render the tax levy void. Garrison v. Perkins, 137 Ga. 744 , 74 S.E. 541 (1912) (decided under former Civil Code 1910, § 515); Dunn v. Harris, 144 Ga. 385 , 87 S.E. 299 (1915) (decided under former Civil Code 1910, § 515); McGregor v. Hogan, 153 Ga. 473 , 112 S.E. 471 (1922) (decided under former Civil Code 1910, § 515); McMillan v. Tucker, 154 Ga. 154 , 113 S.E. 391 (1922) (decided under former Civil Code 1910, § 515).

Advertisement effective as notice of levy. - Whether the requirement of former Civil Code 1910, § 515 be deemed mandatory or directory, or partly one and partly the other, the advertising in a public newspaper follows the passing of the order and the entry of the order on the minutes, and gives notice to the public of the levy which has been made. Dunn v. Harris, 144 Ga. 157 , 86 S.E. 556 (1915) (decided under former Civil Code 1910, § 515).

Inapplicable to order to collect balance due on previous levy. - An order by the county authorities directing the tax collector to proceed with the collection of the balance due on previous levy did not constitute a new tax levy or assessment, and did not fall within the provisions of the statute. Johnson v. Pinson, 127 Ga. 144 , 56 S.E. 238 (1906) (decided under former Civil Code 1895, § 406).

Workers compensation. - Trial court properly determined that a county could not provide workers compensation coverage to Georgia superior court judges as the judges were not county employees; counties were specifically authorized by Ga. Const. 1983, Art. IX, Sec. IV, Para. I and O.C.G.A. § 48-5-220 to provide workers compensation to "county officials," such as a sheriff, pursuant to O.C.G.A. § 34-9-1 , but judges were deemed state employees. Freeman v. Barnes, 282 Ga. App. 895 , 640 S.E.2d 611 (2006).

Cited in Board of Comm'rs v. Wilson, 260 Ga. 482 , 396 S.E.2d 903 (1990); Hay v. Newton County, 246 Ga. App. 44 , 538 S.E.2d 181 (2000).

Specific Purposes Construed

Inquest fees to coroner. - County is liable to suit by coroner for fees for inquests. Davis v. County of Bibb, 116 Ga. 23 , 42 S.E. 403 (1902) (decided under former Civil Code 1895, § 404).

Compensating appointed counsel from county funds prohibited. - Attorney at law who is assigned by the judge as counsel for an indigent defendant is not entitled to be paid for such services out of the county funds. Elam v. Johnson, 48 Ga. 348 (1873) (decided under former Code 1873, § 514).

Payment for publishing general presentment of grand jury does not come within the terms of the statute. Houston County v. Kersh & Wynne, 82 Ga. 252 , 10 S.E. 199 (1889) (decided under former Code 1882, § 514).

Levy of taxes to supplement salaries of county agents. - While the Board of Regents of the University System of Georgia, through the College of Agriculture, controls the general scope of the agricultural extension work and is empowered to employ and discharge county agents, the counties may levy a tax to supplement the salaries of county agents. Royal Indem. Co. v. Humphries, 90 Ga. App. 567 , 83 S.E.2d 565 (1954).

Hospitalization, medical, or other care to indigents. - Authority of counties to provide hospitalization and medical or other care to indigent sick people of the county is not limited to personal administration by officers or agents of the governing authority, but such authority may, except as otherwise limited by law, enter into a contract with a corporation having appropriate charter power, under the terms of which the latter corporation will care for the poor in the matter of medical and surgical treatment. Brock v. Chappell, 196 Ga. 567 , 27 S.E.2d 38 (1943).

Contract by county authorities with a hospital in the county to provide a ward for the hospitalization and medical treatment of the indigent sick of the county is neither a gratuity nor otherwise prohibited, unless in violation of statutory limitations on the levy taxes to support such a contract. Brock v. Chappell, 196 Ga. 567 , 27 S.E.2d 38 (1943).

Levy of tax to pay for county's liability for diminution in value of land. - County may be held liable for a diminution in the value of land resulting from the alteration and relocation of a public road passing through the county, and the county authorities may lawfully levy a tax to pay such liability. Hall County v. Smith, 178 Ga. 212 , 172 S.E. 645 (1934) (decided under former Civil Code 1910, § 513).

Contract between county and airport authority valid. - Even though, under a contract between a county and an airport authority for use by the county of an expanded airport facility, the consideration to be paid by the county was not expressed in terms of a definite dollar amount, it was not an unconstitutional "new debt" under Ga. Const. 1983, Art. IX, Sec. V, Para. I(a); the contract was a valid intergovernmental contract pursuant to paragraph (14) of O.C.G.A. § 48-5-220 . Clayton County Airport Auth. v. State, 265 Ga. 24 , 453 S.E.2d 8 (1995).

Contract between the county and the airport authority, which managed the airport, qualified as an enforceable intergovernmental agreement (IGA) that did not violate the Debt Clause in the Georgia Constitution because the IGA was between appropriate governmental entities; the agreement's term did not exceed 50 years; the agreement related to both the provision of services and the joint use of facilities as the airport authority agreed to manage and maintain the expanded taxiway, and the county, in return, agreed to provide funding and manage the debt required to be incurred to complete the expansion; and the agreement dealt with services and facilities about which the county had the authority to enter contracts. Avery v. State of Ga., 295 Ga. 630 , 761 S.E.2d 56 (2014).

Affirmative action programs. - After the plaintiffs claimed that the defendants violated O.C.G.A. § 48-5-220 in connection with the operation of a county's minority and female business enterprise program, the defendants were entitled to summary judgment because the statute does not prohibit the conduct of which the plaintiffs complain and there is no authority that allows a private right of action in cases when the statutory scheme does not provide for one. Webster v. Fulton County, 44 F. Supp. 2d 1359 (N.D. Ga. 1999).

Transcript costs for indigents. - Under O.C.G.A. § 17-12-34 of the Georgia Indigent Defense Act of 2003, the Georgia Public Defender Standards Council is not required to pay for indigent defendants' costs of transcripts in criminal cases; under laws existing before the Act, counties were required to pay for such transcripts, and the Act does not repeal these laws by implication. Ga. Public Defender Stds. Council v. State of Ga., 284 Ga. App. 660 , 644 S.E.2d 510 (2007).

OPINIONS OF THE ATTORNEY GENERAL

County is authorized to collect and levy taxes for the purpose of abating the disposal of pollutants into wells by closing the wells. 1983 Op. Att'y Gen. No. U83-42.

County's express powers to levy taxes must be used for prescribed purposes and none other; thus, taxes levied by a county for any one of the enumerated purposes cannot be used for any of the other enumerated purposes. 1958-59 Op. Att'y Gen. p. 125.

One mill tax limitation of paragraph (20) of O.C.G.A. § 48-5-220 limits the amount of ad valorem tax funds a county may pay to a county development authority. 1997 Op. Att'y Gen. No. U97-15.

Witness fees. - County must pay per diem witness fees to witnesses summoned in civil or criminal cases; the source of funds for witness fees is from county taxes. 1970 Op. Att'y Gen. No. U70-11.

Source of funds for county roads. - Board of education may not use the board's funds for laying out, altering, maintaining, and improving a public, county-maintained road even though school transportation would be facilitated thereby; it is the sole duty and responsibility of the local officials in charge of county matters to lay out, alter, maintain, and improve the subject road in the manner they deem best suited to the needs of the county. 1962 Op. Att'y Gen. p. 189.

"Public health purpose" construed. - Disposal and burial of diseased livestock so as to prevent the spread of disease is within "... public health purposes ..." in paragraph (7) of this statute. 1968 Op. Att'y Gen. No. 68-172.

Salaries and expenses of county and home demonstration agents. - When county taxes are levied under Ga. Const. 1945, Art. VII, Sec. IV, Para. I (see now Ga. Const. 1983, Art. IX, Sec. IV, Para. I-III) and this statute, the expenses and salaries of the county and home demonstration agent would be paid by the governing authority of the county. 1958-59 Op. Att'y Gen. p. 127.

Statute does not provide any limitation upon the rate of taxation for welfare purposes, other than that stated in Ga. Const. 1945, Art. VII, Sec. II, Para. I (see now Ga. Const. 1983, Art. VII, Sec. III, Para. I). 1948-49 Op. Att'y Gen. p. 357.

County may donate funds to be used for child day care services as part of the state's Aid to Families with Dependent Children program. 1975 Op. Att'y Gen. No. U75-1.

Private day care centers not open to eligible children may not receive county funds. - Since the Constitution limits county taxation and expenditures to welfare programs as provided for by law, and since the only welfare provided for by law which may include this type of day care services is the Aid to Families with Dependent Children program, there is no authority for a county to appropriate money for the private day care center which is not operated as a service for eligible children. 1975 Op. Att'y Gen. No. U75-1.

Sheriff's widow is entitled to workers' compensation benefits. 1962 Op. Att'y Gen. p. 612.

Workers' compensation for county administrative personnel. - Administrative personnel who assisted the clerk of court, judge of the probate court and the tax commissioner and who were paid by those persons with funds received from the county were covered by former Code 1933, Ch. 114 (see now O.C.G.A. Ch. 9, T. 34). 1962 Op. Att'y Gen. p. 612.

Teacher retirement benefits for county agricultural agent. - County may levy taxes to provide teacher retirement benefits for a county agricultural agent. 1945-47 Op. Att'y Gen. p. 209.

Emergency management within meaning of this statute. - Civil defense (now emergency management) coordination and preparation for better utilization of county facilities is within the meaning of this statute. 1962 Op. Att'y Gen. p. 27.

Order need not be advertised in official county newspaper. - Advertising of a tax levy in the paper which is approved for county advertisements, once a week for a period of 30 days would comply with the provisions of former Code 1933, § 92-3802. However, it was not mandatory upon the county commissioners to publish the levy in the official newspaper of the county; the commissioners may, if the commissioners so desire, publish the levy in any other paper, either daily or weekly, in the commissioners' discretion. 1957 Op. Att'y Gen. p. 42.

Former Code 1933, § 92-3802 was directory and not mandatory, and a failure to comply with the provision did not render the tax levy void. 1954-56 Op. Att'y Gen. p. 707.

Effect of mistake in publication of tax levy. - Since the failure to publish the county tax levy as required by former Code 1933, § 92-3802 did not invalidate the levy, it is obvious that in a case when a mistake is made in the publication of the tax levy that the levy would not be void. 1954-56 Op. Att'y Gen. p. 707.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 35 et seq.

C.J.S. - 20 C.J.S., Counties, § 369 et seq. 84 C.J.S., Taxation, §§ 467 et seq., 472, 534 et seq.

ALR. - Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597 .

48-5-221 through 48-5-231.

Reserved. Repealed by Ga. L. 1981, p. 1857, § 46, effective April 22, 1981.

Editor's notes. - Ga. L. 2017, p. 774, § 48/HB 323, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, designated these Code sections as reserved.

These Code sections were based on former Code 1933, §§ 91A-1202 through 91A-1212. For present provisions governing the purposes of county taxes, see Code Section 48-5-220.

48-5-232. Advertisement of county property tax assessment.

Reserved. Repealed by Ga. L. 1995, p. 10, § 48(3), effective February 21, 1995.

Editor's notes. - This Code section was based on Orig. Code 1863, § 489; Code 1868, § 551; Code 1873, § 517; Code 1882, § 517; Civil Code 1895, § 406; Civil Code 1910, § 515; Code 1933, § 92-3802; Code 1933, § 91A-1213, enacted by Ga. L. 1978, p. 309, § 2.

48-5-233. Official collection and paying over of county taxes.

All taxes levied for county purposes shall be assessed upon the tax commissioner's or tax receiver's books for each year and shall be collected by the tax commissioner or tax collector. After collection, the tax commissioner or tax collector shall pay the taxes to the county treasurer.

(Orig. Code 1863, § 491; Code 1868, § 553; Ga. L. 1872, p. 78, § 8; Code 1873, § 519; Code 1882, § 519; Civil Code 1895, § 408; Civil Code 1910, § 517; Code 1933, § 92-3803; Code 1933, § 91A-1214, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For note discussing problems with profits generated by escrow account, and proposing federal legislative reform, see 10 Ga. St. B. J. 618 (1974).

JUDICIAL DECISIONS

Collection of sanitation assessments not prohibited. - Sanitation assessments are not taxes but service charges, and thus collection of those charges is not prohibited. Levetan v. Lanier Worldwide, Inc., 265 Ga. 323 , 454 S.E.2d 504 (1995).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 382 et seq.

48-5-234. Enforcement of collection and payment of county property taxes.

Any remedy or right allowed by law for the enforcement of the collection and payment of state property taxes, either by the commissioner, tax commissioner, or tax collector, may be used for the enforcement of the collection and payment of county property taxes by the county governing authority.

(Laws 1796, Cobb's 1851 Digest, p. 182; Laws 1815, Cobb's 1851 Digest, p. 1062; Laws 1825, Cobb's 1851 Digest, p. 1066; Code 1863, § 493; Code 1868, § 556; Code 1873, § 522; Code 1882, § 522; Civil Code 1895, § 412; Civil Code 1910, § 521; Code 1933, § 92-3807; Code 1933, § 91A-1217, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Notice not necessary. - Former Code 1882, §§ 522, 523, and 524 (see now O.C.G.A. §§ 48-5-234 , 48-5-238 , and 48-5-239 ) did not prescribe notice as a condition precedent before execution was issued against tax collectors and sureties. Walden v. County of Lee, 60 Ga. 296 (1878); Price v. Douglas County, 77 Ga. 163 , 3 S.E. 240 (1887).

Commissioner has no right to proceed against one wrongfully acting as tax official. - When one assuming to act as tax collector is, on the information of the solicitor general (now district attorney) acting as the agent of the state, declared by a court of competent jurisdiction to be exercising the duties of the office without any warrant or authority, and the money in the collector's hands is ordered to be paid into the hands of the clerk of the superior court, the comptroller general (now commissioner), as the agent of the state, cannot legally issue execution against the collector and the collector's securities as tax collector, for the money which the collector had wrongfully collected and been ordered to pay out by the judgment of the court. Hartley v. State, 3 Ga. 233 (1847).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 382 et seq. 85 C.J.S., Taxation, §§ 1109 et seq., 1032.

48-5-235. Liability of tax commissioners and tax collectors for default or improper conduct.

The tax commissioners and tax collectors shall be subject to the same fines and forfeitures for any default or improper conduct relating to county property taxes as are provided by law with respect to state property taxes.

(Orig. Code 1863, § 492; Code 1868, § 554; Code 1873, § 520; Code 1882, § 520; Civil Code 1895, § 410; Civil Code 1910, § 519; Code 1933, § 92-3805; Code 1933, § 91A-1215, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-236. Allowance of commissions of tax commissioners or tax collectors.

The governing authority of each county, in allowing the tax commissioner or tax collector his commissions for collecting the taxes levied in the county, shall aggregate the taxes for the various purposes levied and allow commissions on the whole amount. Each allowance shall be made in accordance with the schedule from which the commissioner is authorized to allow commissions to tax commissioners or tax collectors for collecting state property taxes.

(Ga. L. 1861, p. 76, § 23; Code 1868, § 555; Code 1873, § 521; Code 1882, § 521; Civil Code 1895, § 411; Civil Code 1910, § 520; Code 1933, § 92-3806; Code 1933, § 91A-1216, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1127 et seq.

48-5-237. Payment of taxes where property lies in more than one county.

A taxpayer who has a portion of real property extending into more than one county may pay all property taxes due on the property to the tax collector or tax commissioner of the county where the majority of the property is located. Nothing contained in this Code section shall change the amount of tax due each county, but this Code section shall change only the place of payment and collection. The tax collector or tax commissioner of the county of collection shall transmit to the tax collector or tax commissioner of the other counties the moneys due the other counties and a certificate showing that all taxes due on the property have been paid.

(Ga. L. 1972, p. 398, § 1; Code 1933, § 91A-1222, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 433.

48-5-238. Executions against persons holding county money.

  1. The governing authority of each county may compel all persons and their heirs and personal representatives who have in their possession any county money collected for any county purpose whatever to pay over the county money to the county governing authority.
  2. Upon the failure of obligated persons to pay over county moneys, the county governing authority shall issue executions against such persons and their securities, if any, for the full amount appearing to be due. The executions shall be issued in the same manner as the commissioner issues executions against defaulting tax commissioners or tax collectors.

    (Laws 1796, Cobb's 1851 Digest, p. 182; Code 1863, §§ 494, 495; Code 1868, §§ 557, 558; Code 1873, §§ 523, 524; Code 1882, §§ 523, 524; Civil Code 1895, §§ 413, 414; Civil Code 1910, §§ 522, 523; Code 1933, §§ 92-3808, 92-3809; Code 1933, § 91A-1218, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Constitutionality. - Former Civil Code 1910, §§ 522 and 523 (see now O.C.G.A. § 48-5-238 ) was held to be constitutional in view of former Civil Code 1910, § 524 (see now O.C.G.A. § 48-5-239 ). Hobbs & Tucker v. Dougherty County, 98 Ga. 574 , 25 S.E. 579 (1896); Roberts v. Dancer, 144 Ga. 341 , 87 S.E. 287 (1915).

Against whom execution may be issued. - Under former Civil Code 1910, §§ 522, 523, and 525 (see now O.C.G.A. §§ 48-5-238 and 48-5-240 ), an execution may be issued against any person, whether an official or not, holding county money, and without suit or notice of any kind. Hobbs v. Dougherty County, 98 Ga. 574 , 25 S.E. 579 (1896); Greer v. Turner County, 138 Ga. 558 , 75 S.E. 578 (1912).

Degree of specificity required in execution. - It is not essential to the validity of an execution issued by virtue of this statute that it be set out therein from whom the defendant in fi. fa. received the money, what particular money it was, or how it was county money. Greer v. Turner County, 138 Ga. 558 , 75 S.E. 578 (1912).

Execution cannot be legally issued under this statute against the sheriff of a county on the bond given by the sheriff of a city court of the county, although both offices may have been filled by the same individual. Martin v. Decatur County, 34 Ga. App. 816 , 131 S.E. 302 (1926).

Execution against surety on bond of receiver for excess legal commissions not authorized. - An ordinary (now county governing authority) is not authorized to issue an execution against a surety on the bond of a receiver payable to the Governor for an amount received in excess of the receiver's legal commissions. Fannin County v. Pack, 149 Ga. 703 , 102 S.E. 166 (1920).

Execution founded on bond unenforceable when no bond given. - An execution founded on a tax collector's bond cannot be enforced on the ground that the tax collector has public money in the collector's hands, when it appears that the tax collector did not in fact give a bond. To hold the tax collector liable for public funds held by the tax collector, a proper execution must be issued. County of Lee v. Walden, 68 Ga. 664 (1882).

After levy of an execution issued, an affidavit of illegality is an available remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

If the execution provided for under this statute has not been levied, an affidavit of illegality is not available and an injunction is the remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Procedure when tax official retains excess sums as commission. - While under former Code 1933, § 32-1106 the tax collector was required to pay over to school authorities all sums collected as taxes for educational purposes, such taxes were nevertheless levied by the county authorities; and when a tax commissioner has succeeded to the duties of a tax collector and has retained from such taxes a sum as commissions in excess of the amount to which the commissioner is entitled, the proper county authorities may issue an execution for the excess under this statute. Palmer v. Burke County, 180 Ga. 478 , 179 S.E. 344 (1935).

When a tax was levied by the county for educational purposes, it was within the province of the county authorities to issue execution for any sum unlawfully retained by the tax commissioner, and the disposition of the recovery is a matter between the county and the educational authorities; the presumption being that the amount so recovered will be applied according to law. Palmer v. Burke County, 180 Ga. 478 , 179 S.E. 344 (1935).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1140 et seq.

48-5-239. Affidavit of illegality by person against whom execution issues.

If execution as provided in subsection (b) of Code Section 48-5-238 issues for an amount greater than the amount due or if the defendant denies on oath owing any part of the amount claimed, the defendant may cause an issue to be formed on the execution by filing an affidavit of illegality according to the rules governing other illegalities. Each issue shall be tried by a jury at the first term of the superior court held after the filing of the affidavit.

(Orig. Code 1863, § 496; Code 1868, § 559; Code 1873, § 525; Code 1882, § 525; Civil Code 1895, § 415; Civil Code 1910, § 524; Code 1933, § 92-3810; Code 1933, § 91A-1219, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Refunds of taxes and license fees by counties and municipalities; time and manner of filing claims and actions for refund; authority to approve or disapprove claims, § 48-5-380 .

JUDICIAL DECISIONS

Remedy by affidavit of illegality under this statute is valid and constitutional. Bennett v. Wheatley, 154 Ga. 591 , 115 S.E. 83 (1922).

Affidavit of illegality available after levy of execution. - After levy of an execution issued under former Civil Code 1910, §§ 522 and 523 (see now O.C.G.A. § 48-5-238 ), an affidavit of illegality was an available remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Remedy by affidavit of illegality is not available if there was no levy on the property. Ben Hill County v. Massachusetts Bonding & Ins. Co., 144 Ga. 325 , 87 S.E. 15 (1915).

Remedy before levy is injunction. - If the execution provided for under former Civil Code 1910, §§ 522 and 523 (see now O.C.G.A. § 48-5-238 ) had not been levied, an affidavit of illegality was not available and an injunction is the remedy. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Affidavit issued against administratrix of tax collector. - An affidavit of illegality to a tax fi. fa., issued by order of the ordinary (now county governing authority) against the administratrix of the collector and the collector's sureties, is properly retained to try the issue pursuant to the provisions of this statute. Walden v. County of Lee, 60 Ga. 296 (1878); County of Lee v. Walden, 68 Ga. 664 (1882).

Sale after acceptance of affidavit is invalid. - When an execution has been issued against a tax collector and the sureties on the collector's bond, and an affidavit of illegality filed by the tax collector under former Code 1882, §§ 525 and 3666 (see now O.C.G.A. §§ 9-13-127 and 48-5-239 ), has been accepted by the levying officer, a subsequent sale of the property of the surety, before judgment on the illegality, was invalid, and conveyed no title. Whelchel v. Lucky, 41 F. 114 (N.D. Ga. 1890).

48-5-240. Borrowing county money.

This article is applicable to all persons and their sureties who borrow or pretend to borrow any county money from any person having custody of the county money. Any such person borrowing or pretending to borrow county money shall be held in all respects to be a holder of county funds.

(Orig. Code 1863, § 497; Code 1868, § 560; Code 1873, § 526; Code 1882, § 526; Civil Code 1895, § 416; Civil Code 1910, § 525; Code 1933, § 92-3811; Code 1933, § 91A-1220, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-241. Refund or credit of county taxes.

  1. In all cases where a person has been overtaxed or claims for any reason that taxes should be credited or refunded, the county governing authority may hear and determine such application to the extent of the interest of the county in the matter.
  2. In all cases where the county governing authority, pursuant to subsection (a) of this Code section, has authorized the tax collector or tax commissioner to credit or refund any overpayment of property tax in cases where the taxpayer has been overtaxed or has claimed that the tax should be credited or refunded, the authorization to the tax collector or tax commissioner shall be authority to credit or refund the proportionate amount of the state and county school tax represented in the overpayment and, in the case of refunds, he shall deduct such amounts from his next distribution to the state and county school boards, respectively.

    (Laws 1845, Cobb's 1851 Digest, pp. 1077, 1078; Orig. Code 1863, §§ 499, 783; Code 1868, §§ 562, 847; Code 1873, §§ 527, 851; Code 1882, §§ 527, 851; Civil Code 1895, §§ 417, 844; Civil Code 1910, §§ 526, 1102; Code 1933, §§ 92-3812, 92-6502; Ga. L. 1958, p. 219, § 1; Code 1933, § 91A-1221, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Statute does not confer power to compromise. - Statute might, perhaps, be interpreted as imposing upon the probate judge (now county governing authority) some clerical or ministerial duty as to correcting errors in regard to taxes, but it cannot be construed as conferring upon that officer (now authority) the power to enter into a contract of compromise whereby a taxpayer is relieved of any portion of the taxes which have been lawfully assessed against the taxpayer. Harrison v. Southern Ry., 44 Ga. App. 49 , 160 S.E. 656 (1931).

OPINIONS OF THE ATTORNEY GENERAL

Purpose. - There is nothing in this statute to indicate that a taxpayer is given any legal rights to a refund beyond those otherwise authorized by law. It appears only to provide a method for obtaining a refund to the extent otherwise authorized by law. 1960-61 Op. Att'y Gen. p. 521.

Statute is not intended to create a new or additional right to credit or refund, but is intended only to prescribe the procedure for obtaining those credits or refunds otherwise provided for under the law. 1960-61 Op. Att'y Gen. p. 525.

Construction with other provisions. - Governing authority of the county in exercising authority under former Code 1933, § 92-3812 (see now O.C.G.A. § 48-5-241 ) was subject to the general law set forth in former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13 ), relating to payments voluntarily made, and was also subject to the period of limitation prescribed in former Code 1933, § 23-1602 (see now O.C.G.A. § 36-11-1 ). 1958-59 Op. Att'y Gen. p. 379.

Statute provides a means for obtaining correction of clerical errors and mistakes caused by the taxation authorities. 1958-59 Op. Att'y Gen. p. 379.

No consent to suit is given by this statute. 1958-59 Op. Att'y Gen. p. 379.

Governing authority appears to be the sole judge of what corrections ought to be made under this statute. 1958-59 Op. Att'y Gen. p. 379.

Scope of rights and authority conferred under subsection (a). - Subsection (a) of this statute does not authorize the governing authority to compromise a valid claim for taxes; a taxpayer is not thereby given any legal rights to a refund beyond those otherwise provided for in subsection (b) of this statute. 1958-59 Op. Att'y Gen. p. 379.

Taxes recoverable under this section. - Subsection (a) of this statute applies only to county taxes and not to taxes collected for county school purposes or for state purposes. Subsection (b) of this statute permits the governing authority of the county also to make corrections with regard to county school taxes and state levies. 1960-61 Op. Att'y Gen. p. 521.

Refunds of city taxes. - Statute makes no reference to city taxes; however, city governing authorities can, by ordinance, provide for refunds of city taxes within the scope allowed county authorities under this statute. 1958-59 Op. Att'y Gen. p. 379; 1960-61 Op. Att'y Gen. p. 525.

Elements of proof for recovery on grounds of illegality of tax. - In order to sustain an action to recover back money on the grounds of an illegality of the tax, the authority to levy the tax must be wholly wanting, the money sued for must have been actually received by the defendant, and the payment of the plaintiff must have been made upon compulsion, to prevent the immediate seizure of the plaintiff's goods or the arrest of the plaintiff's person, and not voluntarily made. 1968 Op. Att'y Gen. No. 68-399.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 382 et seq. 85 C.J.S., Taxation, § 1046 et seq.

ALR. - Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437.

48-5-242. Waiver of penalties or interest due on unpaid taxes.

  1. Upon written approval by the governing authority of the county in accordance with subsection (c) of this Code section, the tax collector or tax commissioner may waive, in whole or in part, the collection of any amount due the taxing authorities for which taxes are collected, when such amount represents a penalty or an amount of interest assessed for failure to comply with the laws governing the assessment and collection of ad valorem taxes, when the tax collector or tax commissioner reasonably determines that the default giving rise to the penalty or interest was due to reasonable cause and not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law, and when the interest to be waived accrues on or after July 1, 2002.
  2. In the case of penalties or interest arising from the failure of the taxpayer to comply with the terms, conditions, or covenants required with respect to properties receiving any type of preferential assessment, the tax collector or tax commissioner shall not be authorized to waive any portion of the penalty or interest that represents a recovery by the taxing authorities of any amount by which taxes were reduced as a result of the granting of such preferential assessment.
  3. The waiver of penalties or interest in accordance with this Code section shall be subject to the written approval of the county governing authority either on a case-by-case basis or by a resolution delegating the authority to the tax collector or tax commissioner to make the final determinations. Such resolution may establish rules and regulations governing the administration of this Code section and establish guidelines to be followed by the tax collector or tax commissioner when granting such waivers. (Code 1981, § 48-5-242 , enacted by Ga. L. 1995, p. 361, § 1; Ga. L. 1999, p. 81, § 48; Ga. L. 2002, p. 614, § 1.)

48-5-243. Waiver of tax following military service.

The tax collector or tax commissioner shall waive the collection of any amount due the taxing authorities for which taxes are collected, when such amount represents a penalty or an amount of interest assessed for failure to comply with the laws governing the assessment and collection of ad valorem taxes, if:

  1. The tax collector or tax commissioner determines that the default giving rise to such penalty or interest was due to a taxpayer's military service in the armed forces of the United States in an area designated by the President of the United States by executive order as a combat zone and not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law; and
  2. The taxpayer makes full payment of taxes due, not including penalties and interest, within 60 days of such taxpayer's return from such military service. (Code 1981, § 48-5-243 , enacted by Ga. L. 2016, p. 584, § 2/HB 991.)

Effective date. - This Code section became effective July 1, 2016.

Cross references. - Relief from civil or criminal liability for servicemembers, § 38-2-270 .

Editor's notes. - Ga. L. 2016, p. 584, § 1/HB 991, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Returning Heroes Act.'"

ARTICLE 5 UNIFORM PROPERTY TAX ADMINISTRATION AND EQUALIZATION

RESEARCH REFERENCES

ALR. - Action of board of equalization as affecting right to attack assessment on ground of assessor's fraud, 9 A.L.R. 1284 .

Rights and remedies in case of overpayment of federal income tax, 34 A.L.R. 978 .

Assessment of corporate property at full value according to law when valuations generally are illegally fixed lower, 55 A.L.R. 503 .

Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

Right of taxpayer to relief from overassessment of his property as affected by overassessment of the other property within the district, 87 A.L.R. 1296 .

Property located in one state, political subdivision, or municipality, but belonging to another, as subject to taxation therein, 99 A.L.R. 1143 .

Tax assessor's civil liability to taxpayer for excessive or improper assessment of real property, 82 A.L.R.2d 1148.

PART 1 E QUALIZATION OF ASSESSMENTS

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-70 are included in the annotations for this part.

Presumption of equality and uniformity in tax procedures. - Presumption of law arises that once the taxing procedure has been completed and approved by the commissioner as between an individual taxpayer and the county, all property for assessment purposes has been equalized and made uniform. Ward v. Landrum, 140 Ga. App. 497 , 231 S.E.2d 347 (1976) (decided under former Code 1933, Ch. 92-70).

Ga. L. 1972, p. 1104, §§ 1-13 (see now O.C.G.A. §§ 48-5-260 through 48-5-270 ) do not establish in detail procedures for employment and termination of appraisal staff, but the statutes do provide that the commissioner may make necessary rules and regulations not inconsistent with the statute to enforce the statute, and that such rules and regulations shall have the full force and effect of law. Spell v. Blalock, 243 Ga. 459 , 254 S.E.2d 842 (1979).

48-5-260. Purpose of part.

It is the purpose and intent of this part to:

  1. Create, provide, and require a comprehensive system for the equalization of taxes on real property within this state by the establishment of uniform state-wide forms, records, and procedures and by the establishment of a competent, full-time staff for each county of this state to:
    1. Assist the board of tax assessors of each county in developing the proper information for setting tax assessments on property;
    2. Maintain the tax assessment records for each county; and
    3. Provide for state-wide duties and qualification standards for such staffs;
  2. Provide for the examination of county tax digests in order to determine whether property valuation is uniform between the counties;
  3. Provide for adjustments and equalizations of property valuations in certain instances;
  4. Provide for state ratio studies by the state auditor; and
  5. Provide for state assistance to counties in implementing this part.

    (Ga. L. 1972, p. 1104, § 1; Code 1933, § 91A-1401, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 39.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 701, 710, 711.

C.J.S. - 84 C.J.S., Taxation, § 700 et seq.

48-5-261. Classification of counties for administration of part.

For the purpose of administering this part, the counties of this state are placed in the following classes:

  1. Class I - Counties having less than 3,000 parcels of real property;
  2. Class II - Counties having at least 3,000 but less than 8,000 parcels of real property;
  3. Class III - Counties having at least 8,000 but less than 15,000 parcels of real property;
  4. Class IV - Counties having at least 15,000 but less than 25,000 parcels of real property;
  5. Class V - Counties having at least 25,000 but less than 35,000 parcels of real property;
  6. Class VI - Counties having at least 35,000 but less than 50,000 parcels of real property;
  7. Class VII - Counties having at least 50,000 but less than 100,000 parcels of real property; and
  8. Class VIII - Counties having at least 100,000 or more parcels of real property.

    (Ga. L. 1972, p. 1104, § 3; Code 1933, § 91A-1403, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-262. Composition and duties of county appraisal staffs; "county civil service system" defined.

  1. Class I counties shall provide for an appraisal staff pursuant to paragraph (1) of Code Section 48-5-260 by:
    1. Employing a full-time appraiser;
    2. Contracting with a contiguous county to provide the staff requirement; or
    3. Contracting with a professional appraisal person to provide the staff requirement.
  2. Each county other than Class I counties shall employ a minimum staff of appraisers, to be known as the county property appraisal staff, to perform the duties set forth in this part. For compensation purposes, the appraisers will be designated, lowest grade first, as Appraiser I, Appraiser II, Appraiser III, and Appraiser IV.
  3. The minimum staff requirement for each county shall be as follows:
    1. Class II counties - One Appraiser III;
    2. Class III counties - One Appraiser III and one Appraiser I;
    3. Class IV counties - One Appraiser III, one Appraiser II, and one Appraiser I;
    4. Class V counties - Two Appraisers III, two Appraisers II, and one Appraiser I;
    5. Class VI counties - One Appraiser IV, two Appraisers III, two Appraisers II, and one Appraiser I;
    6. Class VII counties - One Appraiser IV, four Appraisers III, one Appraiser II, and two Appraisers I;
    7. Class VIII counties - Two Appraisers IV, eight Appraisers III, five Appraisers II, and five Appraisers I.
  4. The establishment of minimum staff requirements shall not preclude any county from employing additional appraisers in order to carry out this part.
    1. As used in this subsection, the term "county civil service system" means any county civil service system, county merit system, county personnel plan or policy, or stated rules of work.
    2. The county governing authority shall be authorized, in its discretion and upon adoption of the appropriate resolution or ordinance, to provide that staff and employees of the county board of tax assessors shall be positions of employment covered by the county civil service system. Following the adoption of such ordinance or resolution, the county board of tax assessors may hire and manage such employees, but only in compliance with the county civil service system. The failure of the county board of tax assessors to comply with the requirements of such system shall be grounds for removal of one or more members of the county board of tax assessors pursuant to subsection (b) of Code Section 48-5-295.

      (Ga. L. 1972, p. 1104, § 4; Code 1933, § 91A-1404, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1370, § 1.)

JUDICIAL DECISIONS

"County" refers to board of tax assessors. - Word "county" as used in Ga. L. 1972, p. 1104, § 4 (see now O.C.G.A. § 48-5-262 ) and again in Ga. L. 1972, p. 1104, § 5 (see now O.C.G.A. § 48-5-263 ) is not a reference to either the board of commissioners or the county administrator because in these matters it is the board of tax assessors through which the county acts. Spell v. Blalock, 243 Ga. 459 , 254 S.E.2d 842 (1979).

Authority to hire and fire a tax appraiser rested with the board of tax appraisers, not with the board of commissioners which previously approved the employment contract. Chambers v. Fulford, 268 Ga. 892 , 495 S.E.2d 6 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619 et seq.

48-5-263. Qualifications, duties, and compensation of appraisers.

  1. Qualifications.
    1. The commissioner shall establish, and the Department of Administrative Services may review, the qualifications and rate of compensation for each appraiser grade.
    2. Each appraiser shall, before his or her employment, obtain a satisfactory grade, as determined by the commissioner, on an examination prepared by the commissioner and an institution of higher education in this state.
  2. Duties. Each member of the county property appraisal staff shall:
    1. Make appraisals of the fair market value of all taxable property in the county other than property returned directly to the commissioner;
    2. Maintain all tax records and maps for the county in a current condition. This duty shall include, but not be limited to, the mapping, platting, cataloging, and indexing of all real and personal property in the county;
    3. Prepare annual assessments on all taxable property appraised in the county and submit the assessments for approval to the county board of tax assessors;
    4. Prepare annual appraisals on all tax-exempt property in the county and submit the appraisals to the county board of tax assessors;
    5. Prepare and mail assessment notices after the county board of tax assessors has determined the final assessments;
    6. Attend hearings of the county board of equalization and provide information to the board regarding the valuation and assessments approved by the county board of tax assessors on those properties concerning which appeals have been made to the county board of equalization;
    7. Provide information to the department as needed by the department and in the form requested by the department;
    8. Attend the standard approved training courses as directed by the commissioner for all minimum county property appraisal staffs;
    9. Compile sales ratio data and furnish the data to the commissioner as directed by the commissioner;
    10. Comply with the rules and regulations for staff duties established by the commissioner; and
    11. Inspect mobile homes located in the county to determine if the proper decal is attached to and displayed on the mobile home by the owner as provided by law; notify the residents of those mobile homes to which a decal is not attached of the provisions of Code Sections 48-5-492 and 48-5-493; and furnish to the tax collector or tax commissioner a periodic list of those mobile homes to which a decal is not attached.
  3. Compensation. Staff appraisers shall be paid from county funds. The rates of compensation established by the commissioner shall not preclude any county from paying a higher rate of compensation to any appraiser grade.

    (Ga. L. 1972, p. 1104, § 5; Code 1933, § 91A-1405, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 23; Ga. L. 1981, p. 1906, § 2; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-91/HB 642.)

Editor's notes. - Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Administrative Rules and Regulations. - County Appraisal Staff - Duties, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Substantive Regulations, § 560-11-2-.28.

Inspections and Citations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Uniform Procedures for Mobile Homes, § 560-11-9-.05.

JUDICIAL DECISIONS

"County" refers to board of tax assessors. - Word "county" as used in Ga. L. 1972, p. 1104, § 4 (see now O.C.G.A. § 48-5-262 ) and again in Ga. L. 1972, p. 1104, § 5 (see now O.C.G.A. § 48-5-263 ) is not a reference to either the board of commissioners or the county administrator because in these matters it is the board of tax assessors through which the county acts. Spell v. Blalock, 243 Ga. 459 , 254 S.E.2d 842 (1979).

Claims under Title VII and Family and Medical Leave Act. - Employees' Title VII and Family and Medical Leave Act claims against a county board of tax assessors (Board) failed because: (1) the Board employed less than 15 people; and (2) the Board and the county were not one employer as the Board was a separate entity that controlled employment relationships, triggering the Lyes presumption, which was not rebutted since the Board controlled labor operations and could hire, fire, and set work schedules or assignments, and state law determined compensation, O.C.G.A. § 48-5-263(a)(1), and training, O.C.G.A. § 48-5-268 . Ballard v. Chattooga County Bd. of Tax Assessors, F.3d (11th Cir. July 7, 2015)(Unpublished).

Cited in Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619 et seq.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 122 et seq. 84 C.J.S., Taxation, §§ 704 et seq., 759 et seq.

48-5-264. Designation and duties of chief appraiser.

  1. The board of tax assessors in each county shall designate an Appraiser IV or, in those counties not having an Appraiser IV, an Appraiser III as the chief appraiser of the county. The chief appraiser shall be responsible for:
    1. The operation and functioning of the county property appraisal staff;
    2. Certifying and signing documents prepared by the staff; and
    3. Implementing procedures deemed necessary for the efficient operation of the staff.
  2. The chief appraiser may appoint an assistant and may delegate his authority in writing to the assistant.
  3. The chief appraiser may be a member of the county board of tax assessors.

    (Ga. L. 1972, p. 1104, § 6; Code 1933, § 91A-1406, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Removal of board members unwarranted. - Trial court did not abuse the court's discretion in refusing to remove the only two members of the Montgomery County Board of Tax Appeals for their failure to hire a level III appraiser as the chief county appraiser, as required by O.C.G.A. § 48-5-264(a) , for the inadequacy of the notice sent to taxpayers to explain the increased assessments of property, and for the failure to supervise a county-wide mass appraisal; while the trial court was troubled by the members' actions, budget restraints were, in part, to blame for the failure to hire a level III appraiser, and it did not abuse the court's discretion in concluding that removing the only two members from the Board was too drastic a remedy and would disrupt the running of an essential office. Smith v. Montgomery County Bd. of Tax Assessors, 268 Ga. App. 177 , 601 S.E.2d 386 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619 et seq.

ALR. - Extent of power of tax commission or other officials primarily charged with duty of administering tax statute to deputize or delegate to others matters relating to computation of tax or extent of taxpayer's liability, 107 A.L.R. 1482 .

48-5-264.1. Right of chief appraiser and others to inspect property; supplying identification to occupant of property; statement to be included in tax bill.

  1. The chief appraiser, other members of the county property appraisal staff, authorized agents of the county board of tax assessors, and members of the county board of tax assessors who are conducting official business of the chief appraiser, the county appraisal staff, or the county board of tax assessors may go upon property outside of buildings, posted or otherwise, in order to carry out the duty of making appraisals of the fair market value of taxable property in the county, other than property returned directly to the commissioner; provided, however, such person representing such chief appraiser, appraisal staff, or county board of tax assessors shall carry identification which is sufficiently prominent to permit the occupant to readily ascertain that such person is such representative. Such representative shall not enter upon the property unless reasonable notice has been provided to the owner and to the occupant of the property regarding the purpose for which such person is entering upon such property.
  2. The county tax commissioner shall include a statement with the ad valorem tax bill of each taxpayer notifying the taxpayer of the right to file an ad valorem property tax return. A notification of the right of taxpayers to file ad valorem property tax returns shall also be maintained by the tax commissioner on the official website of the county. (Code 1981, § 48-5-264.1 , enacted by Ga. L. 1991, p. 666, § 1; Ga. L. 2009, p. 646, § 2/HB 304.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1991, a comma was inserted following "however" near the middle of this Code section (now subsection (a)).

48-5-265. Formation of joint county property appraisal staffs.

    1. The governing authorities of any two or more counties may join together and by intergovernmental agreement create a joint county property appraisal staff following consultation with the county boards of tax assessors of such counties. Under any such intergovernmental agreement, the parcels of real property within the counties subject to the intergovernmental agreement shall be totaled, and the counties shall be deemed one county for purposes of determining the class of the counties, the resulting minimum staff requirements, and the amount of money to be received from the department. The costs of the joint county property appraisal staff shall be determined in the intergovernmental agreement.
    2. The governing authorities of any two or more counties may execute an intergovernmental agreement to provide for the sharing of one or more designated members of property appraisal staff following consultation with the county boards of tax assessors of such counties. The costs of such shared staff members shall be determined in the intergovernmental agreement.
  2. The governing authorities of any two or more counties may join together and by intergovernmental agreement carry out this part following consultation with the county boards of tax assessors of such counties. All counties subject to an intergovernmental agreement under this subsection shall retain their separate character for the purpose of determining the class and minimum staff requirements for each county.
    1. Any county, at its discretion, may enter into contracts with persons to render advice or assistance to the county board of tax assessors in the assessment and equalization of taxes, the establishment of property valuations, or the defense of such valuations. Such advice and assistance shall be in compliance with the laws of this state and the rules and regulations of the commissioner. Individuals performing services under such contracts shall complete satisfactorily such training courses as directed by the commissioner. The function of any person contracting to render such services shall be advisory or ministerial, and the final decision as to the amount of assessments and the equalization of assessments shall be made by the county board of tax assessors and shall be set forth in the minutes of the county board of tax assessors.
    2. No contract entered into pursuant to paragraph (1) of this subsection shall contain any provision authorizing payment to any person contracted with, or to any person employed by any person contracted with, upon a percentage basis or upon any basis under which compensation is dependent or conditioned in any way upon increasing or decreasing the aggregate assessment of property in the county. Any contract or provision of a contract which is in violation of this paragraph shall be void and unenforceable.

      (Ga. L. 1972, p. 1104, § 7; Code 1933, § 91A-1407, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2015, p. 1219, § 10/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of this Code section for the former provisions, which read: "(a) Contiguous Class I counties may join together and contract to create a joint county property appraisal staff. Under any such contract, the parcels of real property within the contracting counties shall be totaled and the counties shall be deemed one county for purposes of determining the class of the counties, the resulting minimum staff requirements, and the amount of money to be received from the department. The costs of the joint county property appraisal staff shall be shared, each county's share to be based upon the ratio which the number of parcels of real property in each contracting county bears to the total number of parcels of real property in all the contracting counties. Any number of Class I counties may join together to create a joint county property appraisal staff.

"(b) Each Class I county may contract with a contiguous county which has a minimum county property appraisal staff to carry out this part. Counties contracting in this manner shall retain their separate character for the purpose of determining the class and minimum staff requirements for each contracting county.

"(c)(1) Each Class I county, at its discretion, may enter into contracts with persons to render advice or assistance to the county board of tax assessors and to the county board of equalization in the assessment and equalization of taxes and to perform such other ministerial duties as are necessary and appropriate to carry out this part. The function of any person contracting to render such services shall be advisory or ministerial only and the final decision as to the amount of assessments and the equalization of assessments shall be made by the county board of tax assessors and the county board of equalization.

"(c)(2) No contract entered into pursuant to paragraph (1) of this subsection shall contain any provision authorizing payment to any person contracted with, or to any person employed by any person contracted with, upon a percentage basis or upon any basis under which compensation is dependent or conditioned in any way upon increasing or decreasing the aggregate assessment of property in the county. Any contract or provision of a contract which is in violation of this paragraph is void and unenforceable."

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619 et seq.

48-5-266. Submission by chief appraiser of assessment list with supporting information; attendance and providing of information at appeal hearings.

  1. The chief appraiser shall submit a certified list of assessments for all taxable property within the county to the county board of tax assessors. The list shall be accompanied by any supporting information requested by the board of tax assessors and shall be submitted within the time prescribed by the board of tax assessors.
  2. The chief appraiser or his delegate shall attend all hearings on appeals of assessments made to the county board of equalization. He shall provide the county board of equalization with the information supporting the appraisal and assessment which has been appealed.

    (Ga. L. 1972, p. 1104, § 8; Code 1933, § 91A-1408, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 620, 621.

48-5-267. State payments for minimum staff of appraisers; state salary supplements for qualified appraisers.

  1. An amount which is equal to one-half of the total compensation payable to the minimum staff in all of the counties, as determined by the commissioner with the approval of the Department of Administrative Services, shall be paid to the counties by the department in the following manner:
    1. The greater of 15 percent of the amount appropriated and deemed available by the commissioner for the purpose of carrying out the provisions of this part regarding minimum staff compensation or $200,000.00, if deemed available by the commissioner, shall be distributed equally among all of the counties of the state; and
    2. The payment to be made to each county from the remainder of the amount after distribution as provided in paragraph (1) of this subsection, if any, shall be equal to the remaining amount multiplied by a fraction, the denominator of which is the total of all parcels of real property located within the state and the numerator of which is the number of parcels of real property located within the county.
  2. Payments provided for in this Code section shall be made in the manner determined by the commissioner. The commissioner shall not make any payments to any county which:
    1. Is not maintaining its records as required by this part;
    2. Has not employed a minimum staff of appraisers; or
    3. In the case of Class I counties, has not entered into a contract providing for the performance of the requirements of this part.
  3. Payments provided for in this Code section shall be paid from funds appropriated to the department.
  4. In addition to the payments for minimum staff appraisers authorized by this Code section, the commissioner, from funds appropriated for that purpose, shall pay to qualified appraisers employed by county governments salary supplements in accordance with the following provisions:
    1. Each individual employed as a staff appraiser who has earned the Certified Assessment Evaluator designation or the Certified Personalty Evaluator designation, as conferred by the International Association of Assessing Officers, shall be paid a salary supplement of $1,000.00 per year;
    2. Each individual employed as a staff appraiser who has earned the Georgia Certified Appraiser designation conferred by the Georgia Association of Assessing Officials shall be paid a salary supplement of $750.00 per year. The qualifications and requirements necessary for achievement of the Georgia Certified Appraiser designation shall be approved by the commissioner before any supplements are paid for this designation; and
    3. Salary supplements shall be paid to each individual qualifying under paragraphs (1) and (2) of this subsection only for the period of time he or she is actually employed by a county as a staff appraiser and only for the period of time that he or she holds the qualifying designation. Salary supplements shall be paid to each qualified individual for only one qualifying designation at any one time.

      (Ga. L. 1972, p. 1104, § 9; Code 1933, § 91A-1409, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-92/HB 642.)

Editor's notes. - Ga. L. 2009, p. 745, § 1, was treated as replacing "State Merit System" with "State Personnel Administration".

Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

Administrative Rules and Regulations. - Appraisal staff definitions, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Substantive Regulations, § 560-11-2-.62.

48-5-268. Training courses for new appraisers; continuing education for experienced appraisers; member of county appraisal staff to appraise tangible personal property.

  1. The department may prepare, instruct, operate, and administer courses of instruction deemed necessary to provide for the training of new appraisers and the continuing education of experienced appraisers.
    1. The department shall prepare, instruct, operate, and administer courses of instruction for the training of new appraisers and the continuing education of experienced appraisers in the appraisal of tangible personal property.
    2. In all counties except Class I counties, the chief appraiser shall designate at least one person on the county appraisal staff to be responsible for the appraisal of tangible personal property. Any person or persons so designated shall be required to attend the standard approved training courses operated by the department in accordance with this subsection as part of their duties specified in subsection (b) of Code Section 48-5-263.
  3. The department may contract with any institution of higher education in this state to provide the courses of instruction, or any part of the courses, called for in this Code section.

    (Ga. L. 1972, p. 1104, § 10; Code 1933, § 91A-1410, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1554, § 2.)

JUDICIAL DECISIONS

Claims under Title VII and Family and Medical Leave Act. - Employees' Title VII and Family and Medical Leave Act claims against a county board of tax assessors (Board) failed because: (1) the Board employed less than 15 people; and (2) the Board and the county were not one employer as the Board was a separate entity that controlled employment relationships, triggering the Lyes presumption, which was not rebutted since the Board controlled labor operations and could hire, fire, and set work schedules or assignments, and state law determined compensation, O.C.G.A. § 48-5-263(a)(1), and training, O.C.G.A. § 48-5-268 . Ballard v. Chattooga County Bd. of Tax Assessors, F.3d (11th Cir. July 7, 2015)(Unpublished).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619.

48-5-269. Authority to promulgate rules and regulations regarding uniform books, records, forms, and manuals; limits on change in current use value of conservation use property.

  1. Subject to the limitations contained in Chapter 2 of this title, the commissioner may promulgate rules and regulations specifically regarding this part, including, but not limited to, the following:
    1. Prescription of the forms, books, and records to be used for standard property tax reporting for all taxing units, including, but not limited to, the forms, books, and records to be used in the listing, appraisal, and assessment of property and how the forms, books, and records shall be compiled and kept;
    2. Prescription of the form and content of state-wide, uniform appraisal and assessment forms, books, and manuals;
    3. Development and prescription of procedures under which property sales ratio surveys shall be conducted; and
    4. Prescription of methods and procedures by which identification data, appraisal and assessment data, sales data, and any other information relating to the appraisal and assessment of property shall be furnished to the department using electronic data processing systems and equipment.
  2. The commissioner shall promulgate after consultation with the Department of Agriculture, the Georgia Agricultural Statistical Service, the State Forestry Commission, the Department of Natural Resources, and the Cooperative Extension Service, and county tax officials shall follow uniform rules and regulations establishing a table of values for the current use value of bona fide conservation use property.  Such rules and regulations shall apply to the evaluation of bona fide conservation use property, exclusive of any improvements thereon, which improvements shall have their current use value determined as otherwise provided by law.  Such rules and regulations shall include, but not be limited to, the following provisions and criteria:
    1. Sales data for arm's length, bona fide sales of comparable real property with and for the same existing use and per-acre property values determined by the capitalization of net income before property taxes, with sales data to be weighted 35 percent and income capitalization values to be weighted 65 percent.  All sales data shall be adjusted to remove the influence of the size of the tract on the sales price of tracts below 50 acres in size. Income capitalization values shall be derived from the respective conservation use property classifications, with consideration given to productivity of the respective major geological or geographical regions, and for this purpose:
      1. Net income before property taxes shall be determined for:
        1. Agricultural land by calculating a weighted average of all crop and pasture acreage in each district as designated by paragraph (2) of this subsection in the following manner:
          1. Crop land by calculating the five-year weighted average of per-acre net income before property taxes from the major predominant acreage crops harvested in Georgia, and as used in this subdivision, the term "predominant acreage crops" means the top acreage crops with production in no less than 125 counties of the state; and
          2. Pasture property by calculating a five-year weighted average of per-acre rental rates from pasture land; and
        2. Forest property by calculating a five-year weighted average of per-acre net income before property taxes from hardwood and softwood harvested in Georgia.  For purposes of this division, the term "property taxes" shall not include the tax under Code Section 48-5-7.5 which tax shall be considered in calculating net income; and
      2. The capitalization rate shall be based upon:
        1. The long-term financing rate available on January 1 from the Regional Federal Land Bank located in Columbia, South Carolina, and published pursuant to 26 U.S.C. Section 2032A(e)(7)(A)(ii), further referenced by regulations 26 C.F.R. 20.2032A-4(e);
        2. The arithmetic mean of Federal Farm Credit bond yields, whose maturity is no less than five years in the future, as published in the Wall Street Journal on January 1 or the most recent business day of the current year, rounded to the nearest hundredth;
        3. For the purpose of determining the income capitalization rate, divisions (i) and (ii) of this subparagraph shall be given weighted influences of 80 percent and 20 percent, respectively; and
        4. A property tax component which shall be the five-year average true tax rate for the unincorporated area of each county located within the regions established by paragraph (2) of this subsection;
    2. The state shall be divided into an appropriate grouping of the nine crop-reporting districts as delineated by the Georgia Agricultural Statistical Service for the purpose of determining any calculation under this subsection;
    3. In no event may the current use value of any conservation use property in the table of values established by the commissioner under this subsection for the taxable year beginning January 1, 1993, increase or decrease by more than 15 percent from its current use value as set forth in the table of values established by the commissioner under this subsection for the taxable year beginning January 1, 1992.  In no event may the current use value of any conservation use property in the table of values established by the commissioner under this subsection for the taxable year beginning January 1, 1994, or any subsequent taxable year increase or decrease by more than 3 percent from its current use value as set forth in the table of values established by the commissioner under this subsection for the immediately preceding taxable year; and
    4. Environmentally sensitive properties as certified by the Department of Natural Resources shall be valued according to the average value determined for property of the same or similar soil type, as determined under paragraphs (1) and (2) of this subsection.
  3. In no event may the current use value of any conservation use property increase or decrease during a covenant period by more than 3 percent from its current use value for the previous taxable year or increase or decrease during a covenant period by more than 34.39 percent from the first year of the covenant period.  The limitations imposed by this subsection shall apply to the total value of all the conservation use property that is the subject of an individual covenant including any improvements that meet the qualifications set forth in paragraph (1) of subsection (a) of Code Section 48-5-7.4; provided, however, that in the event the owner changes the use of any portion of the land or adds or removes therefrom any such qualified improvements, the limitations imposed by this subsection shall be recomputed as if the new uses and improvements were in place at the time the covenant was originally entered.

    (Ga. L. 1972, p. 1104, § 11; Code 1933, § 91A-1411, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1991, p. 1903, § 10; Ga. L. 1993, p. 947, § 9; Ga. L. 1999, p. 81, § 48; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "the State Forestry Commission" for "the Georgia Forestry Commission" near the beginning of the first sentence of subsection (b).

Editor's notes. - Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Ga. L. 1993, p. 947, § 10, not codified by the General Assembly, provides: "Sections 1, 2, 3, 4, and 9 of this Act shall be applicable to all bona fide conservation use covenants entered into for all taxable years beginning on or after January 1, 1993, and to any table of values of bona fide conservation use property established by the state revenue commissioner for all taxable years beginning on or after January 1, 1993. Any bona fide conservation use covenant entered into for the taxable year beginning January 1, 1992, shall continue to be governed by the law in effect for that taxable year."

48-5-269.1. Adoption by commissioner and requirement of use of uniform procedural manual for appraising tangible personal property.

  1. The commissioner shall adopt by rule, subject to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and maintain an appropriate procedural manual for use by county property appraisal staff in appraising tangible real and personal property for ad valorem tax purposes.
  2. The manual adopted by the commissioner pursuant to this Code section shall be utilized by county property appraisal staff in the appraisal of tangible real and personal property for ad valorem tax purposes.

    (Code 1933, § 91A-1411.1, enacted by Ga. L. 1981, p. 1554, § 3; Ga. L. 1997, p. 1059, § 1.)

48-5-270. Commissioner's authority to purchase, develop, prescribe, and improve electronic data processing systems regarding property valuation and assessment.

The commissioner is authorized, from funds appropriated to the department, to develop and prescribe systems of data collection, appraisal, and assessment and any other systems relating to property valuation and assessment utilizing electronic data processing systems and equipment for use by county boards of tax assessors. The commissioner may purchase existing systems and services from other government agencies, educational institutions, or private businesses or contract with these entities for the development of information and new systems that may be utilized by county boards of tax assessors in property valuation and assessment. The commissioner shall actively seek out technological advancements and systems that will improve the uniformity, fairness, and efficiency of property valuations and assessments and include his or her recommendations in the annual budget request.

(Ga. L. 1972, p. 1104, § 13; Code 1933, § 91A-1412, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1996, p. 190, § 1.)

48-5-271. Table of values for conservation use value of forest land.

  1. The commissioner shall promulgate and county tax officials shall follow uniform rules and regulations establishing a table of values for the conservation use value of forest land conservation use property. Such values shall be the same as provided for forest land values under Code Section 48-5-269.
  2. In no event may the forest land conservation use value of any forest land conservation use property in the table of values established by the commissioner under this Code section for the taxable year beginning January 1, 2010, or any subsequent taxable year increase or decrease by more than 3 percent from its forest land conservation use value as set forth in the table of values established by the commissioner under this Code section. The limitations imposed by this subsection shall apply to the total value of all the forest land conservation use property that is the subject of an individual covenant. (Code 1981, § 48-5-271 , as enacted by Ga. L. 2008, p. 297, § 3/HB 1211.)

Editor's notes. - The former Code section, concerning examination by the commissioner of county tax digests for uniformity of property valuation between counties, was repealed by Ga. L. 1988, p. 1763, § 3, effective January 1, 1989, and was based on Ga. L. 1966, p. 45, § 1; Ga. L. 1970, p. 91, §§ 1, 2; Ga. L. 1970, p. 642, § 1; Ga. L. 1972, p. 174, § 1; Code 1933, § 91A-1413, enacted by Ga. L. 1978, p. 309, § 2. For present similar provisions, see Code Section 48-5-340 et seq.

Ga. L. 2008, p. 297, § 5/HB 1211, provides that this Code section becomes effective on January 1, 2009, upon the ratification of a resolution at the November, 2008 state-wide general election, which resolution amends the Constitution so as to provide for the special assessment and taxation of forest land conservation use property and for local government assistance grants. The constitutional amendment (Ga. L. 2008, p. 1209) was ratified at the general election held on November 4, 2008.

OPINIONS OF THE ATTORNEY GENERAL

Administrative caps on assistance grants prohibited. - Because neither Ga. Const. 1983, Art. VII, Sec. I, Para. III nor the Forest Land Protection Act, O.C.G.A. § 48-5-7.7 , authorize or contemplate a cap on assistance grants based on the total exemption value of forest land conservation use property, the Department of Revenue would not be authorized to impose an administrative cap on assistance grants issued pursuant to the Forest Land Protection Act of 2008 in the manner proposed. 2016 Op. Att'y Gen. No. 16-5.

48-5-272. Duty of county board of tax assessors and county governing authority to effect adjustments to digest and millage levy.

Reserved. Repealed by Ga. L. 1988, p. 1763, § 4, effective January 1, 1989.

Editor's notes. - Ga. L. 2017, p. 774, § 48/HB 323, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, designated this Code section as reserved.

This Code section was based on Ga. L. 1966, p. 45, § 2; Ga. L. 1972, p. 174, § 2; Code 1933, § 91A-1414, enacted by Ga. L. 1978, p. 309, § 2. For present similar provisions, see Code Section 48-5-340 et seq.

48-5-273. Counties to submit tax rate to commissioner.

The governing authority of each county shall submit to the commissioner, at the time the county tax digest for the current year is submitted for his approval, the total county millage levy established pursuant to law for the county for the current year. The commissioner shall not consider the approval of any county tax digest unless the tax rate is submitted to him as provided in this Code section.

(Ga. L. 1972, p. 174, § 3; Code 1933, § 91A-1415, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Property classification scheme is not unconstitutional. - No language in this statute expressly establishes separate classes of tangible property for the purposes of taxation, in violation of Ga. Const. 1945, Art. VII, Sec. I, Para. III (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III), and no language reasonably authorizes the construction that such was the legislative intent. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973).

Subclassification of tangible personal property. - Ga. L. 1972, p. 174, § 3 and former Code 1933, §§ 92-7001 and 92-7002 do not either expressly or impliedly require or authorize the subclassification of tangible property for tax purposes. Herring v. Ferrell, 130 Ga. App. 431 , 203 S.E.2d 617 (1973), aff'd in part, rev'd on other grounds in part, 233 Ga. 1 , 209 S.E.2d 599 (1974).

Cited in In re Board of Twiggs County Comm'rs, 249 Ga. 642 , 292 S.E.2d 673 (1982).

48-5-274. Establishment of equalized adjusted property tax digest; establishment and use of average ratio; information to be furnished by state auditor; grievance procedure; information to be furnished by commissioner.

  1. As used in this Code section, the term:
    1. "Assessment ratio" means the fractional relationship between the assessed value and the fair market value of the property.
    2. "Measures of central tendency" means the tendency of data to cluster around some typical or central value, such as the median ratio, the mean ratio, or the weighted mean ratio (the weighted mean ratio is also called the aggregate ratio), as defined in the Standard on Assessment-Ratio Studies published by the International Association of Assessing Officers.
  2. The state auditor shall establish on a continuing basis, no later than November 15 in each year, an equalized adjusted property tax digest for each county in the state and for the state as a whole for the current calendar year. Such digest shall exclude all real and personal property exempted from taxation and the difference between the value of all taxable property within any tax allocation district and the tax allocation increment base of such tax allocation district as defined under paragraph (15) of Code Section 36-44-3 for which consent has been obtained pursuant to Code Section 36-44-9. The state auditor may establish a unit within the Department of Audits and Accounts consisting of such number of personnel as is deemed necessary in order to establish and maintain on a continuing basis the equalized adjusted property tax digest. The equalized adjusted property tax digest shall be established and maintained as follows:
    1. Determine the locally assessed valuation of the county property tax assessment digest for the preceding calendar year, exclusive of real and personal property exempted from taxation, exclusive of the difference between the value of all taxable property within any tax allocation district and the tax allocation increment base of such tax allocation district as defined under paragraph (15) of Code Section 36-44-3 for which consent has been obtained pursuant to Code Section 36-44-9, exclusive of railroad equipment company property shown on the county railroad equipment company property tax digest, exclusive of any property subject to current use valuation on the county property tax digest, and exclusive of the locally assessed valuation of timber harvested or sold;
    2. Determine the fair market value for timber harvested or sold during the calendar year;
    3. Divide the sum of the locally assessed valuation of the county property tax assessment digest under paragraph (1) of this subsection by the ratio of assessed value to fair market value of the property established by the state auditor in accordance with paragraph (8) of this subsection;
    4. Determine the fair market value of the county railroad equipment company property tax digest for the preceding calendar year;
    5. Determine the sum of the current use valuation of the county property tax digest;
    6. Determine the total fair market value of the Public Utility Digest as established by the commissioner;
    7. The total of the sums obtained through the calculations prescribed in paragraphs (2), (3), (4), (5), and (6) of this subsection shall be known as the current equalized adjusted property tax digest of the county. The sum of the current equalized adjusted property tax digest of all counties of the state combined shall be known as the current equalized adjusted property tax digest for the state as a whole; and
    8. Establish for each county in the state the ratio of assessed value to fair market value of county property subject to taxation, excluding railroad equipment company property. The ratio shall be determined by establishing the ratio of assessed value to sales price for each of a representative number of parcels of real property, the titles to which were transferred during a period of time to be determined by the state auditor, and then by establishing the measure of central tendency for the county as a whole based upon a representative number of usable transactions studied. Any such sales price shall be adjusted upward or downward, in a manner consistent with the Standard on Ratio Studies published by the International Association of Assessing Officers or its successors, as reasonably needed to account for the effects of price changes reflected in the market between the date of sale and January 1 of the calendar year for which the equalized adjusted property tax digest is being prepared. Sales prices also shall be reduced by any portion thereof attributable to personal property, real property exempt from taxation, or standing timber included in the sales transaction. The representative number of transactions shall not include any parcel of which the sales price is not reflective of the fair market value of such property as fair market value is defined in Code Section 48-5-2. The state auditor shall supplement realty sales price data available in any county with actual appraisals of a representative number of parcels of farm property and industrial and commercial property located within the county, the titles to which were not transferred within the period of time determined by the state auditor. The state auditor may make appraisals on other types of real property located within the county when adequate realty sales data cannot be obtained on such property. The representative number of parcels of each class of real property as defined by the commissioner used for the study shall be determined by the state auditor. The state auditor may use the same ratio for other personal property, excluding motor vehicles, within the county as is finally determined for real property within the county.
  3. The assessment ratio of assessed value to fair market value of county property to be established by the state auditor for the purposes of paragraph (8) of subsection (b) of this Code section shall be established through the use of personnel of the Department of Audits and Accounts who have sufficient competence and expertise by way of education, training, and experience in the fields of property evaluation and appraisal techniques. The Department of Audits and Accounts shall use the Standard on Assessment-Ratio Studies published by the International Association of Assessing Officers or its successors to determine the valid transactions necessary to establish accurately the measure of central tendency described in paragraph (8) of subsection (b) of this Code section; provided, however, that standard shall only be used to the extent it does not conflict with criteria enumerated in subparagraph (B) of paragraph (3) of Code Section 48-5-2.
  4. The assessment ratio of assessed value to fair market value determined for each county shall be used as provided for in this Code section until such time as a new ratio is determined on a continuing basis for each county. The state auditor shall provide to the commissioner the assessment ratio of assessed value to fair market value for all counties upon completion.
  5. On or before November 15 of each year, the state auditor shall furnish to the State Board of Education the current equalized adjusted property tax digest of each county in the state and the current equalized adjusted property tax digest for the state as a whole. In any county which has more than one school system, the state auditor shall furnish the State Board of Education a breakdown of the current county equalized adjusted property tax digest showing the amount of the digest applicable to property located within each of the school systems located within the county. At the same time, the state auditor shall furnish the governing authority of each county, the governing authority of each municipality having an independent school system, the local board of education of each school system, the tax commissioner or tax collector of each county, and the board of tax assessors of each county the current equalized adjusted property tax digest of the local school system or systems, as the case may be, and the current equalized adjusted property tax digest for the state as a whole.
    1. Each county governing authority, each governing authority of a municipality having an independent school system, and each local board of education, when aggrieved or when having an aggrieved constituent, shall have a right, upon written request made within 30 days after receipt of the digest information, to refer the question of correctness of the current equalized adjusted property tax digest of the local school system to the state auditor. The state auditor shall take any steps necessary to make a determination of the correctness of the digest and to notify all interested parties of the determination within 45 days after receiving the request questioning the correctness of the digest.
      1. If any party questioning the correctness of the digest is dissatisfied with the determination made by the state auditor pursuant to paragraph (1) of this subsection, the party shall have the right, which must be exercised within 15 days after being notified of the determination made by the state auditor, to refer in writing the question of the correctness of the digest to a board of arbitrators.
      2. Each board of arbitrators shall consist of three members, one to be chosen by the state auditor within 15 days after receipt of a written complaint, one to be chosen by the complaining party at the time of requesting the arbitration, and one to be chosen within 15 days after selection of the first two members by the first two members of the board. In the event the two arbitrators cannot agree on a third member, the Chief Justice of the Supreme Court of Georgia shall appoint the third member upon petition of either party with notice to the opposing party.
      3. The board of arbitrators or a majority of the board within 15 days after appointment of the full board shall render its decision regarding the correctness of the digest in question and, if correction of the digest is required, regarding the extent and manner in which the digest should be corrected. The decision of the board shall be final.
      4. The state auditor shall correct the digest in question in accordance with the decision of the board of arbitrators and shall report the corrections to the parties entitled to receive such information under this Code section.
      5. Each member of the board of arbitrators shall subscribe to an oath to perform faithfully and impartially the duties required in connection with the controversy concerning the correctness of the digest in question and to render a decision within the time required. Each member of the board of arbitrators shall be paid a sum not to exceed $250.00 for each appeal heard. In addition, each member of the board shall receive the same daily expense allowance as is provided for each member of the General Assembly and actual transportation costs when traveling by public carrier or the legal mileage rate when traveling by personal automobile. All costs of arbitration of matters arising under this Code section shall be shared and paid equally by the Department of Audits and Accounts and by the governing authority requesting the arbitration.
    3. Upon receiving notice that the current equalized adjusted property tax digest of any local school system is being questioned pursuant to paragraph (1) of this subsection, the state auditor shall notify the State Board of Education that the digest is being questioned. No computations shall be made on the basis of a questioned digest under Article 6 of Chapter 2 of Title 20, the "Quality Basic Education Act," until the digest has been corrected, if necessary, pursuant to this subsection.
  7. The commissioner shall provide to the state auditor such digest information as is needed in the calculation of the equalized adjusted property tax digests. Such information shall be provided for each county and for each local school system. For independent school systems in municipalities authorized to assess property in excess of 40 percent of fair market value pursuant to Code Section 48-5-7, the commissioner shall provide digest information to the state auditor at the assessment ratios utilized by both the municipal government and the county government or governments in which the municipality is located. If revision is made to the digest of any county or any portion of a county comprising a local school system following the initial reporting of the digest to the state auditor, the commissioner shall report any such revision to the state auditor.

    (Ga. L. 1970, p. 542, §§ 1-5; Ga. L. 1972, p. 829, §§ 1-7; Code 1933, § 91A-1416, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1568, § 2; Ga. L. 1989, p. 597, § 1; Ga. L. 1991, p. 1801, §§ 1, 2; Ga. L. 1991, p. 1903, § 11; Ga. L. 1993, p. 699, § 1; Ga. L. 2000, p. 1683, § 1; Ga. L. 2007, p. 707, § 1/HB 182; Ga. L. 2009, p. 27, § 3/SB 55; Ga. L. 2015, p. 1219, § 11/HB 202.)

The 2015 amendment, effective January 1, 2016, added the third and fourth sentences in paragraph (b)(8).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, former subsection (f) was redesignated as present subsection (g).

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

Ga. L. 1991, p. 1903, § 15, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable beginning January 1, 1992, with respect to ad valorem taxation of timber and shall be applicable beginning January 1, 1992, for all other purposes. Taxation for prior periods shall continue to be governed by prior law.

Ga. L. 2000, p. 1683, § 11, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all equalized digests established on or after January 1, 2000.

Ga. L. 2009, p. 27, § 5/SB 55, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015).

48-5-275. Applicability of part.

This part shall apply in both the incorporated and unincorporated areas in each county of this state. The intent of this Code section is to recognize each county as a unit in applying this part without regard to other distinctions existing between incorporated and unincorporated areas within each county.

(Ga. L. 1972, p. 1104, § 2; Code 1933, § 91A-1402, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1970, p. 542, § 1, are included in the annotations for this Code section.

Constitutionality. - Statute did not violate Ga. Const. 1945, Art. VII, Sec. I, Para. III (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III). Butts County v. Briscoe, 236 Ga. 233 , 223 S.E.2d 199 (1976) (decided under Ga. L. 1970, p. 542, § 1).

Statute did not destroy uniformity as between taxpayers of a county. Chilivis v. Kell, 236 Ga. 226 , 223 S.E.2d 117 , cert. denied, 429 U.S. 891, 97 S. Ct. 249 , 50 L. Ed. 2 d 174 (1976) (decided under Ga. L. 1970, p. 542, § 1).

RESEARCH REFERENCES

C.J.S. - 78A C.J.S., Schools and School Districts, § 845 et seq. 81A C.J.S., States, § 142. 84 C.J.S., Taxation, § 700 et seq.

PART 2 C OUNTY BOARDS OF TAX ASSESSORS

JUDICIAL DECISIONS

County governing authority has no implied authority to perform acts of assessors. - Former Code 1933, Ch. 92-69 (see now O.C.G.A. Pt. 2, Art. 5, Ch. 5, T. 48) conferring authority upon assessors to perform specific acts negatives any implied power of the county commissioners (now county governing authority) to perform the same acts. Bagwell v. Cash, 207 Ga. 222 , 60 S.E.2d 628 (1950).

Assessors cannot obligate county to pay another for services the assessors are required to perform. - County tax assessors cannot, with the approval of county commissioners (now county governing authority), obligate the county to pay another with county funds for performing services which the assessors are required to perform and for which the assessors draw pay from the county. Bagwell v. Cash, 207 Ga. 222 , 60 S.E.2d 628 (1950).

Increases for sole purpose of raising revenue, not for fixing fair values, are unconstitutional. - When county tax assessors, without investigation, make a systematic and comprehensive increase in the value of all property returned in the county for taxes for a particular year, not for the purpose of fixing just and fair values after investigation, or for the purpose of equalizing taxes, but for the sole purpose of raising additional revenue, such assessments are null and void as the assessments are clearly violative of Ga. Const. 1945, Art. VII, Sec. I, Para. III (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III) and Ga. Const. 1945, Art. I, Sec. I, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Para. II) and U.S. Const., amend. 14. Hutchins v. Howard, 211 Ga. 830 , 89 S.E.2d 183 (1955).

Suits by board employees against county for compensation are unauthorized. - Even were it to be assumed that the employment of a copyist to be compensated by the county would be authorized, there is nothing in the Act at variance with the prohibition against suits against a county save when expressly authorized by statute or by the provision of the state Constitution. Accordingly, even though it be assumed that the claim against the county is a just one, a suit by such an employee against the county for the recovery of such compensation is unauthorized. Decatur County v. Townsend, 46 Ga. App. 103 , 166 S.E. 774 (1932).

48-5-290. Creation of county board of tax assessors; appointment and number of members; commission; noneligibility of certain individuals.

  1. There is established a county board of tax assessors in each of the several counties of this state.
  2. Except as provided in Code Section 48-5-309 with respect to the election of board members, each county board of tax assessors shall consist of not less than three nor more than five members to be appointed by the county governing authority.
  3. The order making an appointment to the county board of tax assessors shall be regularly entered upon the record of the superior court of the county. A certificate from the clerk of the superior court reciting the order and stating that the person appointed has taken the oath required by law shall constitute the commission of a member. No other commission shall be required. The clerk of the superior court shall transmit a copy of the certificate to the commissioner within five days of the date the oath is administered.
  4. No individual may be appointed or reappointed to a county board of tax assessors when the individual is related to a member of the county governing authority in one or more of the following degrees:
    1. Mother or mother-in-law;
    2. Father or father-in-law;
    3. Sister or sister-in-law;
    4. Brother or brother-in-law;
    5. Grandmother or grandmother by marriage;
    6. Grandfather or grandfather by marriage;
    7. Son or son-in-law; or
    8. Daughter or daughter-in-law.

      (Ga. L. 1913, p. 123, § 2; Code 1933, § 92-6903; Ga. L. 1951, p. 715, § 1; Ga. L. 1978, p. 1751, § 1; Code 1933, § 91A-1432, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 40; Ga. L. 1986, p. 1322, § 2; Ga. L. 2006, p. 819, § 2/HB 1502.)

Law reviews. - For survey article on labor and employment law, see 60 Mercer L. Rev. 217 (2008).

JUDICIAL DECISIONS

For a discussion of the relationship between O.C.G.A. § 48-5-290 and the DeKalb County Reorganization Act of 1981 relating to the appointment of members to the county board of tax assessors and the board of directors of the Metropolitan Atlanta Rapid Transit Authority, see Maloof v. Williams, 175 Ga. App. 546 , 334 S.E.2d 16 (1985).

Claims barred. - Eleventh Amendment barred the employees' 42 U.S.C. § 1983 claims against a county board of tax assessors (Board) because: (1) the Board was independent of county government, under O.C.G.A. §§ 48-5-290 and 48-5-295 ; (2) the state controlled the Board and mandated county funding as well as employee qualifications and duties; and (3) the Board was liable for any judgment. Ballard v. Chattooga County Bd. of Tax Assessors, F.3d (11th Cir. July 7, 2015)(Unpublished).

Cited in Brown v. Wetherington, 250 Ga. 682 , 300 S.E.2d 680 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Georgia Open Meetings Law, O.C.G.A. § 50-14-1 et seq., applies to proceedings both of a county board of tax assessors and of a county board of equalization. 1995 Op. Att'y Gen. No. U95-22.

Secretary of a county board of tax assessors can legally serve as a tax commissioner under former Code 1933, §§ 92-6903 and 92-6910 (see now O.C.G.A. §§ 48-5-290 , 48-5-292 , and 48-5-298 ). 1952-53 Op. Att'y Gen. p. 303.

No alternate assessor permissible. - O.C.G.A. § 48-5-290 requires that a county board of tax assessors be composed of only three members; no alternate assessor is permissible. 1981 Op. Att'y Gen. No. U81-49 (issued prior to 1986 amendment).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619.

C.J.S. - 84 C.J.S., Taxation, §§ 467 et seq., 497 et seq.

48-5-291. Qualifications for members; approved appraisal courses; rules and regulations.

  1. No individual shall serve as a member of the county board of tax assessors who:
    1. Is less than 21 years of age;
    2. Fails to make his or her residence within the county within six months after taking the oath of office as a member of the board;
    3. Does not hold a high school diploma or its equivalent;
    4. Has not successfully completed 40 hours of training either prior to or within 180 days of appointment as provided in subsection (b) of this Code section;
    5. Has not obtained and maintained a certificate issued by the commissioner; and
    6. In addition to the training required in paragraph (4) of this Code section, does not successfully complete an additional 40 hours of approved appraisal courses as provided in subsection (b) of this Code section during each two calendar years of tenure as a member of the county board of tax assessors.
  2. Approved appraisal courses shall be courses of instruction covering the basic principles of appraisal and assessing of all classes and types of property including instruction in the fundamentals of Georgia law covering the appraisal and assessing of property for ad valorem tax purposes as prescribed and designated by the commissioner pursuant to Code Section 48-5-13. To ensure that the assessment functions are performed in a professional manner by competent assessors, meeting clearly specified professional qualifications, the commissioner shall develop, approve, and administer courses of instruction designed to qualify applicants or tax assessors under this Code section and to specify qualification requirements for certification. The commissioner may contract with any professional appraisal organization or firm or institution of higher education in this state to provide the necessary courses of instruction or any part of any such course pursuant to Code Section 48-5-13.
  3. The commissioner shall promulgate such rules and regulations as may be necessary for the administration of this Code section.

    (Ga. L. 1913, p. 123, § 4; Code 1933, § 92-6905; Ga. L. 1972, p. 1114, § 2; Ga. L. 1976, p. 1744, § 2; Ga. L. 1977, p. 302, § 1; Ga. L. 1977, p. 666, § 1; Code 1933, § 91A-1435, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 576, § 1; Ga. L. 2006, p. 819, § 3/HB 1502; Ga. L. 2010, p. 1104, § 4-2/SB 346.)

JUDICIAL DECISIONS

Removal of board members unwarranted. - Trial court did not abuse the court's discretion in refusing to remove the only two members of the Montgomery County Board of Tax Assessors for their failure to take courses required under O.C.G.A. § 48-5-291(a)(6) as the members had become current by completing the required coursework; the trial court properly considered O.C.G.A. § 48-5-296 and found that removing the only two Board members would disrupt an essential county function, which finding was buttressed by evidence that the county had difficulty obtaining people to fill positions on the Board. Smith v. Montgomery County Bd. of Tax Assessors, 268 Ga. App. 177 , 601 S.E.2d 386 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619.

C.J.S. - 84 C.J.S., Taxation, § 497.

48-5-292. Ineligibility of county tax assessors to hold other offices; applicability in certain counties.

  1. No member of a county board of tax assessors shall be eligible to hold any state, county, or municipal office during the time he holds such office. A member of the board may be reappointed to succeed himself as a member of the board.
  2. Reserved.
  3. In any county in this state with a population of 100,000 or more according to the United States decennial census of 1990 or any future such census, no member of a county board of tax assessors shall be eligible to hold any county property appraisal staff position during the time such person holds office as a member of a county board of tax assessors, except as otherwise provided by law.
  4. In any county in this state in which a chief appraiser or a member of the county property appraisal staff is not otherwise prohibited under this Code section from serving simultaneously as a member of the county board of tax assessors and is serving simultaneously in such capacity, such chief appraiser or member of the county property appraisal staff shall upon ceasing to serve as chief appraiser or member of the county property appraisal staff automatically cease to serve as a member of the county board of tax assessors.  Any vacancy created on the county board of tax assessors under this subsection shall be filled in the manner provided under subsection (a) of Code Section 48-5-295.

    (Ga. L. 1913, p. 123, § 4; Code 1933, § 92-6907; Ga. L. 1961, p. 563, § 1; Code 1933, § 91A-1437, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 514, § 2; Ga. L. 1993, p. 603, § 1; Ga. L. 1994, p. 237, § 2; Ga. L. 1994, p. 507, § 2.)

JUDICIAL DECISIONS

The office of grand juror is not "a county office" within the meaning of this statute. Accordingly, the trial judge did not err in denying the defendant's motion to quash the indictment on the grounds that the grand jury was improperly formed in that a named member is now and was at the time such jury list was compiled a tax assessor of a county, and by virtue of holding this office was ineligible to be in the grand jury box. Butts v. State, 211 Ga. 16 , 83 S.E.2d 610 (1954).

Holding simultaneous position permitted. - Tax assessor's service on a county agricultural committee (as part of a federal agency) did not bar appointment to the tax board because federal offices were excluded, the position was temporary, and would not interfere with the tax assessor's duties on the tax board. Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478 , 568 S.E.2d 786 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Member of county board of tax assessors may not also serve as elected member of city council. 1980 Op. Att'y Gen. No. 80-166.

Prior service on board of tax assessors not a bar to holding public office. - Person who has previously served in the position of county tax assessor and is no longer a member of the board of tax assessors would not be ineligible because of the person's prior service on the board of tax assessors to serve in a "county office." 1968 Op. Att'y Gen. No. 68-262.

Eligibility to serve as member of county governing authority. - Holding of the position of tax assessor would make one ineligible to serve on the board of commissioners of roads and revenues (now county governing authority). 1968 Op. Att'y Gen. No. 68-241.

Tax assessor cannot at the same time hold office of county commissioner. 1962 Op. Att'y Gen. p. 62.

Tax assessor can be an employee of any of the branches of government. 1954-56 Op. Att'y Gen. p. 665.

Secretary of a county board of tax assessors could legally serve as a tax commissioner under former Code 1933, §§ 92-6907 and 92-6910 (see now O.C.G.A. §§ 48-5-290 , 48-5-292 , and 48-5-298 ). 1952-53 Op. Att'y Gen. p. 303.

Eligibility to serve on county board of education. - Member of the county board of tax assessors is ineligible to hold office as a member of the county board of education. 1945-47 Op. Att'y Gen. p. 142.

Deputy sheriff, not being elected official and being removable from office at will of sheriff, is not prohibited from serving on board of tax assessors. 1962 Op. Att'y Gen. p. 56.

Eligibility to hold office of justice of the peace. - Individual may not serve as a member of the board of tax assessors and at the same time hold the office of justice of the peace. 1958-59 Op. Att'y Gen. p. 34; 1967 Op. Att'y Gen. No. 67-122.

Eligibility to hold office of ex officio justice of the peace. - Member of the county board of tax assessors is not eligible to hold the office of ex officio justice of the peace. 1948-49 Op. Att'y Gen. p. 344.

Person holding a notary public, ex officio justice of the peace commission cannot, at the same time, serve as county tax assessor. 1952-53 Op. Att'y Gen. p. 297; 1958-59 Op. Att'y Gen. p. 34.

Office of registrar not a state, county, or municipal office. - Statute states that the tax assessors shall be ineligible to hold any state, county, or municipal office, but the office of registrar would not come within either one of those classifications since that office is not a state or municipal office. 1948-49 Op. Att'y Gen. p. 457.

48-5-293. Oaths of office.

Each member of the county board of tax assessors shall take an oath before the judge or the clerk of the superior court of the county to perform faithfully and impartially the duties imposed upon him by law. In addition, he shall also take the oath required of all public officers as provided in Code Section 45-3-1.

(Ga. L. 1913, p. 123, § 4; Code 1933, § 92-6906; Code 1933, § 91A-1436, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619.

48-5-294. Compensation.

Each member of the county board of tax assessors shall be paid as compensation for his services an amount to be determined from time to time by the county governing authority. The compensation to be paid to a member of the board shall not be less than $20.00 per day for the time he is actually discharging the duties required of him. Attendance at required approved appraisal courses shall be part of the official duties of a member of the board and he shall be paid for each day in attendance at such courses and shall be allowed reasonable expenses necessarily incurred in connection with the courses. The compensation of the members of the board and other expenses as may necessarily be incurred in the performance of the duties of the board shall be paid from the county treasury in the same manner as other payments by the county are made.

(Ga. L. 1913, p. 123, § 4; Code 1933, § 92-6908; Ga. L. 1972, p. 1114, § 3; Code 1933, § 91A-1438, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Payment of fees to tax assessors. - Even though this statute refers to "compensation," this does not preclude the county commissioners (now county governing authority) from paying a tax assessor on a fee basis. 1960-61 Op. Att'y Gen. p. 323.

Additional compensation for performance of extra duties. - Board of county commissioners (now county governing authority) may legally pay certain members of the board of tax assessors additional compensation for the performance of extra duties in assembling information. 1952-53 Op. Att'y Gen. p. 296.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 516, 517.

48-5-295. Terms of office; vacancies; removal by county governing authority.

  1. Each member of the county board of tax assessors appointed to such office on and after July 1, 1996, shall be appointed by the county governing authority for a term of not less than three nor more than six years. A county governing authority shall, by resolution, within the range provided by this subsection, select the length of terms of office for members of its county board of tax assessors. Following the adoption of such resolution, all new appointments and reappointments to the county board of tax assessors shall be for the term lengths specified in the resolution; however, such resolution shall not have the effect of shortening or extending the terms of office of current members of the board of assessors whose terms have not yet expired. The county governing authority shall not be authorized to again change the term length until the expiration of the term of office of the first appointment or reappointment following the resolution that last changed such terms of office. If the resolution changing the terms of office of members of the board of tax assessors would result in a voting majority of the board of tax assessors having their terms expire in the same calendar year, the county governing authority shall provide in the resolution for staggered initial appointments or reappointments of a duration of not less than three nor more than six years that will prevent such an occurrence. The county governing authority shall transmit to the board of assessors a copy of the resolution setting the length of terms of members of the county board of tax assessors within ten days of the date the resolution is adopted. Any member of the county board of tax assessors shall be eligible for reappointment after review of his or her service on the board by the appointing authority. Such review shall include education and certification information furnished by the commissioner. Any member of the county board of tax assessors who fails to maintain the certification and qualifications specified pursuant to Code Section 48-5-291 shall not be eligible for reappointment until all requirements have been met. In case of a vacancy on the board at any time, whether caused by death, resignation, removal, or otherwise, the vacancy shall be immediately filled by appointment of the county governing authority. Any person appointed to fill a vacancy shall be appointed only to serve for the remainder of the unexpired term of office and shall possess the same qualifications required under this part for regular appointment to a full term of office.
  2. A member of the county board of tax assessors may be removed by the county governing authority only for cause shown for the failure to perform the duties or requirements or meet the qualifications imposed upon such member by law including, but not limited to, the duties, requirements, and qualifications specified pursuant to Code Section 48-5-295.1 and subsection (e) of Code Section 48-5-262. No member of the board who is also employed by the county as a staff appraiser under Code Section 48-5-262 and no member whose removal is attempted based on this subsection may be removed by the county governing authority during such member's term of appointment until the member has been afforded an opportunity for a hearing before the judge of the superior court of the county for recommendations by the judge of the superior court to the county governing authority regarding such removal.
  3. As used in subsection (b) of this Code section, the term "failure to perform the duties" shall include a finding by the county governing authority that the member of the county board of tax assessors has shown a pattern of decisions in his or her capacity as such member that has provided substantially incorrect assessments or substantially inconsistent tax assessments between similar properties.
  4. The provisions of subsection (b) of this Code section shall be a supplemental alternative to proceedings for removal under Code Section 48-5-296; and the existence of one remedy shall not bar the other.

    (Ga. L. 1913, p. 123, § 3; Code 1933, § 92-6904; Ga. L. 1972, p. 1114, § 1; Code 1933, § 91A-1433, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1554, § 4; Ga. L. 1996, p. 190, § 2; Ga. L. 2000, p. 416, § 1; Ga. L. 2000, p. 1370, § 2; Ga. L. 2002, p. 1009, § 1; Ga. L. 2006, p. 819, § 4/HB 1502.)

Code Commission notes. - The amendment of this Code section by Ga. L. 2000, p. 416, § 1, irreconcilably conflicted with and was treated as superseded by Ga. L. 2000, p. 1370, § 2. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Pursuant to Code Section 28-9-5, in 2000, the reference to "subsection (d) of Code Section 48-5-298" was changed to "subsection (e) of Code Section 48-5-262" in the first sentence of subsection (b) and the reference to "member that have provided" was changed to "member that has provided" in subsection (c).

Pursuant to Code Section 28-9-5, in 2002, "has provided" was substituted for "have provided" near the end of subsection (c).

Law reviews. - For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979).

JUDICIAL DECISIONS

Constitutionality. - Statute is constitutional and not in violation of Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Kirton v. Biggers, 232 Ga. 223 , 206 S.E.2d 33 (1974).

Constitutional notice and hearing requirements. - Statute, providing for dismissal of tax assessors for cause shown, implies the necessity of notice and hearing so as to satisfy the constitutional requirements of due process of law. Hughes v. Russell, 148 Ga. App. 143 , 251 S.E.2d 70 (1978).

After the members of a board of tax assessors were removed from office for, inter alia, failing to file tax digests by the deadline provided in O.C.G.A. § 48-5-302 , the abbreviated procedure provided for the members to challenge their removal did not violate their due process rights since their defense was considered and rejected, and the members did not indicate what additional evidence, if any, the members would have presented had the members had more time to prepare. Pope v. Bd. of Comm'rs, 276 Ga. App. 121 , 622 S.E.2d 471 (2005).

Phrase "for cause shown" necessarily implies that notice and hearing are required. Kirton v. Biggers, 232 Ga. 223 , 206 S.E.2d 33 (1974).

Review by superior court. - Chief tax assessor against whom discharge was sought was not entitled to a hearing before the superior court since the assessor did not request a formal hearing within the time limit set forth in the superior court's order. The court had acted in substantial compliance with the provisions of subsection (b) of O.C.G.A. § 48-5-295 since the court ordered the parties to conduct the hearing before a tribunal of commissioners who had previously voted to discharge the chief tax assessor without a hearing and provided in the court's order that the board shall state the grounds for removal, but shall not act until the appellant had an opportunity to have a hearing before this court should the appellant request one. Parsons v. Chatham County Bd. of Comm'rs, 204 Ga. App. 130 , 418 S.E.2d 459 (1992), overruled in part on other grounds, Swafford v. Dade County Bd. of Comm'rs, 266 Ga. 646 , 469 S.E.2d 666 (1996).

Requirements as to notice of discharge. - When a statute provides that a public employee may not be discharged except after notice, the charges must be in terms sufficiently explicit to enable the employee to make an explanation. Mere vagaries or generalities are insufficient, and the notice must be sufficiently specific and detailed to convey to the employee the substantial nature of the charge without requiring speculation on the employee's part as to the precise complaint the employee must answer. Hughes v. Russell, 148 Ga. App. 143 , 251 S.E.2d 70 (1978).

Requirement as to form of charges. - The statement or charges must be such that the employee would have sufficient knowledge or reason to know the basis on which the employee's removal is sought. Kirton v. Biggers, 135 Ga. App. 416 , 218 S.E.2d 113 (1975).

Sufficiency of charges or reasons. - Charges or reasons given in an action to remove the county tax assessors from office must be sufficient in their nature to warrant removal. Allen v. Norris, 148 Ga. App. 261 , 251 S.E.2d 145 (1978).

Service on county not required. - When the superior court was petitioned to review a quasi-judicial decision of the county board of commissioners under O.C.G.A. § 48-5-295(b) , because the plaintiff's petition for certiorari was procedurally sound, the superior court erred in dismissing the petition for lack of service on the county. Pope v. Board of Comm'rs, 248 Ga. App. 201 , 546 S.E.2d 333 (2001).

Allegations of a wholly political conspiracy to remove the plaintiff as chair of a county board of tax assessors failed to state a cause of action under the federal civil rights act after the plaintiff failed to allege the deprivation of a protected property interest and showed no equal protection violation vis-a-vis anyone else similarly situated. Smith v. Turner, 764 F. Supp. 632 (N.D. Ga. 1991).

Preferential treatment resulted in discharge of assessor. - Chief tax assessor's granting of preferential treatment to one taxpayer's property violated the long-established laws requiring tax assessors to perform the assessors' duties in good faith and to ensure that the fair market value between individual taxpayers is fairly and justly equalized and therefore justified the chief tax assessor's discharge. Parsons v. Chatham County Bd. of Comm'rs, 204 Ga. App. 130 , 418 S.E.2d 459 (1992), overruled in part on other grounds, Swafford v. Dade County Bd. of Comm'rs, 266 Ga. 646 , 469 S.E.2d 666 (1996).

No differentiation among duties for purposes of removal from office. - Statute does not differentiate either between duties which are mandatory or directory, joint or several, or between failures of performance of duties which are intentional or negligent. Kirton v. Biggers, 135 Ga. App. 416 , 218 S.E.2d 113 (1975).

Liability of chair of board of tax assessors. - Board of commissioners (now county governing authority) is within the board's rights in holding the chair of the board of tax assessors accountable for the failure of statutory compliance of the whole board. Kirton v. Biggers, 135 Ga. App. 416 , 218 S.E.2d 113 (1975).

Judicial review of appointing body's decisions. - Scope and criteria of judicial review of the appointing body's decisions is closely analogous to standards for judicial review of an agency as set out in Ga. L. 1964, p. 338, § 20 (see now O.C.G.A. § 50-13-19(h) ). Kirton v. Biggers, 135 Ga. App. 416 , 218 S.E.2d 113 (1975).

At a hearing conducted for the discharge of the chief tax assessor, testimony regarding the assessor's intoxication and conduct while attending certain county-financed activities, the assessor's conduct regarding certain female personnel who were employed in the assessor's office, and the assessor's attempted display of a jar of dog testicles to a female employee, was relevant to establish whether the assessor had violated a duty imposed on the assessor by law, and accordingly was admissible. Parsons v. Chatham County Bd. of Comm'rs, 204 Ga. App. 130 , 418 S.E.2d 459 (1992), overruled in part on other grounds, Swafford v. Dade County Bd. of Comm'rs, 266 Ga. 646 , 469 S.E.2d 666 (1996).

Assessors' failure to complete the digest required by O.C.G.A. § 48-5-302 did not mandate the assessors' removal, but this breach of duty gave the commission discretion to remove the assessors. Cashin v. Hardman, 223 Ga. App. 301 , 477 S.E.2d 433 (1996).

Evidence sufficient that assessors failed to complete digest. - After the members of board of tax assessors were removed from office for, inter alia, failing to file tax digests by the deadline provided in O.C.G.A. § 48-5-302 , the members' statement that it was impossible to comply with the statute and that no board of tax assessors had complied with the statute since 1988 tacitly admitted the allegation against the assessors and was sufficient evidence supporting the assessors' removal. Pope v. Bd. of Comm'rs, 276 Ga. App. 121 , 622 S.E.2d 471 (2005).

Claims under 42 U.S.C. § 1983. - Eleventh Amendment barred the employees' 42 U.S.C. § 1983 claims against a county board of tax assessors (Board) because: (1) the Board was independent of county government, under O.C.G.A. §§ 48-5-290 and 48-5-295 ; (2) the state controlled the Board and mandated county funding as well as employee qualifications and duties; and (3) the Board was liable for any judgment. Ballard v. Chattooga County Bd. of Tax Assessors, F.3d (11th Cir. July 7, 2015)(Unpublished).

Cited in Swafford v. Dade County Bd. of Comm'rs, 266 Ga. 646 , 469 S.E.2d 666 (1996); Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478 , 568 S.E.2d 786 (2002).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 497 et seq., 504 et seq.

48-5-295.1. Performance review board.

  1. The county governing authority may, upon adoption of a resolution, request that a performance review of the county board of tax assessors be conducted. Such resolution shall be transmitted to the commissioner who shall appoint an independent performance review board within 30 days after receiving such resolution. The commissioner shall appoint three competent persons to serve as members of the performance review board, one of whom shall be an employee of the department and two of whom shall be chief appraisers, provided that neither chief appraiser shall be a chief appraiser for the county under review.
  2. It shall be the duty of a performance review board to make a thorough and complete investigation of the county board of tax assessors with respect to all actions of the county board of tax assessors and appraisal staff regarding the technical competency of appraisal techniques and compliance with state law and regulations, including the Property Tax Appraisal Manual. The performance review board shall issue a written report of its findings to the commissioner and the county governing authority which shall include such evaluations, judgments, and recommendations as it deems appropriate. The county governing authority shall reimburse the members of the performance review board for reasonable expenses incurred in the performance of their duties, including mileage, meals, lodging, and costs of materials.
  3. The findings of the report of the review board under subsection (b) of this Code section or of any audit performed by the Department of Revenue at the request of the Governor may be grounds for removal of one or more members of the county board of tax assessors pursuant to subsection (b) of Code Section 48-5-295.
  4. The commissioner shall promulgate such rules and regulations as may be necessary for the administration of this Code section. (Code 1981, § 48-5-295.1 , enacted by Ga. L. 2000, p. 1370, § 3; Ga. L. 2002, p. 1009, § 1; Ga. L. 2005, p. 159, § 6/HB 488; Ga. L. 2013, p. 655, § 3/HB 197.)

Editor's notes. - Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

48-5-295.2. Independent performance review board; written report; withholding of funds.

  1. The commissioner shall appoint an independent performance review board if he or she determines, through the examination of the digest for any county in a digest review year pursuant to Code Section 48-5-342, that there is evidence which calls into question the technical competence of appraisal techniques and compliance with state law and regulations, including the Property Tax Appraisal Manual, with respect to the conservation use value of forest land.
  2. The commissioner shall appoint three competent persons to serve as members of the performance review board, one of whom shall be an employee of the department and two of whom shall be chief appraisers, provided that neither chief appraiser shall be a chief appraiser for the county under review.
  3. The performance review board shall issue a written report of its findings to the commissioner and the county governing authority which shall include such evaluations, judgments, and recommendations as it deems appropriate. The county governing authority shall reimburse the members of the performance review board for reasonable expenses incurred in the performance of their duties, including mileage, meals, lodging, and costs of materials.
  4. The findings of the report of the review board under subsection (c) of this Code section or of any audit performed by the Department of Revenue or the Department of Audits shall be grounds for the state to withhold local assistance grants pursuant to Code Section 48-5A-3; provided, however, that any portion of a local assistance grant designated for use by a board of education of any political subdivision shall not be withheld pursuant to this subsection. If the findings in the report of the performance review board indicate that the provisions of paragraph (6) of Code Section 48-5-2 have been knowingly violated by a local government in order to receive a larger local assistance grant than allowed by law, then the most recent local assistance grant requested by the local government shall be withheld by the Department of Revenue. For a second or subsequent offense, the next two requests for local assistance grants shall be withheld by the Department of Revenue.
  5. The commissioner shall promulgate such rules and regulations as may be necessary for the administration of this Code section. (Code 1981, § 48-5-295.2 , enacted by Ga. L. 2013, p. 655, § 4/HB 197.)

48-5-296. Removal from office on petition of freeholders; appeals.

Whenever by petition to the judge of the superior court any 100 or more freeholders of the county allege that any member of the county board of tax assessors is disqualified or is not properly and impartially discharging his duties or is discriminating in favor of certain citizens or classes of citizens and against others, the judge shall cite the member to appear before him at a time and place to be fixed in the citation, such time to be not less than 20 nor more than 40 days from the date of the presentation of the petition, and to answer to the petition. A copy of the petition shall be attached to the citation and service of the citation may be made by any sheriff, deputy sheriff, or constable of this state. The officer making the service shall serve copies and return the original petition and citation to the clerk of the court as other process is returned. At the time and place fixed in the citation, unless postponed for reasonable cause, the judge shall hear and determine the matter without a jury and shall render such judgment and order as may be right and proper, either dismissing the petition or removing the offending member of the county board of tax assessors from office and declaring a vacancy in the office. If either party to the controversy is dissatisfied with the judgment and order of the court, the party may appeal the issue as in other cases.

(Ga. L. 1913, p. 123, § 4; Code 1933, § 92-6909; Ga. L. 1946, p. 726, § 29; Code 1933, § 91A-1439, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 771, § 1.)

Law reviews. - For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979).

JUDICIAL DECISIONS

Notice provisions constitutional. - O.C.G.A. § 48-5-296 expressly provides for both notice and hearing as a matter of right, and clearly meets the Constitution's requirements of due process. Brown v. Wetherington, 250 Ga. 682 , 300 S.E.2d 680 (1983).

Style of proceeding. - Proceeding for the removal of members of a county board of tax assessors brought in the name of a committee consisting of over 100 freeholders met the requirements of O.C.G.A. § 48-5-296 , even though the proper style of the case would be the names of the petitioner freeholders. Committee for Better Gov't v. Black, 216 Ga. App. 173 , 453 S.E.2d 772 (1995).

Discretion of court. - It is within the court's discretion to remove members from office upon showing cause. Allen v. Norris, 151 Ga. App. 305 , 259 S.E.2d 701 (1979).

Removal of board members held unwarranted. - Superior court did not abuse the court's discretion in determining that removal of board members was not warranted since the court concluded that the board members were qualified, that the members had acted in a proper, reasonable, and impartial fashion in preparing a tax digest, and that the members did not discriminate in favor of certain citizens or classes of citizens and against others. Thompson v. Queen, 198 Ga. App. 627 , 402 S.E.2d 361 (1991).

Removal of board members held unwarranted. - Trial court did not abuse the court's discretion in determining that the removal of board members was not warranted under the evidence presented. Swafford v. Bradford, 225 Ga. App. 486 , 484 S.E.2d 300 (1997).

Trial court did not abuse the court's discretion in refusing to remove the only two members of the Montgomery County Board of Tax Assessors for their failure to take courses required under O.C.G.A. § 48-5-291(a)(6) as the members had become current by completing the required coursework; the trial court properly considered O.C.G.A. § 48-5-296 and found that removing the only two Board members would disrupt an essential county function, which finding was buttressed by evidence that the county had difficulty obtaining people to fill positions on the Board. Smith v. Montgomery County Bd. of Tax Assessors, 268 Ga. App. 177 , 601 S.E.2d 386 (2004).

Trial court did not abuse the court's discretion in refusing to remove the only two members of the Montgomery County Board of Tax Appeals for the members' failure to hire a level III appraiser as the chief county appraiser, as required by O.C.G.A. § 48-5-264(a) , for the inadequacy of the notice sent to taxpayers to explain the increased assessments of property, and for the failure to supervise a county-wide mass appraisal; while the trial court was troubled by the members' actions, budget restraints were, in part, to blame for the failure to hire a level III appraiser, and the court did not abuse the court's discretion in concluding that removing the only two members from the Board was too drastic a remedy and would disrupt the running of an essential office. Smith v. Montgomery County Bd. of Tax Assessors, 268 Ga. App. 177 , 601 S.E.2d 386 (2004).

Cited in We, the Taxpayers v. Bd. of Tax Assessors, 292 Ga. 31 , 734 S.E.2d 373 (2012).

RESEARCH REFERENCES

C.J.S. - 67 C.J.S., Officers and Public Employees, § 120 et seq. 84 C.J.S., Taxation, § 504 et seq.

48-5-297. Meetings.

The first meeting of the county board of tax assessors shall be held no later than ten days after the date the tax receiver or tax commissioner is required by law to submit the tax digest for the year to the county board of tax assessors. The secretary of the board shall at that time and at every meeting of the board present to the board all of the appraisal staff information relating to the digest. The county board of tax assessors must consider the staff information in the performance of their duties. The county board of tax assessors shall adhere to the assessment standards and techniques as required by law, by the commissioner, and by the State Board of Equalization. In each instance, however, the assessment placed on each parcel of property shall be the assessment established by the county board of tax assessors as provided in Code Section 48-5-306.

(Ga. L. 1913, p. 123, § 6; Code 1933, § 92-6911; Ga. L. 1937, p. 517, § 2; Ga. L. 1970, p. 580, § 1; Ga. L. 1971, p. 33, § 1; Ga. L. 1972, p. 1114, § 5; Ga. L. 1974, p. 609, § 1; Ga. L. 1975, p. 1083, § 2; Ga. L. 1976, p. 518, § 2; Code 1933, § 91A-1448, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-298. Selection of chairman and secretary; employment contracts with persons to assist board; payment of expenses.

  1. Each county board of tax assessors shall elect one of its members to serve as chairman for each tax year. The election of a chairman shall be the first order of business at the first meeting of the board for each tax year. At the same time, the board shall select from the county appraisal staff one appraiser to act as secretary to the board for that tax year. Each county board of tax assessors, subject to the approval of the county governing authority, may enter into employment contracts with persons to:
    1. Assist the board in the mapping, platting, cataloging, indexing, and appraising of taxable properties in the county;
    2. Make, subject to the approval of the board, reevaluations of taxable property in the county; and
    3. Search out and appraise unreturned properties in the county.
  2. Each county board of tax assessors may enter into a contract with any municipality or political subdivision of the state to provide any information for which the board could contract pursuant to subsection (a) of this Code section.
  3. The expenses of employees engaged and work performed pursuant to this Code section shall be paid, subject to the contracts and after approval by the county governing authority, out of county funds as a part of the expenses of the board.  A county board of education or independent board of education may expend funds to assist in paying the expenses incurred in discovering unreturned properties pursuant to this Code Section for the purpose of collecting unpaid school taxes. The method of such expenditure as provided in this subsection and the amount thereof shall be within the discretion of the county board of education or independent board of education.

    (Ga. L. 1913, p. 123, § 5; Code 1933, § 92-6910; Ga. L. 1937, p. 517, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 189, § 1; Ga. L. 1972, p. 1114, § 4; Code 1933, § 91A-1447, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1830, § 1.)

JUDICIAL DECISIONS

Claims for compensation to be made to county governing authority. - Board of commissioners of roads and revenues (now county governing authority) has not only the right, but the duty to examine, audit, and approve claims of agents of the board of tax assessors for compensation and expenses; hence, the petition seeking by way of mandamus to require the county treasurer to pay a certain amount for services rendered, failed to state a cause of action. Armistead v. MacNeill, 203 Ga. 204 , 45 S.E.2d 652 (1947).

Limits on power to delegate duties and to contract for services. - County board of tax assessors cannot delegate the board's duties pertaining to the equalization of property valuations for ad valorem taxation, nor can a board contract for a private company to seek out unreturned, taxable property and to reevaluate all property in the county. Bagwell v. Cash, 207 Ga. 222 , 60 S.E.2d 628 (1950).

Contingent fee contract void as against public policy. - Contingency contract between a county board of tax assessors and a private auditing corporation by which the corporation contingently shared in a percentage of the tax collected was void as against public policy. Sears, Roebuck & Co. v. Parsons, 260 Ga. 824 , 401 S.E.2d 4 (1991).

Contract with private firm for audit services proper. - County board of tax assessors was authorized to contract with a private firm for audit services to aid the board in discovering unreturned and untaxed property. Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454 , 469 S.E.2d 285 (1996); Wal-Mart Stores v. Board of Tax Assessors, 246 Ga. App. 161 , 539 S.E.2d 869 (2000).

Authority to hire and fire a tax appraiser rested with the board of tax appraisers, not with the board of commissioners which previously approved the employment contract. Chambers v. Fulford, 268 Ga. 892 , 495 S.E.2d 6 (1998).

Payment of contract for employment not considered ratification of contract as a whole. - In a breach of contract action centering around a contract of employment with a county employer and the county's board of tax assessors, because the employment contract was never approved by the county commission, and the county's payment of a salary to the employee was not considered a ratification of the contract in the contract's entirety, the employee possessed only an at-will employment. Thus, summary judgment was properly entered against the employee. Powell v. Wheeler County, 290 Ga. App. 508 , 659 S.E.2d 893 (2008).

Cited in City of Atlanta v. North By Northwest Civic Ass'n, 262 Ga. 531 , 422 S.E.2d 651 (1992).

OPINIONS OF THE ATTORNEY GENERAL

Employees beyond minimum staff requirements. - Individuals employed in the Ben Hill County Tax Assessor's office above and beyond the minimum staff requirements are employees of the Ben Hill County Board of Tax Assessors, not the board of county commissioners, and the Ben Hill County Board of Tax Assessors need not obtain the approval of the Ben Hill County Board of Commissioners before terminating the employment of those individuals. 1985 Op. Att'y Gen. No. U85-25.

Secretary of a county board of tax assessors can legally serve as a tax commissioner under former Code 1933, §§ 92-6903, 92-6907, and 92-6910 (see now O.C.G.A. §§ 48-5-290 , 48-5-292 , and 48-5-298 ). 1952-53 Op. Att'y Gen. p. 303.

Contracts with nonresident corporations for services. - Nonresident corporations may enter into contracts with county boards of tax assessors to assist such boards in mapping, platting, cataloging, indexing, and appraising of taxable property, and to make reevaluations of taxable property, and to search out and appraise unreturned properties in such counties. 1957 Op. Att'y Gen. p. 27.

Payment for survey and appraisal from taxes levied for school purposes. - County which contracts for the surveying and appraisal of taxable property may not pay any part of the cost of such services from the taxes levied for school purposes. 1952-53 Op. Att'y Gen. p. 341.

48-5-299. Ascertainment of taxable property; assessments against unreturned personal property; penalty for unreturned property; changing real property values established by appeal in prior year or stipulated by agreement.

  1. It shall be the duty of the county board of tax assessors to investigate diligently and to inquire into the property owned in the county for the purpose of ascertaining what real and personal property is subject to taxation in the county and to require the proper return of the property for taxation. The board shall make such investigation as may be necessary to determine the value of any property upon which for any reason all taxes due the state or the county have not been paid in full as required by law. In all cases where the full amount of taxes due the state or county has not been paid, the board shall assess against the owner, if known, and against the property, if the owner is not known, the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations. In all cases where taxes are assessed against the owner of property, the board may proceed to assess the taxes against the owner of the property according to the best information obtainable; and such assessment, if otherwise lawful, shall constitute a valid lien against the property so assessed.
  2. In all cases in which unreturned personal property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the assessment of the property a penalty of 10 percent, which shall be included as a part of the taxable value for the year.
  3. When the value of real property is reduced or is unchanged from the value on the initial annual notice of assessment or a corrected annual notice of assessment issued by the board of tax assessors and such valuation has been established as the result of an appeal decision rendered by the board of equalization, hearing officer, arbitrator, or superior court pursuant to Code Section 48-5-311 or stipulated by written agreement signed by the board of tax assessors and taxpayer or taxpayer's authorized representative, the new valuation so established by appeal decision or agreement may not be increased by the board of tax assessors during the next two successive years, unless otherwise agreed in writing by both parties, subject to the following exceptions:
    1. This subsection shall not apply to a valuation established by an appeal decision if the taxpayer or his or her authorized representative failed to attend the appeal hearing or provide the board of equalization, hearing officer, or arbitrator with some written evidence supporting the taxpayer's opinion of value;
    2. This subsection shall not apply to a valuation established by an appeal decision or agreement if the taxpayer files a return at a different valuation during the next two successive years;
    3. Unless otherwise agreed in writing by both parties, if the taxpayer files an appeal pursuant to Code Section 48-5-311 during the next two successive years, the board of tax assessors, the board of equalization, hearing officer, or arbitrator may increase or decrease the value of the real property based on the evidence presented by the taxpayer during the appeal process; and
    4. The board of tax assessors may increase or decrease the value of the real property if, after a visual on-site inspection of the property, it is found that there have been substantial additions, deletions, or improvements to such property or that there are errors in the board of tax assessors' records as to the description or characterization of the property, or the board of tax assessors finds an occurrence of other material factors that substantially affect the current fair market value of such property.
  4. When real or personal property is located within a municipality whose boundaries extend into more than one county, it shall be the duty of each board of tax assessors of a county, wherein a portion of the municipality lies, to cooperatively investigate diligently into whether the valuation of such property is uniformly assessed with other properties located within the municipality but outside the county where such property is located. Such investigation shall include, but is not limited to, an analysis of the assessment to sales ratio of properties that have recently sold within the municipality and a comparison of the average assessment level of such properties by the various counties wherein a portion of the municipality lies. The respective boards shall exchange such information as will facilitate this investigation and make any necessary adjustments to the assessment of the real and personal property that is located in their respective counties within the municipality to achieve a uniform assessment of such property throughout the municipality. Any uniformity adjustments pursuant to this subsection shall only apply to the assessment used for municipal ad valorem tax purposes within the applicable county.

    (Ga. L. 1913, p. 123, § 7; Code 1933, § 92-6913; Ga. L. 1937, p. 517, § 3; Ga. L. 1976, p. 1042, § 1; Ga. L. 1976, p. 1071, § 1; Code 1933, § 91A-1440, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1994, p. 786, § 1; Ga. L. 2000, p. 873, § 1; Ga. L. 2006, p. 431, § 1/HB 560; Ga. L. 2015, p. 1219, § 12/HB 202; Ga. L. 2016, p. 166, § 4/SB 258; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of subsections (b) and (c) for the former provisions, which read: "(b)(1) In all cases where unreturned property is assessed by the county board of tax assessors after the time provided by law for making tax returns has expired, the board shall add to the amount of state and county taxes due a penalty of 10 percent of the amount of the tax due or, if the principal sum of the tax so assessed is less than $10.00 in amount, a penalty of $1.00. The penalty provided in this subsection shall be collected by the tax collector or the tax commissioner and in all cases shall be paid into the county treasury and shall remain the property of the county.

"(2)(A) The provisions of paragraph (1) of this subsection to the contrary notwithstanding, this paragraph shall apply with respect to counties having a population of 600,000 or more according to the United States decennial census of 1970 or any future such census.

"(2)(B) In all cases in which unreturned property is assessed by the board after the time provided by law for making tax returns has expired, the board shall add to the assessment of the property a penalty of 10 percent, which shall be included as a part of the taxable value for the year.

"(c) Real property, the value of which was established by an appeal in any year, that has not been returned by the taxpayer at a different value during the next two successive years, may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court. In such cases, before changing such value or decision, the board of assessors shall first conduct an investigation into factors currently affecting the fair market value. The investigation necessary shall include, but not be limited to, a visual on-site inspection of the property to ascertain if there have been any additions, deletions, or improvements to such property or the occurrence of other factors that might affect the current fair market value. If a review to determine if there are any errors in the description and characterization of such property in the files and records of the board of tax assessors discloses any errors, such errors shall not be the sole sufficient basis for increasing the valuation during the two-year period." See Editor's notes for applicability.

The 2016 amendment, effective April 26, 2016, substituted the present provisions of the introductory paragraph of subsection (c) for the former provisions, which read: "When the value of real property is reduced or is unchanged from the value on the initial annual notice of assessment and such valuation is established as the result of either an appeal decision rendered pursuant to Code Section 48-5-311 or stipulated by agreement of the parties to such an appeal that this subsection shall apply in any year, the valuation so established by appeal decision or agreement may not be increased by the board of tax assessors during the next two successive years, subject to the following exceptions:"; and, in paragraph (c)(3), substituted "Unless otherwise agree in writing by the parties, if" for "If" at the beginning, inserted "the board of tax assessors," in the middle, and substituted "taxpayer" for "parties" near the end.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "writing by both parties" for "writing by the parties" near the beginning of paragraph (c)(3).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, "agreed" was substituted for "agree" near the beginning of paragraph (c)(3).

Editor's notes. - Ga. L. 2015, p. 1219, § 27(c)/HB 202, not codified by the General Assembly, provides, in part, that Sections 9, 12, and 15 of this Act shall be applicable to all appeals filed on or after January 1, 2016.

Law reviews. - For survey article on real property law, see 59 Mercer L. Rev. 371 (2007).

JUDICIAL DECISIONS

Effective date for application of subsection (c). - Taxpayer was not entitled to the protection of subsection (c) of O.C.G.A. § 48-5-299 for a judicial determination setting valuations for years prior to 1995 and its effective date; however, the taxpayer would be entitled to such protection as to an appeal establishing the valuation for the tax year 1995, which then would affect 1996 and 1997 as coming under subsection (c). Moreton Rolleston, Jr., Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405 , 523 S.E.2d 600 (1999), cert. denied, 2000 Ga. LEXIS 97 (2000).

Pursuant to subsection (c) of O.C.G.A. § 48-5-299 , only those appeals which result in a valuation established by the board of equalization or superior court will prohibit the tax assessor from changing the value within the next two successive years. Cullum v. Chatham County Bd. of Tax Assessors, 243 Ga. App. 865 , 534 S.E.2d 535 (2000).

Because a taxpayer paid taxes based on a lower valuation from the county board of equalization and not based on the value assigned on appeal, the case did not involve a reassessment or a change in valuation of the taxpayer's real property, but rather, the tax assessors merely sought to apply the fair market land value, as determined through the appeals process and automatically returned by the taxpayer, in the two succeeding tax years, a request that fell squarely within O.C.G.A. § 48-5-299(c) ; thus, the tax assessors did not violate O.C.G.A. § 48-5-299(c) because the assessors did not improperly reassess the value of the taxpayer's property within two years after the appeal established the property's value. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855 , 605 S.E.2d 443 (2004).

Subsection (a) of O.C.G.A. § 48-5-299 empowers the board to audit, at any time within the statute of limitations, prior personalty tax returns and collect taxes over and above those that may have been assessed and paid because the valuation of the personalty by the taxpayer was incorrect, and thus was not "paid in full." Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94 , 491 S.E.2d 173 (1997).

O.C.G.A. § 48-5-306(a) does not require tax assessors to use any definite system or method but demands only that valuations be just and that the valuations be fairly and justly equalized among the individual taxpayers according to the best information obtainable. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726 , 279 S.E.2d 223 (1981).

Improper purpose. - Summary judgment for a county board of tax assessors (BTA) in a taxpayer's suit seeking injunctive relief and a writ of mandamus compelling a board of equalization (BOE) to adjudicate its appeal of a reassessment for one tax year was reversed as: (1) there were no objective criteria in place for choosing businesses for audits when the taxpayer was chosen for a four-year audit; (2) there was evidence that the BTA attempted to thwart the taxpayer's statutory right to prompt adjudication of its appeal before the BOE under O.C.G.A. § 48-5-311 ; and (3) there was a jury question as to whether the audit was begun by an accounting firm or the BTA for an improper purpose in violation of O.C.G.A. § 48-5-299(a) . Parisian, Inc. v. Cobb County Bd. of Tax Assessors, 263 Ga. App. 332 , 587 S.E.2d 771 (2003).

When board may issue new assessment notice. - Board is empowered by subsection (a) of O.C.G.A. § 48-5-299 to issue a new assessment notice to correct an obvious and undisputed clerical error which occurs when the original valuation figure is entered into the computer, even though the taxpayer has already paid the taxes in full based on the erroneous notice. Barland Co. v. Bartow County Bd. of Tax Assessors, 176 Ga. App. 798 , 338 S.E.2d 16 (1985).

Amended notices unauthorized. - Trial court did not err in ruling that a county board of tax assessors (BOA) lacked authority under O.C.G.A. § 48-5-299(a) to issue two corrected property tax assessment notices that increased the fair market value of the taxpayers' property because the BOA's second and third corrected notices were not authorized since the notices were not sent merely to remedy a clerical error but to revise the BOA's view of the proper value of the property during a pending appeal of the prior year valuation; retroactive amendments to assessments are prohibited absent a clerical error or some other lawful basis. Douglas County Bd. of Assessors v. Denyse, 314 Ga. App. 266 , 723 S.E.2d 705 (2012).

Property can't be reassessed to avoid disparate treatment of other valuations. - Pursuant to subsection (c) of O.C.G.A. § 48-5-299 , the fair market value of property which has been subject to reassessment by the board of equalization or the superior court on appeal cannot be reassessed to avoid disparate treatment of other property valuations because the earlier reassessment appealed from has already determined the property's fair market value in the county. Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 228 Ga. App. 371 , 491 S.E.2d 812 (1997), aff'd in part and vacated in part, 230 Ga. 539 , 497 S.E.2d 274 (1998).

Reassessments based on new appraisals not authorized. - For years prior to the enactment of present O.C.G.A. § 48-2-49 , a county board of tax assessors was seeking to collect additional taxes on the basis of a totally new appraisal of the value of realty as improved property. O.C.G.A. § 48-5-299 was not authority for the board's reassessments. Fayette County Bd. of Tax Assessors v. Georgia Utils. Co., 186 Ga. App. 723 , 368 S.E.2d 326 , cert. denied, 186 Ga. App. 917 , 368 S.E.2d 326 (1988).

Proper assessment required as part of tax enforcement proceedings. - An assessment made in the manner prescribed by law is indispensable in proceedings to enforce the collection of taxes. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Duty to ensure just and fair valuation of property and proportionate distribution of taxes. - It is the duty of the board of tax assessors to see that all taxable property within the county is returned and assessed for taxes at the property's just and fair value, and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only the taxpayer's proportionate share of taxes. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Property in same class to be valued by same standard or system. - Tax assessors must use the same standard or system in determining and fixing taxable value of all property of the same class. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

What valuation methods authorized. - Tax assessors may use any system, method, cadastral survey, books, available lists of valuations of types of property, city valuations or other instruments or other information obtainable, provided such information is the best information available in their fixing of just and fair valuation of the property assessed, and provided that the taxation as between individual taxpayers is justly and fairly equalized. Kight v. Gilliard, 214 Ga. 445 , 105 S.E.2d 333 (1958); Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Tax assessors are authorized to fix fair market value from the best information obtainable. - This statute does not require the tax assessors to use any definite system or method, but demands only that the valuations be just and that the valuation be fairly and justly equalized among the individual taxpayers, according to the best information obtainable. Kight v. Gilliard, 214 Ga. 445 , 105 S.E.2d 333 (1958); Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Use of appraisals by the board of tax assessors. - Employment of professional tax appraisers and the use of the appraisals by the board of tax assessors does not constitute an unauthorized delegation of authority by the board. Register v. Langdale, 226 Ga. 82 , 172 S.E.2d 620 (1970).

Subpoena of personal property tax returns by the county board of tax assessors was a proper means of determining unreturned property tax liability. Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454 , 469 S.E.2d 285 (1996).

Use of cadastral surveys in equalizing values for taxation. - Authority granted by Ga. L. 1941, p. 382 and Ga. L. 1951, p. 85 to tax assessors to use information based upon a cadastral survey in equalizing values for taxation is not a substitution of the survey for the discretion of the assessors. Hutchins v. Candler, 209 Ga. 415 , 73 S.E.2d 191 (1952).

Valuations not voided by failure to use past methods. - Duties placed on the board of tax assessors do not require the use of any definite system or method, but demand only that the valuations be just and fair and that the valuations be justly and fairly equalized among taxpayers. The failure to use any particular system, method, cadastral survey, book, or other instruments used in the past to derive values would not in any way render void the valuations placed on such property by the assessors. Hutchins v. Williams, 212 Ga. 754 , 95 S.E.2d 674 (1956).

When in rem execution prohibited. - When the owner of land is known, and the ownership is not doubtful, officers in charge of levying and collecting taxes may not issue an execution in rem against the land. Suttles v. B-X Corp., 212 Ga. 221 , 91 S.E.2d 334 (1956).

Tax officials must use reasonable diligence to ascertain property owners. - When land is in possession of known persons, tax officials are without authority to issue an execution in rem against the property since the officials must at all times use reasonable diligence to ascertain the owner thereof. Suttles v. B-X Corp., 212 Ga. 221 , 91 S.E.2d 334 (1956).

Duties as to property when owner or possessor unknown. - When the tax officials do not know the owner or possessor, it is the officials' duty to assess the property and describe the property particularly in a default book kept for that purpose. Suttles v. B-X Corp., 212 Ga. 221 , 91 S.E.2d 334 (1956).

Motor vehicles used in interstate commerce. - Only duty a county board of tax assessors has under O.C.G.A. § 48-5-299 is to investigate and determine if motor vehicles are returned, returned in the correct county, returned in the correct state, or to apportion the ad valorem taxation between states when the vehicle is used in interstate commerce. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

Change in valuation after jury adjudication was authorized only if sale affected value of property retained. - Declaration that a county could not challenge a previous jury adjudication of property value for two years was proper; while a part of the property was sold after the jury adjudication, a change in valuation under O.C.G.A. § 48-5-299(c) or the relevant rules and regulations was authorized only if the sale affected the value of the property retained by the ownership. DeKalb County v. Wellborn Rd. Common Tenancy, 276 Ga. App. 14 , 622 S.E.2d 409 (2005).

Ruling as to value did not "establish" value for additional two-year period. - Ruling as to the value of the owners' real property, pursuant to O.C.G.A. § 48-5-299(c) , did not "establish" the value of the property as contemplated by that provision so as to entitle a taxpayer to an additional two-year period of protection; a trial court's ruling, that a consent judgment setting property value for 1999 froze the value for 2000 and 2001, but not 2002, was proper. Mundell v. Chatham County Bd. of Tax Assessors, 280 Ga. App. 389 , 634 S.E.2d 180 (2006).

Agent's failure to protect taxpayer from upward reassessment. - In a breach of contract suit brought by a taxpayer against the tax service hired to handle real property assessments regarding an office building, a trial court ruling in favor of the tax service for tax year 2002 was reversed since the taxpayer established that the tax service breached a duty to the taxpayer by failing to protect the taxpayer from an upward reassessment of its property pursuant to O.C.G.A. § 48-5-299(c) . However, because the taxpayer failed to show any damage or loss for tax year 2003, the trial court's ruling in favor of the tax service for that year was upheld. AT&T Corp. v. Property Tax Servs., 288 Ga. App. 679 , 655 S.E.2d 295 (2007).

Property owners could not contest assessed value. - Because the property owners did not file a return for 2013, the property owners were deemed to have returned their property for the value from 2012, which was the same value from 2011, and the property owners did not trigger the exception found in O.C.G.A. § 48-5-299(c) that might have allowed them to contest the assessed value of their property for the 2013 tax year. Surette v. Henry County Bd. of Tax Assessors, 332 Ga. App. 457 , 773 S.E.2d 416 (2015).

Award of attorney's fees when issue was "freeze" on property value. - Owner was entitled to attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) in an appeal of a property valuation because the final determination of value on appeal to the trial court was 85 percent or less of the valuation set by the board of tax assessors; it was irrelevant that the owner's appeal to the trial court dealt with a "freeze" of the property value under O.C.G.A. § 48-5-299(c) and not a new determination of value. Fulton County Bd. of Tax Assessors v. Lamb, 298 Ga. App. 618 , 680 S.E.2d 656 (2009).

Final property valuation that was set by operation of law pursuant to O.C.G.A. § 48-5-299(c) based on a prior tax year appeal did not preclude an award of attorney's fees and costs under O.C.G.A. § 48-5-311(g)(4)(B)(ii). Fulton County Bd. of Tax Assessors v. LM Atlanta Airport, LLC, 313 Ga. App. 439 , 721 S.E.2d 640 (2011).

Mandamus relief properly denied since certification of appeals obtained. - Trial court did not err by denying a group of property owners their request for mandamus relief in the nature of finding that the county board of tax assessors certified their property tax appeals because it was undisputed that the tax appeals were physically delivered to the trial court and that it had ruled that such appeals were certified to it, thus, the property owners received the relief sought regarding certification. Newton Timber Co., L.L.L.P. v. Monroe County Bd. of Tax Assessors, Ga. , 755 S.E.2d 770 (2014).

Cited in Georgian Art Lighting Designs, Inc. v. Gwinnett County Bd. of Tax Assessors, 211 Ga. App. 510 , 439 S.E.2d 687 (1993); Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478 , 568 S.E.2d 786 (2002); Hall County Bd. of Tax Assessors v. Westrec Props., 303 Ga. 69 , 809 S.E.2d 780 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Assessment of unreturned personal property. - County tax assessors may assess unreturned personal property discovered in an audit for all tax years within the seven year period of limitation pertinent to property tax liabilities. 1987 Op. Att'y Gen. No. U87-13.

Assessment of returned but undervalued property. - Property that has been returned may only be revalued in accordance with O.C.G.A. § 48-5-306 if the county board of tax assessors has not previously rendered a final assessment of that property pursuant to the same Code section. 1987 Op. Att'y Gen. No. U87-13, rescinding and superseding Op. Att'y Gen. 1961, p. 482 insofar as it suggests that returned property may be revalued and reassessed at any time within the applicable period of limitation.

Notice to taxpayer. - Statute does not provide for any notice to the taxpayer and no notice is required when property has not been returned for taxation. 1954-56 Op. Att'y Gen. p. 827.

Procedure for correcting tax return. - It is not necessary that the tax assessors receive any official notice from the comptroller general or state revenue commissioner in making a correction on a tax return. 1957 Op. Att'y Gen. p. 254.

Access to files of state revenue commissioner. - County board of tax assessors in the discharge of the assessors' official duties are entitled to have access to the files of the state revenue commissioner, including the income tax files. Any files furnished to county boards of tax assessors retain their privileged or confidential character in the hands of those officials. 1965-66 Op. Att'y Gen. No. 66-225.

Confidentiality of state income tax returns. - Information in state income tax returns may not be furnished to city or municipal tax assessors. 1965-66 Op. Att'y Gen. No. 66-225.

What taxes penalty intended to cover. - It was the intention of the General Assembly in enacting this statute to provide a penalty of ten percent which would cover all state and county taxes, including county-wide school tax. 1954-56 Op. Att'y Gen. p. 826.

Penalty is based on taxes due after homestead exemption taken. - Statute, which imposes a penalty of ten percent upon the failure to file a tax return, applies to all taxpayers who come within the statutory provisions. However, this statute states that "the board shall add to the amount of state and county taxes due a penalty of ten percent." It therefore follows that the penalty can only be imposed on taxes on property in excess of the homestead exemption. 1954-56 Op. Att'y Gen. p. 741.

Effect of automatic renewal of homestead exemption. - After the taxpayer has once filed for homestead exemption on real property the exemption is automatically renewed. Therefore, the ten percent penalty for filing a late return is on tax due on property over and above the homestead exemption. 1954-56 Op. Att'y Gen. p. 725.

Penalties arising under this statute are the property of the county, and no division should be made for the state or the school system. Since, under former Code 1933, § 92-6913 (see now O.C.G.A. § 48-5-299 ), penalties must be paid into the county treasury, Ga. L. 1937-38, Ex. Sess., p. 77, § 37 (see now O.C.G.A. § 48-2-42 ) did not affect the matter, even though the latter section stated that penalties "are part of the tax." 1954-56 Op. Att'y Gen. p. 577; 1954-56 Op. Att'y Gen. p. 825; 1972 Op. Att'y Gen. No. U72-22.

Board of education is not entitled to any portion of penalties collected by tax commissioner. 1969 Op. Att'y Gen. No. 69-391.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 620.

C.J.S. - 84 C.J.S., Taxation, §§ 467 et seq., 503 et seq., 530 et seq., 554 et seq.

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

Outstanding lease as affecting taxable value of property against owner, 30 A.L.R. 361 .

48-5-299.1. Designation of board of assessors to receive tax returns.

Upon designation by the tax receiver or tax commissioner pursuant to paragraph (5) of Code Section 48-5-103, it shall be the duty of the board of assessors to receive tax returns as provided under paragraph (4) of Code Section 48-5-103 or to perform all duties of tax receivers or tax commissioners relating to the receiving of applications for homestead exemptions from ad valorem tax, or both, pursuant to such designation.

(Code 1981, § 48-5-299.1 , enacted by Ga. L. 1993, p. 577, § 2.)

48-5-300. Power to summon witnesses and require production of documents; exempt documents; contempt proceedings.

    1. Except as otherwise provided in paragraph (2) of this subsection, the county board of tax assessors may issue subpoenas for the attendance of witnesses and may subpoena of any person any books, papers, or documents which may contain any information material to any question relative to the existence or liability of property subject to taxation or to the identity of the owner of property liable to taxation or relevant to other matters necessary to the proper assessment of taxes lawfully due the state or county. Such subpoenas may be issued in the name of the board, shall be signed by any one or more members of the board or by the secretary of the board, and shall be served upon a taxpayer or witness or any party required to produce documents or records five days before the day upon which any hearing by the board is scheduled at which the attendance of the party or witness or the production of such documents is required.
    2. The authority provided for in paragraph (1) of this subsection shall not apply to the following documents or records:
      1. Any income tax records or returns;
      2. Any property appraisals prior to the appeal process;
      3. All insurance policies; or
      4. Any individual tenant sales information.
  2. If any witness subpoenaed by any county board of tax assessors fails or refuses to appear, fails or refuses to answer questions propounded, or fails or refuses to produce any books, papers, or documents required to be produced by an order of the board, except upon a legal excuse which would relieve the witness of the obligation to attend as a witness or to produce such documents before the superior court if lawfully required to do so, the person so failing or refusing shall be guilty of contempt and shall be cited by the board to appear before a judge of the superior court of the county. The judge of the superior court of the county shall have the same power and jurisdiction to punish the person failing or refusing to comply with the order for contempt and to require and compel the giving of the testimony or the production of the books and records as in cases of contempt committed in the presence of the court and as in cases pending in the court.

    (Ga. L. 1913, p. 123, § 7; Code 1933, § 92-6914; Ga. L. 1937, p. 517, § 4; Code 1933, § 91A-1441, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1996, p. 190, § 3.)

Cross references. - Exercise of power of contempt, § 15-1-4 .

JUDICIAL DECISIONS

Contempt denied when no hearing scheduled. - Application for contempt brought against a taxpayer under subsection (b) of O.C.G.A. § 48-5-300 was properly denied when no hearing was scheduled in which the taxpayer was required to appear but the county board of tax assessors merely sought examination of certain documents pursuant to an investigation of tax liability of a taxpayer for a particular year. Presley v. Payne, 163 Ga. App. 89 , 294 S.E.2d 199 (1982).

Cited in Payne v. Presley, 169 Ga. App. 36 , 311 S.E.2d 849 (1983).

RESEARCH REFERENCES

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

Power of board of tax review to receive evidence as to assessable value, without notice to taxpayer, 113 A.L.R. 990 .

48-5-300.1. Time period for taxation of personal property; extension by consent; refunds.

  1. Except as otherwise provided in this Code section or this title, the amount of any tax imposed under this chapter with respect to personal property may be assessed at any time.
  2. Except as otherwise provided by subsection (c) of this Code section or by this title, in the case where a return or report is filed or deemed to be filed for personal property, the amount of any tax imposed by this chapter shall be assessed within three years from the date the original tax bill was paid, unless such personal property in question is the subject of an audit by the board of tax assessors.
  3. Except as otherwise provided by this title, in the case of a false or fraudulent personal property tax return or report filed with the intent to evade tax, or if the property owner has been notified of a pending audit of personal property, the amount of any tax imposed by this chapter may be assessed at any time.
  4. Where, before the expiration of the time prescribed in this Code section for the assessment of any tax imposed by this chapter with respect to personal property, both the board of tax assessors and the person subject to assessment have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the agreed upon period. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the previously agreed upon period. The board of tax assessors is authorized in any such agreement to extend similarly the period within which a claim for refund may be filed.
  5. If a claim for refund of such taxes paid for any taxable period is filed within the last six months of the period during which the board of tax assessors may assess the amount of such taxes, the assessment period shall be extended for a period of six months beginning on the day the claim for refund is filed.
  6. No action without assessment shall be brought for the collection of any such tax after the expiration of the period for assessment. (Code 1981, § 48-5-300.1 , enacted by Ga. L. 2004, p. 464, § 2.)

RESEARCH REFERENCES

ALR. - Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

48-5-301. Time for presentation of returns by tax receiver or tax commissioner.

  1. Except as provided in subsection (b) of this Code section, not later than April 11 in each year the tax receiver or tax commissioner of each county shall present the tax returns of the county for the current year to the county board of tax assessors.
  2. In all counties having a population of not less than 81,300 nor more than 89,000 according to the United States decennial census of 1990 or any future such census, the tax receiver or tax commissioner of each such county shall present the tax returns of the county for the current year to the county board of tax assessors not later than March 11 of that year.

    (Ga. L. 1913, p. 123, § 1; Code 1933, § 92-6902; Ga. L. 1945, p. 423, § 1; Code 1933, § 91A-1431, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 538, § 4; Ga. L. 1982, p. 575, §§ 4, 11; Ga. L. 1984, p. 22, § 48; Ga. L. 1992, p. 1187, § 1.)

JUDICIAL DECISIONS

Injunction against unlawful or arbitrary valuations. - When an increase in the valuations of realty returned by taxpayers is not for the purpose of equalizing such valuations, but is an unlawful and arbitrary attempt to provide additional revenue for educational purposes, a court may grant an interlocutory injunction against the making up, compiling, or listing of any report or digest incorporating or including therein any increased assessment or changes or alterations in the returns, and may enjoin the tax receiver from transmitting to the department or the comptroller general (now commissioner) or the tax collector of the county, or any tax authorities of the county or state, any report, list, or other compilation or digest including or incorporating therein any increase or change or alteration in the return filed with the tax receiver by any taxpayer thereof. Green v. Calhoun, 204 Ga. 550 , 50 S.E.2d 209 (1948).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 684.

48-5-302. Time for completion of revision and assessment of returns; submission of completed digest to commissioner.

Each county board of tax assessors shall complete its revision and assessment of the returns of taxpayers in its respective county by July 15 of each year, except that, in all counties providing for the collection and payment of ad valorem taxes in installments, such date shall be June 1 of each year. The tax receiver or tax commissioner shall then immediately forward one copy of the completed digest to the commissioner for examination and approval.

(Ga. L. 1913, p. 123, § 10; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-6917; Ga. L. 1945, p. 251, § 1; Code 1933, § 91A-1444, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 538, § 5; Ga. L. 1982, p. 575, §§ 5, 12; Ga. L. 1984, p. 22, § 48; Ga. L. 1992, p. 1191, § 1; Ga. L. 1997, p. 963, § 4; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2015, p. 1219, § 13/HB 202.)

The 2015 amendment, effective July 1, 2015, substituted "July 15" for "July 1" in the first sentence of this Code section.

Editor's notes. - Ga. L. 1997, p. 963, § 5, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all taxable years on or after January 1, 1998.

Law reviews. - For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006).

JUDICIAL DECISIONS

Purpose. - Statute is designed to promote method, system, uniformity, and dispatch of the work of tax officials so that a complete digest may be submitted to the state revenue commissioner for examination and approval, and is directory only. Garr v. E.W. Banks Co., 206 Ga. 831 , 59 S.E.2d 400 (1950).

Requirement that the board complete the board's equalization duties by June 1 is merely directory; the board has power and authority to perform and complete any of the board's official duties after that date. Hence, such board has the right to retain possession and control of all annual tax returns until the board's official duty respecting the returns is completely performed. Sauls v. Winters, 215 Ga. 515 , 111 S.E.2d 41 (1959); Colvard v. Ridley, 219 Ga. 361 , 133 S.E.2d 364 (1963).

Effect on powers and duties of board of tax assessors. - Statute does not deprive boards of tax assessors of any and all power and authority, or render the boards impotent to perform their duties after June 1. Garr v. E.W. Banks Co., 206 Ga. 831 , 59 S.E.2d 400 (1950); Brown v. Franklin County Sch. Dist., 213 Ga. App. 599 , 445 S.E.2d 360 (1994).

Assessors' failure to complete the digest required by O.C.G.A. § 48-5-302 did not mandate their removal, but this breach of duty gave the commission discretion to remove the assessors. Cashin v. Hardman, 223 Ga. App. 301 , 477 S.E.2d 433 (1996).

Evidence sufficient that assessors failed to complete digest. - After the members of a board of tax assessors were removed from office for, inter alia, failing to file tax digests by the deadline provided in O.C.G.A. § 48-5-302 , the members' statement that it was impossible to comply with the statute and that no board of tax assessors had complied with the statute since 1988 tacitly admitted the allegation against the assessors and was sufficient evidence supporting the assessors' removal. Pope v. Bd. of Comm'rs, 276 Ga. App. 121 , 622 S.E.2d 471 (2005).

Recommendation by court as to assessments does not usurp commissioner's authority. - When a court order does not purport to require the commissioner to use the suggested assessment increase factor, but merely recommends the factor's use by the commissioner, it is not a usurpation of the revenue commissioner's statutory authority and duty to examine and approve the tax digest. Alexander v. Blackmon, 233 Ga. 235 , 210 S.E.2d 736 (1974).

Temporary decree in equity to facilitate payment of taxes. - Trial court is only authorized under the court's equitable power to fashion a reasonable temporary decree for the temporary payment of taxes so that a county is able to function until a new tax digest is approved. Anderson v. Blackmon, 232 Ga. 4 , 205 S.E.2d 250 (1974).

Trial court has no authority to replace illegal assessments with legal assessments since the court cannot order the county to collect taxes on a digest which had not been approved by the commissioner. Anderson v. Blackmon, 232 Ga. 4 , 205 S.E.2d 250 (1974).

When taxes collected and fi. fa. issued. - Taxes may not be collected or fi. fa. for taxes issued until the digest has been submitted to the commissioner, approved by the commissioner, and returned to the county. Colvard v. Ridley, 219 Ga. 361 , 133 S.E.2d 364 (1963).

Return to tax receiver of arbitrated award. - Return to the tax receiver by the arbitrators of their award is sufficient compliance with the statute, and it is the receiver's duty to accept the award when properly made and offered. Clarkson v. Hair, 207 Ga. 699 , 64 S.E.2d 64 (1951).

Refunds to taxpayers who pay prior to approval of digest. - When taxes are voluntarily paid prior to approval of the digest by the commissioner and when any change in the digest by the commissioner results in overpayment of taxes due, the overpayment must be refunded to such taxpayers. Colvard v. Ridley, 219 Ga. 361 , 133 S.E.2d 364 (1963).

Proceedings based on void assessments are likewise void. - If the assessments made by the tax assessors are null and void, all further proceedings including the review and approval by the commissioner are likewise null and void and completely nugatory. Colvard v. Ridley, 219 Ga. 361 , 133 S.E.2d 364 (1963).

OPINIONS OF THE ATTORNEY GENERAL

Invalidity of tax digest has no effect on validity of taxpayer's return. - Tax return of a property owner is separate from the tax digest prepared by the tax commissioner, and the invalidity of the digest has no effect on the validity of the taxpayer's return. 1970 Op. Att'y Gen. No. U70-41.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 608, 609.

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

48-5-303. Correction of mistakes in digest; notification of correction.

  1. The county board of tax assessors shall have authority to correct factual errors in the tax digest when discovered within three years and when such corrections are of benefit to the taxpayer. Such corrections, after approval of the county board of tax assessors, shall be communicated to the taxpayer and notice shall be provided to the tax commissioner.
  2. If a tax receiver or tax commissioner makes a mistake in the digest which is not corrected by the county board of tax assessors or county board of equalization, the commissioner, with the sanction of the Governor, shall correct the mistake by making the necessary entries in the digest furnished the commissioner. The commissioner shall notify the county governing authority and the tax collector of the county from which the digest comes of the mistake and correction.

    (Laws 1845, Cobb's 1851 Digest, p. 1077; Code 1863, § 782; Code 1868, § 846; Code 1873, § 850; Code 1882, § 850; Civil Code 1895, § 843; Civil Code 1910, § 1101; Code 1933, § 92-6501; Code 1933, § 91A-1444.1, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2010, p. 1104, § 12-1/SB 346.)

48-5-304. Conditions, procedures, and limitations on approval of tax digests when assessments in arbitration or on appeal; withholding of grants by Office of the State Treasurer.

  1. The commissioner shall not approve any digest of any county when the assessed value that is in dispute for any property or properties on appeal or in arbitration exceeds 5 percent of the total assessed value of the total taxable digest of the county for the same year. In any year in which a complete revaluation or reappraisal program is implemented, the commissioner shall not approve a digest of any county when 8 percent or more of the assessed value in dispute is in arbitration or on appeal and 8 percent or more of the number of properties is in arbitration or on appeal. When the assessed value in dispute on any one appeal or arbitration exceeds 1.5 percent of the total assessed value of the total taxable digest of the county for the same year, such appeal or arbitration may be excluded by the commissioner in making his or her determination of whether the digest may be approved under the limitations provided for in this Code section. Where appeals have been filed or arbitrations demanded, the assessment or assessments fixed by the board of tax assessors shall be listed together with the return value on the assessments and forwarded in a separate listing to the commissioner at the time the digest is filed for examination and approval.
  2. The commissioner shall not approve any digest or portion thereof for any class or strata of property where evidence exists that the county has substantially failed to comply with the provisions of this title or the rules and regulations of the commissioner for valuation of such class or strata of property. The commissioner shall adopt rules and regulations to give effect to this provision.
  3. The Office of the State Treasurer shall withhold any and all grants appropriated to any county until the county tax digest for the previous calendar year has been submitted to the commissioner as required by law.

    (Ga. L. 1971, p. 301, §§ 1, 2; Ga. L. 1972, p. 824, § 1; Code 1933, § 91A-1445, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1986, p. 747, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 2000, p. 136, § 48; Ga. L. 2000, p. 1705, § 1; Ga. L. 2010, p. 863, § 2/SB 296; Ga. L. 2010, p. 1104, § 11-1/SB 346; Ga. L. 2014, p. 672, § 3/HB 755.)

JUDICIAL DECISIONS

Authority to disapprove county's digest. - In an action challenging a tax re-valuation of property, the authority to disapprove the digest of the county under O.C.G.A. § 48-5-304 rested solely with the tax commissioner, who was not a party. Hooten v. Thomas, 297 Ga. App. 487 , 677 S.E.2d 670 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Acceptance of digests in a revaluation year. - O.C.G.A. § 48-5-304 permits the Department of Revenue to accept an ad valorem tax digest submitted for review by a county in a revaluation year if either: (a) the disputed assessed value of property involved in arbitration or appeals is five percent or less of the total assessed value of all property reflected on the taxable tangible digest; or (b) the number of parcels of property involved in arbitration or appeals is five percent or less of the total number of parcels shown on the digest. 1998 Op. Att'y Gen. No. 98-21.

48-5-305. Valuation of property not in digest.

  1. The county board of tax assessors may provide, pursuant to rules or regulations promulgated by the board and consistent with this article, the manner of ascertaining the fair market value for taxation of any real or personal property not appearing in the digest of any year within the period of the statute of limitations.
  2. It is the purpose and intent of this Code section to confer upon the county board of tax assessors full power and authority necessary to have placed upon the digest an assessment of the fair market value of all property in the county of every character which is subject to taxation and for which either state or county taxes have not been paid in full.
  3. Nothing contained in this Code section shall apply to those persons who are required to make their returns to the commissioner.

    (Ga. L. 1913, p. 123, § 8; Code 1933, § 92-6915; Ga. L. 1937, p. 517, § 5; Code 1933, § 91A-1442, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 41.)

JUDICIAL DECISIONS

Application of this part to persons who make returns to commissioner is unconstitutional. - Because former Code 1933, §§ 92-6901 and 92-6915 (see now O.C.G.A. §§ 48-5-305 and 48-5-313 ) provided that nothing in former Code 1933, Ch. 92 (see now O.C.G.A. Pt. 2, Art. 5, Ch. 5, T. 48) shall apply to those persons who were required to make their returns to the comptroller general (now commissioner), these two sections expressly excluded such persons from the benefit of any such due process procedure as may be afforded under former Code 1933, Ch. 92 (see now O.C.G.A. Pt. 2, Art. 5, Ch. 5, T. 48). Therefore, an application of former Code 1933, Ch. 92 (see now O.C.G.A. Pt. 2, Art. 5, Ch. 5, T. 48) by the county board as to such persons contravened the federal and state Constitutions. Pullman Co. v. Suttles, 187 Ga. 217 , 199 S.E. 821 (1938).

County board exceeded authority. - In an action filed by a utility seeking equitable relief from the rejection of the State Commissioner's fair market valuation by the county board of tax assessors, the trial court erred in granting summary judgment to a county board of tax assessors; the board exceeded the board's authority when, in the course of making a final assessment of a utility's property, it not only substituted the board's own assessment ratio, but also the board's own fair market value for those calculated by the State Commissioner as a final assessment could not include a reappraisal of the fair market value of a taxpayer required to make a return to the state. Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007), aff'd, 283 Ga. 12 , 655 S.E.2d 817 (2008).

Subpoena of personal property tax returns by the county board of tax assessors was a proper means of determining unreturned property tax liability. Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454 , 469 S.E.2d 285 (1996).

OPINIONS OF THE ATTORNEY GENERAL

Assessment of unreturned personal property. - County tax assessors may assess unreturned personal property discovered in the audit for all tax years within the seven year period of limitation pertinent to property tax liabilities. 1987 Op. Att'y Gen. No. U87-13.

Assessment of returned but undervalued property. - Property that has been returned may only be revalued in accordance with O.C.G.A. § 48-5-306 if the county board of tax assessors has not previously rendered a final assessment of that property pursuant to that Code section. 1987 Op. Att'y Gen. No. U87-13, rescinding and superseding Op. Att'y Gen. 1961, p. 482 insofar as it suggests that returned property may be revalued and reassessed at any time within the applicable period of limitation.

Invalidity of tax digest has no effect on validity of taxpayer's return. - Tax return of a property owner is separate from the tax digest prepared by the tax commissioner, and the invalidity of the digest has no effect on the validity of the taxpayer's return. 1970 Op. Att'y Gen. No. U70-41.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 619.

C.J.S. - 84 C.J.S., Taxation, § 607.

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

Outstanding lease as affecting taxable value of property against owner, 30 A.L.R. 361 .

Power of board of tax review to receive evidence as to assessable value, without notice to taxpayer, 113 A.L.R. 990 .

48-5-306. Annual notice of current assessment; contents; posting notice; new assessment description.

  1. Method of giving annual notice of current assessment to taxpayer. Each county board of tax assessors may meet at any time to receive and inspect the tax returns to be laid before it by the tax receiver or tax commissioner. The board shall examine all the returns of both real and personal property of each taxpayer, and if in the opinion of the board any taxpayer has omitted from such taxpayer's returns any property that should be returned or has failed to return any of such taxpayer's property at its fair market value, the board shall correct the returns, assess and fix the fair market value to be placed on the property, make a note of such assessment and valuation, and attach the note to the returns. The board shall see that all taxable property within the county is assessed and returned at its fair market value and that fair market values as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as nearly as possible only such taxpayer's proportionate share of taxes. The board shall give annual notice to the taxpayer of the current assessment of taxable real property. When any corrections or changes, including valuation increases or decreases, or equalizations have been made by the board to personal property tax returns, the board shall give written notice to the taxpayer of any such changes made in such taxpayer's returns. The annual notice may be given personally by leaving the notice at the taxpayer's dwelling house, usual place of abode, or place of business with some person of suitable age and discretion residing or employed in the house, abode, or business, or by sending the notice through the United States mail as first-class mail to the taxpayer's last known address. The taxpayer may elect in writing to receive all such notices required under this Code section by electronic transmission if electronic transmission is made available by the county board of tax assessors. When notice is given by mail, the county board of tax assessors' return address shall appear in the upper left corner of the face of the mailing envelope and with the United States Postal Service endorsement "Return Service Requested" and the words "Official Tax Matter" clearly printed in boldface type in a location which meets United States Postal Service regulations.
  2. Contents of notice.
    1. The annual notice of current assessment required to be given by the county board of tax assessors under subsection (a) of this Code section shall be dated and shall contain the name and last known address of the taxpayer. The annual notice shall conform with the state-wide uniform assessment notice which shall be established by the commissioner by rule and regulation and shall contain:
      1. The amount of the previous assessment;
      2. The amount of the current assessment;
      3. The year for which the new assessment is applicable;
      4. A brief description of the assessed property broken down into real and personal property classifications;
      5. The fair market value of property of the taxpayer subject to taxation and the assessed value of the taxpayer's property subject to taxation after being reduced;
      6. The name, phone number, and contact information of the person in the assessors' office who is administratively responsible for the handling of the appeal and who the taxpayer may contact if the taxpayer has questions about the reasons for the assessment change or the appeals process;
      7. If available, the website address of the office of the county board of tax assessors; and
      8. A statement that all documents and records used to determine the current value are available upon request.
      1. In addition to the items required under paragraph (1) of this subsection, the notice shall contain a statement of the taxpayer's right to an appeal and an estimate of the current year's taxes for all levying authorities which shall be in substantially the following form:

        "The amount of your ad valorem tax bill for this year will be based on the appraised and assessed values specified in this notice. You have the right to appeal these values to the county board of tax assessors. At the time of filing your appeal you must select one of the following options:

        1. An appeal to the county board of equalization with appeal to the superior court;
        2. To arbitration without an appeal to the superior court; or
        3. For a parcel of nonhomestead property with a fair market value in excess of $500,000.00 as shown on the taxpayer's annual notice of current assessment under this Code section, or for one or more account numbers of wireless property as defined in subparagraph (e.1)(1)(B) of Code Section 48-5-311 with an aggregate fair market value in excess of $500,000.00 as shown on the taxpayer's annual notice of current assessment under this Code section, to a hearing officer with appeal to the superior court.
      2. The notice shall also contain the following statements in bold print:

        "The estimate of your ad valorem tax bill for the current year is based on the previous or most applicable year's millage rate and the fair market value contained in this notice. The actual tax bill you receive may be more or less than this estimate. This estimate may not include all eligible exemptions."

    3. The annual notice required under this Code section shall be mailed no later than July 1; provided, however, that the annual notice required under this Code section may be sent later than July 1 for the purpose of notifying property owners of corrections and mapping changes.
  3. Posting notice on certain conditions. In all cases where a notice is required to be given to a taxpayer under subsection (a) of this Code section, if the notice is not given to the taxpayer personally or if the notice is mailed but returned undelivered to the county board of tax assessors, then a notice shall be posted in front of the courthouse door or shall be posted on the website of the office of the county board of tax assessors for a period of 30 days. Each posted notice shall contain the name of the owner liable to taxation, if known, or, if the owner is unknown, a brief description of the property together with a statement that the assessment has been made or the return changed or altered, as the case may be, and the notice need not contain any other information. The judge of the probate court of the county shall make a certificate as to the posting of the notice. Each certificate shall be signed by the judge and shall be recorded by the county board of tax assessors in a book kept for that purpose. A certified copy of the certificate of the judge duly authenticated by the secretary of the board shall constitute prima-facie evidence of the posting of the notice as required by law.
  4. Records and information availability. Notwithstanding the provisions of Code Section 50-18-71, in the case of all public records and information of the county board of tax assessors pertaining to the appraisal and assessment of real property:
    1. The taxpayer may request, and the county board of tax assessors shall provide within ten business days, copies of such public records and information, including, but not limited to, a description of the methodology used by the board of tax assessors in setting the property's fair market value, all documents reviewed in making the assessment, the address and parcel identification number of all real property utilized as qualified comparable properties, and all factors considered in establishing the new assessment, at a uniform copying fee not to exceed 25› per page;
    2. No additional charges or fees may be collected from the taxpayer for reasonable search, retrieval, or other administrative costs associated with providing such public records and information; and
      1. The superior courts of this state shall have jurisdiction in law and in equity to entertain actions against the board of tax assessors to enforce compliance with the provisions of this subsection.
      2. In any action brought to enforce the provisions of this subsection in which the court determines that either party acted without substantial justification either in not complying with this subsection or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney's fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought.
  5. Description of current assessment. The notice required by this Code section shall be accompanied by a simple, nontechnical description of the basis for the current assessment.
  6. Rules and regulations. The commissioner shall promulgate such rules and regulations as may be necessary for the administration of this Code section.

    (Ga. L. 1913, p. 123, § 6; Code 1933, § 92-6911; Ga. L. 1937, p. 517, § 2; Ga. L. 1970, p. 580, § 1; Ga. L. 1971, p. 33, § 1; Ga. L. 1972, p. 1114, § 5; Ga. L. 1974, p. 609, § 1; Ga. L. 1975, p. 1083, § 2; Ga. L. 1976, p. 518, § 2; Code 1933, § 91A-1448, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1262, § 2; Ga. L. 1994, p. 1823, § 1; Ga. L. 1999, p. 1043, § 2; Ga. L. 1999, p. 1212, § 1; Ga. L. 2009, p. 27, § 4/SB 55; Ga. L. 2009, p. 216, § 2C/SB 240; Ga. L. 2010, p. 1104, § 1-1/SB 346; Ga. L. 2015, p. 1219, § 14/HB 202; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 162, § 1/HB 374.)

If you wish to file an appeal, you must do so in writing no later than 45 days after the date of this notice. If you do not file an appeal by this date, your right to file an appeal will be lost. For further information on the proper method for filing an appeal, you may contact the county board of tax assessors which is located at: (insert address) and which may be contacted by telephone at: (insert telephone number) ."

The 2015 amendment, effective January 1, 2016, in division (b)(2(A)(iii), substituted "$750,000.00, or for one or more account numbers of wireless property as defined in subparagraph (e.1)(1)(B) of Code Section 48-5-311 with an aggregate fair market value in excess of $750,000.00" for "$1 million"; in subparagraph (b)(2)(B), substituted "statements" for "statement" in the introductory language and inserted "or most applicable" in the first sentence of the notice; and, in subsection (d), in paragraph (1), inserted "a description of the methodology used by the board of tax assessors in setting the property's fair market value," deleted "and" from the end, in paragraph (2), added "; and" to the end, and added paragraph (3).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, added the catchline at the beginning of subsection (f).

The 2018 amendment, effective July 1, 2018, substituted "$500,000.00 as shown on the taxpayer's annual notice of current assessment under this Code section" for "$750,000.00" twice in division (b)(2)(A)(iii).

Editor's notes. - Ga. L. 1985, p. 1262, § 3, not codified by the General Assembly, provided that that Act would apply to tax bills and assessment notices mailed on or after January 1, 1986.

Ga. L. 1999, p. 1043, § 4, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all assessments and proceedings commenced on or after January 1, 2000.

Ga. L. 1999, p. 1212, § 2, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2000.

Ga. L. 2009, p. 27, § 5/SB 55, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

Law reviews. - For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For note on the 1999 amendment to this Code section, see 16 Ga. St. U. L. Rev. 223 (1999).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1931, p. 7, § 85 are included in the annotations for this Code section.

Subsection (a) of O.C.G.A. § 48-5-306 does not require tax assessors to use any definite system or method, but demands only that valuations be just and that the valuations be fairly and justly equalized among the individual taxpayers according to the best information obtainable. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726 , 279 S.E.2d 223 (1981).

Subsection (a) of O.C.G.A. § 48-5-306 permits the board to audit and make changes to a taxpayer's return with regard to personalty omitted and personalty that has been returned and undervalued. Eckerd Corp. v. Coweta County Bd. of Tax Assessors, 228 Ga. App. 94 , 491 S.E.2d 173 (1997).

Statute establishes the procedure for securing tax uniformity in a county. Hawes v. Conner, 224 Ga. 567 , 163 S.E.2d 724 (1968).

Import of this statute is to ensure that the burden of taxation is spread evenly over the taxpayers, according to a fair valuation (now fair market value) of their property holdings. Allen v. Norris, 148 Ga. App. 261 , 251 S.E.2d 145 (1978).

Application to persons who make returns to commissioner is unconstitutional. - Because former Code 1933, §§ 92-6901 and 92-6915 (see now O.C.G.A. §§ 48-5-305 and 48-5-306 ) provided that nothing in former Code 1933, Ch. 92 (see now O.C.G.A. Pt. 2, Art. 5, Ch. 5, T. 48) shall apply to those persons who were required to make their returns to the comptroller general (now commissioner), these two sections, therefore, expressly excluded such persons from the benefit of any such due process procedure as may be afforded under former Code 1933, Ch. 92 (see now O.C.G.A. Pt. 2, Art. 5, Ch. 5, T. 48). Therefore, an application of former Code 1933, Ch. 92 (see now O.C.G.A. Pt. 2, Art. 5, Ch. 5, T. 48) by the county board as to such persons contravened the federal and state Constitutions. Pullman Co. v. Suttles, 187 Ga. 217 , 199 S.E. 821 (1938).

Action of board outside the board's authority is void when the board of tax assessors acts arbitrarily and beyond the scope of the board's authority, there is no sound distinction between a situation when the board raises the valuations of all the taxpayers in order to obtain additional revenue for school purposes, or when the board lowers all the valuations by a certain percent in order to reduce taxes. In so doing, the board's action is outside their authority and hence void. Cross v. Miller, 221 Ga. 579 , 146 S.E.2d 279 (1965).

Trial court did not err in denying the plaintiff's request for a mandamus nisi because the Open Records Act, O.C.G.A. § 50-14-1 et seq., was not available to enforce compliance with the plaintiff's requests for information from the county board of tax assessors regarding property tax assessments as those requests were made pursuant to O.C.G.A. § 48-5-306 and not the Open Records Act. Hansen v. DeKalb County Board of Tax Assessors, 295 Ga. 385 , 761 S.E.2d 35 (2014).

If assessment action displeases a taxpayer, the taxpayer's remedy is arbitration as provided in former Code 1933, § 92-6912 (see now O.C.G.A. § 48-5-311 ). Hawes v. Conner, 224 Ga. 567 , 163 S.E.2d 724 (1968).

Injunction against unlawful or arbitrary valuations. - When an increase in the valuations of realty returned by taxpayers is not for the purpose of equalizing such valuations, but is an unlawful and arbitrary attempt to provide additional revenue for educational purposes, a court may grant an interlocutory injunction against the making up, compiling, or listing of any report or digest incorporating or including therein any increased assessment or changes or alterations in the returns, and may enjoin the tax receiver from transmitting to the department or the comptroller general or the tax collector of the county, or any tax authorities of the county or state any report, list, or other compilation or digest including or incorporating therein any increase or change or alteration in the return filed with the tax receiver by any taxpayer thereof. Green v. Calhoun, 204 Ga. 550 , 50 S.E.2d 209 (1948).

Right to appeal penalty assessment. - Assessment of a penalty for a breach of a conservation use covenant is an assessment for which a property owner has the right to appeal pursuant to O.C.G.A. § 48-5-311 , and the failure of the county board of assessment to provide notice of the property owner's right to appeal was in error. Oconee County Bd. of Tax Assessors v. Thomas, 282 Ga. 422 , 651 S.E.2d 45 (2007).

Requirements from county board of tax assessors regarding information requests. - Trial court did not err in denying the plaintiff's request for a mandamus nisi because the plaintiff's request for mandamus was unsupportable as a matter of law as it was undisputed that the county board of tax assessors provided various documents in response to the plaintiff's information requests regarding property tax assessments, and the plaintiff's demands for supplementation of the responses and an explanation of those responses in a recorded meeting session strayed far beyond what was required by O.C.G.A. § 48-5-306 . Hansen v. DeKalb County Board of Tax Assessors, 295 Ga. 385 , 761 S.E.2d 35 (2014).

Cited in Chatham County Bd. of Assessors v. Jepson, 261 Ga. App. 771 , 584 S.E.2d 22 (2003); Ferdinand v. City of East Point, 288 Ga. App. 152 , 653 S.E.2d 529 (2007); Coffman Grading Co. v. Forsyth County, 303 Ga. App. 836 , 695 S.E.2d 310 (2010).

Valuation of Property

Proper assessment required as part of tax enforcement proceedings. - Assessment made in the manner prescribed by the statute is indispensable in proceedings to enforce the collection of taxes. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Duty to ensure just and fair valuation of property and proportionate distribution of taxes. - It is the duty of the board of tax assessors to see that all taxable property within the county is returned and assessed for taxes at the property's just and fair value (now fair market value) and that valuations as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as near as may be only the taxpayer's proportionate share of taxes. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962); Register v. Langdale, 226 Ga. 82 , 172 S.E.2d 620 (1970).

Property in same class to be valued by same standard or system. - Tax assessors must use the same standard or system in determining and fixing taxable value of all property of the same class. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Taxation within class must be uniform, equal, and by same standard. - Taxation of all kinds of property of the same class must be uniform and by the same standard of valuation, equally with other taxable property of the same class. Champion Papers, Inc. v. Williams, 221 Ga. 345 , 144 S.E.2d 514 (1965).

What valuation methods authorized. - Tax assessors may use any system, method, cadastral survey, books, available lists of valuations of types of property, city valuations, or other instruments, or other information obtainable, provided such information is the best information available in the assessors fixing of just and fair valuation (now fair market value) of the property assessed, and provided that the taxation as between individual taxpayers is justly and fairly equalized. Kight v. Gilliard, 214 Ga. 445 , 105 S.E.2d 333 (1958); Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Tax assessors are authorized to fix fair market value from the best information obtainable. This does not require the tax assessors to use any definite system or method, but demands only that the valuations be just and that the valuations be fairly and justly equalized among the individual taxpayers, according to the best information obtainable. Kight v. Gilliard, 214 Ga. 445 , 105 S.E.2d 333 (1958); Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Use of cadastral surveys in equalizing values for taxation. - Authority granted by Ga. L. 1941, p. 382 and Ga. L. 1951, p. 85 to tax assessors to use information based upon a cadastral survey in equalizing values for taxation is not a substitution of the survey for the discretion of the assessors. Hutchins v. Candler, 209 Ga. 415 , 73 S.E.2d 191 (1952).

Valuations not voided by failure to use past methods. - Duties placed on the board of tax assessors do not require the use of any definite system or method, but demand only that the valuations be just and fair (now fair market value) and that the valuations be justly and fairly equalized among taxpayers. The failure to use any particular system, method, cadastral survey, book, or other instruments used in the past to derive values would not in any way render void the valuations placed on such property by the assessors. Hutchins v. Williams, 212 Ga. 754 , 95 S.E.2d 674 (1956).

Property valuation may be increased even if property not further improved. - Tax authorities are not prevented from increasing the valuation by the fact that the property has been returned for a lower valuation in the past, and that there have been no improvements thereon, or that no particular fixed system was used to derive the valuation as long as there is a just and fair valuation (now fair market valuation) and the valuation as between individual taxpayers is justly and fairly equalized. Whitehead v. Henson, 115 Ga. App. 81 , 153 S.E.2d 581 , rev'd on other grounds, 223 Ga. 329 , 155 S.E.2d 391 (1967).

Reevaluation and reassessment of only rural real estate of 25 acres or more did not constitute an impermissible spot or piecemeal reappraisal. Harrington v. Baldwin County Bd. of Tax Assessors, 214 Ga. App. 178 , 447 S.E.2d 300 (1994).

Piecemeal or spot reappraisals which follow a general appraisal of residential property throughout the jurisdiction and which results in a significant increase in taxes without regard to any equalization between taxpayers is contrary to the statutory mandate and void. Thorpe v. Benham, 161 Ga. App. 116 , 289 S.E.2d 275 (1982); Dade County v. Eldridge, 229 Ga. App. 401 , 494 S.E.2d 106 (1997).

Valuation of leasehold estates. - Trial court erred in dismissing for failure to state a claim upon which relief could be granted a taxpayer's petition seeking a declaration that the valuation method a county board of assessors and the development authority of the county used for leasehold estates arising from a local development authority sale-leaseback bond transaction was illegal and in granting the authority's motion for judgment on the pleadings because the taxpayer made material allegations that could be supported by admissible evidence on the issue of whether the valuation method fairly and justly approximated the fair market value of a bond transaction leasehold estate, and the board and authority failed to show that they were clearly entitled to judgment; although O.C.G.A. § 36-80-16.1(e) gave county boards of tax assessors authority to use simplified methods for determining the value of a bond transaction leasehold estate, the statute did not relieve the board and authority from their duty to value the leasehold estate at the estate's fair market value, and any contention that the statute did allow the board and authority to value a bond transaction leasehold estate at less than the estate's fair market value would make the statute illegal and unconstitutional. Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88 , 701 S.E.2d 472 (2010).

Failure to show entitlement to mandamus relief. - In a taxpayer's suit against a county and officials (the county), the court upheld the grant of summary judgment to the county because the taxpayer's mandamus claims failed for the simple reason that the claim adduced no evidence that any actual assessment of any particular property was other than at fair market value or that the county had failed to comply with the county's legal duty to see that all taxable property within the county is assessed and returned for taxes at the property's fair market value. SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793 , 770 S.E.2d 832 (2015).

Notice

Purpose of notice requirements. - Purpose of the notice required by this statute is to give the taxpayer an opportunity to exercise the taxpayer's right to challenge the change by an appeal to the board of equalization. Oxford v. City of Waycross, 241 Ga. 159 , 243 S.E.2d 881 (1978).

Notice provisions to be strictly construed. - Statute providing for notice when, for failure of service, a person may be deprived of the person's property must be strictly construed. Gilmore v. Curry, 225 Ga. 483 , 170 S.E.2d 31 (1969).

When a reassessment notice was properly mailed to a taxpayer pursuant to O.C.G.A. § 48-5-306 and the taxpayer's request for a late appeal was denied by the board of tax assessors, the taxpayers were not entitled to declaratory relief or to mandamus because O.C.G.A. § 48-5-311 prescribes a time limit for filing appeals, the appeal was not filed within that period, and the board was powerless to extend the period. Dillard v. Denson, 243 Ga. App. 458 , 533 S.E.2d 101 (2000).

Required contents of notice. - Statute requires that the taxpayer be told of the time period in which an appeal may be demanded, and statement on the notice of assessment that the assessment will become final if not protested as provided by law did not comply with the statutory requirement. Ledbetter Trucks, Inc. v. Floyd County Bd. of Tax Assessors, 240 Ga. 791 , 242 S.E.2d 596 (1978).

Relation to § 48-5-7.2(e) . - O.C.G.A. § 48-5-7.2(e) expressly requires a tax board, upon denying an application for preferential assessment, to notify the applicant in the same manner that notices of assessment are given pursuant to O.C.G.A. § 48-5-306 , and appeals from the denial of an application for preferential assessment by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to O.C.G.A. § 48-5-311 ; in light of a tax board's failure to provide an applicant with the proper statutory notice, the board's argument that the applicant failed to exhaust the applicant's administrative remedies was without merit. Chatham County Bd. of Tax Assessors v. Emmoth, 278 Ga. 144 , 598 S.E.2d 495 (2004).

Notice sufficient unless defect misleads taxpayer to taxpayer's detriment. - Failure of the board of tax assessors to comply strictly with the requirements for the contents of the notice does not invalidate the notice, unless the defect in the notice in fact misleads the taxpayer to the taxpayer's detriment. Oxford v. City of Waycross, 241 Ga. 159 , 243 S.E.2d 881 (1978).

Increased valuation may be enjoined when taxpayer not given notice of it. - When a taxpayer returns the taxpayer's property, and an assessment and a higher valuation is made by the assessors for those years, the taxpayer should be given due notice thereof and have an opportunity to be heard thereon. If the taxpayer has not been given such notice, the enforcement of a tax fi. fa. based upon the increased valuation may be enjoined by a court of equity. Gilmore v. Curry, 225 Ga. 483 , 170 S.E.2d 31 (1969).

Taxpayer need not be served notice of reduction in assessment. - When a taxpayer's assessment is increased by the board of tax assessors, the taxpayer must be served with a notice which will give the taxpayer an opportunity to contest the increase. When the board reduces the assessment on a taxpayer's property, the taxpayer need not be served with notice of the reduction. County Bd. of Tax Assessors v. Catledge, 173 Ga. 656 , 160 S.E. 909 (1931) (decided under Ga. L. 1931, p. 7, § 85).

Notice not required. - Because the tax assessors did not correct the taxpayer's 1998 or 1999 returns, change those returns, or reassess the property but rather, the taxpayer elected to automatically return the taxpayer's property in 1998 and 1999 at the 1997 value, the statutory notice requirements of O.C.G.A. § 48-5-306 did not preclude summary judgment. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855 , 605 S.E.2d 443 (2004).

Manner in which notice to be served. - Statute contemplates that the notice of a change made by the board of tax equalizers shall be served personally upon the taxpayer, or by leaving the same either at the taxpayer's place of residence or the taxpayer's place of business. Only in the case of a nonresident taxpayer is service by sending notice through the United States mail allowed. Gilmore v. Curry, 225 Ga. 483 , 170 S.E.2d 31 (1969).

When notice of a change of assessment is served in the manner requested by the taxpayer, the taxpayer cannot complain that service was inadequate. Oxford v. City of Waycross, 241 Ga. 159 , 243 S.E.2d 881 (1978).

Manner of notifying taxpayer of valuations and changes therein. - Requirement that the assessors fix the just and fair valuation (now fair market value) of a taxpayer's property and make a note of any change and attach the note to the return does not require any fixed system of doing so, such as attaching a separate memorandum. When this change is made by pencil note on the taxpayer's return itself, the statute is satisfied. Hutchins v. Williams, 212 Ga. 754 , 95 S.E.2d 674 (1956).

Notice to taxpayer as to tentative changes. - When tax assessors made tentative changes in tax returns during the period that the assessors studied the returns, but made no final decision on changes until a date within five days of the date on which notices of such changes were mailed, there was sufficient compliance with subsection (a) of this statute. Register v. Langdale, 226 Ga. 82 , 172 S.E.2d 620 (1970).

Failure to mail or file notice of appeal within 30 days. - Failure of limited liability companies (LLC) to satisfy the requirement of O.C.G.A. § 48-5-311(e) (2)(A) barred any further right to appeal because the letters and returns the LLCs' representative submitted months before the assessment notices were mailed did not excuse the LLCs from complying with the requirement of O.C.G.A. § 48-5-311(e) (2)(A) that a taxpayer mail or file a notice of appeal within 30 days from the date of mailing the notice pursuant to O.C.G.A. § 48-5-306 ; because the LLCs failed to comply with O.C.G.A. § 48-5-311(e) so as to effectuate an appeal to the county board of equalization, the LLCs' appeals to the superior court should have been dismissed. Hall County Bd. of Tax Assessors v. Avalon Hills Partners, LLC, 307 Ga. App. 520 , 705 S.E.2d 674 (2010).

Failure to give notice to taxpayer of right to appeal. - County's recalculations of taxpayers' homestead exemptions involved the value of the exemptions, bringing the taxpayers within O.C.G.A. § 48-5-49 , which permitted an appeal under O.C.G.A. § 48-5-311 . Since the county had not given the taxpayers notice under O.C.G.A. § 48-5-306 of the taxpayers' right to appeal, the taxpayers were entitled to equitable relief requiring the county to: (1) provide taxpayers with proper notice of and the right to appeal changes in the homestead exemptions; (2) stop collecting taxes referenced in bills sent without proper notice; and (3) refund any tax money collected based on bills issued without such notice. Fulton County Bd. of Tax Assessors v. Marani, 299 Ga. App. 580 , 683 S.E.2d 136 (2009), cert. denied, No. S09C2072, 2010 Ga. LEXIS 18 (Ga. 2010).

Sufficiency of pleadings regarding compliance with notice provisions. - Allegation in a petition that a board of tax assessors raised the assessments made by the tax assessors without giving petitioners notice of the change in tax assessments as required by law was not as against demurrer (now motion to strike), an averment that the petitioners were not given the five-day notice required under this statute. Lanier v. Suttles, 212 Ga. 154 , 91 S.E.2d 21 (1956).

OPINIONS OF THE ATTORNEY GENERAL

Occupant of property sold under bond for title. - Purchaser/possessor of a piece of property under a bond for title can be subjected to ad valorem taxation for that parcel, and once the Board of Tax Assessors chooses to assess the property against the occupant, and not the seller of the property, the occupant should receive the tax notices required by O.C.G.A. § 48-5-306 , and be treated as "the taxpayer" entitled to appeal under O.C.G.A. § 48-5-311 . 1989 Op. Att'y Gen. U89-17.

Assessment of returned but undervalued property. - Property that has been returned may only be revalued in accordance with O.C.G.A. § 48-5-306 if the county board of tax assessors has not previously rendered a final assessment of that property pursuant to that Code section. 1987 Op. Att'y Gen. No. U87-13, rescinding and superseding Op. Att'y Gen. 1961, p. 482 insofar as it suggests that returned property may be revalued and reassessed at any time within the applicable period of limitation.

Duty to reassess property when fair market value increases. - If the fair market value of property increases every two years, then it is the duty of the county tax assessors to increase the valuation of property for tax purposes every two years. 1969 Op. Att'y Gen. No. 69-504.

Duty to correct errors and certify corrections to commissioner. - County board of tax assessors is not only authorized to correct mistakes and errors made by the board, but it is made the board's duty to do so. Such correction should be certified to the commissioner so that the digest on file in the commissioner's office may be made to conform with the county digest. 1950-51 Op. Att'y Gen. p. 154.

Real property may not be reassessed despite error in first assessment. - Tax assessors are precluded from again assessing real estate that the assessors have previously assessed, although the assessors were mistaken as to the property's value at that time. 1969 Op. Att'y Gen. No. 69-183.

Invalidity of tax digest has no effect on validity of taxpayer's return. - Tax return of a property owner is separate from the tax digest prepared by the tax commissioner, and the invalidity of the digest has no effect on the validity of the taxpayer's return. 1970 Op. Att'y Gen. No. U70-41.

Board of tax assessors cannot place a nominal value on property of new industries, but must see that such valuations are equalized with the valuations placed on property owned by other taxpayers. 1967 Op. Att'y Gen. No. 67-328.

Board of tax assessors does not have authority to classify personal property as real estate. 1958-59 Op. Att'y Gen. p. 357.

Valuation of automobiles. - Municipal and county tax assessors have a legal right to place a higher valuation on automobiles than on other property. 1954-56 Op. Att'y Gen. p. 675.

Manner in which notice to be served. - When property evaluation is altered, the taxpayer must be notified personally or through posting of reevaluation notice in front of the courthouse door. The provisions of this statute requiring the board to give notice either personally or by mail indicate that the giving of notice by mail is not personal service as contemplated by the statute. 1962 Op. Att'y Gen. p. 483.

Board of tax assessors may act in absence of a member. - Board of tax assessors consisting of three members, and sitting in accordance with this statute, can legally act in the absence, for any reason, of one of the board's members. 1971 Op. Att'y Gen. No. U71-55.

Additional compensation for extra duties performed by tax assessors. - Board of county commissioners (now county governing authority) may legally pay certain members of the board of tax assessors additional compensation for the performance of extra duties in assembling information. 1952-53 Op. Att'y Gen. p. 296.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 799 et seq.

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

Power of board of tax review to receive evidence as to assessable value, without notice to taxpayer, 113 A.L.R. 990 .

Provisions of tax statute as to time for performance of acts by boards or officers as mandatory or directory, 151 A.L.R. 248 .

48-5-306.1. Brochures describing exemptions and preferential assessments available to taxpayers.

  1. The tax commissioner shall annually prepare and maintain a brochure or other publication describing the exemptions and preferential assessments available to the taxpayers of the county along with the conditions of eligibility and deadlines for applying for each. Such brochure or other publication shall also describe the requirements and deadlines for the return of property for taxation and the appeal procedures and such other information as the tax commissioner or board of tax assessors may determine to be helpful to the property owner. Such brochure or other publication shall be available freely to taxpayers in the office of the tax commissioner and board of assessors and shall also be mailed or otherwise delivered to the appropriate taxpayer under the following conditions:
    1. Upon the transfer of residential or agricultural property for which a properly completed real estate transfer tax form has been filed;
    2. Whenever a homestead exemption has been newly approved or whenever an existing homestead exemption has been modified with new conditions of eligibility; and
    3. Whenever a preferential assessment with respect to ad valorem property taxes is enacted or modified.
  2. The commissioner shall promulgate such rules and regulations as may be necessary for the administration of this Code section. (Code 1981, § 48-5-306.1 , enacted by Ga. L. 1999, p. 1043, § 2.)

Editor's notes. - Ga. L. 1999, p. 1043, § 4, not codified by the General Assembly, provides that the Act shall be applicable to all assessments and proceedings commenced on or after January 1, 2000.

48-5-307. Service of papers; fees.

Whenever, pursuant to this part, any notice, subpoena, or writing is required to be given or served, the notice, subpoena, or writing may be served by any sheriff, deputy sheriff, or lawful constable. Each such officer shall be paid for his services the same fees as are paid officers for serving similar process in civil actions; and the fees shall be paid from the county treasury in the same manner as other payments by the county are made.

(Ga. L. 1913, p. 123, § 9; Code 1933, § 92-6916; Code 1933, § 91A-1443, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Fees for sheriff's services, § 15-16-21 .

RESEARCH REFERENCES

C.J.S. - 80 C.J.S., Sheriffs and Constables, § 77 et seq.

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

48-5-308. Effect of part on laws granting additional authority to county boards of tax assessors.

It is not the intention or the purpose of this part to repeal any law enacted prior to January 1, 1980, granting to any county board of tax assessors additional powers or authority not contained in this part.

(Ga. L. 1937, p. 517, § 6; Code 1933, § 91A-1446, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-309. Applicability to counties electing members of board of tax assessors.

Nothing contained in Code Sections 48-5-291 through 48-5-300 and 48-5-302 through 48-5-308 regarding appointment, terms of office, vacancies, removals, qualifications, or compensation of members of county boards of tax assessors shall apply to any county which has elected to elect the members of its county board of tax assessors.

(Ga. L. 1972, p. 1114, § 6; Code 1933, § 91A-1434, enacted by Ga. L. 1978, p. 309, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1991, the comma was deleted following "assessors" near the middle of this Code section.

48-5-310. Temporary collection of taxes pending approval or appeal of disapproval of digest.

  1. The governing authority of a county whose digest has not been approved by the commissioner may petition the superior court of the county for an order authorizing the immediate and temporary collection of taxes when:
      1. An appeal is or has been filed as provided by law to prevent the approval of the digest by the commissioner;
      2. The digest has not otherwise been approved by the commissioner; or
      3. The digest is otherwise not enforceable or collectable by law; and
    2. The appeal, disapproval, or disability prohibits or prevents collections from being made or enforced on the digest.
    1. The petition filed by the governing authority shall be styled "In the Matter of the (year) Tax Digest for (name of county) County." In the petition, the governing authority of the county shall assert that unless the court authorizes the immediate, temporary collection of the taxes the county authority will not be able to either:
      1. Pay the county's debts as they mature;
      2. Pay appropriate salaries of employees, other government officials, and other persons entitled to receive either compensation by or funds from the county as provided by law;
      3. Maintain an orderly and normal function of county business and governmental affairs;
      4. Maintain an adequate, proper, or desirable credit rating either to maintain or affect existing or future interest rates on bonded indebtedness or indebtedness on loans incurred or obligated by the county governing authority; or
      5. Avoid by practical means the suffering of immediate and irreparable injury, loss, damage, or any other significant matter.
    2. The petition shall further identify the last year in which the county had an approved tax digest as provided in this title and shall state the particular year for which the tax collections are sought.
  3. After the filing of the petition, a judge of the superior court in which the petition was filed shall set a time and date for a hearing on the petition. The hearing shall be held not less than ten days from the date of the filing of the petition. The court shall direct that the county governing authority have the petition published at least once prior to the hearing in the official newspaper of the county for publication of official notices. The court shall further order that the governing authority post a copy of the petition in a prominent place in the courthouse. No hearing shall be held on the petition until the petition has been so published and posted.
  4. After the petition has been filed and before the hearing, each interested party may intervene for the purpose of opposing the issuance of an order allowing the immediate and temporary collection of taxes.
  5. At the hearing on the petition, the governing authority shall bear the burden of proof of establishing the existence of one or more of the conditions set forth in subsection (b) of this Code section. The court may not issue an order allowing the temporary collection of taxes unless it finds that the evidence adduced at the hearing preponderates in favor of a finding that one of the conditions referred to in subsection (b) of this Code section exists. If the court so determines, the court shall enter an order containing findings of fact and conclusions of law to that end and shall order the temporary collection of taxes as sought by the county governing authority.
  6. In the court's order, the court shall establish the basis on which the temporary tax on each parcel of property shall be established and the manner in which the taxes shall be billed, collected, and otherwise received. The basis upon which the temporary taxes may be collected shall be one of the following:
    1. Any tax digest for the tax year in question which has been submitted to the commissioner but which has been rejected or is otherwise unenforceable;
    2. The most recently submitted and approved tax digest as amended to reflect changes in ownership of property; or
    3. Any other reasonable method which will do substantial justice to the parties under the exigencies of all the circumstances.
  7. Any taxes collected or paid after the entry of the order for collection as provided for in this Code section shall not be considered as, and shall not be deemed to be, voluntary payments. Collection or payment of such taxes after the entry of an order by the court as provided in this Code section shall not in any manner affect or limit anyone who pays the taxes from receiving and enjoying the full benefits of any adjustments, benefits, refunds, or additional assessments determined by the final disposition of the validity of the tax digest.
  8. The temporary collection of taxes on the basis ordered by the superior court shall proceed and shall be of full force and effect exactly as if the tax digest used as the basis for the court's order had been approved by the commissioner or otherwise approved or in force as provided by law, except as may be modified by court order. The court shall retain jurisdiction to issue any appropriate order necessary to enforce the court's order allowing the temporary collection of taxes.
    1. Any governing authority filing a petition seeking an order allowing the temporary collection of taxes shall serve the commissioner with a copy of the petition.
    2. The commissioner may not be joined in an action seeking the temporary collection of taxes without the commissioner's specific consent.
  10. The procedures provided by this Code section shall apply to the tax digest of any municipality using as a basis for municipal tax purposes the fair market value determined for county ad valorem tax purposes. For the purposes of this subsection, the provisions of this Code section applicable to the governing authority of a county shall also be applicable to the governing authority of any such municipality, and the methods, procedures, and conditions for temporary collection and enforcement of taxes for municipalities shall be under the same terms and conditions as provided for counties in this Code section.

    (Ga. L. 1977, p. 903, § 1; Code 1933, § 91A-1449.1, enacted by Ga. L. 1979, p. 5, § 43.)

JUDICIAL DECISIONS

Procedure of O.C.G.A. § 48-5-310 is not a prerequisite for collecting property taxes following the approval of the digest or resolution of a tax appeal. Brown v. Franklin County Sch. Dist., 213 Ga. App. 599 , 445 S.E.2d 360 (1994).

Subsection (f) of O.C.G.A. § 48-5-310 empowers the court to set millage rate for temporary tax collection at judge's discretion. In re Board of Twiggs County Comm'rs, 249 Ga. 642 , 292 S.E.2d 673 (1982).

Millage rate producing surplus allowed. - Trial court did not abuse the court's discretion in approving the use of a county's adopted millage rate for the collection of temporary taxes, even assuming the adopted rate would produce a surplus, because there are no constitutional or statutory laws prohibiting counties from setting a millage rate intended to produce a surplus as long as such surplus is properly accounted for so as to create a balanced budget as required under Georgia law. Clayton County v. Sexton, 273 Ga. 150 , 538 S.E.2d 737 (2000).

Additional taxes may be collected. - O.C.G.A. § 48-5-310 authorizes the "temporary" collection of ad valorem taxes pursuant to an order of the superior court and additional taxes may be collected, or refunds issued, following any reevaluations and reassessments necessitated by the commissioner's disapproval of the digest. Harrington v. Baldwin County Bd. of Tax Assessors, 214 Ga. App. 178 , 447 S.E.2d 300 (1994).

Authority of trial court to challenge proposed expenditures. - Trial court was authorized to enter an order for the immediate and temporary collection of real property taxes for tax year 1991 on the basis of the 1990 tax digest; however, it was beyond the province of the trial court to require the county authorities to justify the wisdom (as opposed to the legality) of proposed county expenditures. Board of Comm'rs v. 1991 Tax Digest, 261 Ga. 702 , 410 S.E.2d 721 (1991).

48-5-311. Creation of county boards of equalization; duties; review of assessments; appeals.

  1. Definition.

    As used in this Code section, the term "appeal administrator" means the clerk of the superior court.

    (a.1) Appeal administrator.

    (a.2) Establishment of boards of equalization.

    1. The appeal administrator is vested with administrative authority in all other matters governing the conduct and business of the boards of equalization so as to provide oversight and supervision of such boards.
    2. It shall be the duty of the appeal administrator to receive any complaint filed with respect to the official actions of any member of a county board of equalization regarding technical competency, compliance with state law and regulations, or rude or unprofessional conduct or behavior toward any member of the public and to forward such complaint to the grand jury for investigation. Following an investigation, the grand jury shall issue a written report of its findings, which shall include such evaluations, judgments, and recommendations as it deems appropriate. The findings of the report may be grounds for removal of a member of the board of equalization by the grand jury for failure to perform the duties required under this Code section.

      (1) Except as otherwise provided in this subsection, there is established in each county of this state a county board of equalization to consist of three members and three alternate members appointed in the manner and for the term set forth in this Code section. In those counties having more than 10,000 parcels of real property, the county governing authority, by appropriate resolution adopted on or before November 1 of each year, may elect to have selected one additional county board of equalization for each 10,000 parcels of real property in the county or for any part of a number of parcels in the county exceeding 10,000 parcels.

      (1.1) The grand jury shall be authorized to conduct a hearing following its receipt of the report of the appeal administrator under paragraph (2) of subsection (a.1) of this Code section and to remove one or more members of the board of equalization for failure to perform the duties required under this Code section.

      (2) Notwithstanding any part of this subsection to the contrary, at any time the governing authority of a county makes a request to the grand jury of the county for additional alternate members of boards of equalization, the grand jury shall appoint the number of alternate members so requested to each board of equalization, such number not to exceed a maximum of 21 alternate members for each of the boards. The alternate members of the boards shall be duly qualified and authorized to serve on any of the boards of equalization of the county. The members of each board of equalization may designate a chairperson and two vice chairpersons of each such board of equalization. The appeal administrator shall have administrative authority in all matters governing the conduct and business of the boards of equalization so as to provide oversight and supervision of such boards and scheduling of appeals. Any combination of members or alternate members of any such board of equalization of the county shall be competent to exercise the power and authority of the board. Any person designated as an alternate member of any such board of equalization of the county shall be competent to serve in such capacity as provided in this Code section upon appointment and taking of oath.

    3. Notwithstanding any provision of this subsection to the contrary, in any county of this state having a population of 400,000 or more according to the United States decennial census of 1990 or any future such census, the governing authority of the county, by appropriate resolution adopted on or before November 1 of each year, may elect to have selected one additional county board of equalization for each 10,000 parcels of real property in the county or for any part of a number of parcels in the county exceeding 10,000 parcels. In addition to the foregoing, any two members of a county board of equalization of the county may decide an appeal from an assessment, notwithstanding any other provisions of this Code section. The decision shall be in writing and signed by at least two members of the board of equalization; and, except for the number of members necessary to decide an appeal, the decision shall conform to the requirements of this Code section.
    4. The governing authorities of two or more counties may by intergovernmental agreement establish regional boards of equalization for such counties which shall operate in the same manner and be subject to all of the requirements of this Code section specified for county boards of equalization. The intergovernmental agreement shall specify the manner in which the members of the regional board shall be appointed by the grand jury of each of the counties, shall specify which appeal administrator shall have oversight over and supervision of such regional board, and shall provide for funding from each participating county for the operations of the appeal administrator as required by subparagraph (d)(4)(C.1) of this Code section. All hearings and appeals before a regional board shall be conducted in the county in which the property which is the subject of the hearing or appeal is located.
  2. Qualifications of board of equalization members.
    1. Each person who is, in the judgment of the appointing grand jury, qualified and competent to serve as a grand juror, who is the owner of real property located in the county where such person is appointed to serve, or, in the case of a regional board of equalization, is the owner of real property located in any county in the region where such person is appointed to serve, and who is at least a high school graduate shall be qualified, competent, and compellable to serve as a member or alternate member of the county board of equalization. No member of the governing authority of a county, municipality, or consolidated government; member of a county or independent board of education; member of the county board of tax assessors; employee of the county board of tax assessors; or county tax appraiser shall be competent to serve as a member or alternate member of the county board of equalization.
      1. Each person seeking to be appointed as a member or alternate member of a county board of equalization shall, not later than immediately prior to the time of his or her appointment under subsection (c) of this Code section, file with the clerk of the superior court a uniform application form which shall be a public record. The Council of Superior Court Clerks of Georgia created under Code Section 15-6-50.2 shall design the form which indicates the applicant's education, employment background, experience, and qualifications for such appointment.
        1. Within the first year after a member's initial appointment to the board of equalization, each member shall satisfactorily complete not less than 40 hours of instruction in appraisal and equalization processes and procedures, as prepared and required by the commissioner pursuant to Code Section 48-5-13.
        2. On or after January 1, 2016, following the completion of each term of office, a member shall, within the first year of appointment to the subsequent term of office, complete satisfactorily not less than 20 hours of instruction in appraisal and equalization processes and procedures, as prepared and required by the commissioner for newly appointed members.
        3. No person shall be eligible to hear an appeal as a member of a board of equalization unless, prior to hearing such appeal, such person shall satisfactorily complete the 20 hours of instruction in appraisal and equalization processes and procedures required under the applicable provisions of division (i) or (ii) of this subparagraph.
        4. The failure of any member to fulfill the requirements of the applicable provisions of division (i) or (ii) of this subparagraph shall render such member ineligible to serve on the board; and the vacancy created thereby shall be filled in the same manner as other vacancies on the board are filled.
        1. Any person appointed to a board of equalization shall be required to complete annually a continuing education requirement of at least eight hours of instruction in appraisal and equalization procedures, as prepared and required by the commissioner pursuant to Code Section 48-5-13.
        2. The failure of any member to fulfill the requirements of division (i) of this subparagraph shall render such member ineligible to serve on the board; and the vacancy created thereby shall be filled in the same manner as other vacancies on the board are filled.
  3. Appointment of board of equalization members.
    1. Except as provided in paragraph (2) of this subsection, each member and alternate member of the county board of equalization shall be appointed for a term of three calendar years next succeeding the date of such member or such alternate member's selection. Each term shall begin on January 1.
    2. The grand jury in each county at any term of court preceding November 1 of 1991 shall select three persons who are otherwise qualified to serve as members of the county board of equalization and shall also select three persons who are otherwise qualified to serve as alternate members of the county board of equalization. The three individuals selected as alternates shall be designated as alternate one, alternate two, and alternate three, with the most recent appointee being alternate number three, the next most recent appointee being alternate number two, and the most senior appointee being alternate number one. One member and one alternate shall be appointed for terms of one year, one member and one alternate shall be appointed for two years, and one member and one alternate shall be appointed for three years. Each year thereafter, the grand jury of each county shall select one member and one alternate for three-year terms.
    3. If a vacancy occurs on the county board of equalization, the individual designated as alternate one shall then serve as a member of the board of equalization for the unexpired term. If a vacancy occurs among the alternate members, the grand jury then in session or the next grand jury shall select an individual who is otherwise qualified to serve as an alternate member of the county board of equalization for the unexpired term. The individual so selected shall become alternate member three, and the other two alternates shall be redesignated appropriately.
    4. Within five days after the names of the members and alternate members of the county board or boards of equalization have been selected, the clerk of the superior court shall cause such appointees to appear before the clerk of the superior court for the purpose of taking and executing in writing the oath of office. The clerk of the superior court may utilize any means necessary for such purpose, including, but not limited to, telephonic or other communication, regular first-class mail, or issuance of and delivery to the sheriff or deputy sheriff a precept containing the names of the persons so selected. Within ten days of receiving the precept, the sheriff or deputy sheriff shall cause the persons whose names are written on the precept to be served personally or by leaving the summons at their place of residence. The summons shall direct the persons named on the summons to appear before the clerk of the superior court on a date specified in the summons, which date shall not be later than December 15.
    5. Each member and alternate member of the county board of equalization, on the date prescribed for appearance before the clerk of the superior court and before entering on the discharge of such member and alternate member's duties, shall take and execute in writing before the clerk of the superior court the following oath:

      "I, ______________, agree to serve as a member of the board of equalization of the County of ______________ and will decide any issue put before me without favor or affection to any party and without prejudice for or against any party. I will follow and apply the laws of this state. I also agree not to discuss any case or any issue with any person other than members of the board of equalization except at any appeal hearing. I shall faithfully and impartially discharge my duties in accordance with the Constitution and laws of this state, to the best of my skill and knowledge. So help me God.

      ____________________________________________

      Signature of member or alternate member"

      In addition to the oath of office prescribed in this paragraph, the presiding or chief judge of the superior court or the appeal administrator shall charge each member and alternate member of the county board of equalization with the law and duties relating to such office.

  4. Duties and powers of board of equalization members.
    1. The county board of equalization shall hear and determine appeals from assessments and denials of homestead exemptions as provided in subsection (e) of this Code section.
    2. If, in the course of determining an appeal, the county board of equalization finds reason to believe that the property involved in an appeal or the class of property in which is included the property involved in an appeal is not uniformly assessed with other property included in the digest, the board shall request the respective parties to the appeal to present relevant information with respect to that question. If the board determines that uniformity is not present, the board may order the county board of tax assessors to take such action as is necessary to obtain uniformity, except that, when a question of county-wide uniformity is considered by the board, the board may recommend a partial or total county-wide revaluation only upon a determination by a majority of all the members of the board that the clear and convincing weight of the evidence requires such action. The board of equalization may act pursuant to this paragraph whether or not the appellant has raised the issue of uniformity.
    3. The board shall establish procedures which comply strictly with the regulations promulgated by the commissioner pursuant to subparagraph (e)(1)(D) of this Code section for the conducting of appeals before the board. The procedures shall be entered into the minutes of the board, and a copy of the procedures shall be made available to any individual upon request.
      1. The appeal administrator shall have oversight over and supervision of all boards of equalization of the county and hearing officers. This oversight and supervision shall include, but not be limited to, requiring appointment of members of county boards of equalization by the grand jury; giving the notice of the appointment of members and alternates of the county board of equalization by the county grand jury as required by Code Section 15-12-81; collecting the names of possible appointees; collecting information from possible appointees as to their qualifications; presenting the names of the possible appointees to the county grand jury; processing the appointments as required by paragraph (4) of subsection (c) of this Code section, including administering the oath of office to the newly appointed members and alternates of the county board of equalization as required by paragraph (5) of such subsection; instructing the newly appointed members and alternates as to the training they must receive and the operations of the county board of equalization; presenting to the grand jury of the county the names of possible appointees to fill vacancies as provided in paragraph (3) of such subsection; maintaining a roster of board members and alternates, maintaining a record showing that the board members and alternates completed training, keeping attendance records of board members and alternates for the purpose of payment for service, and maintaining the uniform application forms and keeping a record of the appointment dates of board members and alternates and their terms in office; and informing the county board of equalization that it must establish by regulation procedures for conducting appeals before the board as required by paragraph (3) of this subsection. Oversight and supervision shall also include the scheduling of board hearings, assistance in scheduling hearings before hearing officers, and giving notice of the date, time, and place of hearings to the taxpayers and the county board of tax assessors and giving notice of the decisions of the county board of equalization or hearing officer to the taxpayer and county board of tax assessors as required by division (e)(6)(D)(i) of this Code section.
      2. The county governing authority shall provide any resources to the appeal administrator that are required to be provided by paragraph (7) of subsection (e) of this Code section.
      3. The county governing authority shall provide to the appeal administrator facilities and secretarial and clerical help for appeals pursuant to subsection (e.1) of this Code section.
      4. The appeal administrator shall maintain any county records of all notices to the taxpayer and the taxpayer's attorney, of certified receipts of returned or unclaimed mail, and from the hearings before the board of equalization and before hearing officers for 12 months after the deadline to file any appeal to the superior court expires. If an appeal is not filed to the superior court, the appeal administrator is authorized to properly destroy any records from the hearings before the county board of equalization or hearing officers but shall maintain records of all notices to the taxpayer and the taxpayer's attorney and certified receipts of returned or unclaimed mail for 12 months. If an appeal to the superior court is filed, the appeal administrator shall file such appeal and records in the civil action that is considered open by the clerk of superior court for such appeal, and such records shall become part of the record on appeal in accordance with paragraph (2) of subsection (g) of this Code section.

    (C.1) The operations of the appeal administrator under this Code section shall, for budgeting purposes, constitute a distinct budget unit within the county budget that is separate from the operations of the clerk of the superior court. The appeal administrator budget unit shall contain a separate line item for the compensation of the appeal administrator for the performance of duties required under this Code section as well as separate line items for resources, facilities, and personnel as specified under subparagraphs (B) and (C) of this paragraph.

  5. Appeal.
      1. Any taxpayer or property owner as of the last date for filing an appeal may elect to file an appeal from an assessment by the county board of tax assessors to:
        1. The county board of equalization as to matters of taxability, uniformity of assessment, and value, and, for residents, as to denials of homestead exemptions pursuant to paragraph (2) of this subsection;
        2. An arbitrator as to matters of value pursuant to subsection (f) of this Code section;
        3. A hearing officer as to matters of value and uniformity of assessment for a parcel of nonhomestead real property with a fair market value in excess of $500,000.00 as shown on the taxpayer's annual notice of current assessment under Code Section 48-5-306, and any contiguous nonhomestead real property owned by the same taxpayer, pursuant to subsection (e.1) of this Code section; or
        4. A hearing officer as to matters of values or uniformity of assessment of one or more account numbers of wireless property as defined in subparagraph (e.1)(1)(B) of this Code section with an aggregate fair market value in excess of $500,000.00 as shown on the taxpayer's annual notice of current assessment under Code Section 48-5-306, pursuant to subsection (e.1) of this Code section.
      2. In addition to the grounds enumerated in subparagraph (A) of this paragraph, any taxpayer having property that is located within a municipality, the boundaries of which municipality extend into more than one county, may also appeal from an assessment on such property by the county board of tax assessors to the county board of equalization, to a hearing officer, or to arbitration as to matters of uniformity of assessment of such property with other properties located within such municipality, and any uniformity adjustments to the assessment that may result from such appeal shall only apply for municipal ad valorem tax purposes.
      3. Appeals to the county board of equalization shall be conducted in the manner provided in paragraph (2) of this subsection. Appeals to a hearing officer shall be conducted in the manner specified in subsection (e.1) of this Code section. Appeals to an arbitrator shall be conducted in the manner specified in subsection (f) of this Code section. Such appeal proceedings shall be conducted between the hours of 8:00 A.M. and 7:00 P.M. on a business day. Following the notification of the taxpayer of the date and time of such taxpayer's scheduled hearing, the taxpayer shall be authorized to exercise a one-time option of changing the date and time of the taxpayer's scheduled hearing to a day and time acceptable to the taxpayer and the county board of tax assessors. The appeal administrator shall grant additional extensions to the taxpayer or the county board of tax assessors for good cause shown, or by agreement of the parties.
      4. The commissioner, by regulation, shall adopt uniform procedures and standards which shall be followed by county boards of equalization, hearing officers, and arbitrators in determining appeals. Such rules shall be updated and revised periodically and reviewed no less frequently than every five years. The commissioner shall publish and update annually a manual for use by county boards of equalization, arbitrators, and hearing officers.
      1. An appeal shall be effected by e-mailing, if the county board of tax assessors has adopted a written policy consenting to electronic service, by mailing to, or by filing with the county board of tax assessors a notice of appeal within 45 days from the date of mailing the notice pursuant to Code Section 48-5-306. A written objection to an assessment of real property received by a county board of tax assessors stating the location of the real property and the identification number, if any, contained in the tax notice shall be deemed a notice of appeal by the taxpayer under the grounds listed in paragraph (1) of this subsection. A written objection to an assessment of personal property received by a county board of tax assessors giving the account number, if any, contained in the tax notice and stating that the objection is to an assessment of personal property shall be deemed a notice of appeal by the taxpayer under the grounds listed in paragraph (1) of this subsection. The county board of tax assessors shall review the valuation or denial in question, and, if any changes or corrections are made in the valuation or decision in question, the board shall send a notice of the changes or corrections to the taxpayer pursuant to Code Section 48-5-306. Such notice shall also explain the taxpayer's right to appeal to the county board of equalization as provided in subparagraph (C) of this paragraph if the taxpayer is dissatisfied with the changes or corrections made by the county board of tax assessors.
      2. If no changes or corrections are made in the valuation or decision, the county board of tax assessors shall send written notice thereof to the taxpayer, to any authorized agent or representative of the taxpayer to whom the taxpayer has requested that such notice be sent, and to the county board of equalization which notice shall also constitute the taxpayer's appeal to the county board of equalization without the necessity of the taxpayer's filing any additional notice of appeal to the county board of tax assessors or to the county board of equalization. The county board of tax assessors shall also send or deliver all necessary papers to the county board of equalization. If, however, the taxpayer and the county board of tax assessors execute a signed agreement as to valuation, the appeal shall terminate as of the date of such signed agreement.
      3. If changes or corrections are made by the county board of tax assessors, the board shall notify the taxpayer in writing of such changes. The commissioner shall develop and make available to county boards of tax assessors a suitable form which shall be used in such notification to the taxpayer. The notice shall be sent by regular mail properly addressed to the address or addresses the taxpayer provided to the county board of tax assessors and to any authorized agent or representative of the taxpayer to whom the taxpayer has requested that such notice be sent. If the taxpayer is dissatisfied with such changes or corrections, the taxpayer shall, within 30 days of the date of mailing of the change notice, notify the county board of tax assessors to continue the taxpayer's appeal to the county board of equalization by e-mailing, if the county board of tax assessors has adopted a written policy consenting to electronic service, or by mailing to or filing with the county board of tax assessors a written notice of continuance. The county board of tax assessors shall send or deliver the notice of appeal and all necessary papers to the county board of equalization.
      4. The written notice to the taxpayer required by this paragraph shall contain a statement of the grounds for rejection of any position the taxpayer has asserted with regard to the valuation of the property. No addition to or amendment of such grounds as to such position shall be permitted before the county board of equalization.
      1. In each year, the county board of tax assessors shall review the appeal and notify the taxpayer (i) if there are no changes or corrections in the valuation or decision, or (ii) of any corrections or changes within 180 days after receipt of the taxpayer's notice of appeal. If the county board of tax assessors fails to respond to the taxpayer within such 180 day period, the property valuation asserted by the taxpayer on the property tax return or the taxpayer's notice of appeal shall become the assessed fair market value for the taxpayer's property for the tax year under appeal. If no such assertion of value was submitted by the taxpayer, the appeal shall be forwarded to the county board of equalization.
      2. In any county in which the number of appeals exceeds a number equal to or greater than 3 percent of the total number of parcels in the county or the sum of the current assessed value of the parcels under appeal is equal to or greater than 3 percent of the gross tax digest of the county, the county board of tax assessors may be granted an additional 180 day period to make its determination and notify the taxpayer. However, as a condition to receiving such an extension, the county board of tax assessors shall, at least 30 days before the expiration of the 180 day period provided under subparagraph (A) of this paragraph, notify each affected taxpayer of the additional 180 day review period provided in this subparagraph by mail or electronic communication, including posting notice on the website of the county board of tax assessors if such a website is available. Such additional period shall commence immediately following the last day of the 180 days provided for under subparagraph (A) of this paragraph. If the county board of tax assessors fails to review the appeal and notify the taxpayer of either no changes or of any corrections or changes not later than the last day of such additional 180 day period, then the most recent property tax valuation asserted by the taxpayer on the property tax return or on appeal shall prevail and shall be deemed the value established on such appeal unless a time extension is granted under subparagraph (C) of this paragraph. If no such assertion of value was submitted by the taxpayer, the appeal shall be forwarded to the county board of equalization.
      3. Upon a sufficient showing of good cause by reason of unforeseen circumstances proven to the commissioner at least 30 days prior to the expiration of the additional 180 day period provided for under subparagraph (B) of this paragraph, the commissioner shall be authorized, in the commissioner's sole discretion, to provide for a time extension beyond the end of such additional 180 day period. The duration of any such time extension shall be specified in writing by the commissioner and, at least 30 days prior to the expiration of the extension provided for under subparagraph (B) of this paragraph, shall be sent to each affected taxpayer and shall also be posted on the website of the county board of tax assessors if such a website is available. If the county board of tax assessors fails to make its review and notify the taxpayer and the taxpayer's attorney not later than 30 days before the last day of such time extension, the most recent property tax valuation asserted by the taxpayer on the property tax return or on the taxpayer's notice of appeal shall prevail and shall be deemed the value established on such appeal. If no such assertion of value was submitted by the taxpayer, the appeal shall be forwarded to the county board of equalization. In addition, the commissioner shall be authorized to require additional training or require such other remediation as the commissioner may deem appropriate for failure to meet the deadline imposed by the commissioner under this subparagraph.
    4. The determination by the county board of tax assessors of questions of factual characteristics of the property under appeal, as opposed to questions of value, shall be prima-facie correct in any appeal to the county board of equalization. However, the board of tax assessors shall have the burden of proving its opinions of value and the validity of its proposed assessment by a preponderance of evidence.
    5. The county board of equalization shall determine all questions presented to it on the basis of the best information available to the board.
      1. Within 15 days of the receipt of the notice of appeal, the county board of equalization shall set a date for a hearing on the questions presented and shall so notify the taxpayer and the county board of tax assessors in writing. Such notice shall be sent by first-class mail to the taxpayer and to any authorized agent or representative of the taxpayer to whom the taxpayer has requested that such notice be sent. Such notice shall be transmitted by e-mail to the county board of tax assessors if such board has adopted a written policy consenting to electronic service, and, if it has not, then such notice shall be sent to such board by first-class mail or intergovernmental mail. Such written notice shall advise each party that he or she may request a list of witnesses, documents, or other written evidence to be presented at the hearing by the other party. Such request must be made not less than ten days prior to the hearing date, and such information shall be provided to the requesting party not less than seven days prior to the time of the hearing. Any failure to comply with this requirement shall be grounds for an automatic continuance or for exclusion of such witness, documents, or other written evidence. A taxpayer may appear before the board of equalization concerning any appeal in person, by his or her authorized agent or representative, or both. The taxpayer shall specify in writing to the board of equalization the name of any such agent or representative prior to any appearance by the agent or representative before the board.
      2. Within 30 days of the date of notification to the taxpayer of the hearing required in this paragraph but not earlier than 20 days from the date of such notification to the taxpayer, the county board of equalization shall hold such hearing to determine the questions presented.
      3. If more than one property of a taxpayer is under appeal, the board of equalization shall, upon request of the taxpayer, consolidate all such appeals in one hearing and announce separate decisions as to each parcel or item of property. Any appeal from such a consolidated board of equalization hearing to the superior court as provided in this subsection shall constitute a single civil action, and, unless the taxpayer specifically so indicates in his or her notice of appeal, shall apply to all such parcels or items of property.
        1. The board of equalization shall announce its decision on each appeal at the conclusion of the hearing held in accordance with subparagraph (B) of this paragraph before proceeding with another hearing. The decision of the county board of equalization shall be in writing, shall be signed by each member of the board, shall specifically decide each question presented by the appeal, shall specify the reason or reasons for each such decision as to the specific issues of taxability, uniformity of assessment, value, or denial of homestead exemptions depending upon the specific issue or issues raised by the taxpayer in the course of such taxpayer's appeal, shall state that with respect to the appeal no member of the board is disqualified from acting by virtue of subsection (j) of this Code section, and shall certify the date on which notice of the decision is given to the parties. Notice of the decision shall be delivered by hand to each party, with written receipt, or given to each party by sending a copy of the decision by registered or certified mail or statutory overnight delivery to the appellant and by filing the original copy of the decision with the county board of tax assessors. Each of the three members of the county board of equalization must be present and must participate in the deliberations on any appeal. A majority vote shall be required in any matter. All three members of the board shall sign the decision indicating their vote.
        2. Except as otherwise provided in subparagraph (g)(4)(B) of this Code section, the county board of tax assessors shall use the valuation of the county board of equalization in compiling the tax digest for the county for the year in question and shall indicate such valuation as the previous year's value on the property tax notice of assessment of such taxpayer for the immediately following year rather than substituting the valuation which was changed by the county board of equalization.
        3. (I) If the county's tax bills are issued before an appeal has been finally determined, the county board of tax assessors shall specify to the county tax commissioner the lesser of the valuation in the last year for which taxes were finally determined to be due on the property or 85 percent of the current year's value, unless the property in issue is homestead property and has been issued a building permit and structural improvements have occurred, or structural improvements have been made without a building permit, in which case, it shall specify 85 percent of the current year's valuation as set by the county board of tax assessors. Depending on the circumstances of the property, this amount shall be the basis for a temporary tax bill to be issued; provided, however, that a nonhomestead owner of a single property valued at $2 million or more may elect to pay the temporary tax bill which specifies 85 percent of the current year's valuation; or, such owner may elect to pay the amount of the difference between the 85 percent tax bill based on the current year's valuation and the tax bill based on the valuation from the last year for which taxes were finally determined to be due on the property in conjunction with the amount of the tax bill based on valuation from the last year for which taxes were finally determined to be due on the property, to the tax commissioner's office. Only the amount which represents the difference between the tax bill based on the current year's valuation and the tax bill based on the valuation from the last year for which taxes were finally determined to be due will be held in an escrow account by the tax commissioner's office. Once the appeal is concluded, the escrowed funds shall be released by the tax commissioner's office to the prevailing party. The taxpayer may elect to pay the temporary tax bill in the amount of 100 percent of the current year's valuation if no substantial property improvement has occurred. The county tax commissioner shall have the authority to adjust such tax bill to reflect the 100 percent value as requested by the taxpayer. Such tax bill shall be accompanied by a notice to the taxpayer that the bill is a temporary tax bill pending the outcome of the appeal process. Such notice shall also indicate that upon resolution of the appeal, there may be additional taxes due or a refund issued.

          (II) For the purposes of this Code section, any final value that causes a reduction in taxes and creates a refund that is owed to the taxpayer shall be paid by the tax commissioner to the taxpayer, entity, or transferee who paid the taxes with interest, as provided in subsection (m) of this Code section.

          (III) For the purposes of this Code section, any final value that causes an increase in taxes and creates an additional billing shall be paid to the tax commissioner as any other tax due along with interest, as provided in subsection (m) of this Code section.

        1. (A) For any dispute involving the value or uniformity of a parcel of nonhomestead real property with a fair market value in excess of $500,000.00 as shown on the taxpayer's annual notice of current assessment under Code Section 48-5-306, at the option of the taxpayer, an appeal may be submitted to a hearing officer in accordance with this subsection. If such taxpayer owns nonhomestead real property contiguous to such qualified nonhomestead real property, at the option of the taxpayer, such contiguous property may be consolidated with the qualified property for purposes of the hearing under this subsection.
        2. Individuals desiring to serve as hearing officers and who are either state certified general real property appraisers or state certified residential real property appraisers as classified by the Georgia Real Estate Commission and the Georgia Real Estate Appraisers Board for real property appeals or are designated appraisers by a nationally recognized appraiser's organization for wireless property appeals shall complete and submit an application, a list of counties the hearing officer is willing to serve, disqualification questionnaire, and resume and be approved by the Georgia Real Estate Commission and the Georgia Real Estate Appraisers Board to serve as a hearing officer. Such board shall annually publish a list of qualified and approved hearing officers for Georgia.
        3. The appeal administrator shall furnish any hearing officer so selected the necessary facilities.
        4. An appeal shall be effected by e-mailing, if the county board of tax assessors has adopted a written policy consenting to electronic service, or by filing with the county board of tax assessors a notice of appeal to a hearing officer within 45 days from the date of mailing the notice of assessment pursuant to Code Section 48-5-306. A written objection to an assessment of real property or wireless property received by a county board of tax assessors stating the taxpayer's election to appeal to a hearing officer and showing the location of the real property or wireless property contained in the assessment notice shall be deemed a notice of appeal by the taxpayer.
        5. The county board of tax assessors may for no more than 90 days review the taxpayer's written appeal, and if changes or corrections are made by the county board of tax assessors, the board shall notify the taxpayer in writing of such changes. Within 30 days of the county board of tax assessors' mailing of such notice, the taxpayer may notify the county board of tax assessors in writing that the changes or corrections made by the county board of tax assessors are not acceptable, in which case, the county board of tax assessors shall, within 30 days of the date of mailing of such taxpayer's notification, send or deliver all necessary documentation to the appeal administrator, in paper or electronic format as agreed upon by the county board of tax assessors and appeal administrator, and mail a copy to the taxpayer or, alternatively, forward the appeal to the board of equalization if so elected by the taxpayer and such election is included in the taxpayer's notification that the changes are not acceptable. If, after review, the county board of tax assessors determines that no changes or corrections are warranted, the county board of tax assessors shall notify the taxpayer of such decision. The taxpayer may elect to forward the appeal to the board of equalization by notifying the county board of tax assessors within 30 days of the mailing of the county board of tax assessor's notice of no changes or corrections. Upon the expiration of 30 days following the mailing of the county board of tax assessors' notice of no changes or corrections, the county board of tax assessors shall certify the notice of appeal and send or deliver all necessary documentation to the appeal administrator, in paper or electronic format as agreed upon by the county board of tax assessors and appeal administrator, for the appeal to the hearing officer, or board of equalization if elected by the taxpayer, and mail a copy to the taxpayer. If the county board of tax assessors fails to respond in writing, either with changes or no changes, to the taxpayer within 180 days after receiving the taxpayer's notice of appeal, the property valuation asserted by the taxpayer on the property tax return or the taxpayer's notice of appeal shall become the assessed fair market value for the taxpayer's property for the tax year under appeal.
        6. (A) The appeal administrator shall randomly select from such list a hearing officer who shall have experience or expertise in hearing or appraising the type of property that is the subject of appeal to hear the appeal, unless the taxpayer and the county board of tax assessors mutually agree upon a hearing officer from such list. The appeal administrator shall notify the taxpayer and the taxpayer's attorney in compliance with subsection (o) of this Code section of the name of the hearing officer and transmit a copy of the hearing officer's disqualification questionnaire and resume provided for under paragraph (2) of this subsection. If no hearing officer is appointed or if no hearing is scheduled within 180 days after the county board of tax assessors receives the taxpayer's notice of appeal, the property valuation asserted by the taxpayer on the property tax return or the taxpayer's notice of appeal shall become the assessed fair market value for the taxpayer's property for the tax year under appeal, and subsection (c) of Code Section 48-5-299 shall apply. The hearing officer, in conjunction with all parties to the appeal, shall set a time and place to hear evidence and testimony from both parties. The hearing shall take place in the county where the property is located, or such other place as mutually agreed to by the parties and the hearing officer. The hearing officer shall provide electronic or written notice to the parties personally or by registered or certified mail or statutory overnight delivery not less than ten days before the hearing. Such written notice shall advise each party that he or she may request a list of witnesses, documents, or other written evidence to be presented at the hearing by the other party. Such request must be made not less than ten days prior to the hearing date, and such information shall be provided to the requesting party not less than seven days prior to the time of the hearing. Any failure to comply with this requirement shall be grounds for an automatic continuance or for exclusion of such witnesses, documents, or other written evidence.
        7. The hearing officer shall swear in all witnesses, perform the powers, duties, and authority of a county or regional board of equalization, and determine the fair market value of the real property or wireless property based upon the testimony and evidence presented during the hearing. Any issues other than fair market value and uniformity raised in the appeal shall be preserved for appeal to the superior court. The board of tax assessors shall have the burden of proving its opinion of value and the validity of its proposed assessment by a preponderance of evidence. At the conclusion of the hearing, the hearing officer shall notify both parties of the decision verbally and shall either send both parties the decision in writing or deliver the decision by hand to each party, with written receipt.
        8. The taxpayer or the board of tax assessors may appeal the decision of the hearing officer to the superior court as provided in subsection (g) of this Code section.
        9. If, at any time during the appeal under this subsection, the taxpayer and the county board of tax assessors execute a signed written agreement on the fair market value and any other issues raised: the appeal shall terminate as of the date of such signed agreement; the fair market value as set forth in such agreement shall become final; and subsection (c) of Code Section 48-5-299 shall apply.
        10. Each hearing officer shall be compensated by the county for time expended in hearing appeals. The compensation shall be paid at a rate of not less than $100.00 per hour for the first hour and not less than $25.00 per hour for each hour thereafter as determined by the county governing authority or as may be agreed upon by the parties with the consent of the county governing authority. Compensation pursuant to this paragraph shall be paid from the county treasury or, if the parties agree to pay compensation exceeding the minimum compensation set by this Code section, by a combination of the parties as agreed on by the parties. The hearing officer shall receive such compensation upon certification by the hearing officer of the hours expended in hearing of appeals. The attendance at any training required by the commissioner shall be part of the qualifications of the hearing officer, and any nominal cost of such training shall be paid by the hearing officer.
        11. The commissioner shall promulgate rules and regulations for the proper administration of this subsection, including, but not limited to, qualifications; training, including an eight-hour course on Georgia property law, Georgia evidence law, preponderance of evidence, burden of proof, credibility of the witnesses, and weight of evidence; disqualification questionnaire; selection; removal; an annual continuing education requirement of at least four hours of instruction in recent legislation, current case law, and updates on appraisal and equalization procedures, as prepared and required by the commissioner; and any other matters necessary to the proper administration of this subsection. The failure of any hearing officer to fulfill the requirements of this paragraph shall render such officer ineligible to serve. Such rules and regulations shall also include a uniform appeal form which shall require the initial assertion of a valuation of the property by the taxpayer. Any such assertion of value shall be subject to later revision by the taxpayer based upon written evidence. The commissioner shall seek input from all interested parties prior to such promulgation.
        12. If the county's tax bills are issued before the hearing officer has rendered his or her decision on property which is on appeal, a temporary tax bill shall be issued in the same manner as otherwise required under division (e)(6)(D)(iii) of this Code section.
        13. Upon determination of the final value, the temporary tax bill shall be adjusted as required under division (e)(6)(D)(iii) of this Code section.
    7. The appeal administrator shall furnish the county board of equalization necessary facilities and administrative help. The appeal administrator shall see that the records and information of the county board of tax assessors are transmitted to the county board of equalization. The county board of equalization shall consider in the performance of its duties the information furnished by the county board of tax assessors and the taxpayer.
    8. If at any time during the appeal process to the county board of equalization, the county board of tax assessors and the taxpayer mutually agree in writing on the fair market value, then the county board of tax assessors, or the county board of equalization, as the case may be, shall enter the agreed amount in all appropriate records as the fair market value of the property under appeal, and the appeal shall be concluded. The provisions in subsection (c) of Code Section 48-5-299 shall apply to the agreed-upon valuation unless otherwise waived by both parties.
    9. Notwithstanding any other provision of law to the contrary, on any real property tax appeal made under this Code section on and after January 1, 2016, the assessed value being appealed may be lowered by the deciding body based upon the evidence presented but cannot be increased from the amount assessed by the county board of tax assessors. This paragraph shall not apply to any appeal where the taxpayer files an appeal during a time when subsection (c) of Code Section 48-5-299 is in effect for the assessment being appealed.

      (B) (i) As used in this subparagraph, the term "wireless property" means tangible personal property or equipment used directly for the provision of wireless services by a provider of wireless services which is attached to or is located underneath a wireless cell tower or at a network data center location but which is not permanently affixed to such tower or data center so as to constitute a fixture.

      (ii) For any dispute involving the values or uniformity of one or more account numbers of wireless property as defined in this subparagraph with an aggregate fair market value in excess of $500,000.00 as shown on the taxpayer's annual notice of current assessment under Code Section 48-5-306, at the option of the taxpayer, an appeal may be submitted to a hearing officer in accordance with this subsection.

      (B) If the appeal administrator, after a diligent search, cannot find a qualified hearing officer who is willing to serve, the appeal administrator shall transfer the certification of the appeal to the county or regional board of equalization and notify the taxpayer and the taxpayer's attorney in compliance with subsection (o) of this Code section and the county board of tax assessors of the transmittal of such appeal.

      (9.1) The provisions contained in this subsection may be waived at any time by written consent of the taxpayer and the county board of tax assessors.

    (A.1) The commissioner shall establish by rule and regulation a uniform appeal form that the taxpayer may use. Such uniform appeal form shall require the initial assertion of a valuation of the property by the taxpayer.

    (B.1) The taxpayer or his or her agent or representative may submit in support of his or her appeal an appraisal given, signed, and certified as such by a real property appraiser as classified by the Georgia Real Estate Commission and the Georgia Real Estate Appraisers Board which was performed not later than nine months prior to the date of assessment. The board of tax assessors shall consider the appraisal upon request. Within 45 days of the receipt of the taxpayer's appraisal, the board of tax assessors shall notify the taxpayer or his or her agent or representative of acceptance of the appraisal or shall notify the taxpayer or his or her agent or representative of the reasons for rejection.

    (B.2) The taxpayer or his or her agent or representative may submit in support of his or her appeal the most current report of the sales ratio study for the county conducted pursuant to Code Section 48-5-274. The board of tax assessors shall consider such sales ratio study upon request of the taxpayer or his or her agent or representative.

    (B.3) Any assertion of value by the taxpayer on the uniform appeal form made to the board of tax assessors shall be subject to later amendment or revision by the taxpayer by submission of written evidence to the board of tax assessors.

    (B.4) If more than one property of a taxpayer is under appeal, the board of equalization, arbitrator, or hearing officer, as the case may be, shall, upon request of the taxpayer, consolidate all such appeals in one hearing and shall announce separate decisions as to each parcel or item of property. Any appeal from such a consolidated hearing to the superior court as provided in subsection (g) of this Code section shall constitute a single civil action and, unless the taxpayer specifically so indicates in the taxpayer's notice of appeal, shall apply to all such parcels or items of property.

    (B.5) Within ten days of a final determination of value under this Code section and the expiration of the 30 day appeal period provided by subsection (g) of this Code section, or, as otherwise provided by law, with no further option to appeal, the county board of tax assessors shall forward such final determination of value to the tax commissioner.

    (e.1) Appeals to hearing officer.

  6. Nonbinding arbitration.
    1. As used in this subsection, the term "certified appraisal" means an appraisal or appraisal report given, signed, and certified as such by a real property appraiser as classified by the Georgia Real Estate Commission and the Georgia Real Estate Appraisers Board.
    2. At the option of the taxpayer, an appeal shall be submitted to nonbinding arbitration in accordance with this subsection.
      1. Following an election by the taxpayer to use the arbitration provisions of this subsection, an arbitration appeal shall be effected by the taxpayer by e-mailing, if the county board of tax assessors has adopted a written policy consenting to electronic service, or by filing a written notice of arbitration appeal with the county board of tax assessors. The notice of arbitration appeal shall specifically state the grounds for arbitration. The notice shall be filed within 45 days from the date of mailing the notice pursuant to Code Section 48-5-306. Within ten days of receipt of a taxpayer's notice of arbitration appeal, the board of tax assessors shall send to the taxpayer an acknowledgment of receipt of the appeal and a notice that the taxpayer shall, within 45 days of the date of transmittal of the acknowledgment of receipt of the appeal, provide to the county board of tax assessors for consideration a copy of a certified appraisal. Failure of the taxpayer to provide such certified appraisal within such 45 days shall terminate the appeal unless the taxpayer within such 45 day period elects to have the appeal immediately forwarded to the board of equalization. Prior to appointment of the arbitrator and within 45 days of the acknowledgment of the receipt of the appeal, the taxpayer shall provide a copy of the certified appraisal as specified in this paragraph to the county board of tax assessors for consideration. Within 45 days of receiving the taxpayer's certified appraisal, the county board of tax assessors shall either accept the taxpayer's appraisal, in which case that value shall become final, or the county board of tax assessors shall reject the taxpayer's appraisal by sending within ten days of the date of such rejection a written notification by certified mail of such rejection to the taxpayer and the taxpayer's attorney of record in compliance with subsection (o) of this Code section, in which case the county board of tax assessors shall certify within 45 days the appeal to the appeal administrator of the county in which the property is located along with any other documentation specified by the person seeking arbitration under this subsection, including, but not limited to, the staff information from the file used by the county board of tax assessors. In the event the taxpayer is not notified of a rejection of the taxpayer's appraisal within such ten-day period, the taxpayer's appraisal value shall become final. In the event that the county board of tax assessors neither accepts nor rejects the value set out in the certified appraisal within 45 days after the receipt of the certified appraisal, then the certified appraisal shall become the final value. All papers and information certified to the appeal administrator shall become a part of the record on arbitration. At the time of certification of the appeal, the county board of tax assessors shall serve the taxpayer and the taxpayer's attorney of record in compliance with subsection (o) of this Code section, if any, or employee with a copy of the certification along with any other papers specified by the person seeking arbitration along with the civil action file number assigned to the appeal, if any. Within 15 days of filing the certification to the appeal administrator, the presiding or chief judge of the superior court of the circuit in which the property is located shall issue an order authorizing the arbitration.
      2. At any point, the county board of tax assessors and the taxpayer may execute a signed, written agreement establishing the fair market value without entering into or completing the arbitration process. The fair market value as set forth in such agreement shall become the final value.
      3. The arbitration shall be conducted pursuant to the following procedure:
        1. The county board of tax assessors shall, at the time the appeal is certified to the appeal administrator under subparagraph (A) of this paragraph, provide to the taxpayer a notice of a meeting time and place to decide upon an arbitrator, to occur within 60 days after the date of sending the rejection of the taxpayer's certified appraisal. Following the notification of the taxpayer of the date and time of the meeting, the taxpayer shall be authorized to exercise a one-time option of changing the date and time of the meeting to a date and time acceptable to the taxpayer and the county board of tax assessors. If the parties agree, the matter shall be submitted to a single arbitrator chosen by the parties. If the parties cannot agree on the single arbitrator, the arbitrator may be chosen by the presiding or chief judge of the superior court of the circuit in which the property is located within 30 days after the filing of a petition by either party;
        2. In order to be qualified to serve as an arbitrator, a person shall be classified as a state certified general real property appraiser or state certified residential real property appraiser pursuant to the rules and regulations of the Georgia Real Estate Commission and the Georgia Real Estate Appraisers Board and shall have experience or expertise in appraising the type of property that is the subject of the arbitration;
        3. The arbitrator, within 30 days after his or her appointment, shall set a time and place to hear evidence and testimony from both parties. The arbitrator shall provide written notice to the parties personally or by registered or certified mail or statutory overnight delivery not less than 21 days before the hearing. Such written notice shall advise each party that he or she may request a list of witnesses, documents, or other written evidence to be presented at the hearing by the other party. Such request must be made not less than ten days prior to the hearing date, and such information shall be provided to the requesting party not less than seven days prior to the time of the hearing. Any failure to comply with this requirement shall be grounds for an automatic continuance or for exclusion of such witnesses, documents, or other written evidence. The arbitrator, in consultation with the parties, may adjourn or postpone the hearing. Following notification of the taxpayer of the date and time of the hearing, the taxpayer shall be authorized to exercise a one-time option of changing the date and time of the hearing to a date and time acceptable to the taxpayer and the county board of tax assessors. The presiding or chief judge of the superior court of the circuit in which the property is located may direct the arbitrator to proceed promptly with the hearing and the determination of the appeal upon application of any party. The hearing shall occur in the county in which the property is located or such other place as may be agreed upon in writing by the parties;
        4. At the hearing, the parties shall be entitled to be heard, to present documents, testimony, and other matters, and to cross-examine witnesses. The arbitrator may hear and determine the controversy upon the documents, testimony, and other matters produced notwithstanding the failure of a party duly notified to appear;
        5. The arbitrator shall maintain a record of all pleadings, documents, testimony, and other matters introduced at the hearing. The arbitrator or any party to the proceeding may have the proceedings transcribed by a court reporter;
        6. The provisions of this paragraph may be waived at any time by written consent of the taxpayer and the board of tax assessors;
        7. At the conclusion of the hearing, the arbitrator shall render a decision regarding the fair market value of the property subject to nonbinding arbitration;
        8. In order to determine the fair market value, the arbitrator may consider the final value for the property submitted by the county board of tax assessors at the hearing and the final value submitted by the taxpayer at the hearing. The taxpayer shall be responsible for the cost of any appraisal by the taxpayer's appraiser;
        9. The arbitrator shall consider the final value submitted by the county board of tax assessors, the final value submitted by the taxpayer, and evidence supporting the values submitted by the county board of tax assessors and the taxpayer. The arbitrator shall determine the fair market value of the property under appeal. The arbitrator shall notify both parties of the decision verbally and shall either send both parties the decision in writing or deliver the decision by hand to each party, with written receipt;
        10. If the taxpayer's value is closest to the fair market value determined by the arbitrator, the county shall be responsible for the fees and costs of such arbitrator. If the value of the board of tax assessors is closest to the fair market value determined by the arbitrator, the taxpayer shall be responsible for the fees and costs of such arbitrator; and
        11. The board of tax assessors shall have the burden of proving its opinion of value and the validity of its proposed assessment by a preponderance of evidence.
    4. If the county's tax bills are issued before an arbitrator has rendered his or her decision on property which is on appeal, a temporary tax bill shall be issued in the same manner as otherwise required under division (e)(6)(D)(iii) of this Code section.
    5. Upon determination of the final value, the temporary tax bill shall be adjusted as required under division (e)(6)(D)(iii) of this Code section.
  7. Appeals to the superior court.
    1. The taxpayer or the county board of tax assessors may appeal decisions of the county board of equalization, hearing officer, or arbitrator, as applicable, to the superior court of the county in which the property lies. By mutual written agreement, the taxpayer and the county board of tax assessors may waive an appeal to the county board of equalization and initiate an appeal under this subsection. A county board of tax assessors shall not appeal a decision of the county board of equalization, arbitrator, or hearing officer, as applicable, changing an assessment by 20 percent or less unless the board of tax assessors gives the county governing authority a written notice of its intention to appeal, and, within ten days of receipt of the notice, the county governing authority by majority vote does not prohibit the appeal. In the case of a joint city-county board of tax assessors, such notice shall be given to the city and county governing authorities, either of which may prohibit the appeal by majority vote within the allowed period of time.
    2. An appeal by the taxpayer as provided in paragraph (1) of this subsection shall be effected by e-mailing, if the county board of tax assessors has adopted a written policy consenting to electronic service, or by mailing to or filing with the county board of tax assessors a written notice of appeal. An appeal by the county board of tax assessors shall be effected by giving notice to the taxpayer. The notice to the taxpayer shall be dated and shall contain the name and the last known address of the taxpayer. The notice of appeal shall specifically state the grounds for appeal. The notice shall be mailed or filed within 30 days from the date on which the decision of the county board of equalization, hearing officer, or arbitrator is delivered pursuant to subparagraph (e)(6)(D), paragraph (7) of subsection (e.1), or division (f)(3)(C)(ix) of this Code section. Within 45 days of receipt of a taxpayer's notice of appeal and before certification of the appeal to the superior court, the county board of tax assessors shall send to the taxpayer notice that a settlement conference, in which the county board of tax assessors and the taxpayer shall confer in good faith, will be held at a specified date and time which shall be no later than 30 days from the notice of the settlement conference, and notice of the amount of the filing fee, if any, required by the clerk of the superior court. The taxpayer may exercise a one-time option to reschedule the settlement conference to a different date and time acceptable to the taxpayer during normal business hours. After a settlement conference has convened, the parties may agree to continue the settlement conference to a later date. If at the end of the 45 day review period the county board of tax assessors elects not to hold a settlement conference, then the appeal shall terminate and the taxpayer's stated value shall be entered in the records of the board of tax assessors as the fair market value for the year under appeal and the provisions of subsection (c) of Code Section 48-5-299 shall apply to such value. If the taxpayer chooses not to participate in the settlement conference, he or she may not seek and shall not be awarded fees and costs at such time when the appeal is settled in superior court. If at the conclusion of the settlement conference the parties reach an agreement, the settlement value shall be entered in the records of the county board of tax assessors as the fair market value for the tax year under appeal and the provisions of subsection (c) of Code Section 48-5-299 shall apply to such value. If at the conclusion of the settlement conference the parties cannot reach an agreement, then written notice shall be provided to the taxpayer that the filing fees must be paid by the taxpayer to the clerk of the superior court within 20 days of the date of the conference, with a copy of the check delivered to the county board of tax assessors. Notwithstanding any other provision of law to the contrary, the amount of the filing fee for an appeal under this subsection shall be $25.00. An appeal under this subsection shall not be subject to any other fees or additional costs otherwise required under any provision of Title 15 or under any other provision of law. Immediately following payment of such $25.00 filing fee by the taxpayer to the clerk of the superior court, the clerk shall remit the proceeds thereof to the governing authority of the county which shall deposit the proceeds into the general fund of the county. Within 30 days of receipt of proof of payment to the clerk of the superior court, the county board of tax assessors shall certify to the clerk of the superior court the notice of appeal and any other papers specified by the person appealing including, but not limited to, the staff information from the file used by the county board of tax assessors, the county board of equalization, the hearing officer, or the arbitrator. All papers and information certified to the clerk shall become a part of the record on appeal to the superior court. At the time of certification of the appeal, the county board of tax assessors shall serve the taxpayer and his or her attorney of record, if any, with a copy of the notice of appeal and with the civil action file number assigned to the appeal. Such service shall be effected in accordance with subsection (b) of Code Section 9-11-5. No discovery, motions, or other pleadings may be filed by the county board of tax assessors in the appeal until such service has been made.
    3. The appeal shall constitute a de novo action. The board of tax assessors shall have the burden of proving its opinions of value and the validity of its proposed assessment by a preponderance of evidence. Upon a failure of the board of tax assessors to meet such burden of proof, the court may, upon motion or sua sponte, authorize the finding that the value asserted by the board of tax assessors is unreasonable and authorize the determination of the final value of the property.
      1. The appeal shall be placed on the court's next available jury or bench trial calendar, at the taxpayer's election, following the filing of the appeal unless continued by the court. If only questions of law are presented in the appeal, the appeal shall be heard as soon as practicable before the court sitting without a jury. Each hearing before the court sitting without a jury at the taxpayer's election shall be held within 30 days following the date on which the appeal is filed with the clerk of the superior court.
        1. The county board of tax assessors shall use the valuation of the county board of equalization, the hearing officer, or the arbitrator, as applicable, in compiling the tax digest for the county.
        2. (I) If the final determination of value on appeal is less than the valuation thus used, the tax commissioner shall be authorized to adjust the taxpayer's tax bill to reflect the final value for the year in question.

          (II) If the final determination of value on appeal causes a reduction in taxes and creates a refund that is owed to the taxpayer, it shall be paid by the tax commissioner to the taxpayer, entity, or transferee who paid the taxes with interest, as provided in subsection (m) of this Code section.

          (III) If the final determination of value on appeal is 85 percent or less of the valuation set by the county board of equalization, hearing officer, or arbitrator as to any real property, the taxpayer, in addition to the interest provided for in subsection (m) of this Code section, shall recover costs of litigation and reasonable attorney's fees incurred in the action. Any appeal of an award of attorney's fees by the county shall be specifically approved by the governing authority of the county.

        3. If the final determination of value on appeal is greater than the valuation set by the county board of equalization, hearing officer, or arbitrator, as applicable, causes an increase in taxes, and creates an additional billing, it shall be paid to the tax commissioner as any other tax due along with interest, as provided in subsection (m) of this Code section.

          The provisions in subsection (c) of Code Section 48-5-299 shall apply to the valuation, unless otherwise waived in writing by both parties, as to:

        1. The valuation established or announced by any county board of equalization, arbitrator, hearing officer, or superior court; and
        2. Any written agreement or settlement of valuation reached by the county board of tax assessors and the taxpayer as permitted by this Code section.

    (g.1) Valuation.

  8. Recording of interviews or hearings.
    1. In the course of any assessment, appeal, or arbitration, or any related proceeding, the taxpayer shall be entitled to:
      1. Have an interview with an officer or employee who is authorized to discuss tax assessments of the board of tax assessors relating to the valuation of the taxpayer's property subject to such assessment, appeal, arbitration, or related proceeding, and the taxpayer may record the interview at the taxpayer's expense and with equipment provided by the taxpayer, and no such officer or employee of the board of tax assessors may refuse to participate in an interview relating to such valuation for reason of the taxpayer's choice to record such interview; and
      2. Record, at the taxpayer's expense and with equipment provided by the taxpayer, all proceedings before the board of equalization or any hearing officer.
    2. The interview referenced in subparagraph (A) of paragraph (1) of this subsection shall be granted to the taxpayer within 30 calendar days from the postmark date of the taxpayer's written request for the interview, and the interview shall be conducted in the office of the board of assessors. The time and date for the interview, within such 30 calendar day period, shall be mutually agreed upon between the taxpayer and the taxing authority. The taxing authority may extend the time period for the interview an additional 30 days upon written notification to the taxpayer.
    3. The superior courts of this state shall have jurisdiction to enforce the provisions of this subsection directly and without the issue being first brought to any administrative procedure or hearing. The taxpayer shall be awarded damages in the amount of $100.00 per occurrence where the taxpayer requested the interview, in compliance with this subsection, and the board of assessors failed to timely comply; and the taxpayer shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred in any action brought to compel such interview.
  9. Alternate members of boards of equalization.
    1. Alternate members of the county board of equalization in the order in which selected shall serve:
      1. As members of the county board of equalization in the event there is a permanent vacancy on the board created by the death, ineligibility, removal from the county, or incapacitating illness of a member or by any other circumstances. An alternate member who fills a permanent vacancy shall be considered a member of the board for the remainder of the unexpired term; or
      2. In any appeal for which an alternate member is selected for service by the appeal administrator.
    2. A hearing panel shall consist of no more than three members at any time, one of whom shall serve as the presiding member for the purpose of the hearing.
  10. Disqualification.
    1. No member of the county board of equalization and no hearing officer shall serve with respect to any appeal concerning which he or she would be subject to a challenge for cause if he or she were a member of a panel of jurors in a civil case involving the same subject matter.
    2. The parties to an appeal to the county board of equalization or to a hearing officer shall file in writing with the appeal, in the case of the person appealing, or, in the case of the county board of tax assessors, with the certificate transmitting the appeal, questions relating to the disqualification of members of the county board of equalization or hearing officer. Each question shall be phrased so that it can be answered by an affirmative or negative response. The members of the county board of equalization or hearing officer shall, in writing under oath within two days of their receipt of the appeal, answer the questions and any question which may be adopted pursuant to subparagraph (e)(1)(D) of this Code section. Answers of the county board of equalization or hearing officers shall be part of the decision of the board or hearing officer and shall be served on each party by first-class mail. Determination of disqualification shall be made by the judge of the superior court upon the request of any party when the request is made within two days of the response of the board or hearing officer to the questions. The time prescribed under subparagraph (e)(6)(A) of this Code section shall be tolled pending the determination by the judge of the superior court.
  11. Compensation of board of equalization members.
    1. Each member of the county board of equalization shall be compensated by the county per diem for time expended in considering appeals. The compensation shall be paid at a rate of not less than $25.00 per day and shall be determined by the county governing authority. The attendance at required approved appraisal courses shall be part of the official duties of a member of the board, and he or she shall be paid for each day in attendance at such courses and shall be allowed reasonable expenses necessarily incurred in connection with such courses. Compensation pursuant to this paragraph shall be paid from the county treasury upon certification by the member of the days expended in consideration of appeals or attending approved appraisal courses.
    2. Each member of the county board of equalization who participates in online training provided by the department shall be compensated by the county at the rate of $25.00 per day for each eight hours of completed training. A member shall certify under oath and file an affidavit with the appeal administrator stating the number of hours required to complete such training and the number of hours which were actually completed. The appeal administrator shall review the affidavit and, following approval thereof, shall notify the county governing authority. The Council of Superior Court Clerks of Georgia shall develop and make available an appropriate form for such purpose. Compensation pursuant to this paragraph shall be paid from the county treasury following approval of the appeal administrator of the affidavit filed under this paragraph.
  12. Military service.

    In the event of the absence of an individual from such individual's residence because of duty in the armed forces, the filing requirements set forth in paragraph (3) of subsection (f) of this Code section shall be tolled for a period of 90 days. During this period, any member of the immediate family of the individual, or a friend of the individual, may notify the tax receiver or the tax commissioner of the individual's absence due to military service and submit written notice of representation for the limited purpose of the appeal. Upon receipt of this notice, the tax receiver or the tax commissioner shall initiate the appeal.

  13. Interest.
    1. For the purposes of this Code section, any final value that causes a reduction in taxes and creates a refund that is owed to the taxpayer shall be paid by the tax commissioner to the taxpayer, entity, or transferee who paid the taxes within 60 days from the date of the final determination of value. Such refund shall include interest at the same rate specified in Code Section 48-2-35 which shall accrue from the due date of the taxable year in question or the date paid, whichever is later, through the date on which the final determination of value was made. In no event shall the amount of such interest exceed $150.00 for homestead property or $5,000.00 for nonhomestead property. Any refund paid after the sixtieth day shall accrue interest from the sixty-first day until paid with interest at the same rate specified in Code Section 48-2-35. The interest accrued after the sixtieth day and forward shall not be subject to the limits imposed by this subsection. The tax commissioner shall pay the tax refund and any interest for the refund from current collections in the same proportion for each of the levying authorities for whom the taxes were collected.
    2. For the purposes of this Code section, any final value that causes an increase in taxes and creates an additional billing shall be paid to the tax commissioner as any other tax due. After the tax bill notice has been mailed out, the taxpayer shall be afforded 60 days from the date of the postmark to make full payment of the adjusted bill. Once the 60 day payment period has expired, the bill shall be considered past due and interest shall accrue from the original billing due date as specified in Code Section 48-2-40 without limit until the bill is paid in full. Once past due, all other fees, penalties, and late and collection notices shall apply as prescribed in this chapter for the collection of delinquent taxes.
  14. Service of notice.

    A notice of appeal to a board of tax assessors under subsection (e), (e.1), (f), or (g) of this Code section shall be deemed filed as of the date of the United States Postal Service postmark, receipt of delivery by statutory overnight delivery, or, if the board of tax assessors has adopted a written policy consenting to electronic service, by transmitting a copy to the board of tax assessors via e-mail in portable document format using all e-mail addresses provided by the board of tax assessors. Service by mail, statutory overnight delivery, or electronic transmittal is complete upon such service. Proof of service may be made within 45 days of receipt of the annual notice of current assessment under Code Section 48-5-306 to the taxpayer by certificate of the taxpayer, the taxpayer's attorney, or the taxpayer's employee by written admission or by affidavit. Failure to make proof of service shall not affect the validity of service.

  15. Notice to representative.

    When a taxpayer authorizes an agent, representative, or attorney in writing to act on the taxpayer's behalf, and a copy of such written authorization is provided to the county board of tax assessors, all notices required to be provided to the taxpayer under this Code section, including those regarding hearing times, dates, certifications, notice of changes or corrections, or other official actions, shall be provided to the taxpayer and the authorized agent, representative, or attorney. Upon agreement by the county board of tax assessors and the taxpayer's agent, representative, or attorney, notices required by this Code section to be sent to the taxpayer or the taxpayer's agent, representative, or attorney may be sent by e-mail. The failure to comply with this subsection with respect to a notice required under this Code section shall result in the tolling of any deadline imposed on the taxpayer under this Code section with respect to that notice.

    (Ga. L. 1913, p. 123, § 6; Ga. L. 1918, p. 230, § 1; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-6912; Ga. L. 1958, p. 387, § 1; Ga. L. 1972, p. 1094, §§ 1-9; Ga. L. 1973, p. 709, § 1; Ga. L. 1974, p. 609, §§ 2-4; Ga. L. 1975, p. 1090, §§ 1, 2; Ga. L. 1976, p. 276, § 1; Ga. L. 1976, p. 366, § 1; Ga. L. 1976, p. 1744, § 1; Ga. L. 1977, p. 588, § 1; Ga. L. 1977, p. 903, § 1; Ga. L. 1977, p. 1009, § 1; Code 1933, § 91A-1449, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 519, § 2; Ga. L. 1980, p. 1722, § 1; Ga. L. 1981, p. 1554, § 5; Ga. L. 1983, p. 576, § 2; Ga. L. 1983, p. 1158, § 1; Ga. L. 1984, p. 22, § 48; Ga. L. 1984, p. 352, § 3; Ga. L. 1986, p. 419, § 1; Ga. L. 1988, p. 220, §§ 1, 2; Ga. L. 1988, p. 487, §§ 1, 2; Ga. L. 1990, p. 1122, § 4; Ga. L. 1990, p. 1361, § 1; Ga. L. 1991, p. 664, § 1; Ga. L. 1991, p. 1110, § 2; Ga. L. 1992, p. 1678, § 1; Ga. L. 1992, p. 2352, § 1; Ga. L. 1993, p. 435, §§ 1, 2; Ga. L. 1993, p. 1777, § 3; Ga. L. 1994, p. 318, §§ 1, 2; Ga. L. 1994, p. 787, §§ 1, 2; Ga. L. 1994, p. 1051, § 1; Ga. L. 1994, p. 1088, § 1; Ga. L. 1994, p. 1823, § 2; Ga. L. 1995, p. 10, § 48; Ga. L. 1999, p. 1043, § 3; Ga. L. 2000, p. 136, § 48; Ga. L. 2000, p. 873, §§ 2, 3; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 495, § 1; Ga. L. 2004, p. 455, § 3; Ga. L. 2006, p. 769, § 1/SB 597; Ga. L. 2008, p. 1149, §§ 4, 5, 6/HB 1081; Ga. L. 2009, p. 216, §§ 1, 2/SB 240; Ga. L. 2010, p. 1104, §§ 2-1, 4-3, 6-1/SB 346; Ga. L. 2013, p. 655, § 5/HB 197; Ga. L. 2014, p. 672, § 4/HB 755; Ga. L. 2015, p. 1219, §§ 15, 16/HB 202; Ga. L. 2016, p. 166, § 5/SB 258; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 162, § 2/HB 374.)

The 2015 amendment added subsections (a) and (a.1); redesignated former subsection (a) as subsection (a.2); in subsection (a.2), added "of boards of equalization." to the subsection catchline, substituted "this state" for "the state" near the beginning of paragraph (1), added paragraph (1.1), substituted "The members of each board of equalization" for "The grand jury of any such county" at the beginning of the third sentence of paragraph (2), substituted "The appeal administrator shall have administrative authority in all matters governing the conduct and business of the boards of equalization so as to provide oversight and supervision of such boards and scheduling of appeals" for "The chairperson and vice chairpersons shall be vested with full administrative authority in calling and conducting the business of the board" in the middle of paragraph (2), and, in paragraph (4), substituted "counties, shall specify which appeal administrator" for "counties and shall specify which clerk of the superior court" and added ", and shall provide for funding from each participating county for the operations of the appeal administrator as required by subparagraph (d)(4)(C.1) of this Code section"; rewrote subsection (b); in subsection (c), added "of board of equalization members." to the subsection catchline, substituted "cause such appointees to appear before the clerk of the superior court for the purpose of taking and executing in writing the oath of office. The clerk of the superior court may utilize any means necessary for such purpose, including, but not limited to, telephonic or other communication, regular first-class mail, or issuance of and delivery" for "issue and deliver" in paragraph (4), and, in paragraph (5), inserted "presiding or" and substituted "the appeal administrator" for "his or her designee" in the last sentence; in subsection (d), added "of board of equalization members" to the subsection catchline, added commas to the introductory phrase of the first sentence of paragraph (2), substituted "(e)(1)(D)" for "(e)(5)(B)" in paragraph (3), and rewrote paragraph (4); rewrote subsections (e) and (e.1); repealed former subsections (f) and (g) and reenacted the present provisions of subsections (f) and (g) in their place; added subsection (g.1); rewrote subsections (h) and (i); in subsection (k), added "of board of equalization members" to the subsection catchline, designated the previously existing provisions as paragraph (1), added paragraph (2), and, in paragraph (1), substituted "paragraph" for "subsection" and added "or attending approved appraisal courses" in the last sentence; in subsection (m), substituted "reduction" for "deduction" near the beginning of the first sentence, in the second sentence, deleted "on the amount of the deduction" following "include interest" near the beginning, substituted "the due date" for "November 15" near the middle, deleted "the final installment was due or was" following "or the date" near the middle, and substituted "the final determination of value was made" for "the refund is paid or 60 days from the date of the final determination, whichever is earlier", and rewrote paragraph (2); in subsection (n), deleted "and showing in the subject line of the email message the words 'STATUTORY ELECTRONIC SERVICE' in capital letters" at the end of the first sentence, and substituted "annual notice of current assessment under Code Section 48-5-306" for "notice of current assessment" in the second sentence; and rewrote subsection (o). See Editor's notes for effective date and applicability.

The 2016 amendments. The first 2016 amendment, effective April 26, 2016, added paragraph (e)(9). The second 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in division (b)(2)(B)(i) and paragraph (h)(3) and, near the beginning of subparagraph (h)(1)(A), substituted "employee who" for "employee, that".

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted the boldface catchline in subparagraph (e)(2)(A), which read: "Appeal to board of equalization.", substituted "to whom" for "who" in subparagraphs (e)(2)(B), (e)(2)(C), and (e)(6)(A); and substituted "This paragraph" for "This subsection" at the beginning of the last sentence of paragraph (e)(9).

The 2018 amendment, effective July 1, 2018, rewrote subsections (e) and (e.1); in subparagraph (f)(3)(A), substituted "documentation" for "papers" near the middle; in division (f)(3)(C)(iii), substituted "21 days" for "ten days" in the second sentence, substituted the present provisions of the third sentence for the former provisions, which read: "Such written notice shall advise each party that documents or other written evidence to be presented at the hearing by a party must be provided to the other party not less than seven days prior to the time of the hearing and that any failure to comply with this requirement, unless waived by mutual written agreement of such parties, shall be grounds for a continuance or for exclusion of such documents or other written evidence."; and, in paragraph (g)(2), substituted "during normal business hours" for "but in no event later than 30 days from the date of the notice" at the end of the seventh sentence, and substituted "reach an agreement" for "agree on a fair market value" and substituted "20 days" for "ten days" in the twelfth sentence.

History of section. - This Code section is partially derived from the decisions in Vestel v. Edwards, 143 Ga. 368 , 85 S.E. 187 (1915); Ogletree v. Woodward, 150 Ga. 691 , 105 S.E. 243 (1920); Turner v. Wade, 254 U.S. 64, 41 S. Ct. 27 , 65 L. Ed. 134 (1920).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, a semicolon was deleted following "minutes of the board" in the second sentence of paragraph (d)(3), "prima-facie" was substituted for "prima facie" in the first sentence of paragraph (e)(4).

Pursuant to Code Section 28-9-5, in 2010, "the" was inserted preceding "superior court" in the fifth sentence of paragraph (e.1)(10); and "an arbitration" was substituted for "a arbitration" in the first sentence of subparagraph (f)(3)(A).

Pursuant to Code Section 28-9-5, in 2015, "separate line items" was substituted for "separate lines items" near the end of subparagraph (d)(4)(C.1).

Pursuant to Code Section 28-9-5, in 2018, "Valuation" heading was added to subsection (g.1.).

Pursuant to Code Section 28-9-5, in 2018, "Notice to representative" heading was added to subsection (o).

Editor's notes. - Ga. L. 1999, p. 1043, § 4, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all assessments and proceedings commenced on or after January 1, 2000.

Ga. L. 2006, p. 769, § 2/SB 597, not codified by the General Assembly, provides that the 2006 amendment of this Code section shall apply with respect to all tax appeals filed with the county boards of tax assessors on or after that date.

Ga. L. 2009, p. 216, § 3/SB 240, not codified by the General Assembly, provides that the amendments to this Code section shall be applicable to all property tax appeals submitted to arbitration or appealed to the superior court on or after April 29, 2009.

Ga. L. 2015, p. 1219, § 27/HB 202, not codified by the General Assembly, provides, in part, that Sections 13 and 15 of this Act shall become effective on July 1, 2015, and that Sections 9, 12, and 15 of this Act shall be applicable to all appeals filed on or after January 1, 2016. Ga. L. 2015, p. 1219, § 15/HB 202, purported, in part, to amend subsections (a) through (e) but actually amended subsections (a) through (e.1).

Law reviews. - For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For annual survey of state and local taxation, see 42 Mercer L. Rev. 421 (1990). For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990). For survey article on real property law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 397 (2003). For survey article on administrative law, see 60 Mercer L. Rev. 1 (2008). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009). For article, "Administrative Law," see 63 Mercer L. Rev. 47 (2011). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For article, "A Taxing Exception: Southern LNG, Inc. v. MacGinnitie's Narrow Interpretation of the Mandamus Exception," see 66 Mercer L. Rev. 855 (2015). For note on the 1992 amendment of this Code section, see 9 Ga. St. U. L. 329 (1992).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality of board of equalization's judicial powers. - Even if the General Assembly has vested some judicial powers in the county boards of equalization, such action is not violative of Ga. Const. 1945, Art. VI, Sec. I, Para. I (see now Ga. Const. 1983, Art. VI, Sec. I, Para. I). Tax Assessors v. Chitwood, 235 Ga. 147 , 218 S.E.2d 759 (1975).

Statute does not deny due process or equal protection. Webb v. Board of Tax Assessors, 235 Ga. 790 , 221 S.E.2d 810 (1976).

Notice, hearing, and appeal provisions comport with due process requirements. - Statute provides for ample notice and a hearing, and the statute also provides for an appeal to the superior court, which constitutes a de novo action. Therefore, the statute does not violate the due process clause of the state and federal Constitutions. Webb v. Board of Tax Assessors, 235 Ga. 790 , 221 S.E.2d 810 (1976).

Pre- and post-deprivation remedies met due process requirements. - With respect to a challenge to a tax re-valuation of property, a pre-deprivation remedy under O.C.G.A. § 48-5-311(e)(6)(D)(iii)(I), allowing a taxpayer to pay less than the full amount of the tax assessed, and a post-deprivation remedy under § 48-5-311(e)(6)(D)(iii)(II), allowing a refund in the event the tax assessor lost in the appeals process, met federal and state due process requirements. Hooten v. Thomas, 297 Ga. App. 487 , 677 S.E.2d 670 (2009).

Denial of the taxpayer's hearing provided for by this statute violates the taxpayer's due process rights. Ward v. Landrum, 140 Ga. App. 497 , 231 S.E.2d 347 (1976).

Procedure described in this statute satisfies requirements of due process and equal protection, insofar as these require notice and an opportunity to be heard. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973).

Statute meets constitutional due process requirements so long as the statute affords a review by an unbiased board. Stewart County v. Thompson, 224 Ga. 303 , 161 S.E.2d 877 (1968).

Loss of right to hearing not denial of due process when due to taxpayer's action. - Allowing a taxpayer's right to a hearing on the assessment of the taxpayer's property to be cut off by the passage of time, or the independent action of other parties, violates the taxpayer's due process rights unless caused by culpable or negligent conduct on the part of the taxpayer. Ward v. Landrum, 140 Ga. App. 497 , 231 S.E.2d 347 (1976).

Termination of administrative procedure did not violate separation of powers. - O.C.G.A. § 48-5-311(g)(2), requiring a county board of tax assessors to schedule a settlement conference within 45 days of the taxpayer's notice of appeal, and providing that the taxpayer's stated value be adopted if the board elected not to schedule a conference, did not usurp the superior court's jurisdiction or violate the separation of powers clause, Ga. Const. 1983, Art. I, Sec. II, Par. III. Hall County Bd. of Tax Assessors v. Westrec Props., 303 Ga. 69 , 809 S.E.2d 780 (2018).

Representation before board. - Agreement in which a company committed itself to represent a taxpayer's interests before the board of equalization was not void as constituting the unauthorized practice of law. Grand Partners Joint Venture I v. Realtax Resource, Inc., 225 Ga. App. 409 , 483 S.E.2d 922 (1997).

Section concerns and affects both the public interest and the interest of the taxpayer. - Public has an interest in the proper administration of the revenue laws and the solvency of its fisc, while the taxpayer is entitled to know promptly and precisely the extent of the taxpayer's tax liability. Lackey v. DeKalb County, 156 Ga. App. 309 , 274 S.E.2d 705 (1980).

Statute sets forth remedy of taxpayer seeking uniformity of assessment. - Procedure for securing uniformity in tax assessments in a county was former Code 1933, § 92-6911 (see O.C.G.A. § 48-5-306 ) placed upon county tax assessors, and if their action displeases a taxpayer, the taxpayer's remedy was arbitration as provided in former Code 1933, § 92-6912 (see O.C.G.A. § 48-5-311 ). Grafton v. Turner, 227 Ga. 809 , 183 S.E.2d 458 (1971).

Taxpayers have an adequate and complete remedy at law for the contention that the taxpayers tax digest lacks the uniformity required under the Constitution of Georgia. Tax Assessors v. Chitwood, 235 Ga. 147 , 218 S.E.2d 759 (1975); Chilivis v. Backus, 236 Ga. 88 , 222 S.E.2d 371 (1976); Gordon County Bd. of Tax Assessors v. Aldon Indus., 237 Ga. 527 , 228 S.E.2d 905 (1976).

Adequate remedy at law provided by statute. - Taxpayers were not entitled to injunctive relief in a class action against a county board of tax assessors alleging that spot reappraisals violated the taxpayers' constitutional right to equal protection under 42 U.S.C. § 1983 since O.C.G.A. § 48-5-311 provided an adequate remedy at law. Glynn County Bd. of Tax Assessors v. Haller, 273 Ga. 649 , 543 S.E.2d 699 (2001).

Provisions of O.C.G.A. § 9-11-17(a) regarding dismissal for failure to prosecute in the name of a real party in interest apply to O.C.G.A. § 48-5-311 . Spencer v. Lamar County Bd. of Tax Assessors, 202 Ga. App. 742 , 415 S.E.2d 332 (1992).

Appointments subject to O.C.G.A. § 15-12-81 . - Trial court did not err in granting a citizen's motion for a writ of mandamus compelling a superior court clerk's compliance, with respect to the appointments of county board of equalization (BOE) members, with the public notice requirements of O.C.G.A. § 15-12-81 because there was no error in granting mandamus to require the clerk to comply with her mandatory duties under § 15-12-81; because BOE members are appointed by the grand jury, O.C.G.A. § 48-5-311(c)(2), their appointments are plainly subject to the provisions of § 15-12-81. Everetteze v. Clark, 286 Ga. 11 , 685 S.E.2d 72 (2009).

Procedures contemplate findings as to fair market value. - Statutory design of appeal to the county board of equalization and then to the superior court contemplates that findings as to fair market value shall be made. Hodsdon v. Duckett, 135 Ga. App. 922 , 219 S.E.2d 634 (1975).

When tax assessors fail to use same standard in assessing property of same class as affirmatively shown by facts alleged in a petition for injunctive relief and declaration of illegality of tax assessment, there is no merit in the contention that the plaintiffs have an adequate and complete remedy by arbitration (now hearing and trial) under this statute. Colvard v. Ridley, 218 Ga. 490 , 128 S.E.2d 732 (1962).

Valuation of property may be changed in subsequent years even if not further improved. - Mere fact that property had been assessed for taxes at a certain value after arbitration (now appeal) under this statute in a previous tax year would not prevent the taxing authorities from fixing the valuation different for a succeeding year, even though no improvements had been made on the property since the arbitration (now appeal). Hutchins v. Williams, 212 Ga. 754 , 95 S.E.2d 674 (1956).

Fee awards afforded to the taxpayer the additional relief to which the taxpayer was statutorily entitled under O.C.G.A. §§ 9-11-54(c)(1) and 48-5-311(g)(4)(B)(ii). Fulton County Bd. of Tax Assessors v. Toro Props. VI, LLC, 329 Ga. App. 26 , 763 S.E.2d 496 (2014).

No time limitation in fee award. - Rendering the fee awards after the expiration of the term of the court of the valuation orders did not frustrate judicial economy or violate Georgia's public policy as O.C.G.A. § 48-5-311(g)(4)(B)(ii) contained no time limitation dictating when a taxpayer must move or a court must award litigation costs and attorney fees. Fulton County Bd. of Tax Assessors v. Toro Props. VI, LLC, 329 Ga. App. 26 , 763 S.E.2d 496 (2014).

No party estopped from challenging court jurisdiction when material to party's interest. - Fact that the taxpayer objected to an assessment and invoked arbitration does not estop the taxpayer from attacking an award in equity as void since the court was without jurisdiction of the subject matter. Such a judgment is void and may be attacked collaterally as a mere nullity in any court by any party when it becomes material to that party's interest. Montgomery v. Suttles, 191 Ga. 781 , 13 S.E.2d 781 (1941).

Effect of subsequent amendments on other laws. - Special law which incorporated the pre-1972 version of this statute was not repealed implicitly or explicitly by the subsequent 1972 enactment. Boynton v. Lenox Square, Inc., 232 Ga. 456 , 207 S.E.2d 446 (1974).

When a local law incorporates this statute using the language "as amended," the law is not construed to include future amendments, but only those made prior to the passage of the local law. Medical Ass'n v. Joint City, 132 Ga. App. 188 , 207 S.E.2d 673 (1974).

Determination of uniform assessment. - Pursuant to O.C.G.A. § 48-5-311 , the requirement that property be "uniformly assessed" means that the property be assessed uniformly with other property included in the county's own tax digest. Williams v. DeKalb County Bd. of Tax Assessors, 249 Ga. 164 , 289 S.E.2d 235 (1982).

In determining whether a county board of tax assessors has "uniformly assessed" the value of certain property pursuant to O.C.G.A. § 48-5-311 , it is not significant that the board of tax assessors of a neighboring county might have assessed it differently, and thus the trial court did not err in excluding the taxpayer's evidence of the neighboring county's tax digest. Williams v. DeKalb County Bd. of Tax Assessors, 249 Ga. 164 , 289 S.E.2d 235 (1982).

Jurisdiction to order equalization. - Superior Court had jurisdiction to order equalization of tax digests and, no appeal having been taken from the order, the court could enjoin the county tax commissioner from collecting taxes until such time as the county board of tax assessors had complied with the order. Wallace v. Meyer, 260 Ga. 253 , 394 S.E.2d 350 (1990).

Notice of appeal to equalization board did not raise issue of uniformity. - Notice of appeal to board of equalization stating that assessment in question reflected unrealistic values which had been placed on referenced property did not raise issue of uniformity or equalization of the assessment and could not be raised for the first time on appeal to the superior court. DeKalb County Bd. of Tax Assessors v. Kendall, Inc., 164 Ga. App. 374 , 295 S.E.2d 345 (1982).

No default judgment for failure to file defensive pleadings on appeal. - Appeal procedure outlined in subsection (f) of O.C.G.A. § 48-5-311 does not contemplate the filing of a "complaint" or "answer," and a default judgment will not lie for failure to file defensive pleadings in a de novo hearing on appeal in the superior court from a property evaluation. Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726 , 279 S.E.2d 223 (1981).

No takings claim. - Taxpayers did not have a takings claim under 42 U.S.C. § 1983 because the procedures of O.C.G.A. § 48-5-380 or O.C.G.A. § 48-5-311 provide adequate remedies. Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209 , 493 S.E.2d 595 (1997).

Board's failure to schedule settlement conference within 45 days. - Plain language of O.C.G.A. § 48-5-311(g)(2) required a county board of tax assessors to schedule and notice a settlement conference with taxpayers within 45 days of receipt of the taxpayers' notices of appeal, and provided that the appeal terminated and the taxpayer's stated value was adopted if the board elected not to schedule a conference. Hall County Bd. of Tax Assessors v. Westrec Props., 303 Ga. 69 , 809 S.E.2d 780 (2018).

Prompt adjudication required. - Summary judgment for a county board of tax assessors (BTA) in a taxpayer's suit seeking injunctive relief and a writ of mandamus compelling a board of equalization (BOE) to adjudicate its appeal of a reassessment for one tax year was reversed as: (1) there were no objective criteria in place for choosing businesses for audits when the taxpayer was chosen for a four-year audit; (2) there was evidence that the BTA attempted to thwart the taxpayer's statutory right to prompt adjudication of its appeal before the BOE under O.C.G.A. § 48-5-311 ; and (3) there was a jury question as to whether the audit was begun by an accounting firm or the BTA for an improper purpose in violation of O.C.G.A. § 48-5-299(a) . Parisian, Inc. v. Cobb County Bd. of Tax Assessors, 263 Ga. App. 332 , 587 S.E.2d 771 (2003).

Time within which to accept or reject taxpayer's appraisal. - Because O.C.G.A. § 48-5-311(f)(3)(A) specifies the effect of the failure of the board of assessors to accept or reject the taxpayer's appraisal within 45 days, that language must be enforced. Fulton County Bd. of Tax Assessors v. Fast Evictions, LLC, 314 Ga. App. 178 , 723 S.E.2d 461 (2012).

Board of tax assessors failed to timely reject taxpayer's appraisals. - Trial court did not err by deciding that a county board of tax assessors failed to timely reject a taxpayer's certified appraisals of the taxpayer's real property pursuant to O.C.G.A. § 48-5-311(f)(3)(A) because the board completely failed to show when the board made the board's decision to reject the appraisals; the board notified the taxpayer that the board rejected the taxpayer's appraisal and adopted a different recommended value 53 days after the taxpayer submitted the appraisal, but there was no indication in the record of when the board made the board's decision. Fulton County Bd. of Tax Assessors v. Fast Evictions, LLC, 314 Ga. App. 178 , 723 S.E.2d 461 (2012).

Board of assessors failed to prove that prior year sale was not bona fide. - Board of Assessors failed to prove its contention that a 2011 sale of taxable property by Freddie Mac did not qualify as an arm's length, bona fide sale for purposes of limiting the assessment value of the property in the next year under O.C.G.A. § 48-5-2(3) . CPF Invs., LLLP v. Fulton County Bd. of Assessors, 330 Ga. App. 744 , 769 S.E.2d 159 (2015).

Issuance of quo warranto improper. - Trial court erred in granting a citizen a writ of quo warranto revoking county board of equalization (BOE) members' appointments because, although BOE members were public officers subject to quo warranto, the citizen's petition for a writ of quo warranto was subject to dismissal when the citizen did not seek leave of court prior to filing the complaint. Everetteze v. Clark, 286 Ga. 11 , 685 S.E.2d 72 (2009).

Cited in Board of Tax Assessors v. Clary, 161 Ga. App. 828 , 290 S.E.2d 110 (1982); Stoddard v. Board of Tax Assessors, 163 Ga. App. 499 , 295 S.E.2d 170 (1982); Noble v. Joint City-County Bd. of Tax Assessors, 672 F.2d 872 (11th Cir. 1982); Monroe County Bd. of Tax Assessors v. Remick, 165 Ga. App. 616 , 300 S.E.2d 203 (1983); Richmond County Bd. of Tax Assessors v. Richmond Bonded Whse. Corp., 173 Ga. App. 278 , 325 S.E.2d 891 (1985); Haldi v. DeKalb County Bd. of Tax Assessors, 178 Ga. App. 521 , 344 S.E.2d 236 (1986); Stoddard v. Grady County Bd. of Tax Assessors, 190 Ga. App. 445 , 379 S.E.2d 234 (1989); Colonial Pipeline Co. v. Collins, 921 F.2d 1237 (11th Cir. 1991); Gwinnett County v. Ackerman/Indian Trail Ass'n, 198 Ga. App. 723 , 402 S.E.2d 794 (1991); Inland Container Corp. v. Paulding County Bd. of Tax Assessors, 220 Ga. App. 878 , 470 S.E.2d 702 (1996); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998); White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805 , 520 S.E.2d 708 (1999); Interstate North Sporting Club v. Cobb County Bd. of Tax Assessors, 250 Ga. App. 221 , 551 S.E.2d 91 (2001); Fulton County Bd. of Tax Assessors v. Harmon Bros. Charter Serv., 261 Ga. App. 534 , 583 S.E.2d 179 (2003); Ferdinand v. City of East Point, 288 Ga. App. 152 , 653 S.E.2d 529 (2007); In re Powell-Garvey Co., Bankr. (Bankr. S.D. Ga. June 13, 2006).

Qualifications of Members

Members must be fair, disinterested, and impartial. - In addition to other statutory qualifications, since an arbitrator (now member of board of equalization) acts in a quasi-judicial capacity, the arbitrator must possess the judicial qualifications of fairness, disinterestedness, and impartiality. Hill v. Board of Tax Equalizers, 227 Ga. 145 , 179 S.E.2d 243 (1971).

When disqualification for relationship must be sought. - Contention that a member of the board of tax equalizers was disqualified because of a relationship to the defendant came too late when made at the jury trial. Statute sets the method for objection on this ground. Murray v. Richardson, 134 Ga. App. 676 , 215 S.E.2d 715 (1975).

Appeals
1. In General

Challenge to constitutionality of system. - O.C.G.A. § 48-5-311 provided a plain and adequate remedy at law to a taxpayer's challenge that a county's tax assessment and appraisal system deprived the taxpayer of due process of law, equal protection of the law, and lacked uniformity as required under the provisions of the Constitution of Georgia. Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 , 367 S.E.2d 43 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 43 (1988); Arnold v. Gwinnett County Bd. of Tax Assessors, 207 Ga. App. 759 , 429 S.E.2d 146 (1993).

Taxpayer, whose challenge to the constitutionality of the board's methodology for assessing taxes is inextricably bound to the basic issue of uniformity of assessment of real property located within the county, may appeal under the provisions of subsection (e) and (f) (now (g)) of O.C.G.A. § 48-5-311 "as to matters of taxability, uniformity of assessment, and value." Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 , 367 S.E.2d 43 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 43 (1988).

To assert the taxpayer's constitutional issue before the superior court in a de novo appeal, the taxpayer must have timely raised the issue before the board of equalization. Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 , 367 S.E.2d 43 , cert. denied, 186 Ga. App. 919 , 367 S.E.2d 43 (1988).

Even though the statutes providing for ad valorem taxation of motor vehicles do not specifically provide for apportionment, the statutes are not unconstitutional since the assessment of value may be challenged through the appeal procedure of O.C.G.A. § 48-5-311 and the owner thereby has the opportunity to establish that a vehicle has acquired a tax situs in another state. East W. Express, Inc. v. Collins, 264 Ga. 774 , 449 S.E.2d 599 (1994).

Mandamus improperly granted to a company. - Judgment of the trial court granting a company mandamus relief was reversed because the judgment did not show that the State Revenue Commissioner, in refusing to accept the company's ad valorem tax returns as a gas company, violated a clear legal duty, failed to act, or engaged in arbitrary, capricious, and unreasonable actions because the company was not authorized to engage in the business of a gas company under O.C.G.A. § 46-1-1(5) nor be a natural-gas company as defined in 15 U.S.C. § 717a(6). Riley v. Southern LNG, Inc., 300 Ga. 689 , 797 S.E.2d 878 (2017).

Scope of superior court's jurisdiction on appeal. - Trial court properly ruled that the moratorium in O.C.G.A. § 48-5B-1 applied to the subject property in the de novo appeal of the value determination and was not a waived issue because the board of tax assessors, the arbitrator, and the board of equalization had all made determinations as to value and the applicability of the moratorium, thus, it was properly before the trial court. SPH Glynn, LLC v. Glynn County Bd. of Tax Assessors, 326 Ga. App. 196 , 756 S.E.2d 282 (2014).

Exemption denial not subject to federal law suit. - Denial of an exemption of a portion of taxability was not subject to suit under 42 U.S.C. § 1983. Gwinnett County Bd. of Tax Assessors v. Network Publications, Inc., 208 Ga. App. 15 , 429 S.E.2d 696 (1993).

Appeals process was efficient, plain, and speedy. - Appeals process of O.C.G.A. § 48-5-311 was "efficient" in addition to being "plain" and "speedy" both on its face and as applied to the instant taxpayers. Accordingly, the case was barred by the Tax Injunction Act of 1937, 28 U.S.C. § 1341, since the case sought a federal court injunction over a state tax assessment when a "plain, speedy, and efficient" remedy existed under state law. Amos v. Glynn County Bd. of Tax Assessors, 347 F.3d 1249 (11th Cir. 2003).

Burden of proof is on the taxpayers, when the taxpayers are the parties who initiate an appeal to the superior court. Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 , 350 S.E.2d 790 (1986).

Procedures must be followed. - Corporate taxpayers were barred from seeking refunds pursuant to O.C.G.A. § 48-5-380 of ad valorem taxes paid on vehicles with tax situses in other states because the taxpayers failed to follow the appeal procedures provided by O.C.G.A. § 48-5-311 . DeKalb County v. Genuine Parts Co., 225 Ga. App. 376 , 484 S.E.2d 57 (1997).

County and the county tax commission were entitled to summary judgment as a matter of law in an action filed by a trucking company seeking a refund for ad valorem taxes the company paid, as it was undisputed at trial that the company failed to timely file for either an apportionment in two subject years, as required by Ga. Comp. R. & Regs. r. 560-11-7-.02, and that the company did not appeal the company's ad valorem assessment within 45 days of the assessment in either year, pursuant to O.C.G.A. § 48-5-311 ; furthermore, O.C.G.A. § 48-5-380 , which allowed a taxpayer to seek a refund up to three years after paying an erroneous or illegal tax, did not apply. Trans Link Motor Express, Inc. v. Dougherty County, 265 Ga. App. 10 , 592 S.E.2d 859 (2003).

Whether an appeal is procedurally defective is a judicial decision, not a clerical determination, and the County Board of Tax Assessors should have certified the taxpayer's appeal to the superior court instead of concluding that the notice of appeal was defective. Fulton County Bd. of Tax Assessors v. Boyajian, 271 Ga. 881 , 525 S.E.2d 687 (2000).

Time periods directory only. - Provisions of paragraph (e)(3) and subparagraphs (e)(6)(A) and (e)(6)(B) of O.C.G.A. § 48-5-311 are directory rather than mandatory because a county board of equalization can become so swamped with appeals that the board cannot hear all pending cases within such short statutory time periods. Moreton Rolleston, Jr., Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405 , 523 S.E.2d 600 (1999), cert. denied, 2000 Ga. LEXIS 97 (2000).

If the county board of equalization, in the exercise of due diligence and with reasonable justification for delay, sets a hearing at the earliest available date, which date falls outside of the statutory time period, there has been substantial compliance with O.C.G.A. § 48-5-311 . Moreton Rolleston, Jr., Living Trust v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 405 , 523 S.E.2d 600 (1999), cert. denied, 2000 Ga. LEXIS 97 (2000).

Excusable delay was properly found. - Because a county board of tax assessors certified appeals filed by 16 taxpayers to the superior court notifying the Clerk of the Court that the clerk was required to assign these appeals for trial at the first term following the filing of the appeals, any requirement that the taxpayers had to also make demand for trial at the first term was clearly redundant and, therefore, unnecessary; thus, the trial court properly found that an excusable delay from obtaining a trial at the first term was shown, warranting denial of the board's motion to dismiss the appeals. Glynn County Bd. of Tax Assessors v. Paulding, 270 Ga. App. 851 , 608 S.E.2d 317 (2004).

No presumption of correctness attaches to assessments of the property of taxpayers who take an appeal to the superior court. Hawkins v. Grady County Bd. of Tax Assessors, 180 Ga. App. 834 , 350 S.E.2d 790 (1986).

Court not bound by board of equalization valuation. - Trial court's ruling in a tax appeal that the tax value for the property was limited to the value set by the board of equalization was error because O.C.G.A. § 48-5-311(g)(3) provided that tax appeals to the superior court were de novo actions, and thus the trial court's determination of value in the tax appeal was not restricted to the valuation of the board of equalization; the dicta in Gwinnett County Bd. of Tax Assessors v. Ackerman/Indian Trail Assn., 198 Ga. App. 723 , 402 S.E.2d 794 (Ga. Ct. App. 1991), was disapproved to the extent that the opinion conflicted with the holding that a tax appeal required a trial de novo, regardless of which party filed the appeal, and that the trial court was not bound by the board of equalization's findings. Fulton County Bd. of Tax Assessors v. NABISCO, 296 Ga. App. 884 , 676 S.E.2d 41 (2009).

Relation to other law. - O.C.G.A. § 48-5-7.2(e) expressly requires a tax board, upon denying an application for preferential assessment, to notify the applicant in the same manner that notices of assessment are given pursuant to O.C.G.A. § 48-5-306 , and appeals from the denial of an application for preferential assessment by the board of tax assessors shall be made in the same manner that other property tax appeals are made pursuant to O.C.G.A. § 48-5-311 ; in light of a tax board's failure to provide an applicant with the proper statutory notice, the board's argument that the applicant failed to exhaust the applicant's administrative remedies was without merit. Chatham County Bd. of Tax Assessors v. Emmoth, 278 Ga. 144 , 598 S.E.2d 495 (2004).

Appeal process under § 48-5-380 distinguished. - While the appeal process of O.C.G.A. § 48-5-311 is available to address any asserted error in an ad valorem real property tax assessment, the refund process established by O.C.G.A. § 48-5-380 is intended only to correct errors of fact or law which have resulted in erroneous or illegal taxation. Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645 , 458 S.E.2d 632 (1995).

Taxpayer need not comply with the appeal procedure provided in subsection (e) of O.C.G.A. § 48-5-311 prior to proceeding under O.C.G.A. § 48-5-380 . Marconi Avionics, Inc. v. DeKalb County, 165 Ga. App. 628 , 302 S.E.2d 384 (1983).

Appeal to board required for judicial review. - When the appellant and the board of tax assessors entered into a stipulation that the board of equalization would adopt the position of the board of tax assessors, therefore eliminating the need to appeal to the board of equalization, and then the appellant filed an appeal to the superior court, a judgment rendered by the superior court would be reversed for lack of subject-matter jurisdiction because jurisdiction cannot be conferred by agreement or consent. Barland Co. v. Bartow County Bd. of Tax Assessors, 172 Ga. App. 61 , 322 S.E.2d 316 (1984).

Superior Court properly dismissed the taxpayer's action questioning the validity of a second tax assessment which was issued to correct an earlier assessment for the same tax year since the case was subject to appeal to and decision by the county board of equalization. Dean v. Fulton County Bd. of Tax Assessors, 218 Ga. App. 760 , 463 S.E.2d 64 (1995).

Property owners improperly challenged a tax re-valuation by a county in a Georgia trial court because the owners had an adequate remedy at law pursuant to O.C.G.A. § 48-5-311 in an appeal to a county board of tax equalization (BOE) as the BOE had to first address procedural errors and errors in methodology to value the property under § 48-5-311 (e)-(g); constitutional claims, such as claims of the uniformity of assessment under Ga. Const. 1983, Art. VII, Sec. I, Para. III also had to be addressed first before the BOE. Hooten v. Thomas, 297 Ga. App. 487 , 677 S.E.2d 670 (2009).

Exhaustion of administrative remedies prerequisite. - Because the superior court should not have exercised the court's equitable jurisdiction when the property owners failed to exhaust their administrative remedies under O.C.G.A. § 48-5-311 through the county board of equalization, the superior court's judgment for declaratory relief in favor of the property owners at summary judgment was reversed; instead, the superior court should have dismissed the property owners' suit for failing to state a claim. Chatham County Bd. of Assessors v. Jepson, 261 Ga. App. 771 , 584 S.E.2d 22 (2003).

When a taxpayer challenged an assessment, but paid the taxes, the taxpayer could not bring an action in the courts for a declaratory judgment to determine the validity of the assessment until the taxpayer exhausted the taxpayer's statutory administrative options under either O.C.G.A. § 48-5-311 or O.C.G.A. § 48-5-380 . Wilmington Trust Co. v. Glynn County, 265 Ga. App. 704 , 595 S.E.2d 562 (2004).

Trial court had jurisdiction of taxpayer's action to find reassessments invalid for failure of the county board of tax assessors to follow provisions of O.C.G.A. § 48-5-311 requiring a response to the taxpayer's assessment appeal. Moreton Rolleston, Jr. Living Trust v. Glynn County Bd. of Tax Assessors, 228 Ga. App. 371 , 491 S.E.2d 812 (1997), aff'd in part and vacated in part, 230 Ga. 539 , 497 S.E.2d 274 (1998).

Denial of dismissal motion no ground for reversal when taxpayer attempting to overturn board's decision. - When a taxpayer files a "motion to dismiss" in the superior court based on the failure of the board of equalization to set a hearing date on the taxpayer's appeal within 15 days of receipt of the taxpayer's notice of appeal from the decision of the board of tax assessors, which decision the taxpayer is attempting to overturn, the denial of the motion to dismiss is favorable to the taxpayer and establishes no ground for reversal of the trial court's judgment. Williamson v. DeKalb County Bd. of Tax Assessors, 168 Ga. App. 47 , 308 S.E.2d 55 (1983).

Right to appeal penalty assessment. - Assessment of a penalty for a breach of a conservation use covenant is an assessment for which a property owner has the right to appeal pursuant to O.C.G.A. § 48-5-311 . Oconee County Bd. of Tax Assessors v. Thomas, 282 Ga. 422 , 651 S.E.2d 45 (2007).

Costs and expenses on appeal. - Taxpayer was not entitled to costs and expenses for having to appear at the hearing of the county board of equalization on the taxpayer's initial appeal and for having to appeal to the superior court in order to have the board rule on the taxpayer's request. Hulse v. Joint City-County Bd. of Assessors, 219 Ga. App. 309 , 464 S.E.2d 890 (1995).

Trial court erred in awarding a property owner $7,515.00 in attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) against a county board of tax assessors after a jury valued the property in question substantially lower than the board's valuation; the record did not support the trial court's conclusion that the property was returned for taxation by operation of law pursuant to O.C.G.A. § 48-5-20(a)(2), and the board did not waive the board's objection to the fees, because the trial court did not hold a hearing on the issue of the attorney's fees, O.C.G.A. § 9-11-46(a) , and the board therefore did not have an opportunity to object to the award. Fulton County Bd. of Tax Assessors v. Butner, 258 Ga. App. 68 , 573 S.E.2d 100 (2002).

As a taxpayer did not pay the prior year's taxes, the taxes paid by the taxpayer for the prior year were deemed the taxpayer's tax return for the tax year under O.C.G.A. § 48-5-20(a)(2), so the taxpayer was not required to file a separate tax return on the taxpayer's property, and the taxpayer's late return was a nullity; therefore, upon the taxpayer's successful appeal of an assessment of the taxpayer's property, an award of costs and attorneys fees was mandatory under O.C.G.A. § 48-5-311(g)(4)(B)(ii). Simmons v. Bd. of Tax Assessors, 268 Ga. App. 411 , 602 S.E.2d 213 (2004).

Owner was entitled to attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) in an appeal of a property valuation because the final determination of value on appeal to the trial court was 85 percent or less of the valuation set by the board of tax assessors; it was irrelevant that the owner's appeal to the trial court dealt with a "freeze" of the property value under O.C.G.A. § 48-5-299(c) and not a new determination of value. Fulton County Bd. of Tax Assessors v. Lamb, 298 Ga. App. 618 , 680 S.E.2d 656 (2009).

Order awarding a city attorney fees pursuant to O.C.G.A. § 48-5-311(g)(4)(B)(ii) in the city's appeal of a county's tax assessment of the city's property was error because § 48-5-311(g)(4)(B)(ii) only applied when there was a final determination of value on appeal, and the city's appeal related not to value, but to taxability; valuation was not an issue, and, thus, the city did not satisfy the condition precedent to an award of fees under § 48-5-311(g)(4)(B)(ii). O.C.G.A. § 48-5-311(g)(4)(B)(ii) did not permit an award of attorney fees or litigation costs when, as here, the sole issue was taxability. Clayton County Bd. of Tax Assessors v. City of Atlanta, 299 Ga. App. 233 , 682 S.E.2d 328 (2009).

Final property valuation that was set by operation of law pursuant to O.C.G.A. § 48-5-299(c) based on a prior tax year appeal did not preclude an award of attorney's fees and costs under O.C.G.A. § 48-5-311(g)(4)(B)(ii). Fulton County Bd. of Tax Assessors v. LM Atlanta Airport, LLC, 313 Ga. App. 439 , 721 S.E.2d 640 (2011).

In a tax appeal, the trial court erred by denying the taxpayer's request for attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) because it was successful against the county board of tax assessors and the capped value met the statutory threshold mandating that the taxpayer shall recover costs of litigation and reasonable attorney's fees incurred in the action. SPH Glynn, LLC v. Glynn County Bd. of Tax Assessors, 326 Ga. App. 196 , 756 S.E.2d 282 (2014).

Applicability to challenge to multi-year audit. - Taxpayer was not required to file an appeal pursuant to O.C.G.A. § 48-5-311 contesting the denial of the taxpayer's reduction in the value of the taxpayer's merchandise for one tax year as the taxpayer was no longer challenging the taxpayer's property tax assessment for one tax year, but was seeking to avoid a multi-year audit that the taxpayer attributed to an improper motive. Parisian, Inc. v. Cobb County Bd. of Tax Assessors, 263 Ga. App. 332 , 587 S.E.2d 771 (2003).

Trial court erred in awarding costs and attorney fees to the taxpayers after the jury valued their improved real property as the jury's valuation figure was 85.8 percent and the applicable statute provided that the valuation figure had to be 85 percent or less of the equalization board's figure in order for an award of costs and attorney fees to be permitted; the trial court erred because the court deducted the undisputed value of an improvement on the land from the jury's verdict, but a proper valuation of the fair market value of the property dictated that the value of that improvement be included in determining whether the valuation was 85 percent or less of the equalization board's valuation for the purpose of awarding fees and costs. Stephens County Bd. of Tax Assessors v. Shirley, 263 Ga. App. 743 , 589 S.E.2d 263 (2003).

Value to be determined by arbitrator. - In a taxpayer's appeal from a real estate tax valuation assessment, the trial court erred in holding that the value of a parcel of real property was the value set out in the taxpayer's appraisal since within 45 days of receiving the taxpayer's certified appraisal, the county board of tax assessors voted to reject the taxpayer's appraisal value, and within another 45 days, the board certified the appeal in compliance with O.C.G.A. § 48-5-311(f) (3)(A). Thus, the value remained to be determined by an arbitrator in accordance with the procedures set out in § 48-5-311(f) . Fulton County Bd. of Tax Assessors v. Greenfield Inv. Group, LLC, 313 Ga. App. 195 , 721 S.E.2d 128 (2011).

2. Notice of Appeal

The 30 day limit in paragraph (g)(2) of O.C.G.A. § 48-5-311 applies to boards of assessors as well as to taxpayers. Stoddard v. Cone, 250 Ga. 852 , 301 S.E.2d 641 (1983).

Failure of the board of tax assessors to give 30-day notice of appeal to taxpayers deprived the superior court of jurisdiction and such failure was not an amendable or curable defect. Fulton County Bd. of Tax Assessors v. CPS Four Hundred, Ltd., 213 Ga. App. 1 , 443 S.E.2d 645 (1994).

Failure to file notice with board of tax assessors or to state grounds for appeal warrants dismissal. - When a landowner seeks to appeal the county tax assessor's assessed valuation of the landowner's property, but the notice of appeal is not filed with the board of tax assessors and does not state the grounds for appeal, the superior court does not err in dismissing the landowner's complaint to enjoin the county tax commissioner from selling the landowner's property because of unpaid taxes. Davis v. Holland, 251 Ga. 86 , 303 S.E.2d 455 (1983).

Tax assessors must certify notice of appeal. - O.C.G.A. § 48-5-311 did not give a board of tax assessors the discretion to refuse to certify a notice of appeal based on the taxpayer's failure to be present at the hearing. Fulton County Bd. of Tax Assessors v. Jones, 264 Ga. 828 , 452 S.E.2d 99 (1995).

Failure to notify taxpayers of right to appeal. - County's recalculations of the taxpayers' homestead exemptions involved the value of the exemptions, bringing the taxpayers within O.C.G.A. § 48-5-49 , which permitted an appeal under O.C.G.A. § 48-5-311 . Since the county had not given the taxpayers notice under O.C.G.A. § 48-5-306 of the taxpayers' right to appeal, the taxpayers were entitled to equitable relief requiring the county to: (1) provide taxpayers with proper notice of and the right to appeal changes in the homestead exemptions; (2) stop collecting taxes referenced in bills sent without proper notice; and (3) refund any tax money collected based on bills issued without such notice. Fulton County Bd. of Tax Assessors v. Marani, 299 Ga. App. 580 , 683 S.E.2d 136 (2009), cert. denied, No. S09C2072, 2010 Ga. LEXIS 18 (Ga. 2010).

Sufficiency of notice. - Superior court erred in granting a county's motion to dismiss a taxpayer's appeal when, although the taxpayer had not offered an explanation as to the basis for the taxpayer's appeal, the board of tax assessors thereafter certified the case to the superior court and, in connection with the docketing of the case in that court, the taxpayer filed a form in which the taxpayer stated that the taxpayer was filing the appeal "under Ga. Code No. 48-5-311 . . . regarding taxability and value." Vaughters v. DeKalb County Bd. of Tax Assessors, 198 Ga. App. 589 , 402 S.E.2d 340 (1991).

Because the taxpayers' notice of appeal of the valuation of their property was filed with the County Board of Tax Assessors (BTA) and the trial court on the same day, which was within the statutory time limitation of O.C.G.A. § 48-5-311(g)(2), the BTA received the required notice initiating the taxpayers' appeal; filing the notice in the trial court did not render the notice ineffective. Fulton County Bd. of Tax Assessors v. Love, 296 Ga. App. 613 , 676 S.E.2d 256 (2009).

Notice provisions to be strictly construed. - When a reassessment notice was properly mailed to a taxpayer pursuant to O.C.G.A. § 48-5-306 and the taxpayer's request for a late appeal was denied by the board of tax assessors, the taxpayers were not entitled to declaratory relief or to mandamus because O.C.G.A. § 48-5-311 prescribes a time limit for filing appeals, the appeal was not filed within that period, and the board was powerless to extend the period. Dillard v. Denson, 243 Ga. App. 458 , 533 S.E.2d 101 (2000).

Liberal reading of notice of appeal. - Trial court erred in dismissing the taxpayers' appeal, when, although the taxpayers' enumerated errors to the superior court were not clearly defined, a liberal reading of the notice of appeal indicated that the taxpayers were challenging the assessed value of their property based on an alleged error in computation. Andrew v. DeKalb County Bd. of Tax Assessors, 194 Ga. App. 274 , 390 S.E.2d 115 (1990).

3. Appeals to Board of Equalization

Judicial power to determine taxability is vested in the board of equalization. Bouy v. Kiley, 238 Ga. 47 , 230 S.E.2d 861 (1976).

Authority to remedy deficiencies in ad valorem tax digest. - General Assembly has invested county boards of tax equalization with ample authority to remedy deficiencies in an ad valorem tax digest. The board is authorized to order the entire digest recompiled if such action is necessary to obtain uniformity. Tax Assessors v. Chitwood, 235 Ga. 147 , 218 S.E.2d 759 (1975).

Scope of board's authority to redress grievances as to tax assessments. - County board of equalization has full authority to fashion an adequate and appropriate legal remedy to redress grievances of taxpayers regarding the valuation of individual parcels of land and the uniformity of the county tax assessments. Tax Assessors v. Chitwood, 235 Ga. 147 , 218 S.E.2d 759 (1975); Chilivis v. Kell, 236 Ga. 226 , 223 S.E.2d 117 , cert. denied, 429 U.S. 891, 97 S. Ct. 249 , 50 L. Ed. 2 d 174 (1976).

Time for appeal begins to run on the day notice is received by the taxpayer. Hamilton v. Edwards, 245 Ga. 810 , 267 S.E.2d 246 (1980).

Extension of time for appeal not within authority of board of tax assessors. - There is no power or authority given the board of tax assessors or any members thereof to extend the period in which an appeal may be filed by the taxpayer, and the attempted extension of the time for filing such an appeal is void. Tift v. Tift County Bd. of Tax Assessors, 234 Ga. 155 , 215 S.E.2d 3 (1975).

Sufficiency of statement of grounds for appeal. - Letter expressing no more than dissatisfaction with an assessment does not specifically state the grounds for appeal. Ledbetter Trucks, Inc. v. Floyd County Bd. of Tax Assessors, 143 Ga. App. 323 , 238 S.E.2d 440 (1977), rev'd on other grounds, 240 Ga. 791 , 242 S.E.2d 596 (1978).

Excuse from filing notice of appeal. - Prior communications with a firm employed by the board of tax assessors to assist the board in making valuations do not excuse taxpayers from complying with the requirement for filing a notice of appeal from the official notice given by the board of tax assessors. Peagler v. Georgetown Assocs., 232 Ga. 848 , 209 S.E.2d 186 (1974).

Notice met requirements. - Board of Equalization sent notice according to the statutory requirements as Property Tax Advisers, LLC, while retained and authorized to act on behalf of the taxpayer, was not an attorney who could be served under O.C.G.A. § 48-5-311(o) , and the taxpayer admitted receiving a copy of the notice that was sent via certified mail. Dickey v. Fulton County Bd. of Assessors, 333 Ga. App. 346 , 776 S.E.2d 480 (2015).

Necessity for appellant to raise issue of nonuniformity. - County board of equalization may fashion a remedy in light of evidence that there is a lack of uniformity of property assessment within the county. Such nonuniformity within the county need not be raised by an appellant before the county board of equalization. The board need only find reason to believe that property is not uniformly assessed. Therefore, a taxpayer who in good faith returns the taxpayer's property at the property's fair market value and does not have the taxpayer's return changed would seem to be entitled to present evidence to the county board of equalization that there is a lack of uniformity within the county. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978).

Specification of reasons for uniformity determination. - After the taxpayer raised the issue of uniformity of taxation in the taxpayer's appeal, the county board of equalization was required to specifically decide the issue and to specify the reasons for the board's determination. Hulse v. Joint City-County Bd. of Assessors, 219 Ga. App. 309 , 464 S.E.2d 890 (1995).

Errors in the hearing before the board of equalization are waived if not objected to at the equalizers' hearing. Murray v. Richardson, 134 Ga. App. 676 , 215 S.E.2d 715 (1975).

Challenge of procedure for carrying assessments forward from one year to the next. - When a taxpayer challenges the procedure used by the county tax officials in carrying forward assessments from one year to the next, rather than attacking the validity of the tax digest or the amount of the assessment, the taxpayer is not required to appeal to the county board of equalization. Smith v. Day, 237 Ga. 48 , 226 S.E.2d 588 (1976).

4. Appeals to Superior Court

Applicability of Ch. 11, T. 9 to appeals to superior court. - An appeal brought under former Code 1933, § 92-6912 (see now O.C.G.A. § 48-5-311 ) to the superior court from a county tax assessment was a "complaint" pursuant to Ga. L. 1966, p. 609 § 3 (see now O.C.G.A. § 9-11-3 ), which was required to be answered by responsive pleading pursuant to Ga. L. 1966, p. 609, § 12 (see now O.C.G.A. § 9-11-12 ). Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556 , 236 S.E.2d 532 (1977).

Approval of appeal not required. - O.C.G.A. § 48-5-311 does not require a county or city governing authority to vote to approve an appeal by the board of tax assessors; the plain meaning of the Code section is that the governing authority be notified of appeals by the board of tax assessors from assessment changes of 15 percent or less so that, within 10 days of receipt of such notice, the governing authority may choose to prohibit the appeal by majority vote. Hall County Bd. of Tax Assessors v. Peachtree Doors, Inc., 214 Ga. App. 613 , 448 S.E.2d 476 (1994).

Appeals must be received, not merely mailed, within time limit. - Although mailed within 30 days of date on which decision of board of equalization was sent by registered mail, an appeal from the board's decision was not timely because the appeal was not received until two days after expiration of the 30-day time limit imposed by statute. Camden County Bd. of Tax Assessors v. Proctor, 155 Ga. App. 650 , 271 S.E.2d 902 (1980).

Amendment of notice of appeal to superior court. - Since the policy of the law is in favor of deciding tax appeals on the merits, even at the expense of procedural technicalities, Ga. L. 1972, p. 624, § 1 (see now O.C.G.A. § 5-6-48 (b) ), which allowed amendments of notices of appeal from superior courts, also applied to notices of appeal to the superior courts from administrative boards. Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473 , 246 S.E.2d 479 (1978).

While the notice of appeal that the board of tax assessors sent to the taxpayer was insufficient to perfect the appeal of the board of tax assessors to the superior court because it did not specifically state the grounds for the appeal, the superior court erred in dismissing the appeal; the superior court should have allowed the board of assessors to cure the defect by amending the notice of appeal since notices of appeal could be amended and a policy existed to decide tax appeals on their merits. Fulton County Bd. of Tax Assessors v. Layton, 261 Ga. App. 356 , 582 S.E.2d 520 (2003).

Jury trial required for questions of facts. - When questions of fact are presented by such an appeal, the law requires a de novo investigation by trial before a jury. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556 , 236 S.E.2d 532 (1977).

Clerk's duty to set appeal for first term. - When it is the express command of a statute that appeal cases be tried by a jury at the first term after the appeal has been entered, it would appear to be the duty of the clerk to place the appeal upon the trial calendar for the first term after docketing. McCauley v. Bd. of Tax Assessors, 243 Ga. 844 , 257 S.E.2d 266 (1979).

Dismissal of appeals not heard during first term following filing. - Dismissal of appeal on the ground that the appeal was not brought to trial at the first term is proper when the appellant fails to request that the appeal be placed at the head of the calendar and given the preference to which it is entitled under the law. The provision of this statute, requiring the appeal from the board's decision to be heard before a jury at the first term following the filing of the appeal, concerns and affects both the public interest and the interest of the taxpayer since the public has an interest in the proper administration of the revenue laws and the solvency of its fisc, while the taxpayer is entitled to know promptly and precisely the extent of the taxpayer's tax liability. Thus, dismissal will result from a failure to obtain a trial at the first term unless a reasonable excuse is shown. DeKalb County Bd. of Tax Assessors v. Stone Mountain Indus. Park, 147 Ga. App. 503 , 249 S.E.2d 318 (1978).

Default judgment will not lie for failure to file defensive pleadings in a de novo hearing on appeal in the superior court from a property evaluation. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556 , 236 S.E.2d 532 (1977).

Under Ga. L. 1966, p. 609, § 55 and Ga. L. 1967, p. 226, § 24 (see now O.C.G.A. § 9-11-55 ) in conjunction with former Code 1933, § 92-6912 (see now O.C.G.A. § 48-5-311 ) an appeal did not automatically become in default upon failure to timely file responses, when the statutory design contemplated that findings as to fair market value shall be made. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556 , 236 S.E.2d 532 (1977).

No automatic default when unliquidated damages involved. - Under Ga. L. 1966, § 55 and Ga. L. 1967, p. 226, § 24 (see now O.C.G.A. § 9-11-55 ) a case did not automatically become in default upon the failure to timely file responses if the action involves unliquidated damages. Hall County Bd. of Tax Assessors v. Reed, 142 Ga. App. 556 , 236 S.E.2d 532 (1977).

Having failed to appeal from the decision of the board of equalization, a party could not at a later date successfully institute an original action in the superior court to raise the issue of taxability. Bouy v. Kiley, 238 Ga. 47 , 230 S.E.2d 861 (1976).

Failure of limited liability companies (LLC) to satisfy the requirement of O.C.G.A. § 48-5-311(e) (2)(A) barred any further right to appeal because the letters and returns the LLCs' representative submitted months before the assessment notices were mailed did not excuse the LLCs from complying with the requirement of O.C.G.A. § 48-5-311(e) (2)(A) that a taxpayer mail or file a notice of appeal within 30 days from the date of mailing the notice pursuant to O.C.G.A. § 48-5-306 ; because the LLCs failed to comply with O.C.G.A. § 48-5-311(e) so as to effectuate an appeal to the county board of equalization, the LLCs' appeals to the superior court should have been dismissed. Hall County Bd. of Tax Assessors v. Avalon Hills Partners, LLC, 307 Ga. App. 520 , 705 S.E.2d 674 (2010).

Trial court properly dismissed a taxpayer group's suit seeking a rollback of 2009 assessed values to the 2008 assessed values because whether the moratorium under O.C.G.A. § 48-5B-1 applied should have been raised in an administrative appeal under O.C.G.A. § 48-5-311 and, by failing to pursue the taxpayers' remedy, the taxpayers' complaint was subject to dismissal. We, the Taxpayers v. Bd. of Tax Assessors, 292 Ga. 31 , 734 S.E.2d 373 (2012).

Scope of superior court's jurisdiction on appeal. - Only those decisions of the board of equalization on questions presented to the board or incident thereto may be relitigated in the superior court. Camp v. Boggs, 240 Ga. 127 , 239 S.E.2d 530 (1977).

Trial court properly dismissed a taxpayer's appeal from a purported denial of a homestead exemption on grounds that the court lacked subject matter jurisdiction over the case as the taxpayer failed to show both an application for and the denial of a homestead exemption, and failed to exhaust any and all of the applicable administrative remedies under O.C.G.A. § 48-5-311 . Carter v. Fayette County, 287 Ga. App. 175 , 651 S.E.2d 108 (2007).

Reviewing court lacked subject matter jurisdiction to consider value and uniformity in an appeal of a decision of the Hall County Board of Equalization (BOE) as a hospital did not present those issues in the underlying administrative tax case, which was limited to O.C.G.A. § 48-5-41(a)(5), and the statute's application; further, as there was no Hall County Board of Tax Assessors decision concerning value and uniformity that could have been appealed to the BOE, there was no appeal to the BOE on those issues that could have been waived by mutual agreement and initiated, instead, in the reviewing court under O.C.G.A. § 48-5-311(g)(1). Hall County Bd. of Tax Assessors v. Northeast Ga. Health Sys., 317 Ga. App. 389 , 730 S.E.2d 715 (2012).

When appellant raises only a question of value before the board of equalization, the appellant cannot raise a new claim of uniformity for the first time on appeal to the superior court. Camp v. Boggs, 240 Ga. 127 , 239 S.E.2d 530 (1977).

Objections waived on appeal if not brought before board. - Matters of taxability, uniformity of assessment, and value must be raised before the county board of equalization in order to raise the matters on appeal to the superior court, notwithstanding that the action in superior court is de novo. Williams v. DeKalb County Bd. of Tax Assessors, 249 Ga. 164 , 289 S.E.2d 235 (1982).

When issues not raised before board may be raised before superior court. - When a taxpayer appeals an assessment of the board of tax assessors to the board of equalization, and from the decision of the latter to the superior court for a de novo hearing, the taxpayer is not permitted to raise in the superior court appeal issues which were not raised in the original appeal to the board of equalization. However, when the original appeal to the board of equalization is not included in the record, and when it is not contended that such original appeal failed to raise the question of valuation, an appellant is not estopped in an appeal to the superior court from an adverse decision of the board of equalization from urging at the de novo hearing that the valuation set is excessive. Mundy v. Clayton County Tax Assessors, 146 Ga. App. 473 , 246 S.E.2d 479 (1978).

When a board of equalization fails to answer some of the questions submitted by the taxpayer, such failure should be enumerated as error on a de novo appeal. Accordingly, relief by way of injunction or mandamus is inappropriate because a taxpayer must raise the issue before the board and exhaust the taxpayer's remedies by the statutorily provided appeal. Wilkes v. Redding, 242 Ga. 78 , 247 S.E.2d 872 (1978).

Burden of proof in superior court is on party initiating appeal to that court. - Because the nonprofit charitable institution had already carried the institution's burden of proving entitlement to a charitable exemption, the burden of proof showing that the institution was not entitled to the exemption on an appeal was on the board of tax assessors. Bd. of Tax Assessors v. Baptist Vill., Inc., 269 Ga. App. 848 , 605 S.E.2d 436 (2004).

Admissibility of hearing proceedings on appeal to superior court. - What transpired at the hearing would not be admissible if objected to in the de novo investigation at trial before jury. Murray v. Richardson, 134 Ga. App. 676 , 215 S.E.2d 715 (1975).

References to prior proceedings and procedures should be omitted as the references have no relevance in a de novo matter. Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37 , 227 S.E.2d 865 (1976), overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 , 711 S.E.2d 51 (2011).

Evidentiary weight given to findings of fact by the board of tax assessors. - Board of tax assessors' findings of fact are not deemed prima facie correct on appeals to the superior court, but are evidence which the jury may consider, along with other evidence, in resolving the issue before the jury. Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37 , 227 S.E.2d 865 (1976), overruled on other grounds by Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482 , 711 S.E.2d 51 (2011).

Request for certification from tax consulting firm. - Nothing in the language of O.C.G.A. § 48-5-311 prohibits a tax consulting firm from writing a letter to the board of tax assessors requesting certification of an appeal to superior court. Interstate North Sporting Club v. Cobb County Bd. of Tax Assessors, 250 Ga. App. 221 , 551 S.E.2d 91 (2001).

No presumption of correctness attaches to the assessments of the board of equalization on appeal to the superior court. Hodsdon v. Duckett, 135 Ga. App. 922 , 219 S.E.2d 634 (1975).

Exercise of equitable powers unnecessary. - An appeal before a county board of equalization provides an adequate remedy at law for the determination of county taxpayers' questions, making unnecessary the exercise of the equitable powers of the superior court. Wilkes v. Redding, 242 Ga. 78 , 247 S.E.2d 872 (1978).

Mandamus and actions in equity not authorized. - Board of equalization is the appropriate forum for deciding a taxpayer's constitutional and procedural issues as well as questions of uniformity, valuation, and taxability; therefore, an action in equity and mandamus in the superior court raising those issues is unauthorized. Wilkes v. Redding, 242 Ga. 78 , 247 S.E.2d 872 (1978).

Mandamus relief properly denied since certification of appeals obtained. - Trial court did not err by denying a group of property owners their request for mandamus relief in the nature of finding that the county board of tax assessors certified their property tax appeals because it was undisputed that the tax appeals were physically delivered to the trial court and that it had ruled that such appeals were certified to it, thus, the property owners received the relief sought regarding certification. Newton Timber Co., L.L.L.P. v. Monroe County Bd. of Tax Assessors, Ga. , 755 S.E.2d 770 (2014).

Certification required before case placed on trial calendar. - Absent certification of the taxpayers' appeal by the county board of tax assessors, the filing of the appeal under O.C.G.A. § 48-5-311(g)(4)(A) did not occur and the requirement that the case be placed on the first available trial calendar was not yet triggered. Monroe County Bd. of Tax Assessors v. Wilson, 336 Ga. App. 404 , 785 S.E.2d 67 (2016).

Assessment of property taxes. - Judgment setting the value for improved residential real property owned by the property owners at $ 291,000 was appropriate because an appraiser gave expert opinion testimony that the fair market value of the property was $291,000 and other expert witnesses opined that the county employed appraisal methods in ways that systemically produced incorrect or arbitrary estimates of fair market value for residential properties. Gilmer County Bd. of Tax Assessors v. McHugh, 309 Ga. App. 145 , 709 S.E.2d 311 (2011).

Property owners' challenges to tax assessment in superior court. - There was no merit in the Gilmer County Board of Tax Assessor's claim that the superior court erred in allowing the property owners to challenge the uniformity of the tax assessment. The property owners did not base the owners' uniformity challenge solely upon the amount of taxes paid by the specific developer who owned property within the owners' subdivision; the owners also based the owners' challenge upon the amount of taxes paid by numerous other taxpayers in the county to whose properties the property owners contended an absorption rate had been misapplied. Gilmer County Bd. of Tax Assessors v. McHugh, 309 Ga. App. 145 , 709 S.E.2d 311 (2011).

Costs. - When the owner of commercial property successfully appealed an assessment of the property's value by a board of equalization, and the value determined on appeal was less than 80 percent of the value assessed by the board, the taxpayer was entitled to an award of costs, including attorney fees and litigation costs because O.C.G.A. § 48-5-311(g)(4)(B)(ii) became effective prior to the assessment. Pulaski County Bd. of Tax Assessors v. JFS Props., 274 Ga. App. 520 , 618 S.E.2d 151 (2005).

Attorney fee awards. - When taxpayers challenging an assessment filed an appeal from the verdict of the first jury that tried the case, it was error, following retrial, to deny the taxpayers attorney fees in connection with the appeal from the first jury verdict. "Action" in O.C.G.A. § 48-5-311(g)(4)(B)(ii) does not limit recovery to attorney fees incurred in the trial court. Buckler v. DeKalb County Bd. of Tax Assessors, 288 Ga. App. 332 , 654 S.E.2d 184 (2007).

Taxpayer was entitled to an award of attorney fees of $37,475 under O.C.G.A. § 48-5-311(g)(4)(B)(ii) because the jury's valuation of the taxpayer's property was less than 85 percent of the value assessed by the county board of assessors. Although the county later lowered the property's value, the taxpayer had already appealed three times from the original value, and the attorney's fee amendment was intended to ensure that valuations were accurate from the outset. Fulton County Bd. of Tax Assessors v. White, 302 Ga. App. 512 , 691 S.E.2d 341 (2010).

Tax assessor waived the assessor's argument that the company was not entitled to attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii) on the grounds that the bank failed to file a property tax return or that the bank was the real party in interest. Fulton County Bd. of Assessors v. Calliope Props., LLC, 312 Ga. App. 875 , 720 S.E.2d 312 (2011).

Award of attorney fees approved on appeal. - Because the value was less than 85 percent of the valuation set by the board of assessors, the trial court awarded the owner attorney fees under O.C.G.A. § 48-5-311(g)(4)(B)(ii). The amount of the fee award was within the range of the evidence adduced at the hearing, and the award was not manifestly unreasonable on its face. Fulton County Bd. of Assessors v. Calliope Props., LLC, 315 Ga. App. 405 , 727 S.E.2d 198 (2012).

Dismissal of appeal held erroneous. - Command stated under O.C.G.A. § 48-5-311(g)(4)(A), specifically, that non-jury trials in appeals from a board of equalization to the superior court were to be held within 40 days of filing, was directory rather than mandatory, making erroneous the superior court's dismissal of the appeals upon a failure to hold a hearing within that time period. Jasper County Bd. of Tax Assessors v. Thomas, 289 Ga. App. 38 , 656 S.E.2d 188 (2007).

Remand held proper. - In a gas company's suit against the state revenue commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and 48-5-511(a) , remand was proper to determine if the company had an acceptable alternative remedy in its pending county tax appeals under O.C.G.A. § 48-5-311 , if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Georgia Open Meetings Law, O.C.G.A. § 50-14-1 et seq., applies to proceedings both of a county board of tax assessors and of a county board of equalization. 1995 Op. Att'y Gen. No. U95-22.

Persons holding office as members of a county board of equalization by virtue of a one-year appointment under prior law, former Code 1933, § 91A-1449(c), continue in office until their successors can be "commissioned and qualified." As the current statute, O.C.G.A. § 48-5-311(c) , provides no mechanism to appoint for a term beginning prior to January 1, 1984, current members thus hold over in office until such time after December 31, 1983, as their successor is commissioned and qualified. 1983 Op. Att'y Gen. No. U83-30.

Property sold under bond for title. - Purchaser/possessor of a piece of property under a bond for title can be subjected to ad valorem taxation for that parcel and once the Board of Tax Assessors chooses to assess the property against the occupant, and not the seller of the property, the occupant should receive the tax notices required by O.C.G.A. § 48-5-306 , and be treated as "the taxpayer" entitled to appeal under O.C.G.A. § 48-5-311 . 1989 Op. Att'y Gen. U89-17.

Cost of appeal to superior court. - Appellants contesting a decision rendered by a county board of equalization in superior court must pay the advance court cost deposit set forth in O.C.G.A. §§ 9-15-4 and 15-6-77 . 1985 Op. Att'y Gen. No. U85-17, following 1974 Op. Att'y Gen. U74-46.

Effect of late notice from board of tax assessors. - When county tax assessors make a change in property valuation and send out notice thereof in which the date set for a hearing is more than ten days after the mailing of the notice, such notice is not a notice of final assessment, but only of a proposed assessment. 1970 Op. Att'y Gen. No. U70-141.

Payment of ad valorem property taxes would not prejudice a taxpayer's appeal brought pursuant to former Code 1933, § 92-6912 (see now O.C.G.A. § 48-5-311 ). If successful in such an appeal, the taxpayer would be entitled to a refund under former Code 1933, Ch. 92-39A (see now O.C.G.A. § 48-5-380 ). 1975 Op. Att'y Gen. No. 75-55.

Cost of appeal to superior court. - Party who files notice of appeal to the superior court bears burden of cost deposit under former Code 1933, §§ 24-2727 and 24-3406 (see now O.C.G.A. §§ 9-15-4 and 15-6-77 ). 1974 Op. Att'y Gen. No. U74-46.

Possibility of conflict of interest between the grand jury and county board of equalization would not constitute a disqualification for service upon either body, but would be a question for the court at the time of jury selection. 1973 Op. Att'y Gen. No. U73-111.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 701, 710.

C.J.S. - 50A C.J.S., Juries, §§ 367, 473, 483 et seq., 494, 495. 84 C.J.S., Taxation, §§ 787 et seq., 888 et seq.

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

Power of board of tax review to receive evidence as to assessable value, without notice to taxpayer, 113 A.L.R. 990 .

Standing of one taxpayer to complain of underassessment or nonassessment of property of another for state and local taxation, 9 A.L.R.4th 428.

48-5-312. Status of ad valorem taxes pending review in certain counties and municipalities; petition for lower assessment due to casualty.

Reserved. Repealed by Ga. L. 1996, p. 798, § 1, effective July 1, 1996.

Editor's notes. - This Code section was based on Ga. L. 1974, p. 2489, §§ 1-3; Code 1933, 91A-1450, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 538, § 1; Ga. L. 1991, p. 303, § 4.

48-5-313. Applicability of part.

Nothing contained in this part shall apply to those persons who are required to make their returns to the commissioner.

(Ga. L. 1913, p. 123, § 8; Code 1933, § 92-6901; Code 1933, § 91A-1430, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Application to individuals who make returns to the commissioner is unconstitutional. - Because former Code 1933, §§ 92-6901 and 92-6915 (see now O.C.G.A. §§ 48-5-305 and 48-5-313 ) provide that nothing in this part shall apply to those persons who are required to make their returns to the comptroller general (now commissioner), these two sections, therefore, expressly exclude such persons from the benefit of any such due process procedure as may be afforded under this part. Therefore, an application of this part by the county board as to such persons contravenes the federal and state Constitutions. Pullman Co. v. Suttles, 187 Ga. 217 , 199 S.E. 821 (1938).

County board exceeded authority. - In an action filed by a utility seeking equitable relief from the rejection of the State Commissioner's fair market valuation by the county board of tax assessors, the trial court erred in granting summary judgment to a county board of tax assessors; the board exceeded the board's authority when, in the course of making a final assessment of a utility's property, it not only substituted the board's own assessment ratio, but also the board's own fair market value for those calculated by the State Commissioner as a final assessment could not include a reappraisal of the fair market value of a taxpayer required to make a return to the state. Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007), aff'd, 283 Ga. 12 , 655 S.E.2d 817 (2008).

48-5-314. Confidentiality of taxpayer records; exceptions; penalties.

    1. All records of the county board of tax assessors which consist of materials other than the return obtained from or furnished by an ad valorem taxpayer shall be confidential and shall not be subject to inspection by any person other than authorized personnel of appropriate tax administrators. As an illustration of the foregoing, materials which are confidential shall include, but shall not be limited to, taxpayers' accounting records, profit and loss statements, income and expense statements, balance sheets, and depreciation schedules. Such information shall remain confidential when it is made part of an appeal file. Nothing in this Code section, however, shall prevent any disclosure necessary or proper to the collection of any tax in any administrative or court proceeding.
    2. Records which consist of materials containing information gathered by personnel of the county board of tax assessors, such as field cards, shall not be confidential and are subject to inspection at all times during office hours. The provisions of this paragraph shall not remove the confidentiality of materials such as are specified in paragraph (1) of this subsection.
    3. Failure of the county board of tax assessors to make available records which are not confidential as provided in paragraph (2) of this subsection shall be a misdemeanor.
  2. Any person who knowingly and willfully furnishes information which is confidential under this Code section to a person who is not authorized by law to receive such information shall upon conviction be subject to a civil penalty not to exceed $1,000.00. (Code 1981, § 48-5-314 , enacted by Ga. L. 1986, p. 747, § 2; Ga. L. 1987, p. 558, § 1; Ga. L. 1999, p. 81, § 48.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, in the second sentence of paragraph (a)(2), "paragraph" was substituted for "subsection" and "paragraph (1)" was substituted for "subsection (1)".

Editor's notes. - Ga. L. 1986, p. 747, § 3, not codified by the General Assembly, provided: "This Act shall become effective upon its approval by the Governor [approved April 3, 1986] or upon its becoming law without such approval, except that no prosecution shall be made pursuant to this Act for any act committed before July 1, 1986."

Law reviews. - For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986).

JUDICIAL DECISIONS

Contract with private firm for audit services proper. - County board of tax assessors was authorized to contract with a private firm for audit services to aid the board in discovering unreturned and untaxed property. Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454 , 469 S.E.2d 285 (1996); Wal-Mart Stores v. Board of Tax Assessors, 246 Ga. App. 161 , 539 S.E.2d 869 (2000).

Private accounting firm bound by confidentiality provision. - Private accounting firm which has contracted with a county board of assessors to conduct an audit of a taxpayer is bound by the confidentiality provision of the statute. Fulton County Bd. of Assessors v. Saks Fifth Ave., Inc., 248 Ga. App. 836 , 547 S.E.2d 620 (2001).

Protective order in connection with audit by private firm. - Trial court erred in issuing a protective order in connection with a personal property tax audit of the defendant until such time as the private accounting firm hired by the county board to conduct the audit and the defendant entered into a confidentiality agreement; however, the trial court had full authority to determine what restrictions and limitations were appropriate under the circumstances so long as the court's ruling did not conflict with the rights of the parties under applicable law. Fulton County Bd. of Assessors v. Saks Fifth Ave., Inc., 248 Ga. App. 836 , 547 S.E.2d 620 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Information obtained from real estate transfer tax forms and included on county tax assessors' property record cards is not confidential. 1990 Op. Att'y Gen. No. U90-25.

RESEARCH REFERENCES

ALR. - Recovery of damages under § 7431(c)(1)(B) of Internal Revenue Code (26 USCA § 7431(c)(1)(B)) based on improper release of confidential tax return information, 154 A.L.R. Fed. 537.

PART 3 S TATE LOANS TO COUNTIES

48-5-330. Financial aid to counties for programs to evaluate and equalize assessments; terms of contract; limitations; procedure when state funds insufficient.

  1. The commissioner may make loans to counties or, if sufficient funds are not available for loans, may contract with counties for the payment specified, as an aid to the counties in financing or defraying the cost of employing persons to assist county boards of tax assessors in carrying out programs reasonably designed to survey and evaluate all, or substantially all, of the property within a county's boundaries and to equalize assessments on the property. The commissioner may promulgate rules, regulations, and instructions as he deems necessary to the purposes and administration of this Code section. The governing authority of each county shall have the exclusive right to determine with whom it shall contract or whom it shall employ to carry out a program receiving aid pursuant to this Code section.
  2. Upon application by a county governing authority for aid under this Code section and upon the submission of a valuation and equalization program, the commissioner shall determine whether the program complies with the rules, regulations, and instructions promulgated pursuant to this Code section. Upon the showing of compliance, the commissioner may contract, to the extent funds are available for loans to counties from funds appropriated for such purpose, with the county governing authority for a loan from the state to pay a part, or all, of the cost of the program and for the repayment of the amount loaned. The contract shall provide for the repayment of the amount loaned without interest in five equal annual installments. The first installment on each loan shall be due on December 31 of the first calendar year for which a property tax digest is prepared following the final payment by the commissioner under the terms of the contract. One of the remaining annual installments shall be due on December 31 in each of the four calendar years following the initial payment. The contract shall also provide that whenever an annual installment is in default, the commissioner shall have an irrevocable power of attorney from the governing authority to direct the Office of the State Treasurer to pay over to him, as commissioner, all funds otherwise due the county or its governing authority under Code Section 48-14-3 or under any other appropriation of the General Assembly for grants to counties for aid in county road construction or county road maintenance until the default has been paid. The Office of the State Treasurer shall comply in each instance with the commissioner's direction. The commissioner shall not make loans in excess of $100,000.00 to any one county.
  3. In the event the commissioner determines that insufficient funds are available under subsection (b) of this Code section to meet the needs of any county in financing a qualified program, subject to the maximum limitation provided in subsection (b) of this Code section, and in the further event that a county governing authority applying and submitting a qualified program demonstrates to the satisfaction of the commissioner that sufficient additional funds can be obtained from other sources to complete satisfactorily the program, the commissioner may contract with the county governing authority for the payment by the state from funds appropriated and available for such purpose of 10 percent of the cost of the qualified program. No amount contracted for pursuant to this subsection shall be repaid. The amount to be paid by the state, however, on behalf of any one county under any contract entered into pursuant to this subsection, shall not exceed $10,000.00. The commissioner may direct that any payment by the state pursuant to this subsection be made in a single installment or two installments 12 months apart.

    (Ga. L. 1963, p. 419, §§ 1-4; Ga. L. 1967, p. 467, § 1; Code 1933, § 91A-1460, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1983, p. 3, § 37; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 389 et seq.

48-5-331. Capital fund for loans to counties for property valuation and equalization purposes.

All funds appropriated to the department for the purpose of making loans to counties to aid in defraying the cost of property valuation and equalization programs for ad valorem tax purposes, when such funds were or are included in an allotment approved by the Governor, shall be deemed to create a capital fund to be administered by the commissioner for the purpose of making loans for property valuation and equalization purposes authorized by law. Any funds which are repaid to the commissioner in accordance with the terms of the loans shall become a part of the capital fund and may be reloaned by the commissioner in the manner and under the terms authorized by law.

(Ga. L. 1962, p. 447, § 1; Code 1933, § 91A-1461, enacted by Ga. L. 1978, p. 309, § 2.)

ARTICLE 5A EXAMINATION OF COUNTY TAX DIGESTS

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 92-7001 are included in the annotations for this article.

Property classification scheme is not unconstitutional. - No language in this statute expressly establishes separate classes of tangible property for the purposes of taxation in violation of Ga. Const. 1945, Art. VII, Sec. I, Para. III (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III), and no language reasonably authorizes the construction that such was the legislative intent. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under former Code 1933, § 92-7001).

Statute does not violate constitutional due process and equal protection provisions. - The scheme of equalization of tax digests as between the counties does not violate the due process or equal protection provisions of the United States or Georgia Constitutions. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under former Code 1933, § 92-7001).

Commissioner is required to seek uniformity throughout the state on the state levy by requiring all counties to assess property uniformly throughout the state. Hawes v. Conner, 224 Ga. 567 , 163 S.E.2d 724 (1968) (decided under former Code 1933, § 92-7001).

Commissioner may use such means as the commissioner deems proper and reasonable to make the commissioner's determination as to reasonable uniformity. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 92-7001).

Adjustments in the total digest are presumed not to disturb previously established uniformity and equality as between individual taxpayers since all who pay taxes on the class or classes of property to which the adjustments are applied remain in substantially the same relation to each other after the adjustments as the taxpayers were before the adjustments were made. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under former Code 1933, § 92-7001).

Commissioner may examine and adjust tax digest by class of property. - It is clear that the commissioner's duty to examine the digest of a particular county extends no further than an examination of the digest as to particular classes of property as entities, and that the commissioner is authorized to make percentage adjustments in the digests as to any particular class or classes of property with respect to the whole digest of that class and not with respect to segments of the class. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under former Code 1933, § 92-7001).

Subclassification of tangible property for tax purposes. - Former Code 1933, §§ 92-7001 and 92-7002 and Ga. L. 1972, p. 174, § 3 (see now O.C.G.A. § 48-5-273 ) do not either expressly or impliedly require or authorize the subclassification of tangible property for tax purposes. Herring v. Ferrell, 130 Ga. App. 431 , 203 S.E.2d 617 (1973), aff'd in part, rev'd on other grounds in part, 233 Ga. 1 , 209 S.E.2d 599 (1974) (decided under former Code 1933, § 92-7001).

Millage rate based on disapproved tax digest. - No board of education should be required to determine a binding millage rate on a tax digest which is disapproved by order of the commissioner as being assessed at less than 40 percent of the fair market value. Board of Comm'rs v. Allgood, 234 Ga. 9 , 214 S.E.2d 522 (1975) (decided under former Code 1933, § 92-7001).

Standing to object to equalization of tax digests. - An objection made to the exercise of the discretion of the commissioner in equalizing digests must come from the county, and not from individual taxpayers. Chilivis v. Kell, 236 Ga. 226 , 223 S.E.2d 117 , cert. denied, 429 U.S. 891, 97 S. Ct. 249 , 50 L. Ed. 2 d 174 (1976) (decided under former Code 1933, § 92-7001).

County may seek review of commissioner's exercise of discretion in making adjustments in county tax digests. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 92-7001).

When commissioner's order must be upheld. - Commissioner's order that assessments contained in a given county tax digest be increased or decreased by certain percentages must be upheld unless the commissioner's actions are deemed to be unreasonable, beyond the commissioner's authority, or constitute an abuse of discretion. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 92-7001).

Differences of opinion insufficient for review of commissioner's determination. - Differences in opinion regarding what is reasonable uniformity of tax digests are not sufficient to bring the commissioner's determination in a given case within range of judicial review, unless a manifest abuse of discretion, or arbitrary or capricious conduct on the commissioner's part is shown. This is a question of law for the court. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 92-7001).

Classwide challenge to commissioner's decision. - Remedy which Georgia law provides for the classwide decision of the commissioner is a challenge by the representatives of the class affected, such as the board of tax assessors. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under former Code 1933, § 92-7001).

Remedies available to individual taxpayers. - Any objection to an adjustment by the state revenue commissioner or failure to make an adjustment must come from the county board of tax assessors. However, an individual remedy is not always unavailable to an individual taxpayer, who may obtain an injunction against the commissioner. While the general rule is that individual taxpayers cannot bring suit against the commissioner, when the orders complained of are void and illegal because the orders do not follow the mandate of the Acts nor of the constitutional provisions under which they purportedly were issued such suits may be authorized. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under former Code 1933, § 92-7001).

Challenge by individual taxpayer to decisions affecting classes of property. - Commissioner makes decisions which affect classes of property. Although individual taxpayers ultimately are affected by the commissioner's decisions, Georgia law does not allow an individual taxpayer individually to sue the commissioner to challenge the commissioner's decision on any particular class of property. The rationale is that a decision on a class of property affects many people other than an individual taxpayer and an individual taxpayer should not be allowed to enjoin an action of the commissioner which affects an entire class of taxpayers. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under former Code 1933, § 92-7001).

Challenge of factual decisions in equalizing tax digests. - Individual taxpayers have no right under state law to challenge factual decisions of the commissioner in equalizing the digests of the various counties. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under former Code 1933, § 92-7001).

Taxpayers may not challenge factual decisions within commissioner's statutory responsibility. - Insofar as the commissioner makes factual decisions within the commissioner's statutory responsibility, individual taxpayers may not challenge the commissioner's actions. The reason for such a rule is because the commissioner may not act to affect an individual taxpayer apart from any particular class or classes of property. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under former Code 1933, § 92-7001).

Rationale for not permitting individual taxpayers to challenge factual decisions. - It would create a chaotic condition in the tax affairs of the state if individual taxpayers in each of the counties had the right to challenge the factual decisions of the commissioner in equalizing "as far as practicable" the values of property subject to taxation in the state. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under former Code 1933, § 92-7001).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 92-7001 and 92-7002 are included in the annotations for this article.

Power of commissioner to adopt schedule of uniform values for like properties. - It is clear that the commissioner is bound to examine the county tax digests for the purpose of ascertaining whether the tax valuations of the various classes of property are reasonably uniform as between counties. Under this authority, the commissioner has the power to adopt a schedule of uniform values on like properties as between counties that, in the commissioner's discretion, will carry out the intention of the law. 1950-51 Op. Att'y Gen. p. 168 (rendered under former Code 1933, § 92-7001).

Purpose and intent. - It is the purpose and intent of the statute to bring about as far as practicable an equalization throughout the state of the values of the various classes of property subject to be taxed so that the values fixed in one county shall not be out of due proportion to the values fixed in other counties on the same classes of property. 1957 Op. Att'y Gen. p. 277 (rendered under former Code 1933, § 92-7002).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 704, 720 et seq.

ALR. - Notice to property owners of increase in assessment or valuation by board of equalization or review, 24 A.L.R. 331 ; 84 A.L.R. 197 .

48-5-340. Purpose of article.

It is the purpose and intent of this article to establish a procedure for use by the commissioner to equalize county property tax digests between counties and within counties so as to require county boards of tax assessors to make adjustments in the valuation of property to ensure uniformity and equity. The commissioner shall continue to examine the digest and exercise his responsibility to bring about property valuations that are reasonably uniform and equalized throughout the state.

(Code 1981, § 48-5-340 , enacted by Ga. L. 1988, p. 1763, § 1.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1966, p. 45, § 1, former Code 1933, § 91A-1413, and former Code Section 48-5-271 are included in the annotations for this Code section.

Uniformity of taxation inherent and delegable power of General Assembly. - General Assembly's power to require uniformity of taxation between counties is inherent, is not prohibited by the Constitution, and may be properly delegated to the state revenue commissioner. Salem v. Tattnall County, 250 Ga. 881 , 302 S.E.2d 99 (1983) (decided under former O.C.G.A. § 48-5-271 ).

Statute does not violate constitutional due process and equal protection provisions. - Scheme of equalization of tax digests as between the counties does not violate the due process or equal protection provisions of the United States or Georgia Constitutions. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under Ga. L. 1966, p. 45, § 1).

Property classification scheme is not unconstitutional. - No language in the statute expressly establishes separate classes of tangible property for the purposes of taxation in violation of Ga. Const. 1945, Art. VII, Sec. I, Para. III (see Ga. now Const. 1983, Art. VII, Sec. I, Para. III), and no language reasonably authorizes the construction that such was the legislative intent. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under Ga. L. 1966, p. 45, § 1).

Commissioner is required to seek uniformity throughout the state on the state levy by requiring all counties to assess property uniformly throughout the state. Hawes v. Conner, 224 Ga. 567 , 163 S.E.2d 724 (1968) (decided under Ga. L. 1966, p. 45, § 1).

Methods for equalizing digests. - Commissioner may use such means as the commissioner deems proper and reasonable to make the commissioner's determination as to reasonable uniformity. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 91A-1413).

Subclassification of tangible property for tax purposes. - Ga. L. 1966, p. 45, § 1, former Code 1933, § 92-7002, and Ga. L. 1972, p. 174, § 3 (see now O.C.G.A. § 48-5-273 ) did not either expressly or impliedly require or authorize the subclassification of tangible property for tax purposes. Herring v. Ferrell, 130 Ga. App. 431 , 203 S.E.2d 617 (1973), aff'd in part, rev'd on other grounds in part, 233 Ga. 1 , 209 S.E.2d 599 (1974) (decided under Ga. L. 1966, p. 45, § 1).

Standing to object to equalization of tax digests. - An objection made to the exercise of the discretion of the commissioner in equalizing digests must come from the county, and not from individual taxpayers. Chilivis v. Kell, 236 Ga. 226 , 223 S.E.2d 117 , cert. denied, 429 U.S. 891, 97 S. Ct. 249 , 50 L. Ed. 2 d 174 (1976) (decided under Ga. L. 1966, p. 45, § 1).

Classwide challenge to commissioner's decision. - Remedy which Georgia law provides for the classwide decision of the commissioner is a challenge by the representatives of the class affected, such as the board of tax assessors. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under Ga. L. 1966, p. 45, § 1).

Cited in Container Corp. of Am. v. Charlton County, 259 Ga. 389 , 383 S.E.2d 105 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 92-7001 and 92-7002 are included in the annotations for this Code section.

Purpose and intent. - It is the purpose and intent of the statute to bring about as far as practicable an equalization throughout the state of the values of the various classes of property subject to be taxed so that the values fixed in one county shall not be out of due proportion to the values fixed in other counties on the same classes of property. 1957 Op. Att'y Gen. p. 277 (rendered under former Code 1933, § 92-7002).

Power of commissioner to adopt schedule of uniform values for like properties. - It is clear that the commissioner is bound to examine the county tax digests for the purpose of ascertaining whether the tax valuations of the various classes of property are reasonably uniform as between counties. Under this authority, the commissioner has the power to adopt a schedule of uniform values on like properties as between counties that, in the commissioner's discretion, will carry out the intention of the law. 1950-51 Op. Att'y Gen. p. 168 (rendered under former Code 1933, § 92-7001).

48-5-341. Definitions.

As used in this article, the term:

  1. "Assessment bias" means any tendency or trend of assessment ratios, when analyzed by an appropriate statistical method, which reveals assessment progressivity or assessment regressivity.
  2. "Assessment progressivity" means any systematic pattern of assessment in which higher value properties are generally assessed at a larger percentage of fair market value than properties of lower value.
  3. "Assessment ratio" means the fractional relationship the assessed value of property bears to the fair market value of the property as determined in paragraph (8) of subsection (b) of Code Section 48-5-274.
  4. "Assessment regressivity" means any systematic pattern of assessment in which lower value properties are generally assessed at a larger percentage of fair market value than properties of higher value.
  5. "Assessment variance" means the absolute value of the difference between the assessment ratio for each parcel of property within each class of property and the average assessment ratio for that class and expressed as a percentage of the average assessment ratio.
  6. "Class of property" means any reasonable divisions of homogeneous groups of property that the commissioner determines are necessary to examine digests for uniformity and equalization.
  7. "Digest evaluation cycle" means a recurring period of three years beginning initially on January 1 of the first year, as so designated by the commissioner for each county, and ending on December 31 of the third year thereafter.
  8. "Digest review year" means the first year of each evaluation cycle for each county. (Code 1981, § 48-5-341 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 1; Ga. L. 1992, p. 2494, § 1; Ga. L. 2000, p. 1683, § 2.)

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

JUDICIAL DECISIONS

"Class of property." - Tax assessors have the authority to place property in homogeneous groups for the purpose of determining the property's value in relation to other and like property, and different valuation methods may be utilized. Harrington v. Baldwin County Bd. of Tax Assessors, 214 Ga. App. 178 , 447 S.E.2d 300 (1994).

Cited in Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007).

48-5-342. Commissioner to examine digests.

  1. The commissioner shall carefully examine the tax digests of the counties filed in his office.  Each digest for a county in a digest review year shall be examined for the purpose of determining if the valuations of property for taxation purposes are reasonably uniform and equalized between counties and within counties.
  2. For any digest in any digest review year where the digest for the preceding digest review year was conditionally approved by the commissioner, the commissioner shall also carefully examine the digest to determine if it satisfactorily corrects the deficiencies that resulted in the digest for the preceding digest review year being conditionally approved.
  3. For each year, including each year that is not a digest review year for the county, the commissioner shall utilize the overall assessment ratio for the county as provided by the state auditor.
  4. It shall be the further duty of the commissioner to examine the itemizations of exempt properties appearing on the digest and, if in the judgment of the commissioner any properties appearing on the digest are subject to taxation, to so advise the board of tax assessors of the counties concerned with an explanation of his reasons for believing the property is subject to taxation.
    1. The commissioner may, upon his or her own initiative or upon complaint by a taxpayer, examine the itemizations of properties appearing on the digest, and if in the judgment of the commissioner any properties are illegally appearing on the digest and should not be subject to taxation under this chapter, the commissioner shall strike such items from the digest and return the digest to the county for removal of such items and resubmission to the commissioner. The commissioner shall provide by rule and regulation procedures by which the county board of tax assessors may appeal such finding to the commissioner. If appealed by the board of tax assessors, the commissioner shall, after reviewing such appeal, issue a final order and include a finding as to the taxability of the digest items in dispute and shall finalize the digest in accordance therewith.
    2. If a property has been found by the commissioner to not be subject to taxation under this chapter and again appears on the digest at any time within five years of the initial determination of nontaxability and is again determined to be nontaxable, the commissioner shall strike such item from the digest and return the digest to the county for removal of such item and resubmission to the commissioner. The commissioner shall notify the Department of Community Affairs in writing of his or her finding, and upon receipt of such notice, the qualified local government status of such county shall be revoked for a period of three years following the receipt of such notice by the Department of Community Affairs unless reinstated earlier pursuant to this subsection. Upon such revocation, the governing authority of such county, without regard to any limitation of Code Section 48-5-295 , shall be specifically authorized to remove immediately every member of the board of tax assessors and reappoint new members who shall serve for the unexpired terms of the removed members. The county governing authority shall provide written notification of such removal and new appointment to the commissioner. Upon certification of the corrected digest, the commissioner shall notify in writing the Department of Community Affairs, and upon receipt thereof, the Department of Community Affairs shall immediately reinstate the qualified local government status of such county.
    3. If a property has been found by the commissioner to not be subject to taxation under this chapter and if such nontaxable property has appeared on a county digest in any year within the preceding five-year period, then the taxpayer shall be entitled to file a petition directly with the Georgia Tax Tribunal for a refund of all such taxes illegally collected or taxes paid, interest equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it plus 3 percent calculated from the date of payment of such taxes, and attorney's fees in an amount of not less than 15 percent nor more than 40 percent of the total of the illegally charged taxes and accrued interest. Such petition shall name the board of tax assessors and the tax receiver or tax commissioner of the county as the respondent in their official capacities and shall be served upon such board and tax receiver or tax commissioner. Service shall be accomplished by certified mail or statutory overnight delivery. The petition shall include a summary statement of facts and law upon which the petitioner relies in seeking the requested relief. The respondents shall file a response to the petitioner's statement of facts and law which constitutes their answer with the tribunal no later than 30 days after the service of the petition. The respondents shall serve a copy of their response on the petitioner's representative or, if the petitioner is not represented, on the petitioner and shall file a certificate of service with such response. If in any case a response has not been filed within the time required by this paragraph, the case shall automatically become in default unless the time for filing the response has been extended by agreement of the parties, for a period not to exceed 30 days, or by the judge of the tribunal. The default may be opened as a matter of right by the filing of a response within 15 days of the day of the default and payment of costs. At any time before the final judgment, the judge of the tribunal, in his or her discretion, may allow the default to be opened for providential cause that prevented the filing of the response, for excusable neglect, or when the tribunal judge, from all the facts, determines that a proper case has been made for the default to be opened on terms to be fixed by the tribunal judge. The tribunal judge shall proceed to hear and decide the matter and may grant appropriate relief under the law and facts presented. (Code 1981, § 48-5-342 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 2; Ga. L. 1992, p. 2494, § 2; Ga. L. 2000, p. 1683, § 3; Ga. L. 2016, p. 277, § 1/HB 364; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective July 1, 2016, added subsection (e).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in the second sentence of paragraph (e)(2).

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

JUDICIAL DECISIONS

Editor's notes. In light of the similarity of the statutory provisions, decisions under former Code Section 48-5-271 are included in the annotations for this Code section.

Commissioner may delegate to the commissioner's staff the mechanics of evaluating the tax digest of the various counties. Fulton County v. Strickland, 251 Ga. 473 , 306 S.E.2d 299 (1983) (decided under former O.C.G.A. § 48-5-271 ).

Section does not concern individual taxpayer's assessment. - O.C.G.A. § 48-5-343(c) is part of an article outlining the Georgia State Revenue Commissioner's duty to examine county tax digests throughout the state and within a county for the purpose of determining if the valuations of property for taxation purposes are reasonably uniform and equalized between counties and within counties and has nothing to do with an individual taxpayer's assessment; the statute creates no burden of proof on a board of tax assessors in a dispute with an individual taxpayer. Hill v. Hall County Bd. of Tax Assessors, 275 Ga. App. 504 , 621 S.E.2d 517 (2005).

Division of duties between commissioner and counties. - It is the duty of the commissioner to ascertain the value of the entire class of property, and to provide for uniformity among the counties. It is the responsibility of the county to provide for equalization between properties within a class. The commissioner is precluded from subdividing classes of property and applying different factors for each subdivision within a class. Fulton County v. Strickland, 251 Ga. 473 , 306 S.E.2d 299 (1983) (decided under former O.C.G.A. § 48-5-271 ).

Jurisdiction of superior court. - Superior court was without jurisdiction to apply an equalization factor in determining assessment based on a jury verdict. Shaheen v. Cobb County Bd. of Tax Assessors, 167 Ga. App. 780 , 307 S.E.2d 301 (1983) (decided under former O.C.G.A. § 48-5-271 ).

Choateness dependent upon approval of digests. - Ad valorem taxes did not become choate until the county's tax digest was approved by the State Revenue Commission pursuant to O.C.G.A. § 48-5-342 ; however, intrastate tax lien priorities do not depend on choateness, but are determined by state statute, specifically O.C.G.A. § 48-2-5(b) , which delineates the priority of tax liens and makes state tax liens superior to county tax liens regardless of date. Ellenberg v. J.M. Tull Metals (In re McIntyre Grading & Pipe, Inc.), 193 Bankr. 983 (Bankr. N.D. Ga. 1996).

48-5-342.1. Digest evaluation cycles established; time for review of digest.

  1. The commissioner shall by regulation establish the digest evaluation cycles for each of the counties in this state giving weight to the number of taxable parcels in each county, the geographical location of each county, and each such county's compliance with the provisions of Code Section 48-5-343.  The starting date of each county's digest evaluation cycle shall be staggered so that the digest review year of one-third of the counties shall occur each year.
  2. For those digests submitted by counties in their designated digest review year, the commissioner shall begin his or her review of the digest in accordance with Code Section 48-5-343 and shall, within 30 days after the date the state auditor furnishes to the commissioner the ratios established pursuant to paragraph (8) of subsection (b) of Code Section 48-5-274 or by August 1 of the next succeeding tax year, whichever comes later, approve or conditionally approve the digest. (Code 1981, § 48-5-342.1 , enacted by Ga. L. 1992, p. 2494, § 3; Ga. L. 2000, p. 1683, § 4.)

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

48-5-343. Approval of digests.

  1. The commissioner shall, when a county is in its digest review year, approve the digest of any such county as being reasonably uniform and equalized if the digest meets the following criteria:
    1. The average assessment ratio for each class of property within the county shall be as close to the assessments provided for in Code Section 48-5-7 as is reasonably practicable;
    2. The average assessment variance for each class of property within the county shall not be excessive with respect to that which is reasonably practicable; and
    3. Within each class of property, assessment ratios of the properties shall not reveal any significant assessment bias.
  2. The commissioner shall by regulation establish the statistical standards to be used in determining whether or not digests are in accordance with the uniformity requirements contained in subsection (a) of this Code section. The commissioner shall utilize information developed by the state auditor under Code Section 48-5-274.
  3. If the assessed value of the portion of the digest that does not meet the uniformity requirements constitutes 10 percent or less of the assessed value of the total digest, the commissioner may approve the digest if, in his judgment, the approval will not substantially violate the concept of uniformity and equalization. (Code 1981, § 48-5-343 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1992, p. 2494, § 4; Ga. L. 2000, p. 1683, § 5.)

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code Sections §§ 48-5-271 and 48-5-272 are included in the annotations for this Code section.

Amendment of school tax millage rate following entry of digest adjustment order of state revenue commissioner does not preclude approval of county tax digest. 1981 Op. Att'y Gen. No. 81-96 (rendered under former O.C.G.A. §§ 48-5-271 and 48-5-272 ).

48-5-344. Conditional approval of digests.

  1. If the commissioner determines that in any one or more of the counties that is in a digest review year the taxable values of property are not reasonably uniform and equalized in accordance with the requirements of subsection (a) of Code Section 48-5-343, he shall conditionally approve the digest and notify the county board of tax assessors in writing of his action.
  2. The written notification shall contain:
    1. A list of specific reasons that resulted in the digest being conditionally approved;
    2. A list of the statistical standards used by the commissioner when examining the digest; and
    3. Any other information the commissioner believes would be of assistance to the county board of tax assessors in correcting the deficiencies that resulted in the digest being conditionally approved or in otherwise making the digest reasonably uniform and equalized. (Code 1981, § 48-5-344 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 3; Ga. L. 1992, p. 2494, § 5; Ga. L. 2000, p. 1683, § 6.)

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1966, p. 45, § 1 and former Code 1933, § 91A-1413 are included in the annotations for this Code section.

Adjustments in the total digest are presumed not to disturb previously established uniformity and equality as between individual taxpayers since all who pay taxes on the class or classes of property to which the adjustments are applied remain in substantially the same relation to each other after the adjustments as the taxpayers were before the adjustments were made. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under Ga. L. 1966, p. 45, § 1).

Commissioner may examine and adjust tax digest by class of property. - It is clear that the commissioner's duty to examine the digest of a particular county extends no further than an examination of the digest as to particular classes of property as entities, and that the commissioner is authorized to make percentage adjustments in the digests as to any particular class or classes of property with respect to the whole digest of that class and not with respect to segments of the class. Griggs v. Greene, 230 Ga. 257 , 197 S.E.2d 116 (1973) (decided under Ga. L. 1966, p. 45, § 1).

Millage rate based on disapproved tax digest. - No board of education should be required to determine a binding millage rate on a tax digest which is disapproved by order of the commissioner as being assessed at less than 40 percent of the fair market value. Board of Comm'rs v. Allgood, 234 Ga. 9 , 214 S.E.2d 522 (1975) (decided under Ga. L. 1966, p. 45, § 1).

Ground for disapproval under former Code 1933, § 91A-1413 (former O.C.G.A. § 48-5-271 ). - See In re Board of Twiggs County Comm'rs, 249 Ga. 642 , 292 S.E.2d 673 (1982)(decided under former Code 1933, § 91A-1413).

48-5-345. Receipt for digest and order authorizing use; assessment if deviation from proper assessment ratio.

    1. Upon the determination by the commissioner that a county tax digest is in proper form, that the property therein that is under appeal is within the limits of Code Section 48-5-304, and that the digest is accompanied by all documents, statistics, and certifications required by the commissioner, including the number, overall value and percentage of total real property parcels of appeals in each county to the boards of equalization, arbitration, hearing officer, and superior court, and the number of taxpayers' failure to appear at any hearing, for the prior tax year, the commissioner shall issue a receipt for the digest and enter an order authorizing the use of said digest for the collection of taxes. All statistics and certifications regarding real property appeals provided to the commissioner under this paragraph shall be made publicly available on the Department of Revenue website.
    2. Nothing in this subsection shall be construed to prevent the superior court from allowing the new digest to be used as the basis for the temporary collection of taxes under Code Section 48-5-310.
  2. Each year the commissioner shall determine if the overall assessment ratio for each county, as computed by the state auditor under paragraph (8) of subsection (b) of Code Section 48-5-274, deviates substantially from the proper assessment ratio as provided in Code Section 48-5-7, and if such deviation exists, the commissioner shall assess against the county governing authority additional state tax in an amount equal to the difference between the amount the state's levy, as prescribed in Code Section 48-5-8, would have produced if the digest had been at the proper assessment ratio and the amount the digest that is actually used for collection purposes will produce. The commissioner shall notify the county governing authority annually of the amount so assessed and this amount shall be due and payable not later than five days after all appeals have been exhausted or the time for appeal has expired or the final date for payment of taxes in the county, whichever comes latest, and shall bear interest at the rate specified in Code Section 48-2-40 from the due date.
  3. Beginning with tax digests on or after January 1, 2016, no county shall be subject to the assessment authorized by subparagraph (b) of this Code section. (Code 1981, § 48-5-345 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 4; Ga. L. 1992, p. 2494, § 6; Ga. L. 2000, p. 1683, § 7; Ga. L. 2012, p. 694, § 2/HB 729; Ga. L. 2015, p. 1219, § 18/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted the present provisions of paragraph (a)(1) for the former provisions, which read: "Upon the determination by the commissioner that a county tax digest is in proper form, that the property therein that is under appeal is within the limits of Code Section 48-5-304, and that the digest is accompanied by all documents, statistics, and certifications required by the commissioner, the commissioner shall issue a receipt for the digest and enter an order authorizing the use of said digest for the collection of taxes."; and added subsection (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, "January 1, 2016" was substituted for "the effective date of this subsection" in subsection (c).

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

48-5-346. Effect of conditionally approving next subsequent digest.

    1. If a county tax digest for its preceding digest review year was conditionally approved and the commissioner conditionally approves the digest for the next subsequent digest review year for the same or substantially the same reasons, the commissioner shall order the payment of the specific penalty as provided in this Code section and the withholding from the county of the state grants specified in this paragraph.  The Office of the State Treasurer and any other state agency or officer shall upon such order's taking effect permanently withhold from the county any funds otherwise becoming payable during the withholding period specified in subsection (b) of this Code section to the county under:
      1. The road mileage grant program specified in Article 1 of Chapter 17 of Title 36;
      2. The county appraisal staff grant program specified in Code Section 48-5-267; and
      3. The public road grant program specified in Code Section 48-14-3.
    2. In addition to the withholding of state grant funds specified in this Code section, a specific penalty is levied which shall be $5.00 per taxable parcel of real property located in the county as of January 1 of the year in which the penalty is levied and it shall be paid by the governing authority of the county to the commissioner.
  2. The withholding of the grants and moneys shall begin not later than five days after all appeals have been exhausted, or the time for appeal has expired, and shall continue until such time as the digest is satisfactorily corrected as to the deficiencies identified by the commissioner that resulted in the digest being initially conditionally approved.  The levy of the specific penalty shall be made at the same time that the withholding of grants begins and it shall be paid to the commissioner within 60 days after the commissioner has notified the county of the amount of such penalty.
  3. The commissioner shall determine and publish in print or electronically annually a list of all available state grants which will be withheld in accordance with this Code section.
  4. If the digest for the preceding digest review year was conditionally approved and the commissioner conditionally approves the digest submitted in the next subsequent digest review year for different reasons, the county shall not have any penalties assessed or state grants withheld as a result of such conditional approval. (Code 1981, § 48-5-346 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 5; Ga. L. 1992, p. 2494, § 7; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296; Ga. L. 2010, p. 838, § 10/SB 388.)

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

48-5-347. Ad Valorem Assessment Review Commission created; appointment of members; terms; vacancies; expenses.

Reserved. Repealed by Ga. L. 1991, p. 728, § 6, effective April 10, 1991.

Editor's notes. - This Code section was based on Ga. L. 1988, p. 1763, § 1.

48-5-348. Appeal from conditional approvals.

  1. The commissioner, through a hearing officer, shall hear and determine appeals by local governing authorities on issues relating to the conditional approval of the digest by the commissioner including, but not limited to, the issue of the adequacy of the time period allowed to correct the deficiencies that resulted in the digest being conditionally approved.
  2. The hearing officer may compel the attendance of witnesses and the production of books and records or other documents from the county board of tax assessors.  The hearing officer may also compel the production of appropriate records from the commissioner.
  3. With respect to any digest conditional approval by the commissioner which will not result in the withholding of state funds and the levy of specific penalties, the county governing authority shall be authorized to appeal only on the issue of the correctness of the commissioner's determination that the digest does not meet the requirements of subsection (a) of Code Section 48-5-343.  With respect to any digest conditional approval by the commissioner which will result in the withholding of state funds or the penalty specified in subsection (a) of Code Section 48-5-346, the county governing authority shall be authorized to appeal on the issues of:
    1. The correctness of the commissioner's determination that the digest does not meet the requirements of Code Section 48-5-343; and
    2. The adequacy of the time period which was available to the county to correct prior deficiencies in the digest, including any issue of the adequacy of the time period allowed under Code Section 48-5-345 and any extension of time granted pursuant to any prior appeal.
  4. With respect to any additional state tax assessed against the county by the commissioner pursuant to subsection (b) of Code Section 48-5-345, the county governing authority shall be authorized to appeal on the correctness of the commissioner's determination that such an assessment is due and the accuracy of the amount so assessed.
  5. With respect to any specific penalty levied against the county by the commissioner pursuant to paragraph (2) of subsection (a) of Code Section 48-5-346, the county governing authority shall be authorized to appeal on the correctness of the commissioner's determination that such a levy is due and the accuracy of the amount so levied.
  6. Hearing officers provided for in this Code section shall be appointed by the State Board of Equalization.  A hearing officer shall be assigned to hear appeals only from counties located wholly or partially in the congressional district in which the hearing officer resides.
  7. Any appeals filed pursuant to this Code section may not challenge the correctness of the information provided to the commissioner by the state auditor pursuant to Code Section 48-5-274 . (Code 1981, § 48-5-348 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 7; Ga. L. 1992, p. 2494, § 8; Ga. L. 2000, p. 1683, § 8.)

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1966, p. 45, § 1, former Code 1933, §§ 91A-1413 and 91A-7001, and former Code Section 48-5-271 are included in the annotations for this Code section.

Commissioner's determination must be upheld unless the commissioner's actions are deemed to be unreasonable, beyond the commissioner's authority, or constitute an abuse of discretion. Fulton County v. Strickland, 251 Ga. 473 , 306 S.E.2d 299 (1983) (decided under former O.C.G.A. § 48-5-271 ).

Commissioner's order upheld absent certain circumstances. - Commissioner's order that assessments contained in a given county tax digest be increased or decreased by certain percentages must be upheld unless the commissioner's actions are deemed to be unreasonable, beyond the commissioner's authority, or constitute an abuse of discretion. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 91A-1413).

County may seek review of commissioner's exercise of discretion in making adjustments in county tax digests. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 91A-1413).

Differences of opinion insufficient for review of commissioner's determination. - Individual taxpayers have no right under state law to challenge factual decisions of the commissioner, within the commissioner's statutory responsibility, in equalizing the digests of the various counties. To permit such a challenge would create chaos in the tax affairs of the state. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under Ga. L. 1966, p. 45, § 1).

Differences in opinion regarding what is reasonable uniformity of tax digests are not sufficient to bring the commissioner's determination in a given case within range of judicial review, unless a manifest abuse of discretion, or arbitrary or capricious conduct on the commissioner's part is shown. This is a question of law for the court. Strickland v. Douglas County, 246 Ga. 640 , 272 S.E.2d 340 (1980) (decided under former Code 1933, § 91A-7001).

Standing to challenge factual decision. - Individual taxpayers have no right to challenge the factual decisions of the State Revenue Commissioner in equalizing the digests of various counties. Board of Tax Assessors v. Clary, 161 Ga. App. 828 , 290 S.E.2d 110 (1982) (decided under former Code 1933, § 91A-1413).

Challenge by individual taxpayer to decisions affecting classes of property. - Commissioner makes decisions which affect classes of property. Although individual taxpayers ultimately are affected by the commissioner's decisions, Georgia law does not allow an individual taxpayer individually to sue the commissioner to challenge the commissioner's decision on any particular class of property. The rationale is that a decision on a class of property affects many people other than an individual taxpayer and an individual taxpayer should not be allowed to enjoin an action of the commissioner which affects an entire class of taxpayers. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under Ga. L. 1966, p. 45, § 1).

Remedies available to individual taxpayers. - Any objection to an adjustment by the state revenue commissioner or failure to make an adjustment must come from the county board of tax assessors. However, an individual remedy is not always unavailable to an individual taxpayer, who may obtain an injunction against the commissioner. While the general rule is that individual taxpayers cannot bring suit against the commissioner, when the orders complained of are void and illegal because they do not follow the mandate of the Acts nor of the constitutional provisions under which they purportedly were issued such suits may be authorized. Adams v. Smith, 415 F. Supp. 787 (N.D. Ga. 1976), aff'd, 568 F.2d 1232 (5th Cir. 1978) (decided under Ga. L. 1966, p. 45, § 1).

48-5-349. Composition of commission members.

Reserved. Repealed by Ga. L. 1991, p. 728, § 8, effective April 10, 1991.

Editor's notes. - This Code section was based on Ga. L. 1988, p. 1763, § 1.

48-5-349.1. Commission chairman; appeals boards; assignment of commission to department.

Reserved. Repealed by Ga. L. 1991, p. 728, § 9, effective April 10, 1991.

Editor's notes. - This Code section was enacted by Ga. L. 1988, p. 1763, § 1 and amended by Ga. L. 1990, p. 291, § 1.

48-5-349.2. Procedure for appeal to department.

    1. An appeal to the department shall be effected by a local governing authority by filing with the commissioner a notice of appeal within 30 days after receipt by the local board of tax assessors of the commissioner's notification of digest conditional approval or disapproval.  The notice of appeal shall be accompanied by whatever records, reports, or other relevant information is required by rule or order of the commissioner.
    2. Upon receipt of an appeal of a conditional approval order of the commissioner where the specific penalty and the withholding of state grants to the county provided by Code Section 48-5-346 shall otherwise be imposed, the commissioner shall be authorized to enter into an agreement with the county specifying a detailed plan in the form required by the commissioner to ensure that the deficiencies in the digest will be corrected on or before the time of submission of the digest for the next succeeding digest review year.  As a part of such agreement the commissioner shall be authorized to defer the imposition of all or part of the specific penalty and the withholding of state grants. Such deferral shall be predicated upon the county's detailed plans of correction being followed and where such a deferral has been agreed to by the commissioner and the county, the amounts deferred shall be permanently waived by the commissioner provided the agreement is faithfully completed by the county.  In the event, however, the county only partially completes the agreement with the commissioner, the commissioner may, at his option, still allow all or a reduced amount of the specific penalty or withholding of funds to be waived if, in his judgment, the county's deviation from the original agreement was not unreasonable under the circumstances.
  2. Within ten days of receipt of a notice of appeal, the hearing officer shall set the date for a hearing on the appeal.  At the initial hearing the hearing officer may require additional hearings or filings of additional information by any person having custody of such information.  In determining whether additional hearings are needed, the hearing officer shall consider the need for such hearings in the county making the appeal for the purpose of receiving information on local factors affecting the determination of property valuations in the county.
    1. After hearing all testimony determined necessary and after reviewing all filings and information determined to be relevant and necessary, the hearing officer shall reach a decision.  Each decision shall be rendered in writing.
    2. The decision shall:
      1. Specifically decide each issue presented on appeal; and
      2. Certify the date on which the notice of the decision is given.
    3. Each party to an appeal shall be furnished a copy of the decision within ten days after the issuance of the decision.
    1. The hearing officer shall be authorized to hear and grant an appeal with respect to a determination by the commissioner that a digest does not meet the requirements of subsection (a) of Code Section 48-5-343 . The hearing officer may not hear and grant an appeal with respect to the correctness of the information supplied to the commissioner by the state auditor pursuant to Code Section 48-5-274 . The digest shall be deemed approved in any case where an appeal is granted under this paragraph.
    2. The hearing officer shall be authorized to hear and grant an appeal with respect to the adequacy of the time period which was available to the county to correct prior deficiencies in the digest. If an appeal is granted under this paragraph, the specific penalty and the withholding of state grants to the county provided by Code Section 48-5-346 shall not be imposed during the digest evaluation cycle in which the digest review year being appealed lies.
    3. The hearing officer shall be authorized to hear and grant an appeal with respect to a determination of an additional amount due which is assessed by the commissioner pursuant to subsection (b) of Code Section 48-5-345 to the extent such appeal is not based on the correctness of the information supplied to the commissioner by the state auditor pursuant to Code Section 48-5-274 . If an appeal is granted under this paragraph, the commissioner may be directed to withdraw the assessment of the additional state tax or recalculate it in accordance with the findings of the hearing officer.
    4. The hearing officer shall be authorized to hear and grant an appeal with respect to a determination of a specific penalty which is levied by the commissioner pursuant to paragraph (2) of subsection (a) of Code Section 48-5-346 to the extent such appeal is not based on the correctness of the information supplied to the commissioner by the state auditor pursuant to Code Section 48-5-274. If an appeal is granted under this paragraph, the commissioner may be directed to withdraw the levy of the specific penalty or recalculate it in accordance with the findings of the hearing officer. (Code 1981, § 48-5-349.2 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 10; Ga. L. 1992, p. 2494, § 9; Ga. L. 1999, p. 81, § 48; Ga. L. 2000, p. 1683, § 9.)

Editor's notes. - Ga. L. 1992, p. 2494, § 10, not codified by the General Assembly, provided, in part: "County tax digests that were conditionally approved or disapproved by the commissioner for tax year 1991 in accordance with Article 5A of Chapter 5 of Title 48 of the Official Code of Georgia Annotated as it existed on January 1, 1992, shall be considered conditionally approved for each succeeding year beginning January 1, 1992, until such time as the first digest review year occurs for the county under the provisions of this Act."

Ga. L. 2000, p. 1683, § 11(c), not codified by the General Assembly, provides that Sections 2 through 10 of the Act shall be applicable to the 2000 tax digests and any subsequent tax digests.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code Section 48-5-271 are included in the annotations for this Code section.

Commissioner's determination must be upheld unless the commissioner's actions are deemed to be unreasonable, beyond the commissioner's authority, or constitute an abuse of discretion. Fulton County v. Strickland, 251 Ga. 473 , 306 S.E.2d 299 (1983) (decided under former O.C.G.A. § 48-5-271 ).

48-5-349.3. Appeal to superior court.

The commissioner or the county governing authority dissatisfied with the decision of the hearing officer on any question of law may appeal to the superior court of the county dissatisfied with the decision. Any appeal to the superior court shall be taken, so far as is applicable, in the manner provided by law for appeals to the superior court from decisions of the commissioner.

(Code 1981, § 48-5-349.3 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 11.)

48-5-349.4. Compliance with decision of appeals board or court as correction of deficiency.

Compliance by any local governing authority with the findings and decision of the hearing officer, or of the court of final review, with respect to any matter concerning the local tax digest shall be considered satisfactory correction of the deficiency involved for the purposes of Code Sections 48-5-345 and 48-5-346.

(Code 1981, § 48-5-349.4 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1991, p. 728, § 12.)

48-5-349.5. Annual report.

Not later than January 20, 1990, and not later than the twentieth day of January of each year thereafter, the commissioner shall submit to the Senate Finance Committee and to the Ways and Means Committee of the House of Representatives an annual report concerning the implementation of this article. Such report shall contain such statistics and other matter as may be pertinent in determining from year to year the progress of the counties of this state in achieving the purpose and intent of this article, a statement of any state funds withheld from counties pursuant to this article and of the relevant circumstances, and such other matter as may be deemed pertinent by the commissioner.

(Code 1981, § 48-5-349.5 , enacted by Ga. L. 1988, p. 1763, § 1; Ga. L. 1992, p. 6, § 48; Ga. L. 2009, p. 303, § 11/HB 117.)

Editor's notes. - Ga. L. 2009, p. 303, § 20/HB 117, not codified by the General Assembly, provides that: "This Act is intended to reflect the current internal organization of the Georgia Senate and House of Representatives and is not otherwise intended to change substantive law. In the event of a conflict with any other Act of the 2009 General Assembly, such other Act shall control over this Act."

ARTICLE 6 MUNICIPAL TAXATION

RESEARCH REFERENCES

ALR. - Constitutionality of statute subjecting tax levy by municipal authorities to review or modification by state authorities, 70 A.L.R. 1243 .

Property of one municipality within territorial limits of another as subject to taxation by latter, 81 A.L.R. 1518 ; 99 A.L.R. 1143 .

Right to interpose setoff or counterclaim against municipal claims, 90 A.L.R. 431 .

Municipal tax imposed upon or measured by sales of gasoline by one conducting business within city limits as payable in respect of sales or deliveries beyond city limits, 95 A.L.R. 1524 ; 106 A.L.R. 1332 .

Limitation of power to tax as limitation of power to incur indebtedness or vice versa, 97 A.L.R. 1103 .

Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597 .

Validity of municipal admission tax for college football games or other college sponsored public events, 60 A.L.R.3d 1027.

48-5-350. Power to levy and collect tax to provide funds for municipal development authorities.

Every municipality may levy and collect municipal taxes upon all taxable property within the limits of the municipality to provide for financial assistance to its development authority or a joint county and municipal development authority for the purpose of developing trade, commerce, industry, and employment opportunities. The tax levied for the purposes provided in this Code section shall not exceed three mills per dollar upon the assessed value of the property; provided, however, the authorization contained in this Code section to levy and collect such tax shall not be deemed to be exclusive and shall not prevent any municipality from exercising any additional power granted to it pursuant to any constitutional amendment, whether general or special, to levy any ad valorem tax for the purpose of providing financial assistance to any municipal or joint county and municipal development authority. The exceptions to the three mill per dollar tax limitation contained in the proviso of the preceding sentence shall not be construed so as to affect any action pending in court on February 20, 1984.

(Ga. L. 1977, p. 1034, § 1; Ga. L. 1978, p. 2008, § 1; Code 1933, § 91A-1506.1, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 45; Ga. L. 1984, p. 805, § 1; Ga. L. 1988, p. 1748, § 2.)

Law reviews. - For article discussing tax-exempt financing in Georgia, see 18 Ga. St. B. J. 20 (1981).

JUDICIAL DECISIONS

Cited in Frazer v. City of Albany, 245 Ga. 399 , 265 S.E.2d 581 (1980).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 43.

48-5-351. Power to levy and collect taxes to pay benefits under teacher retirement systems.

Each municipality may levy and collect taxes for the purpose of paying pensions and other benefits and costs under a teacher retirement system or systems.

(Ga. L. 1946, p. 24, § 1; Code 1933, § 91A-1506, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Teachers Retirement System of Georgia, T. 47, C. 3.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 35, 43.

48-5-352. Determination of fair market value for county and municipal ad valorem property taxation purposes; counties to furnish information relative to fair market value of property.

  1. The provisions of any municipal charter to the contrary notwithstanding, in determining the fair market value of property within their respective tax jurisdictions for purposes of ad valorem property taxation, municipalities shall use the fair market value finally determined for the property for county ad valorem property taxation purposes. Fair market value shall be finally determined for county ad valorem property taxation purposes when all means for administrative and judicial review of the fair market value have been exhausted or are no longer available.
  2. As soon as the fair market value of property within a county is finally determined, such information shall be furnished without charge by the county to the governing authority of each municipality lying wholly or partially within the county.

    (Ga. L. 1890-91, p. 231, §§ 1, 2; Civil Code 1895, §§ 717, 718; Civil Code 1910, §§ 862, 863; Code 1933, § 92-4001; Code 1933, § 92-4002, enacted by Ga. L. 1974, p. 1206, § 2; Code 1933, §§ 91A-1501, 91A-1502, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 862 are included in the annotations for this Code section.

Property owner is entitled to a hearing at some time before the assessment of the value of the owner's property becomes finally binding, and a statute which attempts to authorize an assessment when the law does not afford the owner such a hearing will be declared unconstitutional. Shippen Bros. Lumber Co. v. Elliott, 134 Ga. 699 , 68 S.E. 509 (1910).

Cited in Ferdinand v. City of East Point, 288 Ga. App. 152 , 653 S.E.2d 529 (2007).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 642, 643.

C.J.S. - 64A C.J.S., Municipal Corporations, § 2327 et seq. 84 C.J.S., Taxation, § 568 et seq.

48-5-353. Basis for fair market value of property subject to both municipal and county ad valorem taxes.

Except as otherwise provided in Code Section 48-5-7, the board of tax assessors in each municipality which has such a board pursuant to the municipal charter shall use as the basis for fair market value of property subject to both municipal and county ad valorem taxation the 100 percent fair market value determined for the property for county ad valorem taxation purposes before being reduced to the 40 percent assessed value required by law for county ad valorem taxation purposes.

(Code 1933, § 92-4004, enacted by Ga. L. 1972, p. 1103, § 1; Ga. L. 1973, p. 913, § 1; Ga. L. 1974, p. 1206, § 4; Code 1933, § 91A-1503, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 599, § 1; Ga. L. 1992, p. 1226, § 1; Ga. L. 1994, p. 237, § 2.)

JUDICIAL DECISIONS

Applicability. - Statute does not apply to municipalities which do not have a board of tax assessors pursuant to their charters. Town of Lyerly v. Short, 234 Ga. 877 , 218 S.E.2d 588 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 642, 643.

C.J.S. - 64A C.J.S., Municipal Corporations, § 2327 et seq. 84 C.J.S., Taxation, § 568 et seq.

48-5-354. Law governing municipal and county occupation taxes for certain salespersons and merchants.

The provisions of Article 1 of Chapter 13 of Title 48 shall govern municipal and county occupation taxes for the following: traveling salespersons engaged in taking orders for the sale of goods when no delivery of goods is made at the time of taking the order; a merchant or dealer, the situs of whose business is outside the taxing jurisdiction, who delivers goods previously ordered; and the employees of a merchant or dealer who are engaged in the delivery of the goods to customers.

(Code 1981, § 48-5-354 , enacted by Ga. L. 1993, p. 1292, § 4.)

Cross references. - Regulation of business of transient merchants, T. 43, C. 46.

Restriction on power of local governments to charge license fees for wholesale dealers of malt beverages, § 3-5-43 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1896, p. 36, § 1, former Civil Code 1910, § 868, and former Code 1933, § 92-4105 are included in the annotations for this Code section.

Legislative intent. - One purpose of the General Assembly in passing the statute was to protect the traveling representatives of mercantile houses or manufacturers which are located in this state from municipal taxation because of the fact that the salespeople, or agents of merchants or manufacturers located and holding their goods in other states, can come into Georgia and take orders for such goods without paying any municipal tax whatever, being protected from such taxation by the Constitution of the United States. Fruit Co. v. City of Dalton, 184 Ga. 277 , 191 S.E. 130 (1937) (decided under former Code 1933, § 92-4105).

"Traveling salesperson" defined. - An agent of a firm or corporation who goes from town to town in this state, exhibiting samples of goods and taking orders on the agent's employer or employers for such goods from consumers, is a traveling salesperson within the meaning of this statute. Kimmel v. Mayor of Americus, 105 Ga. 694 , 31 S.E. 623 (1898) (decided under Ga. L. 1896, p. 36, § 1).

Protection given to traveling salespeople extends to merchants and dealers represented by the salespeople, and prevents the municipality from levying any tax against a dealer the situs of whose business is elsewhere, and who merely delivers goods to customers in the municipality upon orders previously taken by the salespeople. Fruit Co. v. City of Dalton, 184 Ga. 277 , 191 S.E. 130 (1937) (decided under former Code 1933, § 92-4105).

Taxation of businesses which deal through traveling salespeople. - Municipality cannot require a license of a traveling salesperson when no delivery of goods is made at the time the orders are taken, and cannot split up a business into the business's constituent parts and levy a tax on each element thereof, nor can it levy a tax upon the delivery of goods. Burroughs v. Town of Meigs, 209 Ga. 409 , 73 S.E.2d 169 (1952) (decided under former Code 1933, § 92-4105).

Exemption does not include persons traveling from town to town soliciting magazine subscriptions to be delivered in the future by mail sent from another city. Southern Ruralist v. Mayor of Carrollton, 169 Ga. 112 , 149 S.E. 882 (1929) (decided under former Civil Code 1910, § 868).

Tax on transient dealers who take orders from local agents is invalid. - Tax imposed upon transient dealers taking orders and sending certain goods to local agents in a city is invalid because contrary to the spirit and purpose of this statute. Hofmayer, Jones & Co. v. City of Blakely, 116 Ga. 777 , 43 S.E. 69 (1902) (decided under Ga. L. 1896, p. 36, § 1).

Farmers owning dairy farms upon which milk is produced for delivery to customers in the city are not exempt as a traveling salesperson from the license charge imposed by municipal ordinance on dairies. Rossman v. City of Moultrie, 189 Ga. 681 , 7 S.E.2d 270 (1940) (decided under former Code 1933, § 92-4105).

What constitutes an order previously taken. - When a sales contract constitutes a prior order from a company outside the municipality, and the quantity to be delivered is unascertainable until delivery, and title passes upon delivery, and when there are periodic deliveries carried out under the terms of the prior contract, it necessarily follows that the contract constituted a prior order and that the transaction is not one of simultaneous order and delivery. Thus, the municipal ordinance requiring the licensing of such dealers does not apply since the ordinance's application would contravene the express provisions of statute. Segler v. City Council, 91 Ga. App. 481 , 85 S.E.2d 799 (1955) (decided under former Code 1933, § 92-4105).

What acts incident to delivery permissible within exemption. - When an oil company is engaged in one city in selling wholesale gasoline, oil, etc., and delivers by truck, upon orders received by telephone or mail, in the quantities required by the terms of such orders to retail dealers in other towns, the wholesale dealer is not engaged in selling by wholesale in the towns at which the retail dealers are located, although the payments are made there by the check of the retail dealers, payable to the wholesale dealer, the check at the time of delivery being handed to the driver of the truck of the wholesale dealer for the latter. Wofford Oil Co. v. City of Pitts, 178 Ga. 339 , 173 S.E. 384 (1934) (decided under former Code 1933, § 92-4105).

When under prior arrangements between consumers and a gas company, whose business was located outside the limits of a city, a truck driver for the company was to test the quantity of gas in the consumer's tank and replenish the gas as necessary, the city ordinance requiring a license for selling or distributing gas was not applicable to sustain a conviction of the driver. Kirkpatrick v. City of Conyers, 90 Ga. App. 74 , 81 S.E.2d 844 (1954) (decided under former Code 1933, § 92-4105).

Ordinance imposing license fee or tax on a taxpayer for "delivering" gasoline and oils to filling stations belonging to a taxpayer, whose agent paid an occupation tax for operating such stations, when such delivery was made on orders previously obtained, is void as against the taxpayer under the general charter powers of the municipality, which seeks to tax only an incident or part of the taxpayer's business. Wofford Oil Co. v. City of Boston, 170 Ga. 624 , 154 S.E. 145 (1930) (decided under former Civil Code 1910, § 868).

Exemption does not apply to vendors making both sales and deliveries in the levying municipality. Rossman v. City of Moultrie, 189 Ga. 681 , 7 S.E.2d 270 (1940) (decided under former Code 1933, § 92-4105).

Effect of single sale from samples. - Though an agent may in a single instance offer to sell, or even actually sell, one of the samples which the agent carries with the agent, this fact alone would not render the agent liable to pay the license imposed upon peddlers. Kimmel v. Mayor of Americus, 105 Ga. 694 , 31 S.E. 623 (1898) (decided under Ga. L. 1896, p. 36, § 1).

Municipal licensing of wholesale dealers of malt beverages. - While municipal authorities may not levy a tax on a traveling salesperson, the authorities may levy a license on a wholesale dealer of malt beverages. Collier v. State, 54 Ga. App. 346 , 187 S.E. 843 (1936) (decided under former Code 1933, § 92-4105).

Facts as stipulated did not warrant a finding that malt beverage wholesaler located in one county had established within a municipality in another county a sufficient trade nexus upon which the municipality could base the invocation of the municipality's licensing power. City of Gainesville v. Georgia Crown Distrib. Co., 231 Ga. 352 , 201 S.E.2d 410 (1973) (decided under former Code 1933, § 92-4105).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-4105 are included in the annotations for this Code section.

State Farmers' Market. - Business operated upon the property of a State Farmers' Market is exempted from municipal taxation and regulations of any kind except certain regulations as to police, fire, and health. Anyone operating a business on a State Farmers' Market who leaves the market and solicits orders and makes deliveries in the adjacent municipality would be subject to municipal license laws, unless one is exempted under one of the statutes exempting agricultural products. 1954-56 Op. Att'y Gen. p. 494 (rendered under former Code 1933, § 92-4105).

Vendors or businesses operating out of the State Farmers' Market in Forest Park who solicit orders and make deliveries within the City of Forest Park could conceivably be required to obtain a business license from the City of Forest Park. 1987 Op. Att'y Gen. No. 87-36, provided that the vendors or businesses were not exempt under O.C.G.A. § 48-5-356 .

Those businesses or vendors operating out of the State Farmers' Market in Forest Park who solicit orders and subsequently make deliveries in municipalities other than the City of Forest Park would be exempt from any municipal license fee provided that the county in which the municipality is located does not have a population greater than 500,000. 1987 Op. Att'y Gen. No. 87-36, provided that the businesses vendors do not fall outside the exceptions created in O.C.G.A. §§ 48-5-354 and 48-5-356 .

Businesses or vendors operating strictly within the State Farmers' Market are not subject to any business license fee by the City of Forest Park. 1988 Op. Att'y Gen. No. 88-8.

Vendors or businesses operating out of the State Farmers' Market in Forest Park who solicit orders and make deliveries within the City of Forest Park could conceivably be required to obtain a business license from the City of Forest Park provided the vendors or businesses were not exempt under O.C.G.A. § 48-5-356 . 1988 Op. Att'y Gen. No. 88-8.

Businesses or vendors operating out of the State Farmers' Market in Forest Park who solicit orders and subsequently make deliveries in municipalities other than the City of Forest Park would be exempt from any municipal license fee provided that the businesses or vendors do not fall outside the exceptions created in O.C.G.A. §§ 48-5-354 and 48-5-356 . 1988 Op. Att'y Gen. No. 88-8.

Distributors of distilled spirits. - In determining whether a municipality may impose license fees upon wholesale distributors of distilled spirits who has business situs elsewhere, this statute, which restricts the taxation of traveling salespeople by municipal corporations, is applicable. 1971 Op. Att'y Gen. No. U71-69 (rendered under former Code 1933, § 92-4105).

Beer wholesalers. - Statute does not prohibit a municipality from levying a business tax on beer wholesalers and requiring the wholesalers to pay a license fee. 1952-53 Op. Att'y Gen. p. 458 (rendered under former Code 1933, § 92-4105).

RESEARCH REFERENCES

ALR. - License or excise tax on merchandise brokers or persons performing similar functions as affected by commerce clause, 155 A.L.R. 239 .

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in constitution, 61 A.L.R.2d 1031.

48-5-355. Exemption from municipal tax or license fee of certain goods purchased in carload lots for distribution among several purchasers.

Any one or more persons purchasing guano, meats, meal, flour, bran, cottonseed, or cottonseed meal and hulls in carload lots shall be entitled, upon delivery of the car and the surrender of the bill of lading, to apportion the shipment or shipments between or among themselves without the payment of a special tax or license fee to any municipality as dealers or distributors of the goods or merchandise when:

  1. The bill of lading for the shipment is taken in the name of an individual;
  2. The freight is paid pro rata by the owners of the goods or merchandise; and
  3. The goods or merchandise is being procured for the individual use of the purchasers and not for sale by them.

    (Ga. L. 1914, p. 147, § 1; Code 1933, § 92-4106; Code 1933, § 91A-1505, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Warehouse receipts, bills of lading, and other documents of title, T. 11, A. 7.

48-5-356. Exemption from municipal taxation of agricultural products and livestock raised in state.

No municipality shall levy any tax or license fee or shall require the payment of any fee or tax upon the sale or introduction into the municipality of any agricultural product raised in this state including, but not limited to, swine, cattle, sheep, goats, poultry, and the products of such animals when the sale and introduction are made by the producer of the product and the sale of the product is made within 90 days of the introduction of the product into the municipality. The exemptions provided in this Code section shall be in addition to all other exemptions from taxation and licensing provided by law for any such product.

(Ga. L. 1957, p. 607, § 1; Code 1933, § 91A-1507, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Dealers in agricultural products, T. 2, C. 9.

Livestock dealers, T. 4, C. 6.

OPINIONS OF THE ATTORNEY GENERAL

State Farmers' Market. - Businesses or vendors operating strictly within the State Farmers' Market are not subject to any business license fee by the City of Forest Park. 1988 Op. Att'y Gen. No. 88-8.

Vendors or businesses operating out of the State Farmers' Market in Forest Park who solicit orders and make deliveries within the City of Forest Park could conceivably be required to obtain a business license from the City of Forest Park provided the vendors or businesses were not exempt under O.C.G.A. § 48-5-356 . 1988 Op. Att'y Gen. No. 88-8.

Businesses or vendors operating out of the State Farmers' Market in Forest Park who solicit orders and subsequently make deliveries in municipalities other than the City of Forest Park would be exempt from any municipal license fee provided that the businesses or vendors do not fall outside the exceptions created in O.C.G.A. §§ 48-5-354 and 48-5-356 . 1988 Op. Att'y Gen. No. 88-8.

Determination of validity of tax. - Validity of a municipal tax upon the business of chicken raising must be determined from a study of the ordinance in question, considered in the light of restrictions upon municipal taxation of agricultural products. 1970 Op. Att'y Gen. No. U70-90.

As long as an egg producer comes within the conditions of this statute a municipality would be without authority to impose any tax upon such a producer. 1963-65 Op. Att'y Gen. p. 63.

Exemption of farm products stored by the federal government. - As farm products within the hands of the producer, within the year next after their production, and all property within the scope of federal ownership are exempt from taxation, farm products owned by the producer and stored by the federal government are not within the classification of properties taxable by a municipal corporation. 1963-65 Op. Att'y Gen. p. 238.

48-5-357. Frontage owned by state or subdivisions abutting streets or sidewalks treated as owned by individuals for purpose of assessment for improvements; designation of signers.

Whenever the owners of land abutting on any street or sidewalk petition to have the street or sidewalk improved and the state or any of its political subdivisions is the owner of property abutting on the street, the frontage owned by the state or political subdivision shall be counted as if owned by an individual and shall be treated as if owned by an individual for the purposes of assessment. When the state is the owner of the property, the Governor may sign the application for and in behalf of the state. When a county is the owner of the property, the county governing authority may sign in behalf of the county. When a municipality is the owner of the property, the mayor of the municipality where the property is located may sign in behalf of the municipality.

(Ga. L. 1906, p. 119, § 1; Civil Code 1910, § 871; Code 1933, § 92-4202; Code 1933, § 91A-1509, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Applicability. - Statute has no application except whenever the abutting owners of any street or sidewalk in the state petition to have the street or sidewalk improved. City of LaGrange v. Troup County, 132 Ga. 384 , 64 S.E. 267 , 16 Ann. Cas. 885 (1909).

OPINIONS OF THE ATTORNEY GENERAL

Sovereign immunity of the state. - So important a sovereign right as the state's immunity from suit should not and could not be relinquished without a clear, unambiguous, and unequivocal Act of the General Assembly. This statute is ambiguous, and the state's immunity from suits is not sufficiently expressed and specific to rule that the state's immunity has been removed. 1948-49 Op. Att'y Gen. p. 344.

State's liability for paving assessments. - General Assembly intended and did in fact fix the state's liability for paving assessments when the paving is done as a result of a petition; the liability is fixed at the same rate as that of individuals. 1948-49 Op. Att'y Gen. p. 344.

When state liable for paving assessments. - State's property is not subject to assessment for street improvements in the absence of the state's assent or a petition by the state for such improvements. 1963-65 Op. Att'y Gen. p. 744.

State's authority to pay for paving property abutting its property. - State may not, without legislative authority, pay a municipality for the cost of paving property abutting that of the state. 1948-49 Op. Att'y Gen. p. 347.

Department of Transportation may not reimburse a municipality for paving already done on property abutting that of the state. 1948-49 Op. Att'y Gen. p. 347.

RESEARCH REFERENCES

C.J.S. - 64 C.J.S., Municipal Corporations, § 1492.

48-5-358. Executions for collection of assessments for paving streets, laying sewers, or other improvements; sales at public auction; right of redemption.

Each municipality may enforce the collection of any amount due or to become due for paving streets or alleys, laying sewers and drains, or cleaning or repairing privy vaults by execution issued by the municipal finance officer against the persons who owe the debts. The execution may be levied by the marshal on the real property of the owners and, after proceedings as in cases of sales for municipal taxes, the property may be sold at public auction. All sales under execution made by municipalities shall be subject to both purchase by the municipality and the right of redemption by the owner after sale.

(Ga. L. 1884-85, p. 148, § 1; Civil Code 1895, § 723; Civil Code 1910, § 869; Code 1933, § 92-4201; Code 1933, § 91A-1508, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Execution, levy, and sale on unpaid municipal assessments or interest, § 36-39-21 .

JUDICIAL DECISIONS

Rights of sheriff's sale purchaser when property sold for unpaid assessments. - Purchaser of real property at sheriff's sale which was levied upon and sold to satisfy two fieri facias for unpaid sewer assessments was not entitled to the delivery of the fieri facias with no entry of satisfaction as well as a sheriff's deed to the property, but instead was entitled either to a sheriff's deed which accurately states the circumstances of the sale, or to the return of money with lawful interest. West v. Stynchcombe, 253 Ga. 135 , 317 S.E.2d 541 (1984).

Execution subject to same period of limitations as tax fi. fa. - A fi. fa. issued by a city is in the nature of a tax fi. fa. and governed by the same procedure, and must be taken to be subject to the same period of limitation. Lewis v. Moultrie Banking Co., 36 Ga. App. 347 , 136 S.E. 554 , cert. denied, 36 Ga. App. 825 , S.E. (1927).

Assessments not abated when city accepts work of paving contractor. - When repaving is done on city streets and the city accepts the repaving, and by reason of a latent defect the paving becomes broken and cracked, and the contractor repairs the pavement under contract, and the city accepts the pavement as repaired, such acceptance, in the absence of fraud, is binding upon the property owners. The presence of such defects in the paving will not be cause for abatement of the balance of the installments of the assessments for the cost of repaving them unpaid, on the ground that the property owners have paid all that the repaving is worth. Webb v. City of Atlanta, 186 Ga. 430 , 198 S.E. 50 (1938).

Authority of city to bid and purchase at sale. - When city was authorized to pave the city's streets and assess the costs of such paving against abutting property, the law must be read into the city's charter and the city may bid upon and purchase such property when execution, levy, and sale were necessary to collect the assessment. City of Valdosta v. Ousley, 175 Ga. 775 , 166 S.E. 195 (1932).

Manner in which and by whom property redeemed. - Realty which has been levied upon and sold under a fi. fa. for municipal paving may be redeemed by the owner, the owner's grantee in a security deed, or a mortgagee, as well as others having an interest in the property, upon paying or tendering to pay to the purchaser, within 12 months, the purchase price, with a premium of 10 percent from the date of the sale to the date of the offer to redeem. Hopkins v. Chatham Phoenix Nat'l Bank & Trust Co., 174 Ga. 136 , 162 S.E. 521 (1932).

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, §§ 61 et seq., 131 et seq. 64A C.J.S., Municipal Corporations, § 2074 et seq.

ALR. - One in adverse possession as within class of persons entitled to redeem from tax sale, 164 A.L.R. 1285 .

Property owner's liability for unpaid taxes following acquisition of property by another at tax sale, 100 A.L.R.3d 593.

48-5-359. Sale of property for taxes due municipality; purchase and sale by municipality; recitals in tax deeds prima-facie correct; distribution and retention of proceeds of sale.

  1. The time, place, and manner of the sale of real and personal property for taxes due municipalities shall be the same as that provided by law for sheriffs' sales for state and county taxes. A sale for taxes due may be conducted by the marshal or duly authorized officer of the municipality and may be held in the council chamber or the usual place of meeting of the governing authority of the municipality.
  2. If, during any sale of property by a municipality for taxes due and after the property has been offered a reasonable time, no one present at the sale bids an amount for the property being sold which is as much as the total of the tax due plus the officer's cost due on the sale, then any duly appointed officer or agent of the municipality may purchase the property for the municipality. If the municipality purchases property at a sale, the marshal or other officer conducting the sale shall make to the municipality a deed to the property sold and shall deliver the deed to the officer designated by the municipality to receive it. Title acquired by a municipality at a tax sale by a deed issued pursuant to the sale shall be as perfect, valid, and binding, after the period provided for redemption by the owner has elapsed and there is no redemption by the owner, as if purchased by any person other than the municipality. The marshal or other duly authorized officer conducting the sale shall put the municipality, through any officer or person the municipality designates, in possession of the property so sold.
  3. Property acquired by a municipality pursuant to subsection (b) of this Code section may be divested or alienated by the municipality only by public sale of the property to the highest bidder. However, when it is clearly shown to the municipal governing authority that returned or unreturned property has been sold and purchased by the governing authority to protect both the taxes of the municipality and the cost of collecting such taxes and that the governing authority has not parted with title to the property, the governing authority may quitclaim the property by unanimous vote to the owner of the property at the time of purchase by the governing authority or to the owner's administrators, executors, heirs, or assigns upon payment of all taxes which are due on the property and all costs due by reason of the sale.
  4. Each municipality may pass appropriate ordinances and bylaws to carry into effect this Code section.
  5. The recitals in a deed under a sale for municipal taxes shall be prima-facie evidence of the facts recited in the deed.
  6. The marshal of a municipality and other officers of the municipality whose duty it is to collect the taxes and other revenues of the municipality by levy and sale shall be subject to be ruled for money in the hands of the officer arising from the public sale of any property pursuant to process issued by the municipality. Action pursuant to this Code section may be taken either in the superior court, city court, or state court in the county where the municipality is located and shall be accomplished in the same manner as sheriffs and constables are ruled for the distribution of money coming into their hands from the sale of any property.
  7. When an execution is placed in the hands of the marshal or other selling officer of any municipality with written notice to retain the proceeds arising from the sale of any property of the defendant in fi. fa., the marshal or other selling officer, after first paying to the municipality the amount due on the process under which the sale was made, shall retain the balance of the funds in his hands until he is ordered by the court first acquiring jurisdiction under proper proceedings to pay out the funds.

    (Ga. L. 1877, p. 125, §§ 1-4; Code 1882, §§ 3656a, 3656c, 3656d, 3656e; Civil Code 1895, §§ 732, 734, 735, 736, 738; Ga. L. 1900, p. 81, §§ 1, 2; Ga. L. 1901, p. 23, § 1; Ga. L. 1904, p. 52, § 1; Ga. L. 1906, p. 32, § 1; Civil Code 1910, §§ 879, 881, 882, 883, 885, 911, 912; Code 1933, §§ 92-4401, 92-4403, 92-4404, 92-4405, 92-4407, 92-4408, 92-4409; Ga. L. 1939, p. 226, § 1; Code 1933, § 91A-1511, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 884, § 3-35.)

History of section. - This Code section is partially derived from the decision in Johnson v. Phillips & Co., 89 Ga. 286 , 15 S.E. 368 (1892).

JUDICIAL DECISIONS

"Time, place, and manner of sale" does not embrace advertisement of sale. - Words "time, place, and manner of sale" do not embrace the newspaper in which the sale is to be advertised. Consequently, the statute does not require that sales for municipal taxes shall be advertised in the same newspaper in which the sheriff's sales for city and county taxes are advertised. Bacon v. Mayor of Savannah, 86 Ga. 301 , 12 S.E. 580 (1890); Scheurman v. City of Columbus, 106 Ga. 34 , 31 S.E. 787 (1898).

Proper notice. - Even if the documents from the sheriff's office notifying a property owner of a tax sale were not properly authenticated, that would not render the tax sale or the deed therefrom void; the owner's claim that a buyer failed to properly provide notice of foreclosure of the owner's right of redemption because the notification was delivered by a private process server rather than the sheriff had been rejected. Davis v. Harpagon Co., LLC, 281 Ga. 250 , 637 S.E.2d 1 (2006).

Sufficiency of advertisement. - Under a provision in a city charter declaring that tax sales shall be advertised for 30 days, one insertion of the advertisement of such a sale in each calendar week during the period of 30 days immediately preceding the day of sale will suffice, provided the first insertion appeared at least 30 days before the sale. Montford v. Allen, 111 Ga. 18 , 36 S.E. 305 (1900).

Advertisement of marshal's sale in Sunday newspaper. - Publication of the advertisement of a marshal's sale for taxes in a newspaper appearing on Sunday is not legal, and the sale thereunder passes no title. Sawyer v. Cargile, 72 Ga. 290 (1884).

Notice provision in city charter must be strictly followed. - As regards the effect of a failure properly to advertise, there is a distinction to be drawn between tax sales had in pursuance of the general law of the state and those had in pursuance of a provision in a municipal charter. In the former, the law in reference to notice is merely directory, and purchasers at such sales, if themselves without fault, will be protected; whereas a provision of a city charter prescribing the time for giving notice of a municipal tax sale must be strictly complied with, or the sale will be void even as against an innocent purchaser. Montford v. Allen, 111 Ga. 18 , 36 S.E. 305 (1900).

City clerk unauthorized to postpone tax sale or grant indulgence to defendant in execution. - When, under a city charter, it is the duty of the marshal to collect executions for taxes and conduct sales thereunder, the city clerk has no authority to postpone a tax sale or grant indulgence to the defendant in the tax execution, the taxpayer would rely on the execution at the taxpayer's peril, and such an arrangement would not invalidate the sale, even if made. Montford v. Allen, 111 Ga. 18 , 36 S.E. 305 (1900).

Procedure when taxpayer admittedly owes part of tax complained of. - One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that one owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought; this rule also applies to those seeking relief from excessive levies by municipal authorities. Lowe v. City of Atlanta, 191 Ga. 76 , 11 S.E.2d 891 (1940).

Authority of city to bid and purchase at sale. - When city was authorized to pave the city's streets and assess costs of such paving against abutting property, the law must be read into the city's charter and the city may bid upon and purchase such property when execution, levy, and sale were necessary to collect the assessments. City of Valdosta v. Ousley, 175 Ga. 775 , 166 S.E. 195 (1932).

Valid tax sale. - Buyer provided sufficient evidence that a tax sale took place as the tax sale deed was appropriately signed by the sheriff; a valid fiere facias (fi fa) was issued by the county as the tax commissioner appropriately attached the commissioner's signature to the fi fa. Davis v. Harpagon Co., LLC, 281 Ga. 250 , 637 S.E.2d 1 (2006).

Title acquired by city subject to lien of special assessment. - Title acquired by the city at a tax sale is the same as that any individual would have obtained; that is, the city obtains title subject to the lien of the special assessment. The city is authorized to convey no better title than it holds. The city may not by merely reselling the property divest the lien of the assessment for to allow this would provide a method for vitiating the provision making this lien coequal with the lien of other taxes. Steele v. City of Waycross, 190 Ga. 816 , 10 S.E.2d 867 (1940).

Manner in which and by whom property redeemed. - Realty which has been levied upon and sold under a fi. fa. for municipal paving may be redeemed by the owner, the owner's grantee in a security deed, or a mortgagee, as well as others having an interest in the property, upon paying or tendering to pay to the purchaser, within 12 months, the purchase price, with a premium of 10 percent from the date of the sale to the date of the offer to redeem. Hopkins v. Chatham Phoenix Nat'l Bank & Trust Co., 174 Ga. 136 , 162 S.E. 521 (1932).

Summary judgment properly denied. - Special master did not err in finding that a fact question remained as to whether a proper levy of the property occurred in accordance with O.C.G.A. § 9-13-12 as deposition testimony from representatives of the sheriff's office raised significant questions as to whether required entries of the levy, including the necessary description of the property, were appropriately made on the writ of execution, or fiere facias, and in the sheriff's records; on the other hand, however, the buyer presented a tax sale deed that recited that the formalities required for a levy had been honored, thereby providing evidence that some seizure of the property had occurred. Davis v. Harpagon Co., LLC, 281 Ga. 250 , 637 S.E.2d 1 (2006).

OPINIONS OF THE ATTORNEY GENERAL

City official may not bid on own behalf. - It would not be legal for a city official to bid for the official's own private use at public sales conducted by the city as the city is itself authorized to make purchases in the city's own behalf. 1952-53 Op. Att'y Gen. p. 386.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 807, 820, 833, 857.

C.J.S. - 64A C.J.S., Municipal Corporations, § 2430 et seq. 85 C.J.S., Taxation, §§ 1221 et seq., 1539 et seq.

ALR. - Tax deed and recitals therein as evidence of regularity of tax proceedings as to advertising and notice of sale, and as to time, manner, and place of sale, 30 A.L.R. 8 ; 88 A.L.R. 264 .

48-5-359.1. Contract with county tax commissioner to assess and collect municipal taxes and prepare tax digest.

      1. This paragraph shall apply to a county which has fewer than 50,000 tax parcels within such county.
      2. Any county and any municipality wholly or partially located within such county may contract, subject to approval by the tax commissioner of the county, for the tax commissioner to prepare the tax digest for such municipality; to assess and collect municipal taxes in the same manner as county taxes; and, for the purpose of collecting such municipal taxes, to invoke any remedy permitted for collection of municipal taxes. Any contract authorized by this subsection between the county governing authority and a municipality shall specify an amount to be paid by the municipality to the county which amount will substantially approximate the cost to the county of providing the service to the municipality. Notwithstanding the provisions of any other law, the tax commissioner is authorized to contract for and to accept, receive, and retain compensation from the municipality for such additional duties and responsibilities in addition to that compensation provided by law to be paid to the tax commissioner by the county.
      1. This paragraph shall apply to any county which has 50,000 or more tax parcels within such county.
      2. Any county and any municipality wholly or partially located within such county may contract for the tax commissioner to prepare the tax digest for such municipality; to assess and collect municipal taxes in the same manner as county taxes; and, for the purpose of collecting such municipal taxes, to invoke any remedy permitted for collection of municipal taxes. Any contract authorized by this subsection between the county governing authority and a municipality shall specify an amount to be paid by the municipality to the county which amount will substantially approximate the cost to the county of providing the service to the municipality. Notwithstanding the provisions of any other law, the tax commissioner is authorized to accept, receive, and retain compensation from the county for such additional duties and responsibilities in addition to that compensation provided by law to be paid to the tax commissioner by the county.
  2. With respect to any county for which the office of tax commissioner has not been created, any reference in subsection (a) of this Code section to the tax commissioner shall be deemed to refer to the tax receiver and the tax collector. (Code 1981, § 48-5-359.1 , enacted by Ga. L. 1988, p. 368, § 1; Ga. L. 1999, p. 557, § 1; Ga. L. 2007, p. 365, § 1/HB 486.)

Editor's notes. - Ga. L. 1999, p. 557, § 3, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all tax years beginning on or after January 1, 2000.

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007).

48-5-360. Issuance and service of summons of garnishment against person holding property of defendant owing municipal taxes; entries on execution and returns; proceedings.

  1. When any finance officer or other person authorized to collect the taxes due any municipality can find no property of the defendant on which to levy a tax execution, he shall make an entry to that effect on the execution and may then issue summons of garnishment without making affidavit or giving bond against any person who he believes is indebted to the defendant or who he believes has property, money, or effects of the defendant in his hands. The summons of garnishment shall be served by the finance officer, other tax collector, sheriff, or any constable of the county in which the garnishee resides at least 15 days before the sitting of the superior court or city court of the county in which the municipality is located and shall be returned to such appropriate court.
  2. The finance officer or other person authorized to collect taxes shall enter on the execution the name of the person garnished and shall return the execution to the court. The subsequent proceedings on the garnishment shall be the same as on garnishments in cases when judgment has been obtained.

    (Ga. L. 1890-91, p. 53, §§ 1, 2; Civil Code 1895, §§ 729, 730; Civil Code 1910, §§ 876, 877; Code 1933, §§ 92-4301, 92-4302; Code 1933, § 91A-1510, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 33 C.J.S., Executions, § 61 et seq. 38 C.J.S., Garnishment, § 19 et seq. 64A C.J.S., Municipal Corporations, §§ 2427, 2428. 85 C.J.S., Taxation, § 1160 et seq.

48-5-361. Applicability to counties.

Nothing contained in this article shall be construed to apply to any county unless application to counties is expressly provided in a particular provision of this article.

(Ga. L. 1877, p. 125, § 5; Code 1882, § 3656f; Civil Code 1895, § 737; Civil Code 1910, § 884; Code 1933, § 92-4406; Code 1933, § 91A-1512, enacted by Ga. L. 1978, p. 309, § 2.)

ARTICLE 7 MISCELLANEOUS LOCAL ADMINISTRATIVE PROVISIONS

Law reviews. - For article, "Procedure and Problems in Georgia Ad Valorem Tax Appeals," see 26 Ga. St. B. J. 98 (1990).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-39A are included in the annotations for this article.

Payment of ad valorem property taxes would not prejudice a taxpayer's appeal brought pursuant to former Code 1933, § 92-6912 (see now O.C.G.A. § 48-5-311 ). If successful in such an appeal the taxpayer would be entitled to a refund under the provisions of former Code 1933, Ch. 92-39A (see now O.C.G.A. § 48-5-380 ). 1975 Op. Att'y Gen. No. 75-55 (decided under former Code 1933, Ch. 92-39A).

48-5-380. Refunds of taxes and license fees by counties and municipalities; time and manner of filing claims and actions for refund; authority to approve or disapprove claims.

  1. As provided in this Code section, each county and municipality shall refund to taxpayers any and all taxes and license fees:
    1. Which are determined to have been erroneously or illegally assessed and collected from the taxpayers under the laws of this state or under the resolutions or ordinances of any county or municipality; or
    2. Which are determined to have been voluntarily or involuntarily overpaid by the taxpayers.

    (a.1) If property owners have been billed and have remitted property tax payments to either a county or a municipality based on the fair market value of the land and subsequently the fair market value of such land is reduced on an appeal, then the county or the municipality shall reimburse the property owner the difference between tax remitted and the final tax owed for each year in which the incorrect fair market value of the land was used in the calculations.

  2. Any taxpayer from whom a tax or license fee was collected who alleges that such tax or license fee was collected illegally or erroneously may file a claim for a refund with the governing authority of the county or municipality at any time within one year or, in the case of taxes, three years after the date of the payment of the tax or license fee to the county or municipality. The claim for refund shall be in writing and shall be in the form and shall contain the information required by the appropriate governing authority. The claim shall include a summary statement of the grounds upon which the taxpayer relies. In the event the taxpayer desires a conference or hearing before the governing authority in connection with any claim for a refund, the taxpayer shall so specify in writing in the claim. If the claim conforms to the requirements of this Code section, the governing authority shall grant a conference at a time specified by the governing authority. The governing authority shall consider information contained in the taxpayer's claim for a refund and such other information as is available. The governing authority shall approve or disapprove the taxpayer's claim and shall notify the taxpayer of its action. In the event any claim for refund is approved, the governing authority shall proceed under subsection (a) of this Code section to give effect to the terms of that subsection. No refund provided for in this Code section shall be assignable. Submitting a request for refund to the governing authority is not a prerequisite to bringing suit.
  3. The filing of a request for a refund with the governing authority under subsection (b) of this Code section shall act to stay the time period for initiating suit for a refund. Following the filing of a request for refund with the governing authority, no suit may be commenced until the earlier of the governing authority's denial of the request for refund or the expiration of 90 days from the date of filing the claim. Alternatively, any taxpayer may forgo requesting a refund from the governing authority under subsection (b) of this Code section and elect to proceed directly to filing suit.
  4. Any refunds approved or allowed under this Code section shall be paid from funds of the county, the municipality, the county board of education, the state, or any other entity to which the taxes or license fees were originally paid. Refunds shall be paid within 60 days of the approval of the taxpayer's claim or within 60 days of the entry of a final decision in any action for a refund.
  5. The governing authority of any county, by resolution, and the governing authority of any municipality, by ordinance, shall adopt rules and regulations governing the administration of this Code section and may delegate the administration of this Code section, including the approval or disapproval of claims where the reason for the claim is based on an obvious clerical error, to an appropriate department in local government. In disputed cases where there is no obvious error, the approval or disapproval of claims may not be delegated by the governing authority.
  6. Nothing contained in subsections (b) or (c) of this Code section shall be deemed the exclusive remedy to seek a refund nor deprive taxpayers of the right to seek a refund mandated by subsection (a) by any other cause of action available at law or equity.
  7. Under no circumstances may a suit for refund be commenced more than five years from the date of the payment of taxes or fees at issue.

    (Code 1933, §§ 92-3901a, 92-3902a, 92-3903a, 92-3904a, 92-3905a, enacted by Ga. L. 1975, p. 774, § 1; Ga. L. 1978, p. 928, § 1; Code 1933, § 91A-1601, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 46; Ga. L. 1980, p. 463, § 2; Ga. L. 2010, p. 1104, § 7-1/SB 346; Ga. L. 2014, p. 672, § 5/HB 755.)

Law reviews. - For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

JUDICIAL DECISIONS

City tax against airlines illegal. - City tax assessments against an airline, based on either the total gross receipts of the business or on the total number of employees, are illegal under 49 U.S.C. § 1513, and the airline is entitled to a refund under O.C.G.A. § 48-5-380 for the payments the airline timely claimed. City of College Park v. Atlantic S.E. Airlines, 194 Ga. App. 637 , 391 S.E.2d 460 (1990).

Appeal process under § 48-5-311 distinguished. - While the appeal process of O.C.G.A. § 48-5-311 is available to address any asserted error in an ad valorem real property tax assessment, the refund process established by O.C.G.A. § 48-5-380 is intended only to correct errors of fact or law which have resulted in erroneous or illegal taxation. Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645 , 458 S.E.2d 632 (1995).

Standing. - Because the taxpayer's assignee lacked standing to claim a refund of ad valorem taxes allegedly overpaid by its assignor, the trial court erred in finding that the assignee was entitled to the refund; as a result, the court also erred in denying the respective counties summary judgment on the issue. Clayton County v. HealthSouth Holdings, Inc., 288 Ga. App. 406 , 654 S.E.2d 143 (2007).

Amount of assessment not proper matter for basis of refund claim. - Claim for refund of taxes that was not based on any inaccuracy in the factual record or in any illegality in the procedure used to reach the assessment, but on a disagreement with the amount thereof was not one cognizable as a refund action under O.C.G.A. § 48-5-380 . Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645 , 458 S.E.2d 632 (1995); Parian Lodge, Inc. v. DeKalb County, 225 Ga. App. 853 , 485 S.E.2d 545 (1997); National Health Network, Inc. v. Fulton County, 228 Ga. App. 584 , 492 S.E.2d 333 (1997).

City's occupation tax did not violate commerce clause. - City's occupation tax did not violate the commerce clause because both interstate sellers and businesses selling exclusively within Georgia were charged the tax based on the number of employees within the city and the gross receipts from sales in Georgia. GMC v. City of Doraville, 284 Ga. 689 , 670 S.E.2d 787 (2008).

Taxpayer need not comply with the appeal procedure provided in O.C.G.A. § 48-5-311(e) prior to proceeding under O.C.G.A. § 48-5-380 . Marconi Avionics, Inc. v. DeKalb County, 165 Ga. App. 628 , 302 S.E.2d 384 (1983).

Failure to comply with O.C.G.A. § 48-5-311 . - Corporate taxpayers were barred from seeking refunds, pursuant to O.C.G.A. § 48-5-380 , of ad valorem taxes paid on vehicles with tax situses in other states because the taxpayers failed to follow the appeal procedures provided by O.C.G.A. § 48-5-311 . DeKalb County v. Genuine Parts Co., 225 Ga. App. 376 , 484 S.E.2d 57 (1997).

County and the county tax commission were entitled to summary judgment as a matter of law in an action filed by a trucking company seeking a refund for ad valorem taxes the company paid as it was undisputed at trial that the company failed to timely file for either an apportionment in two subject years, as required by Ga. Comp. R. & Regs. r. 560-11-7-.02, and that the company did not appeal the company's ad valorem assessment within 45 days of the assessment in either year, pursuant to O.C.G.A. § 48-5-311 ; furthermore, O.C.G.A. § 48-5-380 , which allowed a taxpayer to seek a refund up to three years after paying an erroneous or illegal tax, did not apply. Trans Link Motor Express, Inc. v. Dougherty County, 265 Ga. App. 10 , 592 S.E.2d 859 (2003).

When a taxpayer challenged an assessment, but paid the taxes, the taxpayer could not bring an action in the courts for a declaratory judgment to determine the validity of the assessment until the taxpayer exhausted the taxpayer's statutory administrative options under either O.C.G.A. § 48-5-311 or O.C.G.A. § 48-5-380 . Wilmington Trust Co. v. Glynn County, 265 Ga. App. 704 , 595 S.E.2d 562 (2004).

Exhaustion of administrative remedies. - In a tax refund class action under O.C.G.A. § 48-5-380 , the named attorneys satisfied the administrative exhaustion requirement for an entire class of attorneys; the named attorneys acted for the entire class pursuant to former O.C.G.A. § 9-11-23 by giving the City of Atlanta notice of the tax constitutionality claim by filing administrative and civil actions, and permitting recovery only to those attorneys with the foresight to have demanded a refund was untenable in a case such as the instant one that involved a matter of constitutional import and an unconstitutional ordinance that had been relied upon to improperly collect taxes. Barnes v. City of Atlanta, 281 Ga. 256 , 637 S.E.2d 4 (2006).

Mandamus appropriate. - O.C.G.A. § 48-5-380 does not provide a legally adequate remedy to a taxpayer who has been denied the long-term preferential assessment that may be accorded rehabilitated historic property under O.C.G.A. § 48-5-7.2 , and thus mandamus is an appropriate remedy. Chatham County Bd. of Tax Assessors v. Emmoth, 278 Ga. 144 , 598 S.E.2d 495 (2004).

Property owners filed a class action alleging that a county had improperly recalculated property taxes without affording taxpayers the required statutory notice and the opportunity to appeal under O.C.G.A. § 48-5-311 . Given the differences between the appeal remedy and the refund remedy provided by O.C.G.A. § 48-5-380 - as well as the possibility that a refund action might not be available to all class members - the trial court properly determined that a refund action was not an adequate remedy and that equitable relief was necessary to protect the class members' right to pursue the legal remedy provided in § 48-5-311 . Fulton County Bd. of Tax Assessors v. Marani, 299 Ga. App. 580 , 683 S.E.2d 136 (2009), cert. denied, No. S09C2072, 2010 Ga. LEXIS 18 (Ga. 2010).

Justification for asserting claim. - General Assembly did not intend to make a taxpayer's right to assert a claim for a tax refund contingent on a prior decision by the taxing authority or some unspecified appeals tribunal approving a nonexistent claim. Rather, subsection (b) of O.C.G.A. § 48-5-380 clearly authorizes the taxpayer to assert a claim for a refund based on the taxpayer's own determination that such a refund is warranted. Eastern Air Lines v. Fulton County, 183 Ga. App. 891 , 360 S.E.2d 425 , cert. denied, 183 Ga. App. 906 , 360 S.E.2d 425 (1987).

County's inability to produce a property tax card in response to discovery requests did not in itself show a factual inaccuracy in the assessment procedure. National Health Network, Inc. v. Fulton County, 228 Ga. App. 584 , 492 S.E.2d 333 (1997).

Zoning issues. - Taxpayer's contention that the assessors failure to consider zoning conditions in making an assessment raised an error of law for purposes of O.C.G.A. § 48-5-380 , even though such conditions were not recorded with the superior court at the time of the assessment. Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209 , 493 S.E.2d 595 (1997).

Nontaxability of property proper grounds for seeking refund based on improper assessment. - There is nothing in the statutory scheme, or in the procedure for appeals from property tax assessments, that precludes consideration of the taxability or nontaxability of property if that forms the basis of the allegation that the property was erroneously or illegally assessed or that there was an overpayment. Marconi Avionics, Inc. v. DeKalb County, 165 Ga. App. 628 , 302 S.E.2d 384 (1983).

Valuation, uniformity, and equalization proper matters for basis of refund claim. - Landowner's right to recover taxes illegally collected over a 13-year period was limited to three years prior to the filing of the landowner's claim, even though the county did not admit that the county was not entitled to the taxes collected until just before the claim was filed, since the landowner had suspected error and could have instituted a claim for refund earlier but failed to do so. Webb v. Coweta County, 178 Ga. App. 170 , 342 S.E.2d 345 (1986).

Tax refund statute did not waive school district immunity. - Taxpayer's suit against a school district seeking a refund was barred by immunity under Ga. Const. 1983, Art. I, Sec, II, Para. IX(e) and Ga. Const. 1983, Art. IX, Sec. II, Para. IX; O.C.G.A. § 48-5-380 provided for tax refunds by counties and municipalities but not school districts and, therefore, did not constitute a waiver of the school district's immunity. City of Dublin Sch. Dist. v. MMT Holdings, LLC, 346 Ga. App. 546 , 816 S.E.2d 494 (2018).

Failure to consider factors relevant to fair market value not "erroneous." - County's alleged failure to consider factors listed in O.C.G.A. § 48-5-2 that are relevant to fair market value does not make the assessed value factually inaccurate and, therefore, erroneous. National Health Network, Inc. v. Fulton County, 270 Ga. 724 , 514 S.E.2d 422 (1999).

Neither taxpayer brought a claim for an erroneous or illegal tax assessment under the refund statute since the taxpayers did not allege that the counties did not have authority to impose the tax, committed a clerical error, or collected a wrongly assessed tax; instead, both claims constituted assertions that the assessors, although using correct procedures, did not take into account matters which the taxpayer believed should have been considered in determining the assessed value. National Health Network, Inc. v. Fulton County, 270 Ga. 724 , 514 S.E.2d 422 (1999).

Failure to indicate fair market value on return. - When a taxpayer sold improvements on the taxpayer's property, then filed a return in which the taxpayer left blank the area for "market value," the taxpayer was not entitled to a refund under O.C.G.A. § 48-5-380 , as under O.C.G.A. § 48-5-6 , returns had to state fair market value; a county was not required to interpret the taxpayer's silence on market value as a declaration that there was no value, and under O.C.G.A. § 48-5-20(a)(1), a taxpayer who failed to return taxable property in a given year was deemed to have returned the property at the same valuation as applied the preceding year. Int'l Auto Processing, Inc. v. Glynn County, 287 Ga. App. 431 , 651 S.E.2d 535 (2007).

Recovery of overpaid taxes due to miscalculation of homestead exemption. - Under local legislation, the term "base year" was defined as the taxable year immediately preceding the taxable year in which the homestead exemption was first granted by a county; therefore, the county erred in using the next year to calculate the taxpayers' exemption and the taxpayers could recover under O.C.G.A. § 48-5-380 . Coleman v. Glynn County, 344 Ga. App. 545 , 809 S.E.2d 383 (2018).

Failure to provide notice of damages issue. - While the trial court did not err in entering an order granting partial summary judgment to a city on the city's breach of contract claim against a county and the county's tax commissioner, ruling that the latter breached their contract to bill, collect, and remit ad valorem taxes on the city's behalf because the county was not given adequate notice that the trial court would address the amount of damages incurred by the city as a result of the county's breach, the grant of summary judgment as to the damages issue was reversed on due process grounds. Ferdinand v. City of East Point, 288 Ga. App. 152 , 653 S.E.2d 529 (2007), cert. denied, 2008 Ga. LEXIS 213 (Ga. 2008).

Form for claiming refund. - Subsection (b) of O.C.G.A. § 48-5-380 quite clearly does not require that a tax refund claim be made "on" a particular form supplied by the taxing authority but merely that the claim be made "in writing" and "in the form and [containing] the information required by" the authority. Eastern Air Lines v. Fulton County, 183 Ga. App. 891 , 360 S.E.2d 425 , cert. denied, 183 Ga. App. 906 , 360 S.E.2d 425 (1987).

Substantial compliance. - Notice of refund claim filed pursuant to O.C.G.A. § 48-5-380 was not deficient when the notice clearly stated a summary of grounds upon which the taxpayer relied. There is no requirement that the summary of grounds must be the exact grounds upon which a refund was ultimately authorized; a notice in substantial compliance with § 48-5-380 is sufficient. City of College Park v. Atlantic S.E. Airlines, 194 Ga. App. 637 , 391 S.E.2d 460 (1990).

Assignment of interest in refund action. - Taxpayer's assignment of an interest in a refund action to a consulting firm was not improper because the agreement provided that the firm was to retain a percentage of the amount of the refund the firm obtained for the taxpayer. Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209 , 493 S.E.2d 595 (1997).

City's occupation tax used same combination of criteria for all taxpayers. - Taxpayer claimed a city's occupation tax did not classify different companies by the same "combination of criteria" as required by O.C.G.A. § 48-13-10(a) as some businesses paid taxes based on their gross receipts, while others paid based on the number of their employees. This claim failed as § 48-13-10(a) (1) and (a)(3) provided that an occupation tax could be calculated using both the number of employees and gross receipts, and the occupation tax was calculated in the same manner for every company. GMC v. City of Doraville, 284 Ga. 689 , 670 S.E.2d 787 (2008).

No takings claim. - Taxpayers did not a have a takings claim under 42 U.S.C. § 1983 because the procedures of O.C.G.A. § 48-5-311 or O.C.G.A. § 48-5-380 provide adequate remedies. Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209 , 493 S.E.2d 595 (1997).

Action under 42 U.S.C. § 1983 barred. - Statute provides an adequate remedy at law to contest a tax assessment or deficiency notice; therefore, the plaintiff owners of restaurants and bars holding liquor licenses could not maintain an action against the defendant city under 42 U.S.C. § 1983 for declaratory and injunctive relief. Atlanta Hospitality Workers, Inc. v. City of Atlanta, 247 Ga. App. 650 , 545 S.E.2d 49 (2001).

Defenses unavailable in federal government action. - Neither voluntary payment nor the failure to exhaust state administrative remedies is available as a defense to a federal government action sounded in quasi-contract for the recovery of treasury funds paid by mistake which result in the unjust enrichment of a county. United States v. DeKalb County, 729 F.2d 738 (11th Cir. 1984).

Recovery of prejudgment interest. - Taxpayer may recover prejudgment interest in an action for a refund of wrongfully collected taxes from the date of the demand for refund, not from the date the taxes were collected. Eastern Air Lines v. Fulton County, 183 Ga. App. 891 , 360 S.E.2d 425 , cert. denied, 183 Ga. App. 906 , 360 S.E.2d 425 (1987).

Taxpayers could only recover overpayments for three years preceding their claim. - Because O.C.G.A. § 48-5-380(b) limited taxpayer recovery to overpayments made within three years of a written claim for refund, the county's sovereign immunity was waived only for the improper payments made within that three-year window. In a class action, the class members' three-year window was determined as of the date of filing the action. Mandamus and equity were unavailable to circumvent this limitation. Coleman v. Glynn County, 344 Ga. App. 545 , 809 S.E.2d 383 (2018).

Cited in Gwinnett Fed. Sav. & Loan Ass'n v. City of Buford, 185 Ga. App. 200 , 363 S.E.2d 597 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Construction with § 33-8-8.6 . - With respect to certain tax refunds, the requirements of O.C.G.A. § 48-5-380 should be read in conjunction with O.C.G.A. § 33-8-8.6 . 1984 Op. Att'y Gen. No. 84-24.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 965 et seq.

C.J.S. - 64A C.J.S., Municipal Corporations, § 2393 et seq. 85 C.J.S., Taxation, § 1049 et seq.

ALR. - When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

Recovery of tax paid on exempt property, 25 A.L.R.4th 186.

Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

Construction and operation of statutory time limit for filing claim for state tax refund, 14 A.L.R.6th 119.

Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437.

48-5-381. Reserve funds of counties and municipalities.

  1. Whenever the governing authority of any county or municipality determines that because of unusual conditions it is impractical to expend the funds raised by taxation for the purposes for which the taxes were levied and that it is in the best interest of the county or municipality and its citizens and taxpayers for public work to be postponed until more advantageous conditions prevail, the governing authority may order as much of the funds as it deems proper transferred to a fund to be known as the "reserve fund" of the county or municipality. The reserve fund may be deposited in the manner provided by law or may be invested in obligations of the United States.
  2. A county or municipal governing authority may transfer from time to time to its reserve fund any accumulated overage in its general fund.
  3. The county or municipal reserve fund shall be held until the governing authority determines that it is practical and advantageous to undertake public work needed in the county or municipality. Upon the determination, the governing authority may order funds transferred from the reserve fund to any of the several funds or to the general fund of the county or municipality. Before any transfer from the reserve fund is made, the governing authority shall give notice of its intention to make the transfer and the purpose for which the transferred fund is to be expended by publication in its official organ in one issue not less than ten days prior to the meeting of the governing authority at which the transfer is to be made.
  4. The existence of a county or municipal reserve fund shall not prevent tax levies from being made by the governing authority for the several purposes authorized by law at such rates as are necessary for the current or anticipated needs of the county or municipality to the same extent the governing authority could lawfully levy if no reserve fund was in existence.
  5. When any county or municipal reserve fund is established, it shall be the duty of the governing authority to expend the fund for needed public work and improvements as rapidly as it deems practical.

    (Ga. L. 1945, p. 393, §§ 1-5; Code 1933, § 91A-1602, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 3, § 37.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 317, 319. 64A C.J.S., Municipal Corporations, § 2095.

ARTICLE 8 SCHOOL TAXATION

Cross references. - Local taxation for education, Ga. Const. 1983, Art. VIII, Sec. VI.

48-5-400. Power of county governing authorities to levy and collect taxes for educational purposes.

The governing authority of each county may levy and collect taxes for educational purposes in such amounts as the county governing authority shall determine. Amounts collected from such levies shall be appropriated to the use of the county board of education and to the educational work directed by the county board of education.

(Ga. L. 1922, p. 81, § 1; Code 1933, § 32-1127; Code 1933, § 91A-1701, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Free public education prior to college or postsecondary level and support by taxation, Ga. Const. 1983, Art. VIII, Sec. I, Para. I.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 35 et seq.

C.J.S. - 78A C.J.S., Schools and School Districts, § 558 et seq.

48-5-401. Annual recommendation by county boards of education to county governing authorities of school tax rate.

Each county board of education shall annually recommend to the county governing authority the rate of levy to be made for taxes for the support and maintenance of education in the county, exclusive of property located in independent school districts, and likewise shall notify the commissioner of the rate of the levy to be made on such property in the county for the support and maintenance of education.

(Ga. L. 1919, p. 288, § 134; Code 1933, § 32-1118; Ga. L. 1946, p. 206, § 17; Code 1933, § 91A-1702, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-402. Public utility property in school districts subject to school tax; returns to show fair market value of property; assessment and collection of school tax by commissioner; contesting taxability.

  1. All real and personal property including, but not limited to, franchises belonging to a public utility which is required to make its returns to the commissioner, when the property is within the taxable limits of any school district, shall be subject to taxation by the school district as fully and completely as is the property of other persons within the taxable limits of the school district.
    1. It is the duty of every public utility, in addition to the facts otherwise required to be included in its returns to the commissioner, to show in its return the fair market value of its property in each of the school districts in which its property is located. For the purpose of enabling the public utility to show in its returns the fair market value of its property in each school district, each county superintendent of schools shall furnish to each public utility information as to the boundaries of each school district in which the public utility may have property so as to enable the public utility to determine the amount of its property in each school district. The county superintendent of schools shall also furnish similar information whenever the boundaries of any school district are changed.
    2. The rolling stock, franchises, and other personal property of public utilities shall be distributed to the school districts on the same basis that rolling stock, franchises, and other personal property are distributed to counties and municipalities as provided by law.
  3. In all cases where taxes are authorized for school purposes in the counties or school districts, each public utility's annual return to the commissioner shall set forth all its taxable property in the county or school district. The commissioner shall fix the proposed assessment of the utility's property for school purposes at the same time and in the same manner as he is authorized by law to fix the proposed assessment of the property for ordinary county purposes. The commissioner shall assess the property of railroad equipment companies and shall apply the school tax rate fixed by the school authorities in the counties or school districts. The school tax rate shall be certified and transmitted to the commissioner by the county authorities at the same time they certify to the commissioner the county tax rate for ordinary county purposes.
  4. The commissioner shall use the same procedures for collecting school taxes of railroad equipment companies, insofar as they can be applied, as are provided for the collection of county taxes due from railroad equipment companies under Code Section 48-5-519. When it becomes necessary for the commissioner to issue a tax fi. fa. for county purposes as well as for school purposes, he may include the school tax in the fi. fa. and shall specify separately in the assessment and tax execution the amount of the county taxes for ordinary purposes and the amount for school purposes so that the tax commissioner or tax collector, after collecting the taxes, can pay over each tax to the proper person authorized by law to receive the tax. Should the taxpayer desire to contest the taxability of his property, as provided under this subsection, he may do so by bringing an action for equitable relief in the Superior Court of Fulton County.

    (Ga. L. 1910, p. 22, § 3; Ga. L. 1919, p. 288, §§ 132, 133; Code 1933, §§ 32-1116, 32-1117, 92-6803; Code 1933, § 91A-1703, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1568, § 3; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted "and Code Section 48-5-403" following "this subsection" near the end of the last sentence of subsection (d).

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 353 et seq.

C.J.S. - 78A C.J.S., Schools and School Districts, § 583 et seq.

48-5-403. Assessment of property subject to school taxes by tax commissioners or tax receivers; adoption and use of assessment by county boards of education; contesting taxability.

Reserved. Repealed by Ga. L. 2005, p. 529, § 1/HB 556, effective July 1, 2005.

Editor's notes. - This Code section was based on Ga. L. 1910, p. 22, § 4; Code 1933, § 92-6804; Code 1933, § 91A-1704, enacted by Ga. L. 1978, p. 309, § 2.

48-5-404. Collection of county school taxes by tax commissioners or tax collectors; collection of school taxes and commissions in certain counties.

  1. The tax commissioner or tax collector shall continue to collect unpaid county school taxes and all county school taxes levied pursuant to Article VIII, Section VI, Paragraph I of the Constitution of this state and shall be entitled to a commission of 2 1/2 percent for collecting the taxes. The tax commissioner or tax collector shall pay over to the county board of education all moneys collected for the schools on the same schedule of distributions as is provided for counties in Code Section 48-5-141. In those counties where the tax collector or tax commissioner is on a salary basis, the fees provided for in this Code section shall be collected by the tax commissioner or tax collector and paid over to the proper governing authority of the county.
  2. Reserved.
  3. In all counties of this state having a population of not less than 350,000 nor more than 500,000 according to the United States decennial census of 1980 or any future such census, the tax commissioner or tax collector shall remit all education funds collected by said officer to the board of education of the county except 1.9 percent of the funds collected which shall be retained by the tax commissioner or tax collector if the officer is on a fee basis or remitted to the governing authority of the county if the officer is on a salary basis of compensation.

    (Ga. L. 1919, p. 288, § 122; Code 1933, § 32-1106; Ga. L. 1946, p. 206, § 12; Code 1933, § 91A-1705, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 367, § 1; Ga. L. 1982, p. 1853, §§ 1, 2; Ga. L. 1983, p. 3, § 64; Ga. L. 1984, p. 22, § 48; Ga. L. 1994, p. 237, § 2; Ga. L. 2000, p. 1198, § 1.)

Cross references. - Reduction of established rate by local act, Ga. Const. 1983, Art. VIII, Sec. VI, Para. III.

Minimum salaries for tax collectors and tax commissioners, § 48-5-183 .

Editor's notes. - Ga. L. 1982, p. 996, § 6, which had been codified as subsection (c) of § 48-5-405 , stated that it amended § 48-5-405 but appears to have been intended as an amendment to this Code section. Ga. L. 1983, p. 414, § 1, effective July 1, 1983, repealed subsection (c) of § 48-5-405 as added by Ga. L. 1982, p. 996, § 6. The repealed subsection dealt with the disbursement of educational funds collected by tax commissioners and collectors in counties with populations between 150,300 and 155,000.

Ga. L. 1983, p. 4113, § 1, effective July 1, 1983, not codified by the General Assembly, provides that the tax commissioner in Clayton County shall remit all education funds collected by him to the board of education of Clayton County, except for 1.60 percent of those funds which he is to remit to the governing authority of Clayton County to reimburse the county for the expenses incurred in collecting school taxes. Section 2 of that Act provides that: "It is the intention of this Act to reduce the amount authorized by subsection (a) of Code Section 48-5-404 of the O.C.G.A. as reimbursement to counties for the collection of school taxes, and this Act is pursuant to the specific authority of Paragraph III of Section VI of Article VIII of the Constitution of the State of Georgia."

JUDICIAL DECISIONS

Commissions are necessary and incidental. - These commissions are necessary and incidental whether or not tax commissioners are compensated on a fee or salary basis. Clayton County v. Worsham, 239 Ga. 135 , 236 S.E.2d 80 (1977).

Commissions may not be paid to salaried tax commissioner when not expressly provided for. - Once a tax commissioner has been placed solely on a salary basis with no explicit provision in the statute for using school tax funds for the payment of that salary, school tax funds cannot be constitutionally used for that purpose under Ga. Const. 1945, Art. VIII, Sec. XII, Para. I (see now Ga. Const. 1983, Art. VIII, Sec. VI, Para. I). Coleman v. Kiley, 236 Ga. 751 , 225 S.E.2d 273 (1976).

Commissions authorized. - County ordinance and state statute under which a county received a 2.5% commission for collecting school taxes was constitutional as Ga. Const. 1983, Art. VIII, Sec. VI, Para. III and O.C.G.A. § 48-5-404(a) allowed the entity that collected school taxes up to a 2.5% commission. Bd. of Pub. Educ. v. Hair, 276 Ga. 575 , 581 S.E.2d 28 (2003).

Cited in Chatham County v. Kiley, 249 Ga. 110 , 288 S.E.2d 551 (1982); Board of Comm'rs v. Clayton County Sch. Dist., 250 Ga. 244 , 297 S.E.2d 724 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Taxes on which commission collected. - County tax collector is entitled to a commission of 2 1/2 percent for collecting the school tax for the maintenance and operation of public schools and a commission of 2 1/2 percent for collecting the school bond tax; since the tax collector is on a salary basis, both commissions will be paid over to the county. 1954-56 Op. Att'y Gen. p. 886.

Applicability to school bond taxes. - Statute makes no specific reference to commissions to be paid tax collectors for the collection of school bond taxes. However, school bond taxes would be classified as school taxes and the rate for collection thereof would be 2 1/2 percent. Taxes collected for this purpose should be paid over to the county board of education rather than the county commissioners. 1952-53 Op. Att'y Gen. p. 30.

Applicability of other compensation provisions. - Provision for additional compensation in Ga. L. 1937-38, Ex. Sess., p. 297, § 3 (see now O.C.G.A. § 48-5-180 ) did not apply to taxes levied for school purposes. A tax collector, if on a fee basis, was entitled to receive 2 1/2 percent of all taxes collected for school purposes as was provided in former Code 1933, § 32-1106 (see now O.C.G.A. § 48-5-404 ). 1958-59 Op. Att'y Gen. p. 388.

Compensation provided for in former Code 1933, § 92-5301 (see now O.C.G.A. § 48-5-180 ) did not apply to school taxes on which the compensation was fixed. 1970 Op. Att'y Gen. No. U70-163.

Retention of 10 percent by collector. - Construing this statute, the tax collector is not authorized to retain 10 percent of the excess of 90 percent collected in regard to school taxes and bonds. 1950-51 Op. Att'y Gen. p. 247.

Statute applies to tax collectors, and not to tax receivers. 1970 Op. Att'y Gen. No. U70-17.

Permissible uses of commissions. - Commissions on the collection of county school taxes may only be expended to provide for the maintenance and support of the county public school systems. In those counties where the tax commissioner is paid on a salary basis these commissions may not be paid to the county fiscal authorities without specific legislative direction that the funds be expended by those authorities solely for the support and maintenance of the public schools. 1976 Op. Att'y Gen. No. 76-66.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 712, 713 et seq.

C.J.S. - 78A C.J.S., Schools and School Districts, §§ 613, 614.

ALR. - Propriety of using census data as basis for governmental regulations or activities - state cases, 56 A.L.R.5th 171.

48-5-405. Levy and collection of tax by municipalities for independent school systems; authorized purposes for expenditures.

  1. Each municipality authorized by law to maintain an independent school system may support and maintain the public common schools within the independent school system by levy of ad valorem taxes at the rate fixed by law upon all taxable property within the limits of the independent school system. The board of education of the municipality or other authority charged with the duty of operating the independent school system shall annually recommend to the governing authority of the municipality the rate of the tax levy, within the limitations fixed by law, to be made upon all taxable property within the limits of the independent school system. Taxes levied and collected for support and maintenance of the independent school system by the municipal governing authority shall be appropriated, when collected, by the governing authority to the board of education or other authority charged with the duty of operating the independent school system. Funds appropriated to an independent school system shall be expended by the board of education or other authority charged with the duty of operating the independent school system only for educational purposes including, but not limited to, school lunch purposes. The term "school lunch purposes" shall include payment of costs and expenses incurred in the purchase of school lunchroom supplies; the purchase, replacement, or maintenance of school lunchroom equipment; the transportation, storage, and preparation of foods; and all current operating expenses incurred in the management and operation of school lunch programs in the public common schools of the independent school system. "School lunch purposes" shall not include the purchase of foods.
  2. This Code section shall be cumulative of all general and local laws authorizing municipalities to levy taxes for the support of independent school systems permitted to be maintained by law.

    (Ga. L. 1962, p. 628, §§ 1, 2; Code 1933, § 91A-1706, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 996, §§ 3, 6; Ga. L. 1983, p. 414, § 1; Ga. L. 2015, p. 1219, § 19/HB 202.)

The 2015 amendment, effective January 1, 2016, in subsection (a), substituted "independent school system" for "municipality" at the end of the first and second sentences.

Cross references. - Procedure for consolidation of independent and county school systems, § 20-2-370 et seq.

Editor's notes. - Ga. L. 1982, p. 996, § 6, which had been codified as subsection (c) of this Code section, stated that it amended this Code section but appears to have been intended as an amendment to Code Section 48-5-404. Ga. L. 1983, p. 414, § 1, effective July 1, 1983, repealed subsection (c) of this Code section as added by Ga. L. 1982, p. 996, § 6.

JUDICIAL DECISIONS

Refund of improper assessment. - When city received more tax revenue from taxpayers than the taxpayers lawfully owed, which error resulted in the city remitting more tax funds to the school board than the board was entitled to receive, the school board was required to refund the board's pro-rata share of the taxes, penalties, and interest due the taxpayers because of the improper assessment. The city was effectively acting as an agent for the school board. Atlanta Bd. of Educ. v. City of Atlanta, 262 Ga. 15 , 413 S.E.2d 716 (1992).

Use of local school taxes for redevelopment. - School system, development authority, and others were properly granted summary judgment in a suit challenging the allocation of school taxes because the 2008 amendments to Ga. Const. 1983, Art. IX, Sec. II, Para. VII(b) and O.C.G.A. § 36-44-9(g) , governing tax allocation districts, changed the law and retroactively allowed use of local school taxes for general redevelopment purposes. Sherman v. Atlanta Indep. Sch. Sys., 293 Ga. 268 , 744 S.E.2d 26 (2013).

RESEARCH REFERENCES

C.J.S. - 78A C.J.S., Schools and School Districts, § 790 et seq.

ARTICLE 9 FRANCHISES

RESEARCH REFERENCES

ALR. - Bond or warrant of governmental subdivision as subject of taxation or exemption, 44 A.L.R. 510 .

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011 .

Municipality as subject to state license or excise taxes, 159 A.L.R. 365 .

48-5-420. "Special franchise" defined.

As used in this article, the term "special franchise" means:

  1. Every right and privilege exercised within this state and granted to any person by the state or its authority, by any county or county officer, or by any municipality or municipal officer for the:
    1. Exercise of the power of eminent domain;
    2. Use of any public highway or street; or
    3. Use of land above or below any highway or street;
  2. Every special right exercised within this state and granted by charter, resolution, statute, or otherwise, whether pursuant to the laws of this state or any other state, for the exercise of any public service including, but not limited to, the:
    1. Construction and operation of railroads;
    2. Common carriage of passengers or freight;
    3. Construction and operation of any plant for the distribution and sale of gas, water, electric lights, electric power, steam heat, refrigerated air, or other substances by means of wires, pipes, or conduits laid under or above any street, alley, or highway; and
    4. Construction and operation of any telephone plant or telegraph plant;
  3. All rights to conduct wharfage, dockage, or cranage business;
  4. All rights to conduct any express business or for the operation of sleeping, palace, dining, or chair cars;
  5. All rights and privileges to construct, maintain, or operate canals, toll roads, or toll bridges; and
  6. The right to carry on the business of maintaining equipment companies, navigation companies, freight depots, passenger depots, and every other similar special function dependent upon the grant of public powers or privileges not allowed by law to individuals or involving the performance of any public service.

    The term does not include the mere right to be a corporation engaged in trading or manufacturing and exercising no franchise enumerated in this Code section.

    (Ga. L. 1902, p. 37, § 1; Civil Code 1910, § 1019; Code 1933, § 92-2301; Code 1933, § 91A-1801, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Acquisition of property for highway and other transportation purposes, T. 32, C. 3.

Grants of franchises by counties to cable television systems, T. 36, C. 18.

JUDICIAL DECISIONS

Contractual rights not impaired. - Franchise granted in 1940 by town ordinance to a gas company allowing for the sale and distribution of gas services to town inhabitants was not granted in perpetuity; thus, a 1980 town ordinance providing for a three-percent franchise tax on gas sales impaired no contractual rights granted to the assignor of the gas company's franchise, and the trial court did not err in refusing to declare the 1980 ordinance unconstitutional as an impairment of contract. Gas Light Co. v. Town of Bibb City, 253 Ga. 498 , 322 S.E.2d 250 (1984).

Franchise is a grant of right by public authority, the main element of which is permission to do something which otherwise the grantee would not have the right to do. Western Union Tel. Co. v. Wright, 185 F. 250 (5th Cir. 1910).

Exemption of franchise by charter. - When the scheme of taxation, provided in the charter of a corporation, is to tax stock (meaning capital stock) by taxing the net earnings, it necessarily covers and embraces the franchise and prevents a subsequent taxation of the franchise as such. Georgia R.R. & Banking Co. v. Wright, 132 F. 912 (C.C.N.D. Ga. 1904), aff'd, 216 U.S. 420, 30 S. Ct. 242 , 54 L. Ed. 544 , 1910 U.S. LEXIS 1908 (1910).

Right of telegraph companies to use federal military or post roads. - Whatever franchise or right a telegraph company acquires from the United States by its acceptance of the provisions of the Act of July 24, 1866, c. 230, 14 Stat. 221 (U.S. Comp. St. 1901, p. 3579), giving such companies the right to use the military or post roads of the United States, etc., is exempt from taxation by a state. Western Union Tel. Co. v. Wright, 185 F. 250 (5th Cir. 1910).

OPINIONS OF THE ATTORNEY GENERAL

Rights granted by Georgia Public Service Commission are a special franchise. - Rights granted by the Georgia Public Service Commission, when the commission issues a certificate of public convenience and necessity, are a special franchise within the meaning of this statute. All persons exercising such special franchise are required to make a special return thereof as of January 1. Any firm failing to make a return of such special franchise is liable to double taxes thereon. 1962 Op. Att'y Gen. p. 511 (see O.C.G.A. § 48-5-240 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 171, 172.

C.J.S. - 37 C.J.S., Franchises, § 1 et seq.

ALR. - Indebtedness of corporation as proper item for inclusion in computing franchise tax, 107 A.L.R. 1303 .

Mortgage on property of taxpayer who is not personally liable as "debt" for purposes of taxing statute, 107 A.L.R. 1310 .

Transfer of surplus to capital stock account as a dividend for purposes of franchise tax, 107 A.L.R. 1335 .

Franchise tax of corporation as affected by creation of affiliated corporation, 117 A.L.R. 508 .

48-5-421. Taxation of unenumerated franchises.

Nothing in this article shall be construed to exempt from taxation any franchise not enumerated in this article. All franchises of value not provided for in this article shall be returned for taxation and taxed pursuant to law as is other property.

(Ga. L. 1902, p. 37, § 9; Civil Code 1910, § 1027; Code 1933, § 92-2302; Code 1933, § 91A-1802, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

No exemption from municipal license or occupation fees. - To properly construe the meaning of the word "franchise," as used in Ga. L. 1937-38, Ex. Sess., p. 307, § 13 (see now O.C.G.A. § 7-1-786 ), it must be considered in connection with the other property for which an exemption from taxation was given. Franchises were property, and former Code 1933, § 92-2302 (see now O.C.G.A. § 48-5-241 ) provided for the taxation of a franchise. When the word "franchise" was considered in connection with the other items exempted from taxation, it must be taken as meaning the powers conferred by the sovereignty, and that the exemption granted was an exemption from taxation of the property right in the powers so conferred, and not an exemption from a license or occupation fee required by a municipality in order to do business. City of Atlanta v. First Fed. Sav. & Loan Ass'n, 209 Ga. 517 , 74 S.E.2d 243 (1953).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 614 et seq.

48-5-421.1. Certain property projects shall not constitute special franchises.

Any property which is exempt from ad valorem taxation pursuant to subparagraphs (a)(1)(E) or (a)(1)(F) of Code Section 48-5-41 shall not constitute a special franchise for purposes of this article and shall not be subject to the provisions of this article.

(Code 1981, § 48-5-421.1 , enacted by Ga. L. 2010, p. 987, § 2/HB 1186; Ga. L. 2014, p. 679, § 2/HB 788.)

Editor's notes. - The state-wide referendum (Ga. L. 2014, p. 679, § 4/HB 788) was approved by a majority of qualified voters at the November 4, 2014, general election.

48-5-422. Returns to commissioner; effect of filing certified copy of authorization of franchise.

On or before March 1 in each year, each person holding, or owning, and exercising any special franchise within the state shall make a special return as of January 1 of that year to the commissioner. Each return made pursuant to this Code section shall state the value of the special franchise as exercised within this state; shall particularly describe the special franchise; shall be accompanied by a certified copy of every statute, ordinance, resolution, contract, or grant pursuant to which the franchise is held, claimed, or owned; and shall be sworn to by the person making the return or by the chief executive officer of the corporation if the person owning and exercising the franchise is a corporation. Once a certified copy has been filed with the commissioner as required by this Code section, it shall not be necessary in any subsequent annual return to duplicate the certified copy and the filed certified copy shall be considered returned thereafter by reference to the copy filed as required by this Code section.

(Ga. L. 1902, p. 37, § 2; Civil Code 1910, § 1020; Code 1933, § 92-2303; Code 1933, § 91A-1803, enacted by Ga. L. 1978, p. 309, § 2.)

Editor's notes. - Former Code 1933, § 92-2303, upon which this Code section is based, was partially based on Ga. Const. 1877, Art. VII, Sec. II, Para. VI, for which there is no corresponding section in either the 1945, 1976, or 1983 Georgia Constitution.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 622.

48-5-423. Ascertainment of valuations of special franchises; levy and collection of tax.

  1. In arriving at a proposed assessment, the commissioner shall not be bound to accept the valuation fixed for a special franchise in the return made but shall review the return and valuation. When the commissioner refuses to accept the return, the subsequent proceedings shall be in all particulars the same procedures as are provided by law in the case of refusal to accept the returns made by public utilities of their tangible property.
  2. Special franchises shall be taxed at the same rate as other property upon the value of the special franchise as returned or upon the value determined by the county board of tax assessors. The tax on special franchises shall be levied and collected in the same manner as is provided by law in the case of the tangible property of public utilities.

    (Ga. L. 1902, p. 37, § 3; Civil Code 1910, § 1021; Code 1933, § 92-2304; Code 1933, § 91A-1804, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1568, § 4.)

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 185.

C.J.S. - 84 C.J.S., Taxation, §§ 623, 624, 638, 639, 640.

ALR. - Basis of valuation, for taxing purposes, of special franchise or privilege of crossing street, 57 A.L.R. 379 .

Indebtedness of corporation as proper item for inclusion in computing franchise tax, 107 A.L.R. 1303 .

Mortgage on property of taxpayer who is not personally liable as "debt" for purposes of taxing statute, 107 A.L.R. 1310 .

Transfer of surplus to capital stock account as a dividend for purposes of franchise tax, 107 A.L.R. 1335 .

48-5-424. Returns of special franchises exercised in more than one county, municipality, or school district; apportionment of valuation; certification by commissioner; collection and enforcement.

  1. In the case of any special franchise exercised beyond the limits of one county, municipality, or school district, the return provided for in this article shall show, as in the case of telegraph lines, telephone lines, railroads, or steamboats, the number of miles over which the railroad, telegraph, telephone, or other franchise is exercised in each county, municipality, and school district. The information required by this Code section shall be shown in the same manner as is required of a public utility for the return of its tangible property.
  2. The valuation for taxation of special franchises in each county, municipality, and school district in or through which the franchise is exercised shall be apportioned to the county, municipality, and school district in the same manner as is provided by law for the apportionment of the tangible personal property of public utilities.
  3. The commissioner shall certify to every municipality and to the taxing authorities of every county the proposed assessment of every special franchise taxable within the county, municipality, or school district in the same manner as is provided by law in the case of public utilities.
  4. Taxes due each county, municipality, or school district on a special franchise shall be assessed, collected, and enforced in the same manner as is provided by law in the case of other taxes due from public utilities to the county, municipality, or school district.

    (Ga. L. 1902, p. 37, §§ 4-7; Civil Code 1910, §§ 1022, 1023, 1024, 1028; Ga. L. 1919, p. 288, §§ 132-134; Code 1933, §§ 92-2305, 92-2306, 92-2307, 92-2308; Code 1933, § 91A-1805, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1568, § 5.)

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

OPINIONS OF THE ATTORNEY GENERAL

Duty to issue executions against public utilities. - Although the language of former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1 ) did not describe a mandatory or compelling duty and merely empowered the commissioner to issue an execution, a fi. fa. against a public utility other than a railroad should also be issued by the commissioner. This strict concept of mandatory duty in the case of all other utilities was strengthened in the light of former Code 1933, § 92-2308 (see now O.C.G.A. § 48-5-424 ). 1963-65 Op. Att'y Gen. p. 348.

RESEARCH REFERENCES

ALR. - Basis of valuation, for taxing purposes, of special franchise or privilege of crossing street, 57 A.L.R. 379 .

48-5-425. Deductions from special franchise tax due any county, municipality, or school district.

  1. The amount of all taxes and charges specified in subsection (b) of this Code section which are paid or liable to be paid by a taxpayer in any tax year to a county, municipality, or school district may be deducted by the taxpayer from the amount of special franchise tax due or paid by the taxpayer in the same tax year to the county, municipality, or school district.
    1. Amounts of the following fees and charges may qualify for the deduction provided in subsection (a) of this Code section:
      1. Gross receipts tax;
      2. Income tax;
      3. Occupation tax or charge;
      4. Privilege tax or charge; and
      5. Charges due for the special franchise or privilege other than special franchise taxes.
    2. Amounts of the following shall not qualify for the deduction provided in subsection (a) of this Code section even if they would otherwise be qualified for the deduction pursuant to paragraph (1) of this subsection:
      1. Ad valorem tax;
      2. Charges for bridge rentals; and
      3. Charges or assessments for paving or repairing any street, highway, or public place.
  3. No deduction may be taken pursuant to this Code section when the deduction would result in a credit against the special franchise tax due for the tax year to a county, municipality, or school district which is greater than the taxpayer's liability for the tax in the tax year.

    (Ga. L. 1903, p. 18, §§ 1-3; Civil Code 1910, §§ 1025, 1026, 1030; Ga. L. 1919, p. 288, §§ 132-134; Code 1933, §§ 92-2310, 92-2311, 92-2312; Code 1933, § 91A-1806, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 181.

ALR. - Indebtedness of corporation as proper item for inclusion in computing franchise tax, 107 A.L.R. 1303 .

Mortgage on property of taxpayer who is not personally liable as "debt" for purposes of taxing statute, 107 A.L.R. 1310 .

Transfer of surplus to capital stock account as a dividend for purposes of franchise tax, 107 A.L.R. 1335 .

ARTICLE 10 AD VALOREM TAXATION OF MOTOR VEHICLES AND MOBILE HOMES

Administrative Rules and Regulations. - Motor vehicle value apportionment, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-7.

JUDICIAL DECISIONS

Constitutional authority for placing motor vehicles in a separate category. - Georgia Const. 1945, Art. VII, Sec. I, Para. III (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III and Art. IX, Sec. IV, Para. I) authorized the enactment of Ga. L. 1966, p. 517 (see now Pts. 1 and 2 of O.C.G.A. Art. 10, Ch. 5, T. 48), wherein the General Assembly placed motor vehicles in a different category from other tangible property. Hawes v. Cordell Ford Co., 223 Ga. 260 , 154 S.E.2d 599 (1967).

Uniformity required in taxation of motor vehicles. - Motor vehicles, having been placed in a separate classification of tangible property, as permitted by Ga. Const. 1945, Art. VII, Sec. I, Para. III (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III and Art. IX, Sec. IV, Para. I) must all be assessed uniformly. Hawes v. Cordell Ford Co., 223 Ga. 260 , 154 S.E.2d 599 (1967).

OPINIONS OF THE ATTORNEY GENERAL

Legislative intent. - Former Code 1933, Ch. 92-15 (see now O.C.G.A. Pts. 1 and 2, Art. 10, Ch. 5, T. 48) was not intended to change the basic law relating to the ad valorem taxation of personal property. Its main objective was to provide a tool whereby a greater amount of ad valorem tax on a particular class of personal property might be collected since many taxpayers have not been returning their motor vehicles for taxation. 1968 Op. Att'y Gen. No. 68-194.

Acquisition of tax situs as prerequisite to taxation of motor vehicle. - Motor vehicles are subject to ad valorem tax by the various taxing jurisdictions only where the vehicle has acquired a tax situs. 1968 Op. Att'y Gen. No. 68-19.

Motor vehicles owned by a leasing company must be assessed at the value furnished by the department and not at 75 percent thereof. 1967 Op. Att'y Gen. No. 67-458.

Motor vehicles owned by railroad companies and other utilities must be returned in accordance with the provisions of Ga. L. 1966, p. 517 (see now O.C.G.A. Pts. 1 and 2, Art. 10, Ch. 5, T. 48) and not under the provisions of former Code 1933, Ch. 92-27 (see now O.C.G.A. Art. 11, Ch. 5, T. 48). 1967 Op. Att'y Gen. No. 67-99.

RESEARCH REFERENCES

ALR. - Tax on automobile or on its use for cost of road or street construction, improvement, or maintenance, 24 A.L.R. 937 ; 68 A.L.R. 200 .

Constitutionality, construction, and application of statutes relating to ad valorem or property taxation of motor vehicles, 114 A.L.R. 847 .

Review of decisions of United States Supreme Court since Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194, 26 S. Ct. 36 , 50 L. Ed. 150 (1905), on situs of personal property for purposes of taxation, 123 A.L.R. 179 ; 139 A.L.R. 1463 ; 153 A.L.R. 270 .

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011 .

PART 1 G ENERAL PROVISIONS

48-5-440. Definitions.

As used in this article, the term:

  1. "Antique or hobby or special interest motor vehicle" means a motor vehicle which is 25 years old or older as indicated by the model year or a motor vehicle which has been designed and manufactured to resemble an antique or historical vehicle.

    (1.1) "Commercial vehicle" means a truck, truck-tractor, trailer, or semitrailer which is a commercial vehicle:

    1. Registered or registerable under the International Registration Plan pursuant to Code Section 40-2-88; or
    2. Would otherwise be registerable under the International Registration Plan pursuant to Code Section 40-2-88 except that such vehicle is only engaged in intrastate commerce.
  2. "Driver educational motor vehicle" means a motor vehicle which is furnished and assigned to a public school in this state for use by the school in a program of driver education when the assignment is authorized and approved by the local board of education.

    (2.1) "Initial registration period" has the same meaning as provided in paragraph (.1) of subsection (a) of Code Section 40-2-21.

  3. "Mobile homes" means manufactured homes and relocatable homes as defined in Part 2 of Article 2 of Chapter 2 of Title 8. Any mobile home which qualifies the taxpayer for a homestead exemption under the laws of this state shall not be considered a mobile home nor subject to this article. This article shall not apply to dealers engaged in the business of selling mobile homes at wholesale or retail and every mobile home owned in this state on January 1 by a dealer shall be subject to ad valorem taxation in the same manner as other taxable tangible personal property.
  4. "Motor vehicle" means a vehicle which is designed primarily for use upon the public roads. Such term shall not include heavy-duty equipment as defined in paragraph (2) of Code Section 48-5-500 which is owned by a nonresident and operated in this state.
  5. "Owner" has the same meaning as provided in paragraph (.2) of subsection (a) of Code Section 40-2-21.
  6. "Registration period" has the same meaning as provided in paragraph (1) of subsection (a) of Code Section 40-2-21.

    (Ga. L. 1966, p. 517, § 2; Ga. L. 1967, p. 603, § 1; Ga. L. 1976, p. 1529, § 2; Code 1933, §§ 91A-1902, 91A-1921, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1390, § 2; Ga. L. 1982, p. 1376, §§ 6, 8; Ga. L. 1983, p. 3, § 37; Ga. L. 1986, p. 180, § 1; Ga. L. 1992, p. 1551, § 1; Ga. L. 1993, p. 1012, § 1; Ga. L. 1993, p. 1678, § 2; Ga. L. 1997, p. 419, § 34; Ga. L. 1997, p. 957, § 1; Ga. L. 1999, p. 667, § 3B.)

Editor's notes. - Ga. L. 1993, p. 1012, §§ 3 and 4, not codified by the General Assembly, provide: "Section 3. This Act is passed pursuant to Article VII, Section I, Paragraph III of the Constitution of the State of Georgia which provides that heavy-duty equipment motor vehicles owned by nonresidents and operated in this state may be classified as a separate class of property for ad valorem property tax purposes and different rates, methods, and assessment dates may be provided for such motor vehicles and which authorizes the General Assembly to provide by general law for the ad valorem taxation of motor vehicles."

"Section 4. This Act shall become effective upon its approval by the Governor [April 13, 1993] or upon its becoming law without such approval and shall apply to heavy-duty equipment brought into this state after such effective date during the 1993 taxable year."

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 215 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Farm tractor not a motor vehicle. - Farm tractor not being designed primarily for use upon the public roads is not a motor vehicle, although under rare circumstances a particular use of such tractor may require the tracter's licensing. 1965-66 Op. Att'y Gen. No. 66-102.

Equipment permanently attached to a truck. - Value of equipment permanently attached to a truck is used in determining the taxable value of the motor vehicle. 1965-66 Op. Att'y Gen. No. 66-102.

RESEARCH REFERENCES

C.J.S. - 101A C.J.S., Zoning and Land Planning, § 56.

48-5-441. Classification of motor vehicles and mobile homes as separate classes of tangible property for ad valorem taxation purposes; procedures prescribed in article exclusive.

    1. For the purposes of ad valorem taxation, motor vehicles shall be classified as a separate and distinct class of tangible property. Such class of tangible property shall be divided into two distinct and separate subclasses of tangible property with one subclass including heavy-duty equipment motor vehicles as defined in Code Section 48-5-505 and the other subclass including all other motor vehicles. The procedures prescribed by this article for returning motor vehicles, excluding heavy-duty equipment motor vehicles as defined in Code Section 48-5-505, for taxation, determining the applicable rates for taxation, and collecting the ad valorem tax imposed on motor vehicles shall be exclusive.
    2. This subsection shall not apply to motor vehicles subject to Code Section 48-5-441.1.
  2. For the purposes of ad valorem taxation, mobile homes shall be classified as a separate and distinct class of tangible property. The procedures prescribed by this article for returning mobile homes for taxation, determining the applicable rates for taxation, and collecting the ad valorem tax imposed on mobile homes shall be exclusive.
    1. For the purposes of ad valorem taxation, commercial vehicles shall be classified as a separate and distinct class of tangible property. The procedures prescribed by this article for returning commercial vehicles for taxation and for determining the valuation of commercial vehicles shall be exclusive and as provided for in Code Section 48-5-442.1. All other procedures prescribed by this article for the taxation of motor vehicles shall be applicable to the taxation of commercial vehicles.
    2. This subsection shall not apply to motor vehicles subject to Code Section 48-5-441.1.

      (Ga. L. 1966, p. 517, § 1; Ga. L. 1976, p. 1529, § 1; Code 1933, §§ 91A-1901, 91A-1920, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1997, p. 957, § 2; Ga. L. 1998, p. 1145, § 1; Ga. L. 2012, p. 257, § 1-2/HB 386.)

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act." As to this Code section, this Act became effective March 1, 2013.

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act." As to this Code section, this Act became effective March 1, 2013.

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability. As to this Code section, this Act became effective March 1, 2013.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 112 (2012).

JUDICIAL DECISIONS

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

OPINIONS OF THE ATTORNEY GENERAL

City may not collect a specific or flat rate property tax levied on automobiles. 1967 Op. Att'y Gen. No. 67-140.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 109, 110, 134.

C.J.S. - 84 C.J.S., Taxation, § 122.

ALR. - Constitutionality, construction, and application of statutes relating to ad valorem or property taxation of motor vehicles, 114 A.L.R. 847 .

Constitutionality, construction, and application of statute or ordinance imposing license fee or tax upon automobiles or trailers used for habitation, 150 A.L.R. 853 .

Classification, as real estate or personal property, of mobile homes or trailers for purposes of state or local taxation, 7 A.L.R.4th 1016.

48-5-441.1. Classification of motor vehicles for purposes of ad valorem taxation.

In accordance with Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution, motor vehicles subject to the provisions of Code Section 48-5C-1 shall be classified as a separate and distinct class of tangible property for the purposes of ad valorem taxation.

(Code 1981, § 48-5-441.1 , enacted by Ga. L. 2012, p. 257, § 1-3/HB 386.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, "Code Section 48-5C-1" was substituted for "Code Section 48-5B-1" in this Code section.

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act." As to this Code section, this Act became effective March 1, 2013.

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act." As to this Code section, this Act became effective March 1, 2013.

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability. As to this Code section, this Act became effective March 1, 2013.

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Ga. St. U. L. Rev. 112 (2012).

48-5-442. Preparation and distribution of uniform evaluation of motor vehicles for tax purposes.

      1. For the taxable year beginning January 1, 2001, only, the commissioner shall prepare and distribute to each of the tax collectors and tax commissioners a uniform evaluation of all motor vehicles for use as the taxable value of the motor vehicles subject to this article. Each evaluation shall reflect the value which would result from taking 75 percent of the current fair market value and 25 percent of the current wholesale value for all motor vehicles as determined by the commissioner.
      2. For all taxable years beginning on or after January 1, 2002, the commissioner shall prepare at least annually and distribute to each of the tax collectors and tax commissioners a uniform evaluation of all motor vehicles for use as the taxable value of the motor vehicles subject to this article. Each evaluation shall reflect the average of the current fair market value and the current wholesale value for all motor vehicles as determined by the commissioner.
    2. The commissioner shall prepare annually and distribute to each of the tax collectors and tax commissioners uniform procedures for the evaluation of all mobile homes subject to this article.
  2. Notwithstanding subsection (a) of this Code section, all antique and hobby or special interest motor vehicles, as defined in Code Section 48-5-440, shall, notwithstanding true fair market value if any, be deemed by the commissioner to have a fair market value of $100.00 in the uniform evaluation prepared and distributed annually by the commissioner.
  3. This Code section shall not apply to commercial vehicles.

    (Ga. L. 1966, p. 517, § 10; Ga. L. 1976, p. 1529, § 11; Code 1933, § 91A-1933, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1993, p. 1678, § 3; Ga. L. 1995, p. 809, § 15; Ga. L. 1997, p. 957, § 3; Ga. L. 2000, p. 416, § 2.)

Editor's notes. - Ga. L. 1995, p. 809, § 22, not codified by the General Assembly, provides: "Any local law enacted pursuant to Code Section 40-2-21, which is in conflict with the provisions of this Act, shall stand repealed on the effective date of this Act." The Act became effective January 1, 1997.

Administrative Rules and Regulations. - Motor vehicle value apportionment, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-7.

JUDICIAL DECISIONS

Constitutionality. - Even though the statutes providing for ad valorem taxation of motor vehicles do not specifically provide for apportionment, the statutes are not unconstitutional since the assessment of value may be challenged through the appeal procedure of O.C.G.A. § 48-5-442 and the owner thereby has the opportunity to establish that a vehicle has acquired a tax situs in another state. East W. Express, Inc. v. Collins, 264 Ga. 774 , 449 S.E.2d 599 (1994).

Notice of tax assessment is duty of tax commissioner. - County board of tax assessors acted ultra vires in sending a notice of tax assessment as this ministerial duty is placed in the hands of the tax commissioner by O.C.G.A. § 48-5-442 , and valuation and assessments are to be made by the state revenue commissioner. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Antique automobiles must be assessed at fair market value upon the best information obtainable by local officials. 1970 Op. Att'y Gen. No. U70-42.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 701, 710.

48-5-442.1. Definitions; determination of valuation of commercial vehicle for ad valorem tax purposes.

  1. As used in this Code section, the term:
    1. "Georgia fleet mileage ratio" means a fraction, the numerator of which is the total miles driven in Georgia by all commercial vehicles registered in Georgia under the International Registration Plan pursuant to Code Section 40-2-88, and the denominator of which is the total miles driven within and without Georgia by such commercial vehicles.
    2. "Gross capital cost" means the freight on board, delivered cost of a commercial vehicle to the purchaser of such commercial vehicle but shall not include any excise or use taxes paid as a part of such purchase.
  2. The valuation of a commercial vehicle, trailer, or semitrailer for ad valorem tax purposes shall be determined as follows:
    1. The gross capital cost of a commercial vehicle, trailer, or semitrailer shall be multiplied by a percentage factor representing the remainder of such vehicle's value after depreciation according to a depreciation schedule which the commissioner shall annually prepare and distribute to each of the tax collectors and tax commissioners. Except as provided in paragraph (2) of this subsection, the resulting value of such commercial vehicle, trailer, or semitrailer shall be assessed at the rate of 40 percent of such value for ad valorem tax purposes in this state; or
    2. For a trailer, a semitrailer, or a commercial vehicle which is not registered in Georgia under the International Registration Plan pursuant to Code Section 40-2-88 , the assessment calculated under paragraph (1) of this subsection shall be multiplied by the Georgia fleet mileage ratio. The resulting apportioned value shall be the Georgia assessed value of the commercial vehicle, trailer, or semitrailer for ad valorem tax purposes in this state. (Code 1981, § 48-5-442.1 , enacted by Ga. L. 1997, p. 957, § 4; Ga. L. 2013, p. 32, § 3/HB 463.)

Editor's notes. - Ga. L. 2013, p. 32, § 5/HB 463, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all registration, annual, or license fees of apportionable vehicles and ad valorem and alternative ad valorem taxes of apportionable vehicles on or after January 1, 2014.

JUDICIAL DECISIONS

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

48-5-443. Ad valorem tax rate.

Ad valorem taxes imposed on motor vehicles and mobile homes subject to this article shall be at the assessment level and mill rate levied by the taxing authority on tangible property for the previous calendar year.

(Ga. L. 1966, p. 517, § 11; Ga. L. 1976, p. 1529, § 12; Code 1933, § 91A-1934, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Cited in East W. Express, Inc. v. Collins, 264 Ga. 774 , 449 S.E.2d 599 (1994); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 613.

48-5-444. Place of return of motor vehicles and mobile homes.

    1. For purposes of this subsection, the term "functionally located" means located in a county in this state for 184 days or more during the immediately preceding calendar year. The 184 days or more requirement of this subsection shall mean the cumulative total number of days during such calendar year, which days may be consecutive.
      1. Except as otherwise provided in paragraph (3) of this subsection, each motor vehicle owned by a resident of this state shall be returned:
        1. In the county where the owner claims a homestead exemption;
        2. If no such exemption is claimed, then in the county of the owner's domicile; or
        3. If the motor vehicle is primarily used in connection with some established business enterprise located in a different county, in the county where the business is located.
      2. A motor vehicle owned by a resident of this state may be registered in the county where the vehicle is functionally located if the vehicle is a passenger car as defined in paragraph (41) of Code Section 40-1-1. Such vehicle shall first be returned for taxation as provided in subparagraph (A) of this paragraph. This subparagraph shall not apply with respect to any vehicle which is used by a student enrolled in a college or university in this state in a county other than the student's domicile.
      3. Each motor vehicle owned by a nonresident shall be returned in the county where the motor vehicle is situated.
      1. As used in this paragraph, the term:
        1. "Family owned qualified farm products producer" shall have the same meaning as provided in paragraph (2) of Code Section 48-5-41.1.
        2. "Passenger car" shall have the same meaning as provided for in paragraph (41) of Code Section 40-1-1.
        3. "Truck" shall have the same meaning as provided for in paragraph (70) of Code Section 40-1-1.
      2. If a passenger car or truck is primarily used in connection with some established farm operated by a family owned qualified farm products producer located in a county other than the county where the owner claims a homestead exemption or the county of the owner's domicile, such passenger car or truck shall be returned in the county where the farm operated by a family owned qualified farm products producer is located.
    4. Any person who shall knowingly make any false statement in any application for the registration of any vehicle, in transferring any certificate of registration, or in applying for a new certificate of registration shall be guilty of false swearing, whether or not an oath is actually administered to such person, if such statement shall purport to be under oath. On conviction of such offense, such person shall be punished as provided by Code Section 16-10-71.
  2. Mobile homes shall be returned in the county where situated unless the mobile home is primarily used in connection with some established business enterprise located in a different county, in which case it shall be returned in the county where the business is located.

    (Ga. L. 1966, p. 517, § 6; Ga. L. 1976, p. 1529, § 8; Code 1933, § 91A-1930, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 50; Ga. L. 1993, p. 303, § 1; Ga. L. 1994, p. 790, § 1; Ga. L. 1995, p. 10, § 48; Ga. L. 1998, p. 128, § 48; Ga. L. 2006, p. 1020, § 1/HB 1236; Ga. L. 2009, p. 942, § 1/HB 318.)

JUDICIAL DECISIONS

Cited in East W. Express, Inc. v. Collins, 264 Ga. 774 , 449 S.E.2d 599 (1994); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 624.

ALR. - Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-445. Collection of ad valorem taxes by tax collectors or tax commissioners.

The tax collector or tax commissioner receiving the return shall collect all ad valorem taxes imposed on a motor vehicle or mobile home irrespective of the tax authority levying the taxes. No other official shall be authorized to collect such taxes.

(Ga. L. 1966, p. 517, § 9; Ga. L. 1976, p. 1529, § 10; Code 1933, § 91A-1932, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Cited in East W. Express, Inc. v. Collins, 264 Ga. 774 , 449 S.E.2d 599 (1994); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

OPINIONS OF THE ATTORNEY GENERAL

City may not collect the specific or flat rate property tax levied on automobiles. 1967 Op. Att'y Gen. No. 67-140.

Person holding only equitable interest is liable for property taxes. - If the owner of property transfers legal title thereto, retention of the equitable interest is such substantial beneficial ownership as will render the owner liable for the ad valorem taxes on the property. 1967 Op. Att'y Gen. No. 67-46.

Savings and loan associations must pay the ad valorem taxes on its motor vehicles prior to purchasing license tags. 1967 Op. Att'y Gen. No. 67-25.

Service person who has not registered the person's car and obtained license plates in the person's home state may be required to license the person's car in Georgia, and to pay all taxes essential to the functioning of the state's licensing and registration laws. 1967 Op. Att'y Gen. No. 67-4.

No effect on exemption under Soldiers and Sailors Civil Relief Act of 1940. - Statute does not affect the exemption afforded service people under the Soldiers and Sailors Civil Relief Act of 1940, 50 U.S.C. App. § 501 et seq. Ad valorem taxes are collected at the time of application for license plates for motor vehicles only if under the tax laws of this state and other applicable statutes the motor vehicle is subject to ad valorem tax in Georgia. 1967 Op. Att'y Gen. No. 67-4.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 769.

C.J.S. - 85 C.J.S., Taxation, § 1103 et seq.

48-5-446. Remittance of taxes collected to tax authority; time.

The tax collector or tax commissioner collecting the ad valorem taxes on motor vehicles and mobile homes as prescribed by this article shall remit to the tax authority imposing the tax such sums as have been collected, less the commissions provided in this article, on or before the fifteenth day of the month following the month of collection.

(Ga. L. 1966, p. 517, § 13; Ga. L. 1976, p. 1529, § 14; Code 1933, § 91A-1936, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1139.

48-5-447. Compensation of tax collectors and tax commissioners for collecting taxes; rates; agreed rate in case of individual adjustment; procedure; disposition of commissions pursuant to local Acts.

  1. The tax collector or tax commissioner shall be compensated for his services in collecting the ad valorem taxes imposed on motor vehicles and mobile homes by the various tax jurisdictions within his county by each jurisdiction on all net collections made during any calendar year for each jurisdiction as follows:             (1) Up to and including $6,000.00 .................................6%             (2) Over $6,000.00 and not exceeding $14,000.00 ...................5%             (3) Over $14,000.00 and not exceeding $24,000.00 ..................4%             (4) Over $24,000.00 and not exceeding $36,000.00 ..................3%             (5) Over $36,000.00 and not exceeding $52,000.00 ..............2 1/2%             (6) Over $52,000.00 and not exceeding $76,000.00 ..................2%             (7) Over $76,000.00 ...........................................1 3/4%
  2. In those instances which require individual adjustment, the schedule of commissions provided in subsection (a) of this Code section may be changed and altered by the agreement of the parties concerned by contract. Provisions of laws in effect on January 1, 1980, covering such compensation shall not be repealed by this article.
    1. All fees and commissions allowed tax collectors and tax commissioners for collecting ad valorem taxes on motor vehicles and mobile homes shall be collected by those officials. In instances where the officials are compensated by the fee system, the commissions shall be retained by the officials as a part of their compensation. Where the tax collector or tax commissioner has been placed on a salary in lieu of the fee system of compensation, the fees and commissions shall be turned over to the county treasury.
    2. The provisions of paragraph (1) of this subsection to the contrary notwithstanding, the fees and commissions provided for in this Code section shall be disposed of pursuant to local Acts specifically providing for the disposition of such fees and commissions.

      (Ga. L. 1966, p. 517, §§ 14, 15; Ga. L. 1976, p. 1529, §§ 15, 16; Code 1933, § 91A-1937, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48.)

OPINIONS OF THE ATTORNEY GENERAL

No commission for collecting of school taxes. - Tax commissioner is not entitled to receive a 10 percent commission on collections after 90 percent of the net digest has been collected on school taxes. 1967 Op. Att'y Gen. No. 67-425.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1127 et seq.

48-5-448. Value of all returned motor vehicles and mobile homes included in tax digest.

  1. The value of all motor vehicles returned for taxation during the previous calendar year shall be added to the regular digest at the time the regular digest is transmitted to the commissioner or at such other time as the digest is required to be compiled.
  2. The value of all mobile homes returned for taxation during each calendar year shall be added to the regular digest at the time the regular digest is transmitted to the commissioner or at such other time as the digest is required to be compiled.
  3. The total of the regular digest and the value of returns required to be added pursuant to this Code section shall constitute the tax digest.

    (Ga. L. 1966, p. 517, § 17; Ga. L. 1976, p. 1529, § 17; Code 1933, § 91A-1938, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1999, p. 667, § 3A.)

48-5-449. Discretion of county governing authorities to expend county funds for additional help and equipment.

The governing authority of each county, at its discretion, may expend county funds to hire any additional help and to purchase any additional equipment necessary to implement this article.

(Ga. L. 1968, p. 380, § 1; Ga. L. 1976, p. 1529, § 18; Code 1933, § 91A-1939, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-450. Contesting tax assessments; filing affidavit of illegality; bond; trial in superior court; appeal.

Any owner who contests the assessment of an ad valorem tax against a motor vehicle may purchase the license plate without payment of the ad valorem tax, and any owner who contests the assessment of an ad valorem tax against a mobile home may secure a decal for the year in question, by filing with the tax collector or tax commissioner an affidavit of illegality to the assessment together with a surety bond issued by a surety company authorized to do business in this state or, in lieu of such bond, a bond approved by the clerk of the superior court of the county or a cash bond. Whatever bond is filed shall be in an amount equal to the tax and any penalties and interest which may be found to be due. The bond shall be made payable to the tax collector or tax commissioner and shall be conditioned upon the payment of taxes and penalties ultimately found to be due. The affidavit of illegality and the bond shall be transferred immediately by the tax collector or tax commissioner to the superior court, shall be filed in the superior court, and shall be tried as affidavits of illegality are tried in tax cases. Any owner who contests the value assessment of a motor vehicle or mobile home may appeal such assessed value as provided for in Code Section 48-5-311, insofar as applicable.

(Ga. L. 1966, p. 517, § 12; Ga. L. 1967, p. 91, § 2A; Ga. L. 1976, p. 1529, § 13; Code 1933, § 91A-1935, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Statute provides direct appeal to superior court. - O.C.G.A. § 48-5-450 provides a direct appeal to the superior court, avoiding the normal, slower appeal procedure for contested ad valorem assessments that go through the county board of equalization before going to the superior court, which factor of speed is a consideration in determining the applicability of a tax appeal procedure. Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

Required to pursue procedural requirements. - Absent the existence of an underlying constitutional right, no 42 U.S.C. § 1983 claim was available; thus, the service person, who had an ad valorem tax levied against the serviceman's mobile home for the 2001 tax year, was required to pursue the procedural requirements for contesting tax assessments under O.C.G.A. § 48-5-450 because the service person did not specify in the original complaint what constitutional right was violated. Martinet v. Wainright, 261 Ga. App. 160 , 582 S.E.2d 139 (2003).

Cited in East W. Express, Inc. v. Collins, 264 Ga. 774 , 449 S.E.2d 599 (1994).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 759 et seq.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

48-5-451. Penalty for failure to make return or pay tax on motor vehicle or mobile home.

  1. Except as otherwise provided in subsection (b) of this Code section, every owner of a motor vehicle or a mobile home, in addition to the ad valorem tax due on the motor vehicle or mobile home, shall be liable for a penalty of 10 percent of the tax due or $5.00, whichever is greater, for the failure to make the return or pay the tax in accordance with this article.
  2. Any Georgia resident who voluntarily cancels the registration of his or her motor vehicle pursuant to Code Section 40-2-10 shall not be assessed any penalty for failure to pay the tax due on a motor vehicle under subsection (a) of this Code section for any such period of time. Any such person shall remain liable for the ad valorem tax due on a motor vehicle he or she owns. This subsection shall not apply to motor vehicles subject to Code Section 48-5-441.1. The commissioner shall promulgate any necessary rules and forms to implement the provisions of this subsection.

    (Ga. L. 1966, p. 517, § 8; Ga. L. 1976, p. 1529, § 9; Code 1933, § 91A-1931, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 2048, § 16; Ga. L. 1995, p. 809, § 16; Ga. L. 1996, p. 1118, § 15; Ga. L. 2015, p. 825, § 1/HB 94.)

The 2015 amendment, effective July 1, 2015, designated the previously existing provisions as subsection (a), and in such subsection, substituted "Except as otherwise provided in subsection (b) of this Code section, every" for "Every"; and added subsection (b). See Editor's notes for applicability.

Editor's notes. - Ga. L. 1995, p. 809, § 22, not codified by the General Assembly, provides: "Any local law enacted pursuant to Code Section 40-2-21, which is in conflict with the provisions of this Act, shall stand repealed on the effective date of this Act." The Act became effective January 1, 1997.

Ga. L. 1996, p. 1118, § 17, not codified by the General Assembly, provides: "Any local Act enacted pursuant to Code Section 40-2-21 which is in conflict with the provisions of this Act shall stand repealed on the effective date of this Act; provided, however, that any local Act enacted in 1996 pursuant to the provisions of Code Section 40-2-21 as enacted by Act No. 385, Ga. L. 1995, which local Act provides for a four-month staggered registration period for a county, shall not be repealed by the provisions of this Act, but the registration period for such county shall be as provided by subparagraph (a)(1)(B) of Code Section 40-2-21 as enacted by this Act and not as provided in such local Act." The Act became effective January 1, 1997.

Ga. L. 1996, p. 1118, § 18, not codified by the General Assembly, provides: "Those parts of Act No. 385, Ga. L. 1995, an Act amending Chapter 2 of Title 40 of the Official Code of Georgia Annotated, relating to registration and licensing of motor vehicles, and amending Article 10 of Chapter 5 of Title 48 of the Official Code of Georgia Annotated, relating to ad valorem taxation of motor vehicles and mobile homes, approved April 19, 1995, in conflict with this Act are repealed."

Ga. L. 2015, p. 825, § 2/HB 94, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2015, and shall be applicable to any penalties assessed on or after that date. Any proceedings instituted for the collection of penalties under the law in existence prior to July 1, 2015, shall not be affected by the enactment of this Act."

Administrative Rules and Regulations. - Penalties, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Uniform Procedures for Mobile Homes, § 560-11-9-.11.

JUDICIAL DECISIONS

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 625.

C.J.S. - 85 C.J.S., Taxation, § 1712 et seq.

PART 2 M OTOR VEHICLES

Administrative Rules and Regulations. - Motor vehicle value apportionment, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-7.

48-5-470. Exemption of driver educational motor vehicles from ad valorem taxation.

Driver educational motor vehicles are declared to be public property used exclusively for public purposes and are exempted from any and all ad valorem taxes imposed by any tax jurisdiction in this state.

(Ga. L. 1967, p. 603, § 2; Code 1933, § 91A-1903, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1390, § 3.)

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 433 et seq.

48-5-470.1. Exemption of motor vehicles used for transporting persons with disabilities or disabled students to or from educational institutions.

All motor vehicles owned by a school or educational institution and used principally for the purpose of transporting persons with disabilities or disabled students to or from such school or educational institution are exempted from any and all ad valorem taxes imposed by any tax jurisdiction in this state. The exemption provided for in this Code section shall apply only when such school or educational institution is qualified as an exempt organization under the United States Internal Revenue Code, Section 501(c)(3), as such section exists on January 1, 1984.

(Code 1981, § 48-5-470.1 , enacted by Ga. L. 1984, p. 788, § 1; Ga. L. 1987, p. 191, § 9; Ga. L. 1995, p. 1302, § 11.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that that Act applies to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10 not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986, which as of January 1, 1987, were not yet effective, become effective for purposes of Georgia taxation on the same dates as they became effective for federal purposes.

48-5-470.2. Exemption of vans and buses owned by religious groups.

Vans and buses owned by religious groups and used exclusively for the purpose of maintaining and operating exempt properties owned by such groups or for the exclusive purpose of transporting individuals to religious services or trips sponsored by such religious groups designed to promote religious, educational, or charitable purposes and not for the purposes of producing private or corporate profit and income distributable to shareholders in corporations owning such property or to other owners of such property or for any private purposes are exempted from any and all ad valorem taxes imposed by any tax jurisdiction in this state.

(Code 1981, § 48-5-470.2 , enacted by Ga. L. 1996, p. 1260, § 1.)

48-5-471. Motor vehicles subject to ad valorem taxation.

  1. Every motor vehicle owned in this state by a natural person is subject to ad valorem taxation by the various tax jurisdictions authorized to impose an ad valorem tax on property as provided in Code Section 48-5-473; provided, however, that under no circumstances shall such ad valorem taxation be collected more than one time per calendar year with respect to the same motor vehicle. Every vehicle owned in this state by an entity other than a natural person is, except as specifically provided in Code Section 48-5-472, subject to ad valorem taxation by the various tax jurisdictions authorized to impose an ad valorem tax on property as provided in Code Section 48-5-473; provided, however, that under no circumstances shall such ad valorem taxation be collected more than one time per calendar year with respect to the same motor vehicle. Taxes shall be charged against the owner of the property, if known, and, if unknown, against the specific property itself.
    1. Any motor vehicle wholly owned in this state by a nonresident member of the armed forces of the United States temporarily stationed in this state as a result of military orders shall not acquire a tax situs in this state and such motor vehicle shall not be required to be returned for taxation in this state. Not more than one motor vehicle jointly owned by such member of the armed forces of the United States together with such member's nonresident spouse, when such nonresident spouse temporarily resides in this state at the temporary domicile of such member of the armed forces of the United States for the primary purpose of residing together as a family with such member of the armed forces of the United States, shall not acquire a tax situs in this state and such motor vehicle shall not be required to be returned for taxation in this state.
    2. This subsection shall not apply to any motor vehicle that is used in the conduct of a business.
    3. Nothing in this subsection shall be construed to excuse the members of the armed forces of the United States or spouses from returning such motor vehicles for ad valorem taxation as may be required by the laws of their state of permanent domicile.

      (Ga. L. 1966, p. 517, § 3; Ga. L. 1967, p. 459, § 1; Code 1933, § 91A-1905, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 47; Ga. L. 1995, p. 809, § 17; Ga. L. 1997, p. 419, § 35; Ga. L. 2000, p. 1177, § 1.)

Editor's notes. - Ga. L. 1995, p. 809, § 22, not codified by the General Assembly, provides: "Any local law enacted pursuant to Code Section 40-2-21, which is in conflict with the provisions of this Act, shall stand repealed on the effective date of this Act." The Act became effective January 1, 1997.

Ga. L. 2000, p. 1177, § 2, not codified by the General Assembly, provided that the Act shall be applicable to all taxable years beginning on or after January 1, 2001.

Law reviews. - For article on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 215 (1997).

JUDICIAL DECISIONS

Situs of property destined for but not yet in state. - Property used in connection with a trade or business acquires a tax situs since it is more or less permanently situated, i.e., where the business is located, but when the property at issue (motor vehicles) was ultimately destined for a Georgia business concern and ultimately would become permanently situated in Georgia, but these events had not occurred as of the relevant taxing date, the business situs rule was inapplicable in that the property was not permanently situated within the state until the property had been accepted by the Georgia business concern. Roberts v. Chancellor Fleet Corp., 182 Ga. App. 69 , 354 S.E.2d 628 (1987).

OPINIONS OF THE ATTORNEY GENERAL

All motor vehicles having a Georgia tax situs on January 1 shall be taxed. 1968 Op. Att'y Gen. No. 68-19.

Tax must be paid in correct city and county. - If a taxpayer fails to make a return, the taxpayer is still subject to an ad valorem tax on the taxpayer's automobile; the paying of an ad valorem tax in another county does not satisfy the tax obligation to the resident county and city. 1967 Op. Att'y Gen. No. 67-406.

Taxation of nonresident military personnel who purchase Georgia license tags. - Military personnel who are residents of other states, and who are in Georgia solely by virtue of military orders, are not subject to Georgia ad valorem taxes, even though the military personnel purchase an automobile license tag in Georgia. 1954-56 Op. Att'y Gen. p. 671.

Subsequent owner not liable for tax in year acquired. - Owner of the motor vehicle on January 1 is liable for the ad valorem taxes for that year, and not the individual who acquired the vehicle after January 1. 1967 Op. Att'y Gen. No. 67-173.

Payment of taxes by subsequent purchaser in order to remove lien and obtain license plates. - Owner on January 1 is responsible for the ad valorem taxes on the vehicle, even if purchased by another after January 1 of that year. However, since license plates cannot be purchased for the motor vehicle until the ad valorem taxes have been paid, and since there is a lien against the vehicle which could be enforced by the taxing authority, the purchaser may desire to pay the taxes and then proceed against the seller. 1967 Op. Att'y Gen. No. 67-309.

Taxes must be paid before license tag can be purchased. - An automobile license tag cannot be purchased unless the application is accompanied by an affidavit that ad valorem taxes have been paid on the vehicle. 1954-56 Op. Att'y Gen. p. 668.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 122.

ALR. - Constitutionality, construction, and application of statutes relating to ad valorem or property taxation of motor vehicles, 114 A.L.R. 847 .

Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-472. Ad valorem taxation of motor vehicles owned and held by dealers for retail sale.

  1. For the purpose of this Code section, the term "dealer" means any person who is engaged in the business of selling motor vehicles at retail and who holds a valid current dealer's identification number issued by the department.
  2. Motor vehicles which are owned by a dealer and held in inventory for sale or resale shall constitute a separate subclassification of motor vehicles within the motor vehicle classification of tangible property for ad valorem taxation purposes. The procedures prescribed in this article for returning motor vehicles for ad valorem taxation, determining the applicable rates for taxation, and collecting the ad valorem taxes imposed on motor vehicles do not apply to such motor vehicles which are owned by a dealer. Such motor vehicles which are owned by a dealer shall not be returned for ad valorem taxation, shall not be taxed, and no taxes shall be collected on such motor vehicles until they are transferred and then become subject to taxation as provided in Code Section 48-5-473.

    (Ga. L. 1967, p. 91, § 1; Ga. L. 1975, p. 183, § 1; Code 1933, § 91A-1904, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1995, p. 809, § 18; Ga. L. 1997, p. 419, § 36.)

Cross references. - Used car dealers, T. 43, C. 47.

Editor's notes. - Ga. L. 1995, p. 809, § 22, not codified by the General Assembly, provides: "Any local law enacted pursuant to Code Section 40-2-21, which is in conflict with the provisions of this Act, shall stand repealed on the effective date of this Act." The Act became effective January 1, 1997.

Law reviews. - For article on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 215 (1997).

JUDICIAL DECISIONS

Constitutionality. - Provision of O.C.G.A. § 48-5-472 creating an exemption from ad valorem taxation for dealer-owned motor vehicles was authorized by the Georgia Constitution. Lowry v. McDuffie, 269 Ga. 202 , 496 S.E.2d 727 (1998).

Standing. - Taxpayer had standing to challenge the provision of O.C.G.A. § 48-5-472 creating an exemption from ad valorem taxation for dealer-owned motor vehicles that are held for sale or resale. Lowry v. McDuffie, 269 Ga. 202 , 496 S.E.2d 727 (1998).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 122.

48-5-473. Returns for taxation; application for and issuance of license plates upon payment of taxes due.

    1. Except as provided in paragraph (2) of this subsection, every owner of a motor vehicle subject to taxation under this article shall be required to return the motor vehicle for taxation and pay the taxes due on the motor vehicle at the time the owner applies or is required by law to apply for registration of the motor vehicle and for the purchase of a license plate for the motor vehicle during the owner's registration period.
      1. In all counties for which a local Act has not been enacted pursuant to Code Section 40-2-21, the final date for payment of ad valorem taxes shall be the last day of the owner's registration period and the lien for such taxes shall attach at midnight on the last day of the owner's registration period if the vehicle has not been registered but only if the vehicle is still owned on such date by such owner.
      2. In all counties for which a local Act has been enacted pursuant to Code Section 40-2-21, the final date for payment of ad valorem taxes shall be the last day of the owner's registration period and the lien for such taxes on such motor vehicle shall attach on the first day of the owner's registration period.
      3. A motor vehicle shall not be returned for taxation and no ad valorem taxes shall be due, payable, or collected at the time a vehicle is registered during any initial registration period for such vehicle.
      4. A motor vehicle shall not be returned for taxation and no ad valorem taxes shall be due, payable, or collected at the time of a transfer of the vehicle.
    3. Notwithstanding any other provision of this Code section to the contrary, under no circumstances shall such ad valorem taxation be collected more than one time per calendar year with respect to the same motor vehicle.
  2. Notwithstanding subsection (a) of this Code section, in the case of an antique or hobby or special interest motor vehicle, as defined in Code Section 48-5-440, the owner or owners shall certify at the time of returning the antique or hobby or special interest motor vehicle for taxation, paying the taxes due on the motor vehicle, and purchasing a license plate for the motor vehicle or at the time of the first sale or transfer of the motor vehicle that the vehicle is an antique or hobby or special interest motor vehicle as defined in Code Section 48-5-440, and, upon said certification, said vehicle shall be registered and a license plate issued with the imposition of an ad valorem tax based on $100.00 valuation; provided, however, that taxes shall be due at the time of registration or at the time required by law for registration during the owner's registration period as provided in subsection (a) of this Code section.
  3. Notwithstanding subsection (a) of this Code section, within the motor vehicle classification of property for ad valorem taxation purposes, motor vehicles held in inventory for sale or resale by an entity which is engaged in the business of selling motor vehicles and which has a current distinguishing dealer's identification number issued by the department shall constitute a separate subclassification of property for ad valorem taxation purposes and shall not be the subject of ad valorem taxation until such time as such vehicles are transferred and until such time as such vehicles then become subject to taxation as provided in this Code section.

    (Ga. L. 1966, p. 517, § 4; Ga. L. 1967, p. 91, § 2; Code 1933, § 91A-1906, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1986, p. 1053, § 5; Ga. L. 1993, p. 1678, § 4; Ga. L. 1995, p. 809, § 19; Ga. L. 1997, p. 419, § 37; Ga. L. 1998, p. 1179, § 39; Ga. L. 1999, p. 667, § 1A.)

Cross references. - Registration and licensing of motor vehicles, T. 40, C. 2.

Editor's notes. - Ga. L. 1995, p. 809, § 22, not codified by the General Assembly, provides: "Any local law enacted pursuant to Code Section 40-2-21, which is in conflict with the provisions of this Act, shall stand repealed on the effective date of this Act." The Act became effective January 1, 1997.

Law reviews. - For article on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 215 (1997).

JUDICIAL DECISIONS

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

OPINIONS OF THE ATTORNEY GENERAL

Taxation of nonresident military personnel who purchase Georgia license tags. - Military personnel who are residents of other states, and who are in Georgia solely by virtue of military orders, are not subject to Georgia ad valorem taxes even though the military personnel purchase an automobile license tag in Georgia. 1954-56 Op. Att'y Gen. p. 671.

Taxes must be paid before license tag can be purchased. - An automobile license tag cannot be purchased unless the application is accompanied by an affidavit that ad valorem taxes have been paid on the vehicle. 1954-56 Op. Att'y Gen. p. 668.

RESEARCH REFERENCES

C.J.S. - 60 C.J.S., Motor Vehicles, § 182 et seq.

48-5-474. Application for registration and purchase of license plate constitutes return; form of application.

The application for registration of a motor vehicle and for the purchase of a license plate for the motor vehicle shall constitute the return of that motor vehicle for ad valorem taxation but only if ad valorem taxes are due at the time of registration. The state revenue commissioner is directed to prescribe a form for the application for registration which shall provide the information needed by the tax commissioner or tax collector in determining the amount of taxes due under this article.

(Ga. L. 1966, p. 517, § 7; Code 1933, § 91A-1908, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1997, p. 419, § 38; Ga. L. 2000, p. 951, § 11-1; Ga. L. 2005, p. 334, § 29-2/HB 501.)

Cross references. - Registration and licensing of motor vehicles, T. 40, C. 2.

Law reviews. - For article on the 1997 amendment of this Code section, see 14 Ga. St. U. L. Rev. 215 (1997).

JUDICIAL DECISIONS

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

48-5-475. Tax collectors and tax commissioners as agents of commissioner for accepting applications for registration of motor vehicles.

All original motor vehicle license plates shall be sold by the tax collector or tax commissioner of the several counties. Such officials are designated as agents of the state revenue commissioner for the purpose of accepting applications for the registration of motor vehicles and for purposes of collecting ad valorem taxes in connection with the registration of motor vehicles. The duties and responsibilities incident to the exercise of this designation shall be a part of the official duties and responsibilities of the various tax collectors and tax commissioners.

(Ga. L. 1966, p. 517, § 16; Code 1933, § 91A-1909, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 951, § 11-1; Ga. L. 2005, p. 334, § 29-3/HB 501.)

Cross references. - For further provisions regarding designation of tax collectors and tax commissioners as tag agents, see § 40-2-22 .

JUDICIAL DECISIONS

Cited in Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459 , 507 S.E.2d 772 (1998).

48-5-476. Collection procedure when taxing county differs from county of purchaser's residence.

When a motor vehicle is purchased from a seller who is required to return the motor vehicle for ad valorem taxation in a county other than the county where the purchaser resides, the tax collector or tax commissioner of the county in which the motor vehicle is returned for taxation shall collect the required fee for the registration of the vehicle in addition to the ad valorem taxes due on the vehicle and, at the request of the purchaser, shall transmit the fee, the application for registration, and an appropriate certificate indicating that all ad valorem taxes due on the motor vehicle have been paid to the tax collector or tax commissioner of the county where the purchaser resides. Upon receipt of the fee and documents, the tax collector or tax commissioner of the county where the purchaser resides shall issue the required license plate.

(Ga. L. 1966, p. 517, § 5; Code 1933, § 91A-1907, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-477. Requirement for paying tax prior to purchasing license plate on motor vehicles not subject to ad valorem taxation.

Nothing contained in this article shall be construed to require the payment of an ad valorem tax prior to the purchase of a license plate for any motor vehicle:

  1. Which is not subject to ad valorem taxation within this state; or
  2. Provided for in Code Section 48-5-472 which is not otherwise subject to ad valorem taxation under this article.

    (Ga. L. 1966, p. 517, § 18; Ga. L. 1967, p. 91, § 3; Code 1933, § 91A-1910, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-478. Constitutional exemption from ad valorem taxation for disabled veterans.

  1. A motor vehicle owned by or leased to a disabled veteran who is a citizen and resident of this state and on which such disabled veteran actually places the free disabled veteran motor vehicle license plate he or she receives pursuant to Code Section 40-2-69 is hereby exempted from all ad valorem taxes for state, county, municipal, and school purposes. As used in this Code section, the term "disabled veteran" shall have the same meaning as that term is defined in paragraph (1) of subsection (a) of Code Section 48-5-48.
  2. Once a disabled veteran has established his or her eligibility for such ad valorem tax exemption by being 100 percent totally disabled, he or she shall be entitled to receive such ad valorem tax exemption in succeeding years thereafter. A disabled veteran who claims 100 percent total disability shall furnish proof of such disability through a letter from the United States Department of Veterans Affairs.
  3. Once a disabled veteran has established his or her eligibility for such ad valorem tax exemption but his or her disability has not been adjudicated a 100 percent total disability, he or she shall be entitled to such ad valorem tax exemption in succeeding years upon furnishing, on an annual basis, proof of his or her status as a disabled veteran through a letter from the United States Department of Veterans Affairs.
  4. In the event of the death of the disabled veteran who received such ad valorem tax exemption pursuant to this Code section, upon complying with the motor vehicle laws relating to registration and licensing of motor vehicles, his or her unmarried surviving spouse or minor child may continue to receive the exemption. (Code 1981, § 48-5-478 , enacted by Ga. L. 1984, p. 1058, § 8; Ga. L. 1985, p. 149, § 48; Ga. L. 1990, p. 45, § 1; Ga. L. 1998, p. 259, § 2; Ga. L. 1999, p. 81, § 48; Ga. L. 2015, p. 816, § 7/HB 48; Ga. L. 2016, p. 166, § 6/SB 258; Ga. L. 2016, p. 770, § 3/HB 862.)

The 2015 amendment, effective July 1, 2015, designated the previously existing provisions as subsection (a); in subsection (a), in the introductory paragraph, in the first sentence, substituted "this state" for "Georgia" and "pursuant to Code Section 40-2-69" for "from the State of Georgia" and in the second sentence, substituted "As used in this Code section, the term 'disabled veteran' means any veteran" for "The term 'disabled veteran,' as used in this Code section, means any wartime veteran" at the beginning and substituted "totally disabled or as being less than 100 percent totally disabled but is being compensated at the 100 percent level due to individual unemployability and is entitled to receive service connected benefits" for "totally and permanently disabled and entitled to receive service-connected benefits"; inserted "or" at the end of paragraph (a)(3); and in paragraph (a)(4), substituted "central" for "Central"; and added subsections (b) through (d).

The 2016 amendments. The first 2016 amendment, effective April 26, 2016, substituted the present provisions of subsection (a) for the former provisions, which read: "A motor vehicle owned by or leased to a disabled veteran who is a citizen and resident of this state and on which such disabled veteran actually places the free disabled veteran motor vehicle license plate he or she receives pursuant to Code Section 40-2-69 is hereby exempted from all ad valorem taxes for state, county, municipal, and school purposes. As used in this Code section, the term 'disabled veteran' means any veteran who was discharged under honorable conditions and who has been adjudicated by the United States Department of Veterans Affairs as being 100 percent totally disabled or as being less than 100 percent totally disabled but is being compensated at the 100 percent level due to individual unemployability and is entitled to receive service connected benefits and any veteran who is receiving or who is entitled to receive a statutory award from the United States Department of Veterans Affairs for:

"(1) Loss or permanent loss of use of one or both feet;

"(2) Loss or permanent loss of use of one or both hands;

"(3) Loss of sight in one or both eyes; or

"(4) Permanent impairment of vision of both eyes of the following status: central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends on angular distance no greater than 20 degrees in the better eye." The second 2016 amendment, effective May 3, 2016, made identical changes.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, "United States Department of Veterans Affairs" was substituted for "Veterans Administration" in the second sentence (now the second sentence of subsection (b)).

Editor's notes. - Ga. L. 1984, p. 1058, § 9, not codified by the General Assembly, provides: "In the event of any conflict between this act and any other Act of the 1984 General Assembly the provisions of such other Act shall control over the provisions of this Act."

The statewide referendum proposed by Ga. L. 1998, p. 259, which broadened the ad valorem tax exemption for motor vehicles owned by disabled veterans to include motor vehicles leased to disabled veterans, was approved by a majority of the voters voting at the general election held in November 1998.

48-5-478.1. Ad valorem taxation; exemption of certain motor vehicles owned by former prisoners of war.

  1. As used in this Code section, the term "prisoners of war" shall have the same meaning as provided for in subsection (a) of Code Section 40-2-73, as amended.
  2. Any former prisoner of war who is a citizen and resident of Georgia and who attaches or presents a true copy of a Department of Defense Form 214, a military 201 file, or similar sufficient proof of his or her former prisoner of war status with his or her ad valorem tax return is granted an exemption from all ad valorem taxes for state, county, municipal, and school purposes on one vehicle such former prisoner of war owns.
  3. The unremarried surviving spouse of a deceased former prisoner of war who is a citizen and resident of Georgia and who attaches or presents a true copy of a Department of Defense Form 214, a military 201 file, or similar sufficient proof of the former prisoner of war status of the deceased former prisoner of war with his or her ad valorem tax return is granted an exemption from all ad valorem taxes for state, county, municipal, and school purposes on one vehicle such unremarried surviving spouse owns. (Code 1981, § 48-5-478.1 , enacted by Ga. L. 1998, p. 547, § 1; Ga. L. 1999, p. 557, § 2.)

Editor's notes. - The statewide referendum proposed by Ga. L. 1998, p. 547, which provided for an exemption from ad valorem taxes for certain motor vehicles owned by former prisoners of war, was approved by a majority of the voters voting at the November 1998 general election.

Ga. L. 1998, p. 547, § 2, not codified by the General Assembly, provides that the Act is applicable to taxable years beginning on or after January 1, 1999.

Ga. L. 1999, p. 557, § 3, not codified by the General Assembly, provides that the amendment to this Code section is applicable to all tax years beginning on or after January 1, 2000.

48-5-478.2. Veterans awarded Purple Heart exempt from ad valorem taxes provided license plate issued under Code Section 40-2-84.

A single motor vehicle owned by or leased to a veteran of the armed forces of the United States who has been awarded the Purple Heart citation and who is a citizen and resident of Georgia and on which such veteran actually places a motor vehicle license plate he or she receives from the State of Georgia pursuant to Code Section 40-2-84 is hereby exempted from all ad valorem taxes for state, county, municipal, and school purposes.

(Code 1981, § 48-5-478.2 , enacted by Ga. L. 2000, p. 417, § 1.)

Editor's notes. - Ga. L. 2000, p. 417, § 2, not codified by the General Assembly, provides that this Code Section shall be applicable to all taxable years beginning on or after January 1, 2001.

48-5-478.3. Tax exemption for veterans awarded Medal of Honor.

A single motor vehicle owned by or leased to a veteran of the armed forces of the United States who has been awarded the Medal of Honor and who is a citizen and resident of Georgia and on which such veteran actually places the motor vehicle license plates he or she receives from the State of Georgia pursuant to Code Section 40-2-68 is hereby exempted from all ad valorem taxes for state, county, municipal, and school purposes.

(Code 1981, § 48-5-478.3 , enacted by Ga. L. 2004, p. 69, § 22.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, Code Section 48-5-478.3, as enacted by Ga. L. 2004, p. 417, § 1A, was redesignated as Code Section 48-5-478.4.

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

48-5-478.4. Exemption from ad valorem taxes for motor vehicle owned by veterans' organization.

  1. As used in this Code section, the term "veterans organization" means any organization or association chartered by the Congress of the United States which is exempt from federal income taxes but only if such organization is a post or organization of past or present members of the armed forces of the United States organized in the State of Georgia with at least 75 percent of the members of which are past or present members of the armed forces of the United States and where no part of the net earnings of which inures to the benefit of any private shareholder or individual.
  2. A single motor vehicle owned by or leased to a veterans organization is hereby exempted from all ad valorem taxes for state, county, municipal, and school purposes. (Code 1981, § 48-5-478.4 , enacted by Ga. L. 2004, p. 417, § 1A; Ga. L. 2010, p. 878, § 48/HB 1387.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, Code Section 48-5-478.3, as enacted by Ga. L. 2004, p. 417, § 1A, was redesignated as Code Section 48-5-478.4.

Editor's notes. - Ga. L. 2004, p. 417, § 1B, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 2005.

PART 3 M OBILE HOMES

RESEARCH REFERENCES

ALR. - Classification, as real estate or personal property, of mobile homes or trailers for purposes of state or local taxation, 7 A.L.R.4th 1016.

48-5-490. Mobile homes owned on January 1 subject to ad valorem taxation.

Every mobile home owned in this state on January 1 is subject to ad valorem taxation by the various taxing jurisdictions authorized to impose an ad valorem tax on property. Taxes shall be charged against the owner of the property, if known, and, if unknown, against the specific property itself.

(Ga. L. 1976, p. 1529, § 4; Code 1933, § 91A-1923, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 48.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 134.

48-5-491. Ad valorem taxation of mobile homes owned and held by dealers for sale; returns of dealers' inventory; dealer's assessed value; determination of tax rate; time for payment of taxes; mobile homes in transit on January 1.

Reserved. Repealed by Ga. L. 1999, p. 667, § 3C, effective January 1, 2000.

Editor's notes. - This Code section was based on Ga. L. 1976, p. 1529, § 3; Code 1933, § 91A-1922, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1992, p. 2411, § 8; Ga. L. 1999, p. 667, § 4.

48-5-492. Issuance of mobile home location permits; issuance and display of decals.

  1. Each year every owner of a mobile home subject to taxation under this article shall obtain on or before April 1 from the tax collector or tax commissioner of the county of taxation of the mobile home a mobile home location permit. The issuance of the permit by the tax collector or tax commissioner shall be evidenced by the issuance of a decal, the color of which shall be prescribed for each year by the commissioner. Each decal shall reflect the county of issuance and the calendar year for which the permit is issued. The decal shall be prominently attached and displayed on the mobile home by the owner.
  2. Except as provided for mobile homes owned by a dealer, no mobile home location permit shall be issued by the tax collector or tax commissioner until all ad valorem taxes due on the mobile home have been paid. Each year every owner of a mobile home situated in this state on January 1 which is not subject to taxation under this article shall obtain on or before April 1 from the tax collector or tax commissioner of the county where the mobile home is situated a mobile home location permit. The issuance of the permit shall be evidenced by the issuance of a decal which shall reflect the county of issuance and the calendar year for which the permit is issued. The decal shall be prominently attached and displayed on the mobile home by the owner.

    (Ga. L. 1976, p. 1529, § 5; Ga. L. 1978, p. 1459, § 1; Code 1933, § 91A-1924, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 49; Ga. L. 1979, p. 538, § 6; Ga. L. 1982, p. 575, §§ 6, 13; Ga. L. 1984, p. 22, § 48; Ga. L. 1992, p. 1683, § 1; Ga. L. 1992, p. 2411, § 9; Ga. L. 1999, p. 667, § 3D; Ga. L. 2015, p. 1219, § 20/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted "April 1" for "May 1" in subsections (a) and (b).

48-5-493. Failure to attach and display decal; penalties; venue for prosecution.

    1. It shall be unlawful to fail to attach and display on a mobile home the decal as required by Code Section 48-5-492.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100.00 nor more than $300.00, except that upon receipt of proof of purchase of a decal prior to the date of the issuance of a summons, the fine shall be $50.00; provided, however, that in the event such person owns more than one mobile home in an individual mobile home park, then the maximum fine under this paragraph for such person with respect to such mobile home park shall not exceed $1,000.00.
    1. It shall be unlawful for any person to move or transport any mobile home which is required to and which does not have attached and displayed thereon the decal provided for in Code Section 48-5-492.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor and shall be punished by a fine of not less than $200.00 nor more than $1,000.00 or by imprisonment for not more than 12 months, or both.
  3. Violation of subsection (a) or (b) of this Code section may be prosecuted in the magistrate court of the county where the mobile home location permit is to be issued in the manner prescribed for the enforcement of county ordinances set forth in Article 4 of Chapter 10 of Title 15.

    (Code 1933, § 91A-9945, enacted by Ga. L. 1980, p. 436, § 1; Ga. L. 1990, p. 780, § 1; Ga. L. 1992, p. 2411, § 10; Ga. L. 2015, p. 1219, § 21/HB 202.)

The 2015 amendment, effective January 1, 2016, in paragraph (a)(2), substituted "not less than $100.00 nor more than $300.00, except that upon receipt of proof of purchase of a decal prior to the date of the issuance of a summons, the fine shall be $50.00; provided, however, that in the event such person owns more than one mobile home in an individual mobile home park, then the maximum fine under this paragraph for such person with respect to such mobile home park shall not exceed $1,000.00" for "not less than $25.00 nor more than $200.00, except that upon receipt of proof of purchase of a decal prior to the date of the issuance of a summons, the fine shall be $25.00" at the end.

48-5-494. Returns for taxation; application for and issuance of mobile home location permits upon payment of taxes due.

Each year every owner of a mobile home subject to taxation under this article shall return the mobile home for taxation and shall pay the taxes due on the mobile home at the time the owner applies for the mobile home location permit, or at the time of the first sale or transfer of the mobile home after December 31, or on April 1, whichever occurs first. If the owner returns such owner's mobile home for taxation prior to the date that the application for the mobile home location permit is required, such owner shall apply for the permit at the time such owner returns the mobile home for taxation.

(Ga. L. 1976, p. 1529, § 6; Code 1933, § 91A-1925, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 538, § 7; Ga. L. 1982, p. 575, §§ 7, 14; Ga. L. 1984, p. 22, § 48; Ga. L. 1992, p. 1684, § 1; Ga. L. 1992, p. 2411, § 11; Ga. L. 1999, p. 667, § 3E; Ga. L. 2015, p. 1219, § 22/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted "April 1" for "May 1" in the first sentence.

48-5-495. Collection procedure when taxing county differs from county of purchaser's residence.

When a mobile home is purchased from a seller who is required to return the mobile home for ad valorem taxation in a county other than the purchaser's county of residence, the tax collector or tax commissioner of the county in which the mobile home is returned for taxation shall collect the required ad valorem taxes due and, at the request of the purchaser, shall transmit to the purchaser an appropriate certificate which shall indicate that all ad valorem taxes due on the mobile home have been paid. Upon receipt of the certificate, the tax collector or tax commissioner of the purchaser's county of residence shall issue the required mobile home location permit and decal.

(Ga. L. 1976, p. 1529, § 7; Code 1933, § 91A-1926, enacted by Ga. L. 1978, p. 309, § 2.)

PART 4 H EAVY-DUTY CONSTRUCTION EQUIPMENT OWNED BY NONRESIDENTS

Editor's notes. - Ga. L. 1992, p. 1551, § 4, not codified by the General Assembly, provides: "This Act shall stand repealed in its entirety on January 1, 1993, if [Ga. L. 1992, p. 3336], which provides that heavy-duty equipment motor vehicles owned by nonresidents and operated in this state may be classified as a separate class of property for ad valorem property tax purposes, is passed by the General Assembly at the 1992 regular session and is ratified by the voters of this state at the 1992 general election and if H.B. No. 1279, which provides for the ad valorem taxation of heavy-duty equipment used for construction purposes which is owned by a nonresident and operated in this state, is passed by the General Assembly at the 1992 regular session and becomes effective January 1, 1993." The amendment to Ga. Const. 1983, Art. VII, Sec. I, Para III, (proposed in Ga. L. 1992, p. 3336) was ratified at the 1992 general election. H.B. 1279 was not passed at the 1992 regular session.

Ga. L. 1993, p. 1012, § 2, effective April 13, 1993, repealed the Code sections formerly codified at this part and enacted the current part. The former part pertained to heavy duty construction equipment owned by nonresidents, and consisted of Code Sections 48-5-500 and 48-5-501 and was based on Ga. L. 1992, p. 1551, § 2.

Ga. L. 1993, p. 1012, §§ 3 and 4, not codified by the General Assembly, provide: "Section 3. This Act is passed pursuant to Article VII, Section I, Paragraph III of the Constitution of the State of Georgia which provides that heavy-duty equipment motor vehicles owned by nonresidents and operated in this state may be classified as a separate class of property for ad valorem property tax purposes and different rates, methods, and assessment dates may be provided for such motor vehicles and which authorizes the General Assembly to provide by general law for the ad valorem taxation of motor vehicles.

"Section 4. This Act shall become effective upon its approval by the Governor [April 13, 1993] or upon its becoming law without such approval and shall apply to heavy-duty equipment brought into this state after such effective date during the 1993 taxable year."

48-5-500. Definitions.

As used in this part, the term:

  1. "Construction purposes" does not include mining activities or the transportation of materials used in or produced by forestry activities.
  2. "Heavy-duty equipment" means any motor vehicle used primarily off the open road for construction purposes, but shall include all road construction equipment whose gross weight exceeds 16,000 pounds, but shall not include inventory on hand for sale by duly licensed heavy-duty equipment dealers. (Code 1981, § 48-5-500 , enacted by Ga. L. 1993, p. 1012, § 2.)

Editor's notes. - Ga. L. 1993, p. 1012, § 3, not codified by the General Assembly, provides: "This Act is passed pursuant to Article VII, Section I, Paragraph III of the Constitution of the State of Georgia which provides that heavy-duty equipment motor vehicles owned by nonresidents and operated in this state may be classified as a separate class of property for ad valorem property tax purposes and different rates, methods, and assessment dates may be provided for such motor vehicles and which authorizes the General Assembly to provide by general law for the ad valorem taxation of motor vehicles."

48-5-501. Equipment subject to ad valorem taxation.

Except as exempted by law, heavy-duty equipment used for construction purposes which is owned by a nonresident and operated in this state after January 1 of any year and which was brought into Georgia from a state which subjects to taxation heavy-duty equipment owned by residents of this state and taken into such other state after the initial tax assessment date in such other state shall be subject to ad valorem taxation the same as if such heavy-duty equipment had been held or owned in this state on January 1, except that such ad valorem tax shall be prorated with respect to the number of months remaining in the year.

(Code 1981, § 48-5-501 , enacted by Ga. L. 1993, p. 1012, § 2.)

Editor's notes. - Ga. L. 1993, p. 1012, § 3, not codified by the General Assembly, provides: "This Act is passed pursuant to Article VII, Section I, Paragraph III of the Constitution of the State of Georgia which provides that heavy-duty equipment motor vehicles owned by nonresidents and operated in this state may be classified as a separate class of property for ad valorem property tax purposes and different rates, methods, and assessment dates may be provided for such motor vehicles and which authorizes the General Assembly to provide by general law for the ad valorem taxation of motor vehicles."

PART 5 F ARM EQUIPMENT

Editor's notes. - Ga. L. 2003, p. 190, § 2, not codified by the General Assembly, provides that this part shall be applicable to all taxable years beginning on or after January 1, 2004.

48-5-504. Self-propelled farm equipment as subclassification of motor vehicle for ad valorem taxation purposes.

  1. As used in this Code section, the term:
    1. "Dealer" means any person who is engaged in the business of selling farm equipment at retail.
    2. "Farm equipment" means any vehicle as defined in Code Section 40-1-1 which is self-propelled and which is designed and used primarily for agricultural, horticultural, forestry, or livestock raising operations.
  2. Self-propelled farm equipment which is owned by a dealer and held in inventory for sale or resale shall constitute a separate subclassification of motor vehicle within the motor vehicle classification of tangible property for ad valorem taxation purposes. The procedures prescribed in this chapter for returning self-propelled farm equipment for ad valorem taxation, determining the application rates for taxation, and collecting the ad valorem taxes imposed on self-propelled farm equipment do not apply to self-propelled farm equipment which is owned by a dealer and held in inventory for sale or resale. Such self-propelled farm equipment which is owned by a dealer and held in inventory for sale or resale shall not be returned for ad valorem taxation, shall not be taxed, and no taxes shall be collected on such self-propelled farm equipment until it is transferred and then otherwise, if at all, becomes subject to taxation as provided in this chapter. (Code 1981, § 48-5-504 , enacted by Ga. L. 2003, p. 190, § 1; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2015, p. 947, § 2/HB 374.)

The 2015 amendment, effective July 1, 2015, inserted "forestry," near the end of paragraph (a)(2).

PART 6 A IRCRAFT HELD IN DEALER'S INVENTORY

Editor's notes. - Ga. L. 2005, p. 1221, § 2/HB 211, not codified by the General Assembly, provides that this part shall be applicable to all taxable years beginning on or after January 1, 2006.

48-5-504.20. Exemption for aircraft owned by a dealer and held in inventory for sale or resale.

  1. As used in this Code section, the term:
    1. "Aircraft" means any vehicle which is self-propelled and which is capable of flight.
    2. "Dealer" means any person who is engaged in the business of selling aircraft at retail.
  2. Aircraft which is owned by a dealer and held in inventory for sale or resale shall constitute a separate classification of tangible property for ad valorem taxation purposes. The procedures prescribed in this chapter for returning aircraft for ad valorem taxation, determining the application rates for taxation, and collecting the ad valorem taxes imposed on aircraft do not apply to aircraft which is owned by a dealer and held in inventory for sale or resale. Such aircraft which is owned by a dealer and held in inventory for sale or resale shall not be returned for ad valorem taxation and shall not be taxed; and no taxes shall be collected on such aircraft until it is transferred and then otherwise, if at all, becomes subject to taxation as provided in this chapter. (Code 1981, § 48-5-504.20 , enacted by Ga. L. 2005, p. 1221, § 1/HB 211; Ga. L. 2006, p. 72, § 48/SB 465.)

PART 7 W ATERCRAFT AND ALL-TERRAIN VEHICLES HELD IN INVENTORY FOR RESALE

48-5-504.40. Watercraft and all-terrain vehicles held in inventory for resale exempt from taxation for limited period of time.

  1. As used in this Code section, the term:
    1. "All-terrain vehicle" means any motorized vehicle designed for off-road use which is equipped with four low-pressure tires, a seat designed to be straddled by the operator, and handlebars for steering.
    2. "Dealer" means any person who is engaged in the business of selling watercraft or all-terrain vehicles at retail.
    3. "Watercraft" means any vehicle which is self-propelled or which is capable of self-propelled water transportation, or both.
  2. Watercraft and all-terrain vehicles owned by a dealer and held in inventory for sale or resale shall constitute a separate classification of tangible property for ad valorem taxation purposes. The procedures prescribed in this chapter for returning watercraft or all-terrain vehicles for ad valorem taxation, determining the application rates for taxation, and collecting the ad valorem taxes imposed on watercraft or all-terrain vehicles do not apply to watercraft or all-terrain vehicles owned by a dealer and held in inventory for sale or resale. Such watercraft or all-terrain vehicles owned by a dealer and held in inventory for sale or resale shall not be returned for ad valorem taxation and shall not be taxed, and no taxes shall be collected on such watercraft or all-terrain vehicles until they are transferred and then otherwise, if at all, become subject to taxation as provided in this chapter. (Code 1981, § 48-5-504.40 , enacted by Ga. L. 2006, p. 674, § 1/HB 1249; Ga. L. 2008, p. 944, § 1/HB 1046; Ga. L. 2010, p. 575, § 1/HB 1105; Ga. L. 2015, p. 1351, § 1/HB 457; Ga. L. 2016, p. 617, § 1/HB 769.)

The 2015 amendment, effective May 12, 2015, in subsection (b), substituted "Watercraft owned" for "Watercraft which is owned" at the beginning, substituted "watercraft owned" for "watercraft which is owned" in the second and third sentences, substituted "January 1, 2016, and concluding December 31, 2019" for "January 1, 2009, and concluding December 31, 2013" near the beginning of the third sentence, and substituted "taxation and" for "taxation," in the middle of the third sentence. See Editor's notes for applicability.

The 2016 amendment, effective May 3, 2016, added paragraph (a)(1); redesignated former paragraphs (a)(1) and (a)(2) as present paragraphs (a)(2) and (a)(3), respectively; inserted "or all-terrain vehicles" in paragraph (a)(2) and throughout subsection (b); in subsection (b), inserted "and all-terrain vehicles" near the beginning of the first sentence, in the third sentence, substituted "Such watercraft" for "For the period commencing January 1, 2016, and concluding December 31, 2019, such watercraft", and substituted "watercraft or all-terrain vehicles until they are transferred and then otherwise, if at all, become" for "watercraft until it is transferred and then otherwise, if at all, becomes". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2015, p. 1351, § 2/HB 457, not codified by the General Assembly, provides, in part, that this Act shall apply to all tax years beginning on and after January 1, 2016, and ending on December 31, 2019.

Ga. L. 2016, p. 617, § 2/HB 769, not codified by the General Assembly, provides, in part, that this Act shall apply to all taxable years beginning on and after January 1, 2017.

ARTICLE 10A AD VALOREM TAXATION OF HEAVY-DUTY EQUIPMENT MOTOR VEHICLES

48-5-505. Definitions.

As used in this article, the term:

  1. "Dealer" means any person who is engaged in the business of selling heavy-duty equipment motor vehicles at retail and who holds a valid current dealer's resale tax exemption number.
  2. "Heavy-duty equipment motor vehicle" means a motor vehicle with all its attachments and parts which is self-propelled, weighs 5,000 pounds or more, and is primarily designed and used for construction, industrial, maritime, or mining uses, provided that such motor vehicles are not required to be registered and have a license plate. (Code 1981, § 48-5-505 , enacted by Ga. L. 1998, p. 1145, § 2.)

JUDICIAL DECISIONS

Cited in Wheeler County Bd. of Tax Assessors v. Gilder, 256 Ga. App. 478 , 568 S.E.2d 786 (2002).

48-5-506. Heavy-duty equipment motor vehicles; dealers.

  1. The provisions of this article shall apply only to heavy-duty equipment motor vehicles and dealers as defined in Code Section 48-5-505.
  2. The provisions of Part 2 of Article 10 of this chapter shall apply to all other heavy-duty equipment motor vehicles and dealers not provided for in subsection (a) of this Code section. (Code 1981, § 48-5-506 , enacted by Ga. L. 1998, p. 1145, § 2.)

48-5-506.1. Partial exemption from ad valorem taxation of heavy-duty equipment motor vehicles.

Repealed by Ga. L. 2009, p. 942, § 2/HB 318, effective December 31, 2010.

Editor's notes. - This Code section was based on Code 1981, § 48-5-506.1 , enacted by Ga. L. 2009, p. 942, § 2/HB 318.

48-5-507. Change of method of evaluating heavy-duty equipment motor vehicles for ad valorem taxes; purpose.

  1. Except as provided in subsections (b) and (c) of this Code section, every heavy-duty equipment motor vehicle owned in this state by a natural person or other entity is subject to ad valorem taxation by the various tax jurisdictions authorized to impose an ad valorem tax on property only if owned by such natural person or entity on the first day of January of any taxable year. Taxes shall be charged against the owner of the property, if known, and, if unknown, against the specific property itself. The owner shall return the heavy-duty equipment motor vehicle for taxation as provided in Article 1 of this chapter.
    1. Any and all purchases of heavy-duty equipment motor vehicles by dealers for the purpose of resale shall be exempt from ad valorem tax at the time of the purchase by the dealer.
    2. Any person or entity which purchases a heavy-duty equipment motor vehicle from a dealer shall, for the taxable year in which the heavy-duty equipment motor vehicle is purchased only, return such heavy-duty equipment motor vehicle for ad valorem taxation purposes, within 30 days of the end of the month in which such purchase is made, to the appropriate county and shall pay a tax for such taxable year. Upon receipt of such return, the tax commissioner shall within five days prepare and bill the purchaser for the ad valorem tax. Such tax shall be equal to 33 1/3 percent of the amount derived by multiplying the amount of ad valorem tax which would otherwise be due on the heavy-duty equipment motor vehicle and shall be based on the selling price to the end user times 40 percent, thus deriving the taxable assessment, times the tax rate imposed by the tax authority for the preceding tax year, by a fraction the numerator of which is the number of months remaining in the calendar year not counting the month of purchase and the denominator of which is 12. In no event shall the ad valorem tax due be less than $100.00 for the year of purchase. The taxes levied under this subsection shall be due 60 days after the billing therefor.
    3. Any ad valorem tax due shall be based on the selling price of the heavy-duty equipment motor vehicle purchased.
    4. In the event that any heavy-duty equipment motor vehicle is purchased other than for resale by a person or entity not domiciled in this state, at the time of the sale the dealer shall collect the ad valorem tax which would be applicable for the county where the heavy-duty equipment motor vehicle was held in inventory at the time of the sale. Each dealer, on or before the last day of the month following a sale to such person or entity, shall transmit returns and remit the ad valorem taxes collected to the tax commissioner of the county where the heavy-duty equipment motor vehicle was held in inventory at the time of the sale. Such returns shall show all sales and purchases taxable under this article during the preceding calendar month. The returns required by this subsection shall be made upon forms prescribed, prepared, and furnished by the state revenue commissioner. If any dealer liable for any tax, interest, or penalty imposed by this article sells out his or her business's heavy-duty equipment motor vehicles or quits the business, he or she shall make a final return and payment within 30 days after the date of selling or quitting the business. Any dealer who does not collect tax as required under this paragraph or who fails to properly remit taxes collected under this paragraph shall be liable for the tax and the tax commissioner shall collect such tax, penalty, and interest in the same manner that other taxes are collected.
  3. Except as otherwise provided in this subsection, heavy-duty equipment motor vehicles which are owned by a dealer are not included within the distinct subclassification of tangible property made by this article for all other heavy-duty equipment motor vehicles. The procedures prescribed in this article for returning heavy-duty equipment motor vehicles for ad valorem taxation, determining the applicable rates for taxation, and collecting the ad valorem taxes imposed on heavy-duty equipment motor vehicles do not apply to heavy-duty equipment motor vehicles which are owned by a dealer. Heavy-duty equipment motor vehicles which are owned by a dealer shall not be returned for ad valorem taxation, shall not be taxed, and no taxes shall be collected on such heavy-duty equipment motor vehicles until they become subject to taxation as provided in subsections (a) and (b) of this Code section. No heavy-duty equipment motor vehicle held by a dealer in inventory for resale shall be subject to ad valorem taxation unless such heavy-duty equipment motor vehicle was in the dealer's inventory on January 1 of the taxable year and continued to remain in such dealer's inventory on December 20 of such taxable year, in which case the dealer shall be required to return the heavy-duty equipment motor vehicle for ad valorem taxation on December 21 of that taxable year. The assessed value of each heavy-duty equipment motor vehicle owned by a dealer shall be 40 percent of the fair market value of the heavy-duty equipment motor vehicle on January 1 of that taxable year. The tax commissioner shall prepare and mail a tax bill within five days of receipt of such dealer's return. The taxes levied under this subsection shall be due 60 days after the billing therefor.
  4. Within 30 days of the last day of a month during which there is a sale of any heavy-duty equipment motor vehicle other than for resale, the dealer shall mail to the tax commissioner of the county where the purchaser is domiciled a statement notifying the tax commissioner of the sale which shall include information such as the date of the sale, the selling price, and the name and address of the purchaser. Such statement shall be upon forms prescribed, prepared, and furnished by the state revenue commissioner.
  5. The failure of any person or entity to return property as required by this Code section shall subject such person or entity to penalties as provided in Code Section 48-5-299 . The failure of any person or entity to pay the taxes as required by this Code section shall subject such person or entity to penalties and interest as provided by Code Section 48-2-44 . (Code 1981, § 48-5-507 , enacted by Ga. L. 1998, p. 1145, § 2; Ga. L. 1999, p. 667, § 2.)

48-5-507.1. Effect of rental status on dealer's inventory.

If the nature of the dealer's business is primarily the sale of heavy-duty equipment motor vehicles, then for purposes of this article, the rental of a heavy-duty equipment motor vehicle by the dealer to a customer shall not be deemed to have removed the vehicle from the dealer's inventory.

(Code 1981, § 48-5-507.1 , enacted by Ga. L. 2001, p. 959, § 1.)

48-5-508. Rules and regulations; affidavits of illegality contesting the assessment of ad valorem tax.

Any taxpayer who contests the value assessment of a heavy-duty equipment motor vehicle as defined in this article may appeal such assessed value as provided for in Code Section 48-5-311 except that such appeal shall be effected by mailing to or filing with the tax commissioner a notice of appeal within 60 days of the date the tax bill is mailed by the tax commissioner. Such appeal, to be properly filed, must be accompanied by a payment equal to 85 percent of the amount of such tax bill. The tax commissioner shall forward such notice of appeal to the board of tax assessors and the appeal shall be processed in accordance with Code Section 48-5-311.

(Code 1981, § 48-5-508 , enacted by Ga. L. 1998, p. 1145, § 2; Ga. L. 1999, p. 667, § 3.)

48-5-509. Compliance.

The commissioner shall be authorized to promulgate rules and regulations to facilitate and ensure compliance with the provisions of this article.

(Code 1981, § 48-5-509 , enacted by Ga. L. 1998, p. 1145, § 2.)

ARTICLE 11 AD VALOREM TAXATION OF PUBLIC UTILITIES

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1882, §§ 826 through 826d, former Civil Code 1895, T. 8, Ch. 1, Art. 4, and former Civil Code 1910, T. 8, Ch. 1, Art. 6 are included in the annotations for this article.

Article does not violate constitutional requirements as to uniformity of taxes. - Former Code 1882, §§ 826 through 826d (see now O.C.G.A. § 48-5-511 and former O.C.G.A. §§ 48-5-516 , 48-5-517 , and 48-5-523 ) were not unconstitutional as violating Ga. Const. 1877, Art. VII, Sec. II, Para. I (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III and Art. IX, Sec. IV, Para. I). Columbus S. Ry. v. Wright, 89 Ga. 574 , 15 S.E. 293 (1892), aff'd, 151 U.S. 470, 14 S. Ct. 396 , 38 L. Ed. 238 (1894) (decided under former Code 1882, §§ 826 through 826d).

Inapplicable to railroads doing business in single city. - Civil Code 1895, T. 8, Ch. 1, Art. 4 (see now O.C.G.A. §§ 48-5-511 , 48-5-512 , and 48-5-521 ) apply to those railroads running from one county to another, and not to those doing business in and near a single city. Savannah, T. & I. of H. Ry. v. Williams, 117 Ga. 414 , 43 S.E. 751 (1903) (decided under former Civil Code 1895, T. 8, Ch. 1, Art. 4).

Lessor may not be assessed for taxes paid by lessee under lease covenant. - When the lessee undertakes to pay all taxes which may be levied upon the lessor, the lessor railroad company cannot again be assessed for taxes which have been paid by the lessee under its covenant. Harrison v. Georgia, F. & A.R.R., 174 Ga. 549 , 163 S.E. 200 (1932) (decided under former Civil Code 1910, T. 8, Ch. 1, Art. 6).

Assessment of lease contract when lessor has no interest for 99 years is void. - Assessment of a lease contract as property is void when the lessor has no estate whatever in the property leased for a period of 99 years. This is not an effort to tax the actual rental received by the railroad company, but purports to be a tax on the capitalized value of the contract, based on the amount of rent to be paid by the railroad company. Harrison v. Georgia, F. & A.R.R., 174 Ga. 549 , 163 S.E. 200 (1932) (decided under former Civil Code 1910, T. 8, Ch. 1, Art. 6).

OPINIONS OF THE ATTORNEY GENERAL

Return of motor vehicles owned by utilities. - Motor vehicles owned by railroad companies and other utilities must be returned in accordance with the provisions of former Code 1933, Ch. 92-15 (see now O.C.G.A. Art. 10, Ch. 5, T. 48), not under the provisions of former Code 1933, Ch. 92-27 (see now O.C.G.A. Art. 11, Ch. 5, T. 48). 1967 Op. Att'y Gen. No. 67-99.

RESEARCH REFERENCES

ALR. - What property of electric, gas, water, telephone, or street railway company constitutes real property for taxation purposes, 57 A.L.R. 869 .

Place of taxation of dam, flowage rights, or water power, 64 A.L.R. 143 .

Scope and content of term "right of way" as employed in statute relating to taxation, or exemption from taxation, of railroads or railroad property, 108 A.L.R. 242 .

Reasonableness of classifications, based on character of use by consumer, in statutes imposing tax or license fee on public utilities or persons furnishing same, 109 A.L.R. 1516 .

Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-510. Definitions.

As used in this article, the term:

  1. "Chief executive officer" means the owner, president, general manager, or agent having control of a public utility's offices or property in this state.
  2. "Pertinent business factors" means data that reflect the use of the public utility's property including, but not limited to, data relating to gross revenue, net income, tons of freight carried, revenue ton miles, passenger miles, car miles, and comparable data.
  3. "Pertinent mileage factors" means factual information as to the linear miles of the public utility's track, wire, lines, pipes, routes, similar operational routes, and miles traveled by the public utility's rolling stock or other property.

    (Ga. L. 1927, p. 97, § 9; Code 1933, § 92-5902; Ga. L. 1935, p. 11, § 9; Ga. L. 1972, p. 1119, § 1; Ga. L. 1976, p. 190, § 1; Code 1933, § 91A-2201, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-511. Returns of public utilities to commissioner; itemization and fair market value of property; other information; apportionment to more than one tax jurisdiction.

  1. The chief executive officer of each public utility shall be required to make an annual tax return of all property located in this state to the commissioner. The return shall be made to the commissioner on or before March 1 in each year and shall be current as of January 1 preceding.
  2. The returns of each public utility shall be in writing and sworn to under oath by the chief executive officer to be a just, true, and full return of the fair market value of the property of the public utility without any deduction for indebtedness. Each class or species of property shall be separately named and valued as far as practicable and shall be taxed like all other property under the laws of this state. The returns shall also include the capital stock, net annual profits, gross receipts, business, or income (gross, annual, net, or any other kind) for which the public utility is subject to taxation by the laws of this state. Each parcel of real estate included in the return shall be identified by its street address. If the commissioner is unable to locate the property by its street address after exercising due diligence in attempting to locate the property, then the commissioner may request more information from the taxpayer to help identify the exact location of the property. Such additional information may include a map or parcel identification information.
    1. Each chief executive officer shall apportion, under rules and regulations promulgated by the commissioner, the fair market value of his public utility's properties to this state, if the public utility owns property in states other than this state, and between the several tax jurisdictions in this state.
    2. In promulgating the regulations specifying the method of apportionment, the commissioner shall consider:
      1. The location of the various classes of property;
      2. The gross or net investment in the property;
      3. Any other factor reflecting the public utility's investment in property;
      4. Pertinent business factors reflecting the utility of the property;
      5. Pertinent mileage factors; and
      6. Any other factors which in the commissioner's judgment are reasonably calculated to apportion fairly and equitably the property between the various tax jurisdictions.
    3. Any reasonable value directly attributable to property physically located in one jurisdiction in this state shall not be apportioned to any other jurisdiction in this state.

      (Orig. Code 1863, §§ 755, 761; Code 1868, §§ 822, 828; Code 1873, §§ 826, 832; Ga. L. 1874, p. 107, § 2; Ga. L. 1877, p. 126, § 1; Code 1882, §§ 826, 826a, 826d, 832; Ga. L. 1889, p. 29, § 1; Ga. L. 1889, p. 36, § 1; Ga. L. 1890-91, p. 152, §§ 2, 3; Civil Code 1895, §§ 726, 727, 780, 784, 804, 805, 812; Ga. L. 1905, p. 68, § 1; Civil Code 1910, §§ 873, 874, 1032, 1036, 1042, 1043, 1050; Code 1933, §§ 92-2602, 92-2701, 92-2802, 92-2803, 92-5901, 92-5902, 92-5903, 92-5904; Ga. L. 1935, p. 11, § 9; Ga. L. 1972, p. 1119, § 1; Ga. L. 1976, p. 190, § 1; Code 1933, §§ 91A-2202, 91A-2203, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2009, p. 216, § 2D/SB 240.)

Editor's notes. - Code Sections 92-2701 and 92-5901, upon which this Code section is based, were based in part on Ga. Const. 1877, Art. VII, Sec. II, Para. VI, for which there is no corresponding section in either the 1945, 1976, or 1983 Georgia Constitution.

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Power to tax is limited by federal power over interstate commerce. - Power of a city to tax railroads is limited by the exclusive power of the United States over interstate commerce. City Council v. Augusta & A. Ry., 130 Ga. 815 , 61 S.E. 992 , 124 Am. St. R. 197 (1908).

Assessment of railroad property at higher rate unconstitutional. - An assessment of a railroad's property at a given level under this statute, while properties of other taxpayers in those counties are being assessed on a basis of value which would produce a much lower assessment of the railroad's property, violates Ga. Const. 1945, Art. VII, Sec. I, Para. III (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III and Art. IX, Sec. IV, Para. I), Ga. Const. 1945, Art. I, Sec. I, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Para. II), and U.S. Const., amend. 14. Undercofler v. Seaboard Air Line R.R., 222 Ga. 822 , 152 S.E.2d 878 (1966).

Provisions as to taxation of railroads to be construed together and are exhaustive. - Provisions relating to the method of assessing and collecting taxes upon the property of railroad companies for state, county, and municipal purposes are to be construed together, and when so construed the provisions are exhaustive as to the method of assessing and collecting all taxes required to be paid by railroad companies on property owned by railroad companies. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907); Greene County v. Wright, 126 Ga. 504 , 54 S.E. 951 (1906).

Laches as bar to assessment or correction of return. - When a taxpayer filed the taxpayer's assessment and return and the comptroller general (now commissioner) did not make any objection to the return or any part thereof within the time prescribed by this statute and apparently had never suggested any correction of the assessment and return, the trustees of the school district in which the taxpayer owed a portion of the taxpayer's taxes were powerless to obtain the relief the trustees sought, not by reason of any deficiency of a legal remedy, but on account of the trustees' laches in not moving sooner in the matter. Garrison v. Toccoa Elec. Power Co., 177 Ga. 850 , 171 S.E. 564 (1933).

Effect on charter exemption. - Statute does not abolish the provision, or impair the contract obligation, contained in the charter of a railroad company granted prior to its enactment, whereby the railroad is totally or partially exempted from taxation. State v. Georgia R.R. & Banking, 54 Ga. 423 (1875); Georgia R.R. & Banking Co. v. Wright, 132 F. 912 (C.C.N.D. Ga. 1904), aff'd, 216 U.S. 420, 30 S. Ct. 242 , 54 L. Ed. 544 (1910); Wright v. Georgia R.R. & Banking Co., 216 U.S. 420, 30 S. Ct. 242 , 54 L. Ed. 544 (1910).

Nature of action brought to prevent assessment. - Action by railroad company for declaratory judgment and injunction against collection of ad valorem taxes is in substance and effect an action against the state and the action is not maintainable, unless the state has consented to be sued. Musgrove v. Georgia R.R. & Banking Co., 204 Ga. 139 , 49 S.E.2d 26 (1948), appeal dismissed, 335 U.S. 900, 69 S. Ct. 407 , 93 L. Ed. 435 (1949).

It is a well recognized general rule that an action to restrain a state official from executing an unconstitutional statute or a state constitutional provision which conflicts with the United States Constitution in violation of the plaintiff's rights and to the plaintiff's irreparable damage is not an action against the state, for in such a case the officer is stripped of the officer's official or representative character and is subject in the officer's person to the consequences of the officer's individual conduct. However, when the plaintiff claims certain provisions of its charter to constitute a contract with the state, the state has a distinct and direct interest in the subject matter of the litigation, as distinguished from a mere governmental interest in the enforcement of its laws. Therefore, this rule has no application when the company seeks to prevent assessment of taxes allegedly in violation of the company's charter. Musgrove v. Georgia R.R. & Banking Co., 204 Ga. 139 , 49 S.E.2d 26 (1948), appeal dismissed, 335 U.S. 900, 69 S. Ct. 407 , 93 L. Ed. 435 (1949).

Power to reject return and reassess property. - Comptroller general (now commissioner) may reject the return made by a railroad company of the value of the company's entire property for state taxation, and correct the return or reassess the property. City of Atlanta v. Wright, 119 Ga. 207 , 45 S.E. 994 (1903).

Power of State Board of Equalization on appeal. - On appeal to arbitration (now State Board of Equalization) from an assessment of value placed on unreturned property by the comptroller general (now commissioner), the arbitrators (now State Board of Equalization) cannot include property in their award which was not embraced in the comptroller's (now commissioner's) assessment. Georgia Ry. & Power v. Wright, 146 Ga. 29 , 90 S.E. 465 (1916).

Board exceeded authority. - In an action filed by a utility seeking equitable relief from the rejection of the state commissioner's fair market valuation by the county board of tax assessors, the trial court erred in granting summary judgment to a county board of tax assessors; the board exceeded the board's authority when, in the course of making a final assessment of a utility's property, it not only substituted the board's own assessment ratio, but also the board's own fair market value for those calculated by the state commissioner as a final assessment could not include a reappraisal of the fair market value of a taxpayer required to make a return to the state. Ga. Power Co. v. Monroe County, 284 Ga. App. 707 , 644 S.E.2d 882 (2007), aff'd, 283 Ga. 12 , 655 S.E.2d 817 (2008).

Court of Appeals of Georgia properly held that, although the county board of tax assessors could alter the assessment ratio proposed by the Georgia Revenue Commissioner on land owned by a utility in the course of making a final assessment of a utility's property, the board could not alter the apportioned fair market value for the property used by the commissioner in the commissioner's proposed assessment. Monroe County v. Ga. Power Co., 283 Ga. 12 , 655 S.E.2d 817 (2008).

Mandamus to require commissioner to accept returns. - In a gas company's suit against the state revenue commissioner for mandamus compelling the commissioner to accept its property tax returns under O.C.G.A. §§ 48-1-2(21) and 48-5-511(a) , remand was proper to determine if the company had an acceptable alternative remedy in its pending county tax appeals under O.C.G.A. § 48-5-311 , if the commissioner could be made a party to those appeals by joinder or some other procedure. Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657 , 755 S.E.2d 683 (2014).

Mandamus improperly granted to a company. - Judgment of the trial court granting a company mandamus relief was reversed because the judgment did not show that the State Revenue Commissioner, in refusing to accept the company's ad valorem tax returns as a gas company, violated a clear legal duty, failed to act, or engaged in arbitrary, capricious, and unreasonable actions because the company was not authorized to engage in the business of a gas company under O.C.G.A. § 46-1-1(5) nor be a natural-gas company as defined in 15 U.S.C. § 717a(6). Riley v. Southern LNG, Inc., 300 Ga. 689 , 797 S.E.2d 878 (2017).

Cited in Telecom*USA, Inc. v. Collins, 260 Ga. 362 , 393 S.E.2d 235 (1990).

Property to be Returned

Property included in return. - Return clearly embraces all the property of these companies, both real and personal. It embraces tangible personal property and intangible personal property. It embraces realty and personalty used in the conduct of their usual and ordinary business, and also realty and personalty not so used. Greene County v. Wright, 126 Ga. 504 , 54 S.E. 951 (1906); Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

All property of every nature whatsoever is to be embraced in the return to the commissioner. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Property not used for railroad purposes must also be returned. - Property used by the company for railroad purposes should be returned to the comptroller general (now commissioner), as well as that which is not so used, and the entire state taxes upon every character of property owned by the company should be levied by the comptroller general (now commissioner). Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Return should classify property as to purpose. - Return should specify the several sorts of property so that the kind appurtenant and necessary to a company for railroad purposes should bear only the rate of taxation fixed by the charter, and other property, not so appurtenant and necessary, should be taxed as that of all other persons; the entire state tax being levied by the comptroller general (now commissioner). Savannah, F. & W. Ry. v. Morton, 71 Ga. 24 (1883).

Real property or personal property within a county or municipality, not used for railroad purposes, is still subject to the same tax as like property owned by individuals. The tax goes to the county or municipality. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

When corporate purpose clause of taxpayer's charter authorizes taxpayer to engage in a gas business, taxpayer is therefore a "gas company" within the meaning of former Code 1933, § 92-5902 (see now paragraph (21) of O.C.G.A. § 48-1-2 ). Since the taxpayer is a gas company, the gas company is required by former Code 1933, § 92-5902 to make the company's ad valorem tax return to the commissioner although not doing a gas business. Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 , 152 S.E.2d 768 (1966).

Sleeping cars with no fixed situs in the state not taxable. - Commissioner has no authority to assess sleeping cars for county taxation if the cars have no fixed situs in this state, but are temporarily out of train in a county, the assessment being based on the average number and average value of the cars out of the train. Forrester v. Pullman Co., 192 Ga. 221 , 15 S.E.2d 185 , answer conformed to, 65 Ga. App. 112 , 15 S.E.2d 461 (1941).

OPINIONS OF THE ATTORNEY GENERAL

Finality of commissioner's valuation of public utility's property. - Municipalities of the state are bound to accept the valuation as finally fixed by the commissioner on the property of public utilities operating within the municipalities' limits. 1963-65 Op. Att'y Gen. p. 220.

Local political subdivision has no authority to assess railroad property for taxation. 1954-56 Op. Att'y Gen. p. 826.

Returns of railroads. - Railroad must return for taxation all of the railroad's property, whether devoted to railroad purposes or not, to the commissioner, who makes the assessment. 1954-56 Op. Att'y Gen. p. 826.

Taxation of power company with property but no customers in this state. - When a power company's property is located in this state and is a part of its reservoir used for producing electricity distributed to its customers, none of whom are Georgia residents, the company is a power company or a hydroelectric power company as is required by this statute to file the company's annual property tax return with the commissioner. 1968 Op. Att'y Gen. No. 68-155.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 353, 354.

C.J.S. - 84 C.J.S., Taxation, §§ 200, 474 et seq.

ALR. - What property is within provision in relation to local taxation of certain railroad property under statute or constitution providing for assessment or taxation of railroad property by state commission or board, 80 A.L.R. 252 .

State tax in connection with transportation or distribution of oil or gas through pipe lines as affected by commerce clause, 154 A.L.R. 623 .

48-5-512. Issuance of execution for failure to file return.

  1. If any person required to make a return to the commissioner fails to return the taxable property or pay annually to the state, any county, or any municipality the taxes for which it may be liable by reason of the return, the county tax collector or tax commissioner or the municipal governing authority or its designee, as appropriate, shall issue an execution for the amount of taxes due, according to the law, together with the costs and penalties.
  2. The executions issued by the county tax collector or tax commissioner or the municipal governing authority or its designee, as appropriate, against any corporation or other company shall be directed to all sheriffs and other lawful officers of this state with directions to levy the execution on the property of the corporation or company and with the authority to issue and serve garnishments upon the debtors of the corporation or company.

    (Orig. Code 1863, §§ 800, 806; Code 1868, §§ 879, 885; Code 1873, §§ 876, 882; Code 1882, §§ 876, 882; Ga. L. 1889, p. 29, § 6; Civil Code 1895, §§ 788, 874, 880; Civil Code 1910, §§ 1040, 1132, 1137; Code 1933, §§ 92-2705, 92-7302, 92-7303; Code 1933, §§ 91A-302, 91A-303, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1990, p. 1337, § 2.)

JUDICIAL DECISIONS

Applicability. - Statute is applicable whether there is an entire failure to make a return, or only an incomplete and partial return. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Effect of acceptance of incomplete return. - Acceptance by the comptroller general (now commissioner) of a return from which taxable property has been omitted does not bar the state from subsequently proceeding against the delinquent for the tax due on the omitted property. Georgia R.R. & Banking v. Wright, 124 Ga. 596 , 53 S.E. 251 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Commissioner may issue execution upon default in payment, even if no return made. - Statute which imposes a specific tax, and requires payment to the comptroller general (now commissioner), virtually designates that officer to receive the return as well as the money; and in case of a default as to payment, whether a return has been made or not, the officer may issue an execution. Smith v. Goldsmith, 63 Ga. 736 (1879).

Requirement for new return upon reduction of tax liability on appeal. - When a railroad company has contested a tax, and is relieved of a part thereof by the United States Supreme Court, a new return should be made, and upon failure to do so the comptroller general (now commissioner) is authorized to make the assessment from the best information the comptroller general can procure. State v. Southwestern R.R., 70 Ga. 11 (1883).

Action at law for collection will not lie. - Statute provides an adequate remedy for the collection of taxes imposed upon railroad companies for county purposes, and a common law action for the recovery of the tax as a debt will not lie. State v. Western & A.R.R., 136 Ga. 619 , 71 S.E. 1055 (1911).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1284 et seq.

48-5-513. Penalty for failure to file return and pay tax; revocation of charter.

  1. If a public utility fails to make the return required by Code Section 48-5-511 by the date specified in that Code section, or as extended by the commissioner pursuant to Code Section 48-2-36, the utility shall pay a penalty of 10 percent of the amount of the taxes for which it may be liable by reason of the return. The penalty imposed by this subsection shall be payable to the state, any county, or any municipality to which the taxes upon which the penalty is based are payable.
  2. In addition to the penalty provided by subsection (a) of this Code section, the penalty for failure of a corporation to make a return by the date the return is due or to pay a tax as provided in subsection (a) of Code Section 48-5-512, in the case of a domestic corporation, shall be the forfeiture of its charter and, in the case of a foreign corporation, shall be the revocation of its permit to do business in this state.

    (Orig. Code 1863, § 801; Code 1868, § 880; Code 1873, § 877; Code 1882, § 877; Civil Code 1895, § 875; Civil Code 1910, § 1133; Code 1933, § 92-7304; Code 1933, § 91A-304, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 977, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 19 Am. Jur. 2d, Corporations, §§ 2387, 2388, 2402, 2403.

C.J.S. - 85 C.J.S., Taxation, § 1161.

ALR. - Power of corporation after expiration or forfeiture of its charter, 47 A.L.R. 1288 ; 97 A.L.R. 477 .

48-5-514. Subjection of returns of public utilities for county, municipal, and school taxation to laws governing returns of such property for state taxation.

Reserved. Repealed by Ga. L. 1988, p. 1568, § 6, effective April 12, 1988.

Editor's notes. - This Code section was based on Ga. L. 1908, p. 24, § 1; Civil Code 1910, § 1054; Code 1933, § 92-6005; Ga. L. 1972, p. 1123, § 4; Code 1933, § 91A-2205, enacted by Ga. L. 1978, p. 309, § 2.

48-5-515. Availability of returns and tax documents for public inspection.

Every return made to the commissioner by any person required to make returns of the value of its properties or franchises to the commissioner under this article or Article 9 or Article 12 of this chapter and every document used to arrive at evaluation within the custody of the commissioner or the department, with the exception of income tax returns, shall be made available for inspection upon the request of any interested person at a reasonable time and accessible place to be reasonably determined by the commissioner. It is the intent of this Code section to make the returns and documents easily and readily available for public inspection, and the discretion of the commissioner shall be exercised accordingly.

(Code 1933, § 92-5910, enacted by Ga. L. 1978, p. 1603, § 1; Code 1933, § 91A-2203.1, enacted by Ga. L. 1979, p. 5, § 51; Ga. L. 1990, p. 1337, § 3.)

48-5-516. Appeals in cases of assessment or of correction of returns to State Board of Equalization; notice; time; procedure.

Reserved. Repealed by Ga. L. 1988, p. 1568, § 7, effective April 12, 1988.

Editor's notes. - This Code section was based on Ga. L. 1877, p. 126, § 1; Ga. L. 1878-79, p. 166, § 1; Code 1882, §§ 826d, 833a; Civil Code 1895, §§ 807, 812; Ga. L. 1905, p. 68, § 1; Civil Code 1910, §§ 1045, 1050; Code 1933, § 92-6002; Ga. L. 1972, p. 1123, § 2; Code 1933, § 91A-2204, enacted by Ga. L. 1978, p. 309, § 2.

48-5-517. Payment of taxes assessed to commissioner by chief executive officers; time of payment.

Reserved. Repealed by Ga. L. 1988, p. 1568, § 8, effective April 12, 1988.

Editor's notes. - This Code section was based on Orig. Code 1863, § 755; Code 1868, § 822; Code 1873, § 826; Ga. L. 1874, p. 107, § 2; Code 1882, §§ 826, 826b; Civil Code 1895, §§ 781, 805; Civil Code 1910, §§ 1033, 1043; Code 1933, §§ 92-2603, 92-5908; Code 1933, §§ 91A-2206, 91A-2207, enacted by Ga. L. 1978, p. 309, § 2.

48-5-518. Taxation of nonresident sleeping car companies doing business in state; method of assessment; returns to commissioner by chief executive officer.

Reserved. Repealed by Ga. L. 1981, p. 1857, § 22, effective April 22, 1981.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, this Code section was reserved.

Editor's notes. - This Code section was based on Code 1933, § 91A-2208.

48-5-519. Taxation of railroad equipment companies doing business in state; exemption of railroad company operating railroad; collecting and remitting taxes; execution for failure to make return.

  1. Any person owning, leasing, furnishing, or operating any kind of railroad cars on any railroad in this state shall be deemed a railroad equipment company. Every railroad equipment company shall be required to make returns to the commissioner and shall be taxed as follows:
    1. Ascertain the total number and the value of all cars of the railroad equipment company, the total car-wheel mileage made by the cars in the United States, and the total car-wheel mileage in this state;
    2. Tax the cars at the regular rate imposed on property in this state on a valuation based on the proportion to the entire value of the cars that the car-wheel mileage made in this state bears to the entire car-wheel mileage of the cars in the United States; and
    3. Ascertain the total track mileage in each local tax jurisdiction in this state and tax the cars at the regular rate imposed on property in each local tax jurisdiction on a valuation based on the proportion to the entire value of the cars as determined in paragraph (2) of this subsection that the track mileage in the local tax jurisdiction bears to the entire track mileage in this state.
  2. The returns shall be made to the commissioner by the chief executive officer in charge of the cars in this state. The final assessment of the property of railroad equipment companies shall be fixed in the same manner as the proposed assessments of property of public utilities under this article and Code Section 48-2-18, except that with respect to railroad equipment companies, such assessment shall be final rather than proposed. By following the procedure set forth in subsection (c) of Code Section 48-2-18 for appeals of proposed assessments of public utility property, any railroad equipment company may bring in the Superior Court of Fulton County or in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 a de novo action of the final assessment so fixed.
  3. For the purposes of this Code section, a railroad company operating a railroad is not a railroad equipment company.
    1. The commissioner shall collect all taxes levied by this Code section and shall remit all taxes collected to the authorities entitled thereto, less 1 percent of the amount collected, which shall be paid into the general fund of the state treasury in order to defray the costs of collection.
    2. The commissioner may submit tax bills to railroad equipment companies in one or more stages each year; and the taxes reflected in each bill shall be due 60 days after the commissioner mails the bill to the company and, if not so paid, shall bear interest at the rate specified in Code Section 48-2-40 and become subject to penalty in accordance with Code Section 48-2-44. The commissioner shall remit the taxes collected at least once each year. In arriving at the amount to be billed in each instance, the commissioner shall utilize the millage rate established by each taxing jurisdiction for the year in question unless no such rate has been finally established at the time the bill in question is prepared, in which case the commissioner may decline to include such jurisdiction in the billing or may utilize a millage rate established by court order.
    3. All taxes collected under a millage rate which is later changed shall be collected subject to adjustment upward or downward, as the case may be. Such adjustments may be billed or refunded separately or may be made by offset the following year, in the discretion of the commissioner. If any refunds are made separately, they shall be made by the local taxing jurisdiction.
    4. This subsection shall apply to all tax years beginning on or after January 1, 1981.
    1. If any chief executive officer of a railroad equipment company required to make a return to the commissioner by this Code section fails to return the taxable property or pay to the state all taxes for which such company may be liable by reason of the return, the commissioner shall issue an execution for the amount of taxes due, according to the law, together with costs and penalties.
    2. The executions issued by the commissioner against any such company shall be directed to all sheriffs, constables, and other lawful officers of this state with directions to levy the execution on the property of the corporation or company and with the authority to issue and serve garnishments upon the debtors of the corporation or company.

      (Ga. L. 1927, p. 99, § 9; Code 1933, § 92-2606; Ga. L. 1935, p. 11, § 9; Code 1933, § 91A-2209, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1735, § 1; Ga. L. 1980, p. 1737, § 1; Ga. L. 1981, p. 1857, §§ 20, 21; Ga. L. 1988, p. 1568, § 9; Ga. L. 1990, p. 1337, § 4; Ga. L. 2012, p. 318, § 7/HB 100.)

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 459 et seq., 648 et seq.

ALR. - Tax on corporations as affected by fact that corporation is not actually engaged in or carrying on business for which it was incorporated, 124 A.L.R. 1109 .

Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-520. Taxation of rolling stock and other personal property of railroad companies doing business in state; method of assessment.

A railroad company operating a railroad lying wholly within this state or lying partly in this state and partly in another state shall be taxed as to the rolling stock of the company and other personal property appurtenant to the rolling stock, which is not permanently located in any of the states through which the railroad passes, on as much of the whole value of the rolling stock and personal property as the length of the railroad in this state bears to the whole length of the railroad, without regard to the location of the head office of the railroad company.

(Ga. L. 1882-83, p. 42, § 1; Civil Code 1895, § 779; Civil Code 1910, § 1031; Code 1933, § 92-2601; Code 1933, § 91A-2210, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1737, § 2.)

JUDICIAL DECISIONS

What property of interstate railroad taxable. - When taxpayer is an interstate railroad, the comptroller general (now commissioner) is without authority to levy an assessment against the railroad, if the railroad is liable at all, upon the value of the entire property of the railroad both within and outside the state. Harrison v. Georgia, F. & A.R.R., 174 Ga. 549 , 163 S.E. 200 (1932).

Valuation of railroad. - In an action in which a railroad filed suit under the Railroad Revitalization and Regulatory Reform Act of 1976 against the Georgia Board of Equalization, and the board's individual members, including the Georgia Commissioner of Revenue, challenging the assessment of the fair market value, under O.C.G.A. § 48-5-6 , of the railroad's taxable railroad operating property in Georgia, and the board's acceptance of the assessment under O.C.G.A. § 48-2-18(c) , because in Georgia, O.C.G.A. § 48-5-3 defined taxable property as all real property, including but not limited to leaseholds, interests less than fee, and all personal property, and O.C.G.A. § 48-5-520 also provided that a railroad's rolling stock and other personal property appurtenant to the rolling stock was to be taxed on as much as the whole value of the rolling stock and personal property as the length of the railroad in Georgia bore to the whole length of the railroad, without regard to the location of the head office of the railroad, there was no commercial and industrial personal property tax exemption in Georgia. CSX Transp., Inc. v. State Bd. of Equalization, 448 F. Supp. 2d 1330 (N.D. Ga. 2005), aff'd, 472 F.3d 1281 (11th Cir. 2006); rev'd in part, 552 U.S. 9, 128 S. Ct. 467 , 169 L. Ed. 2 d 418 (2007).

Sleeping cars with no fixed situs in the state not taxable. - Commissioner has no authority to assess sleeping cars for county taxation when the cars have no fixed situs in this state, but are temporarily out of train in a county, the assessment being based on the average number and average value of the cars out of the train. Forrester v. Pullman Co., 192 Ga. 221 , 15 S.E.2d 185 , answer conformed to, 65 Ga. App. 112 , 15 S.E.2d 461 (1941).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 385.

C.J.S. - 84 C.J.S., Taxation, § 364, 365.

ALR. - Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-521. Method of assessment of property of railroad companies for purposes of county and municipal taxation.

  1. The commissioner shall propose, and the appropriate local tax officials shall fix, an assessment on each railroad company's property in each of the counties and municipalities of the state in the following manner:
    1. The tax shall be assessed upon the property located in each county and municipality on the basis of the value given in the returns; and
    2. The amount of tax to be assessed upon the rolling stock and other personal property is as follows: as the value of the property located in the particular county or municipality is to the value of the whole property, real and personal, of the company, such shall be the amount of rolling stock and other personal property to be distributed for taxing purposes to the county or municipality.
  2. The value of the property located in each county or municipality and the share of the rolling stock and personal property thus ascertained and apportioned to each of such counties or municipalities shall be the amount to be taxed to the extent of the assessment in each county and municipality.

    (Ga. L. 1889, p. 29, § 3; Civil Code 1895, § 786; Civil Code 1910, § 1038; Code 1933, § 92-2703; Code 1933, § 91A-2211, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 15; Ga. L. 1988, p. 1568, § 10.)

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

JUDICIAL DECISIONS

Constitutionality. - Provision for distributing for taxation purposes the rolling stock and other unlocated personal property of a railway company, to and for the benefit of the counties traversed by the railroad, does not violate the provision in U.S. Const., amend. 14, that no state deny to any person within the state's jurisdiction the equal protection of the state's laws. Columbus S. Ry. v. Wright, 151 U.S. 470, 14 S. Ct. 396 , 38 L. Ed. 238 (1894).

Section contemplates distinction between fixed and movable personalty. - Statute seems to contemplate that a railroad has two kinds of personalty; "located," having a fixed and actual situs or abiding place for the time being; and "unlocated," being movable like rolling stock and frequently shifting its place. The scheme of the statute is to tax the located property of the railroad, real and personal, in each county where it is situated, at the county rate of taxation of force in that county, and to apportion the transitory, frequently moving personalty, in fair proportion among the several counties. Having no fixed situs, it is absolutely right to apportion it, and that is really all that could be appropriately done with it for taxing purposes. Columbus S. Ry. v. Wright, 89 Ga. 574 , 15 S.E. 293 (1892), aff'd, 151 U.S. 470, 14 S. Ct. 396 , 38 L. Ed. 238 (1894); Greene County v. Wright, 126 Ga. 504 , 54 S.E. 951 (1906).

Effect of movability and use of property. - Located property is to be taxed in the county or municipality where located, without reference to whether the property is used for railroad purposes or whether the property be real property or personal property, and the unlocated property is to be distributed to the different counties or municipalities. Georgia R.R. & Banking Co. v. Wright, 125 Ga. 589 , 54 S.E. 52 (1906), rev'd on other grounds, 207 U.S. 127, 28 S. Ct. 47 , 52 L. Ed. 134 (1907).

Sleeping cars with no fixed situs in state not taxable. - Commissioner has no authority to assess sleeping cars for county taxation, when the cars have no fixed situs in this state but are temporarily out of train in a county, the assessment being based on average number and average value of the cars out of the train. Forrester v. Pullman Co., 192 Ga. 221 , 15 S.E.2d 185 , answer conformed to, 65 Ga. App. 112 , 15 S.E.2d 461 (1941).

Stock in a nonresident railroad corporation owned by a domestic railroad company is taxable for county and municipal purposes in that county and city wherein the principal office of such corporation is fixed by the corporation's charter or by-law. Such property is "located" property in the meaning of this statute. Greene County v. Wright, 126 Ga. 504 , 54 S.E. 951 (1906).

Effect of reassessment by the commissioner. - Comptroller general (now commissioner) must make the comptroller's assessment upon the basis of the value given by the returns, and if the valuation of the property given in a return is rejected and, by means of the legal machinery provided, such property is assessed at a higher valuation than that shown by the return, the effect will be to correspondingly increase the proportionate valuation of the property in the different counties and municipalities through which the railroad runs. But the proportion which the value of the property situated in those counties and municipalities bears to the value of the entire property is determined by the return, and cannot be altered by the comptroller general (now commissioner). City of Atlanta v. Wright, 119 Ga. 207 , 45 S.E. 994 (1903).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 381, 382.

C.J.S. - 84 C.J.S., Taxation, §§ 362 et seq., 413, 467, 534.

ALR. - What property of electric, gas, water, telephone, or street railway company constitutes real property for taxation purposes, 57 A.L.R. 869 .

Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-522. Notice and demand to file return.

Reserved. Repealed by Ga. L. 1987, p. 977, § 2, effective January 1, 1988.

Editor's notes. - This Code section was based on Ga. L. 1918, p. 233, § 2; Code 1933, § 92-6102; Code 1933, § 91A-2212, enacted by Ga. L. 1978, p. 309, § 2.

48-5-523. Affidavit of illegality by public utilities; procedure; requirement that tax be paid; hearing in superior court; effect of failure to pay tax; right of amendment; bond and security.

Reserved. Repealed by Ga. L. 1988, p. 1568, § 11, effective April 12, 1988.

Editor's notes. - This Code section was based on Ga. L. 1874, p. 107, § 3; Code 1882, § 826c; Civil Code 1895, § 782; Civil Code 1910, § 1034; Ga. L. 1931, p. 24, § 18; Code 1933, § 92-2604; Code 1933, § 91A-2209.1, enacted by Ga. L. 1978, p. 309, § 2.

48-5-524. Annual report by commissioner to each county board of tax assessors of all public utility property within county; contents; availability for public inspection.

  1. At least once each year, the commissioner shall make a report to the board of tax assessors in each county as to the return of property located within the county for purposes of ad valorem taxation by each person required to make returns of the value of its properties and franchises to the commissioner under this article and Article 9 of this chapter. Each report shall be itemized by public utility and by parcel of real property or type of personal property returned and shall specify clearly the value returned by the utility for each parcel of real property or type of personal property together with any change as to value made by the commissioner, by the State Board of Equalization or, where appropriate, by both.
  2. A copy of each report made under this Code section shall be made reasonably available for public inspection at the office of the county board of tax assessors and at the office of the commissioner or at such other reasonably accessible place within the headquarters building of the department as may be designated by the commissioner.

    (Code 1933, § 92-6010, enacted by Ga. L. 1978, p. 1604, § 1; Code 1933, § 91A-2211.1, enacted by Ga. L. 1979, p. 5, § 52.)

ARTICLE 12 AD VALOREM TAXATION OF AIRLINE COMPANIES

RESEARCH REFERENCES

ALR. - Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-540. Definitions.

As used in this article, the term:

  1. "Operated," "operating," or "operation" means landings or takeoffs of aircraft by any airline company.
  2. "Plane hours" means, for each type and model of aircraft, all hours in flight and all hours on the ground including, but not limited to, ground and air time associated with overhaul, maintenance, flight testing, and training.

    (Ga. L. 1972, p. 1129, § 1; Code 1933, § 91A-2301, enacted by Ga. L. 1978, p. 309, § 2.)

48-5-541. Property tax return on airline flight equipment; penalties.

  1. Each airline company operating in this state shall make an annual property tax return of its flight equipment to the commissioner on or before March 1 in each year for the preceding calendar year. Each type and model of flight equipment shall be separately returned, valued, and apportioned as provided in this article.
  2. If an airline company fails to make the return required by subsection (a) of this Code section by the date specified in that subsection, or as extended by the commissioner pursuant to Code Section 48-2-36, the airline company shall pay a penalty of 10 percent of the amount of the taxes for which it may be liable by reason of the return. The penalty imposed by this subsection shall be payable to the state, any county, or any municipality to which the taxes upon which the penalty is based are payable.

    (Ga. L. 1972, p. 1129, § 2; Code 1933, § 91A-2302, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 977, § 3.)

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 435 et seq.

ALR. - Situs of aircraft, rolling stock, and vessels for purposes of property taxation, 3 A.L.R.4th 837.

48-5-542. Review of returns by commissioner; valuation of aircraft in same manner as other personal property.

The commissioner shall scrutinize carefully each return made to him and, if in his judgment it is necessary, he shall in arriving at a proposed assessment adjust, equalize, and apportion the valuation of all aircraft of each airline company of any type or model operated in this state by the airline company by such type or model. The aircraft shall be valued by the department in the same manner as other personal property in the state.

(Ga. L. 1972, p. 1129, § 3; Code 1933, § 91A-2303, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1568, § 12.)

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

48-5-543. Method of valuation of aircraft; apportionment among tax jurisdictions based on plane hours.

The valuation of aircraft apportioned to this state shall be, for each type and model of aircraft, that portion of the total valuation of each type or model of aircraft as the ratio of plane hours in this state bears to the total system plane hours for each type and model of aircraft. The valuation thus established shall be apportioned for each type and model of aircraft among the tax jurisdictions in this state through which the aircraft company operates. The apportionment among the tax jurisdictions in this state shall be based as nearly as practicable upon plane hours.

(Ga. L. 1972, p. 1129, § 4; Code 1933, § 91A-2304, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Apportionment of ad valorem taxes not required. - County was not required to apportion ad valorem taxes under O.C.G.A. § 48-5-543 since the aircraft had not been used for commercial purposes in the tax year and the owner was not an airline company. White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805 , 520 S.E.2d 708 (1999).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 468, 485 et seq.

48-5-544. Levy and collection of tax upon apportioned valuation of aircraft by local tax jurisdictions.

Each local tax jurisdiction to which a proposed valuation of aircraft is apportioned by the commissioner shall assess its apportionment of aircraft and shall levy and collect a tax thereupon as it does upon other property subject to taxation in that jurisdiction.

(Ga. L. 1972, p. 1129, § 5; Code 1933, § 91A-2305, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1568, § 13.)

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

48-5-545. Submission of proposed valuations for flight equipment and aircraft by commissioner to State Board of Equalization.

The proposed assessed valuations for flight equipment and aircraft shall be submitted by the commissioner to the State Board of Equalization for its review in the same manner as required by law for other classes of property which are returned for ad valorem taxation to the commissioner.

(Ga. L. 1972, p. 1129, § 6; Code 1933, § 91A-2306, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1568, § 14.)

Editor's notes. - Ga. L. 1988, p. 1568, § 15, not codified by the General Assembly, provided that the Act "shall apply to all tax years beginning on or after January 1, 1989."

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 558 et seq.

48-5-546. Ad valorem taxation, assessment, and apportionment authorized by article exclusive.

The ad valorem taxation, assessment, and methods of apportionment authorized by this article shall be in lieu of all other ad valorem taxation, assessments, and apportionments of the aircraft of airline companies.

(Ga. L. 1972, p. 1129, § 7; Code 1933, § 91A-2307, enacted by Ga. L. 1978, p. 309, § 2.)

ARTICLE 13 AD VALOREM TAXATION OF QUALIFIED TIMBERLAND PROPERTY

Effective date. - This article becomes effective January 1, 2019.

Editor's notes. - Ga. L. 2018, p. 119, § 7/HB 85, not codified by the General Assembly, provides, in part, that this article becomes effective on January 1, 2019, only if an amendment to the Constitution of Georgia is ratified at the November, 2018, general election modifying constitutional prescriptions for forest land conservation use property and related assistance grants, permitting the withholding of a portion of assistance grants to provide for certain state administrative costs, and establishing qualified timberland property as a subclassification of tangible property for purposes of ad valorem taxation. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

48-5-600. Definitions.

As used in this article, the term:

  1. "Bona fide production of trees" means the good faith, real, actual, and genuine production of trees for commercial uses.
  2. "Qualified owner" means an individual or entity that meets the conditions of Code Section 48-5-603.
  3. "Qualified timberland property" means timberland property that meets the conditions of Code Section 48-5-604.
  4. "Timberland property" means tangible real property that has as its primary use the bona fide production of trees for the primary purpose of producing timber for commercial uses. (Code 1981, § 48-5-600 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-600.1. Classification of qualified timberland property; exclusive.

In accordance with Article VII, Section I, Paragraph III(f.1) of the Constitution of Georgia, qualified timberland property shall be classified as a separate and distinct class of tangible property. The procedures prescribed by this article for appraisal and valuation of such property and for appeals of the assessed value of such property shall be exclusive.

(Code 1981, § 48-5-600.1 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-601. Determination of fair market value; access to property; delivery to county tax officials.

  1. Qualified timberland property shall be returned to the commissioner between January 1 and April 1 each year.
  2. The fair market value of qualified timberland property shall be determined through an annual appraisal conducted by the commissioner in accordance with the qualified timberland property appraisal manual provided for in Code Section 48-5-602.
  3. The commissioner shall have access to qualified timberland property for the purpose of conducting appraisals, provided that prior notice has been given to the qualified owner of such property.
  4. The commissioner shall ensure that the appraisal values of qualified timberland property are delivered to county tax officials by July 1 of each year.
  5. Notwithstanding anything in this chapter to the contrary, pursuant to Article VII, Section I, Paragraph III(f.1) of the Constitution, the value of qualified timberland property shall be at least 175 percent of such property's forest land conservation value determined pursuant to this chapter. (Code 1981, § 48-5-601 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-602. Adoption and maintenance of qualified timberland property manual.

  1. The commissioner shall adopt by rule, subject to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and maintain a qualified timberland property appraisal manual that shall be used by the commissioner in the appraisal of qualified timberland property for ad valorem tax purposes.
  2. The commissioner shall provide for a period of consultation with the Georgia Agricultural Statistical Service, Cooperative Extension Service, Georgia Forestry Association, and State Forestry Commission prior to the adoption of the qualified timberland property appraisal manual.
    1. Such manual shall be proposed and published on or before June 1, 2019, and annually thereafter.
    2. Published manuals shall apply to the tax year following the tax year in which they are published.
    3. This annual publication requirement shall not be construed to require annual adjustments, revisions, or modifications to the appraisal methodology.
  4. Such manual shall contain:
    1. Complete parameters for the appraisal of qualified timberland property;
    2. A table of regional values for qualified timberland property based on the geographic locations and productivity levels within the state; and
    3. A prescription of methods and procedures by which identification data, appraisal and assessment data, sales data, and any other information relating to the appraisal and assessment of property shall be furnished to the department using electronic data processing systems and equipment. (Code 1981, § 48-5-602 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-603. Certification as qualified owner; requirements.

The commissioner shall certify as a qualified owner any individual or entity registered to do business in this state that is engaged in the bona fide production of trees for the primary purpose of producing timber for commercial uses, provided that such individual or entity:

  1. Registers with the commissioner; and
  2. Certifies to the commissioner that such individual or entity is engaged in the bona fide production of trees. (Code 1981, § 48-5-603 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-604. Certification as qualified timberland property; requirements; annual updating; audit; filing with county tax officials.

  1. Upon application by a qualified owner, the commissioner shall certify as qualified timberland property any timberland property that is titled to a qualified owner, provided that:
    1. The timberland property is at least 50 contiguous acres;
    2. The production of trees on the timberland property is being done for the purpose of making a profit and is the primary activity taking place on the property;
    3. A consistent effort has been clearly demonstrated in land management in accordance with accepted commercial forestry practices, which may include reforestation, periodic thinning, undergrowth control of unwanted vegetation, fertilization, prescribed burning, sales of timber, and maintenance of firebreaks; and
    4. Such qualified owner:
      1. Submits a list of all parcels to the commissioner that contain timberland property and that identify the specific portions of such parcels that such owner certifies are timberland property; and
      2. Certifies that such timberland property is used for the bona fide production of trees and that:
        1. There is a reasonable attainable economic salability of the timber products within a reasonable future time; and
        2. The production of trees is being done for the purpose of making a profit and is the primary activity taking place on the property.
    1. The qualified owner's submission provided for in paragraph (4) of subsection (a) of this Code section shall be certified by the qualified owner and shall be updated annually filed together with such qualified owner's return required by subsection (a) of Code Section 48-5-601. If such conditions are not met annually, the real property at issue shall be decertified as qualified timberland property and the commissioner shall notify the respective county tax officials of such decertification by April 15 of the respective year.
    2. The commissioner shall be authorized to conduct an audit of any list submitted pursuant to this Code section.
  3. The commissioner shall file certifications of qualified timberland property with the respective county tax officials in which any of such real property exists by April 15 each year. (Code 1981, § 48-5-604 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-605. Appeal of commissioner's decisions by taxpayer or county board.

  1. A taxpayer or county board of tax assessors may appeal the commissioner's decisions related to:
    1. Such taxpayer's status as a qualified owner;
    2. The certification or noncertification of such taxpayer's timberland as qualified timberland property; or
    3. The appraised value of such taxpayer's qualified timberland property.
    1. Such appeals shall be made as an appeal to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 within 30 days of the commissioner's publication of such decision.
    2. The Georgia Tax Tribunal shall issue a final decision on such appeals on or before September 1 of the year in which an appeal is filed. (Code 1981, § 48-5-605 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-606. Appeal of commissioner's decisions by taxpayers or groups.

  1. A taxpayer, group of taxpayers, county board of tax assessors, or association representing taxpayers may appeal the commissioner's decisions related to the commissioner's complete parameters for the appraisal of qualified timberland property required by paragraph (1) of subsection (d) of Code section 48-5-602.
    1. Such appeals shall be made as an appeal to the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 within 60 days of the commissioner's publication of such manual.
    2. The Georgia Tax Tribunal shall issue a final decision on such appeals on or before September 1 of the year in which an appeal is filed. (Code 1981, § 48-5-606 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

48-5-607. Adoption of forms and regulations.

The commissioner shall be authorized to prescribe such forms and promulgate such rules and regulations as are necessary to implement this article.

(Code 1981, § 48-5-607 , enacted by Ga. L. 2018, p. 119, § 5/HB 85.)

CHAPTER 5A SPECIAL ASSESSMENT OF FOREST LAND CONSERVATION USE PROPERTY

Sec.

Administrative Rules and Regulations. - Forest land protection, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-11.

Classification of real and personal property on individual ad valorem tax returns, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Substantive Regulations, § 560-11-2-.20.

48-5A-1. Definitions.

As used in this chapter, the term:

  1. "Applicable rollback" means a:
    1. Rollback of an ad valorem tax millage rate pursuant to subsection (a) of Code Section 48-8-91 in a county or municipality that levies a local option sales tax;
    2. Rollback of an ad valorem tax millage rate pursuant to subparagraph (c)(2)(C) of Code Section 48-8-104 in a county or municipality that levies a homestead option sales tax;
    3. Subtraction from an ad valorem millage rate pursuant to Code Section 20-2-334 in a local school system that receives a state school tax credit;
    4. Reduction of an ad valorem tax millage rate pursuant to the development of a service delivery strategy under Code Section 36-70-24; and
    5. Reduction of an ad valorem tax millage rate pursuant to paragraph (2) of subsection (a) of Code Section 33-8-8.3 in a county that collects insurance premium tax.
  2. "County millage rate" means the net ad valorem tax millage rate, after deducting applicable rollbacks, levied by a county for county purposes and applying to forest land conservation use properties in the county, including any millage levied for those special districts reported on the 2004 ad valorem tax digest certified to and received by the commissioner on or before December 31, 2004, but not including any millage levied for purposes of bonded indebtedness and not including any millage levied on behalf of a county school district for educational purposes.
  3. "Fiscal authority" means the individual authorized to collect ad valorem taxes for a county or municipality which levies ad valorem taxes.
  4. "Forest land conservation use property" means a forest land conservation use property qualified for special assessment and taxation under Code Section 48-5-7.7 and Article VII, Section I, Paragraph III(f) of the Constitution.
  5. "Forest land conservation use value" means the same as such term is defined in paragraph (5) of Code Section 48-5-2 and shall not include the value of standing timber on such property.
  6. "Forest land fair market value" means the same as such term is defined in paragraph (6) of Code Section 48-5-2.
  7. "Municipal millage rate" means the net ad valorem tax millage rate, after deducting applicable rollbacks, levied by a municipality for municipal purposes and applying to forest land conservation use properties in the municipality, including any millage levied for those special tax districts reported on the 2004 City and Independent School Millage Rate Certification certified to and received by the commissioner on or before December 31, 2004, but not including any millage levied for purposes of bonded indebtedness and not including any millage levied on behalf of an independent school district for educational purposes.
  8. "School millage rate" means the net ad valorem tax millage rate, after deducting applicable rollbacks, levied on behalf of a county or independent school district for educational purposes and applying to forest land conservation use properties in the county or independent school district, not including any millage levied for purposes of bonded indebtedness and not including any millage levied for county or municipal purposes.
  9. "State millage rate" means the state millage levy. (Code 1981, § 48-5A-1 , enacted by Ga. L. 2008, p. 297, § 4/HB 1211.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, "state revenue" was deleted preceding "commissioner" in paragraphs (2) and (7).

OPINIONS OF THE ATTORNEY GENERAL

Administrative caps on assistance grants prohibited. - Because neither Ga. Const. 1983, Art. VII, Sec. I, Para. III nor the Forest Land Protection Act, O.C.G.A. § 48-5-7.7 , authorize or contemplate a cap on assistance grants based on the total exemption value of forest land conservation use property, the Department of Revenue would not be authorized to impose an administrative cap on assistance grants issued pursuant to the Forest Land Protection Act of 2008 in the manner proposed. 2016 Op. Att'y Gen. No. 16-5.

48-5A-2. Funds for forest land conservation.

In each year the General Assembly shall appropriate to the department funds for forest land conservation use assistance grants to counties, municipalities, and county or independent school districts pursuant to Article VII, Section I, Paragraph III(f) of the Constitution. The General Appropriations Act shall specify the amount appropriated subject to the limitations of this chapter.

(Code 1981, § 48-5A-2 , enacted by Ga. L. 2008, p. 297, § 4/HB 1211.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, "department" was substituted for "Department of Revenue" in the first sentence.

48-5A-3. Local assistance grants.

  1. Pursuant to the appropriation of funds as provided in Code Section 48-5A-2, such grants shall be allotted to each county, municipality, and county or independent school district in the state as provided in this Code section.
  2. The revenue reduction to each county, municipality, and county or independent school district shall be calculated by subtracting the aggregate forest land conservation use value of qualified properties from the aggregate forest land fair market value of qualified properties for the applicable tax year and the resulting amount shall be multiplied by the millage rate of the county, municipality, or county or independent school district.
      1. Immediately following the actual preparation of ad valorem property tax bills, each county fiscal authority shall notify the department of the amount of the reduction pursuant to the implementation of Article VII, Section I, Paragraph III(f) of the Constitution.
      2. If the forest land conservation use property is located in a county where forest land conservation use value causes an ad valorem tax revenue reduction of 3 percent or less pursuant to Article VII, Section I, Paragraph III(f) of the Constitution, in each taxable year in which such reduction occurs, the assistance grant to the county shall be in an amount equal to 50 percent of the amount of such reduction.
      3. If the forest land conservation use property is located in a county where forest land conservation use value causes an ad valorem tax revenue reduction of more than 3 percent pursuant to Article VII, Section I, Paragraph III(f) of the Constitution, in each taxable year in which such reduction occurs, the assistance grants to the county shall be as follows:
        1. For the first 3 percent of such reduction amount, in an amount equal to 50 percent of the amount of such reduction; and
        2. For the remainder of such reduction amount, in an amount equal to 100 percent of the amount of such remaining reduction amount.
      1. Immediately following the actual preparation of ad valorem property tax bills, each county or independent school district's fiscal authority shall notify the department of the amount of the reduction pursuant to the implementation of Article VII, Section I, Paragraph III(f) of the Constitution.
      2. If the forest land conservation use property is located in a county or independent school district where forest land conservation use value causes an ad valorem tax revenue reduction of 3 percent or less pursuant to Article VII, Section I, Paragraph III(f) of the Constitution, in each taxable year in which such reduction occurs, the assistance grant to the county or independent school district shall be in an amount equal to 50 percent of the amount of such reduction.
      3. If the forest land conservation use property is located in a county or independent school district where forest land conservation use value causes an ad valorem tax revenue reduction of more than 3 percent pursuant to Article VII, Section I, Paragraph III(f) of the Constitution, in each taxable year in which such reduction occurs, the assistance grant to the county or independent school district shall be as follows:
        1. For the first 3 percent of such reduction amount, in an amount equal to 50 percent of the amount of such reduction; and
        2. For the remainder of such reduction amount, in an amount equal to 100 percent of the amount of such remaining reduction amount.
      1. Immediately following the actual preparation of ad valorem property tax bills, each municipality's fiscal authority shall notify the department of the amount of the reduction pursuant Article VII, Section I, Paragraph III(f) of the Constitution.
      2. If the forest land conservation use property is located in a municipality where forest land conservation use value causes an ad valorem tax revenue reduction of 3 percent or less to Article VII, Section I, Paragraph III(f) of the Constitution, in each taxable year in which such reduction occurs, the assistance grant to the municipality shall be in an amount equal to 50 percent of the amount of such reduction.
      3. If the forest land conservation use property is located in a municipality where forest land conservation use value causes an ad valorem tax revenue reduction of more than 3 percent pursuant to Article VII, Section I, Paragraph III(f) of the Constitution, in each taxable year in which such reduction occurs, the assistance grant to the municipality shall be as follows:
        1. For the first 3 percent of such reduction amount, in an amount equal to 50 percent of the amount of such reduction; and
        2. For the remainder of such reduction amount, in an amount equal to 100 percent of the amount of such remaining reduction amount. (Code 1981, § 48-5A-3 , enacted by Ga. L. 2008, p. 297, § 4/HB 1211.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, "department" was substituted for "Department of Revenue" and "of the Constitution" was inserted following "Paragraph III(f)" throughout this Code section.

48-5A-4. Administration.

The commissioner shall administer this chapter and shall adopt rules and regulations for the administration of this chapter, including specific instructions to local governments procedures.

(Code 1981, § 48-5A-4 , enacted by Ga. L. 2008, p. 297, § 4/HB 1211.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, "state revenue" was deleted preceding "commissioner".

48-5A-5. Retention of funds for administrative costs.

Pursuant to Article VII, Section I, Paragraph III(f) of the Constitution, the commissioner shall deduct and retain an amount equal to 3 percent of an assistance grant upon distribution of such assistance grant to a county, municipality, or county or independent school district as an administrative fee to provide for the costs of administering Article 13 of Chapter 5 of this title.

(Code 1981, § 48-5A-5 , enacted by Ga. L. 2018, p. 119, § 6/HB 85.)

Effective date. - This section becomes effective January 1, 2019.

Editor's notes. - Ga. L. 2018, p. 119, § 7/HB 85, not codified by the General Assembly, provides, in part, that this section becomes effective on January 1, 2019, only if an amendment to the Constitution of Georgia is ratified at the November, 2018, general election modifying constitutional prescriptions for forest land conservation use property and related assistance grants, permitting the withholding of a portion of assistance grants to provide for certain state administrative costs, and establishing qualified timberland property as a subclassification of tangible property for purposes of ad valorem taxation. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

48-5A-6. Value of local assistance grants.

  1. For 2019, the value of the local assistance grant to any county shall be increased by an amount equal to 80 percent of the difference between the value of the local assistance grant such county received for 2018 and the amount for which such county is eligible to receive in 2019.
  2. For 2020, the value of the local assistance grant to any county shall be increased by an amount equal to 60 percent of the difference between the value of the local assistance grant such county received for 2018 and the amount for which such county is eligible to receive in 2020.
  3. For 2021, the value of the local assistance grant to any county shall be increased by an amount equal to 40 percent of the difference between the value of the local assistance grant such county received for 2018 and the amount for which such county is eligible to receive in 2021.
  4. For 2022, the value of the local assistance grant to any county shall be increased by an amount equal to 20 percent of the difference between the value of the local assistance grant such county received for 2018 and the amount for which such county is eligible to receive in 2022. (Code 1981, § 48-5A-6 , enacted by Ga. L. 2018, p. 119, § 6/HB 85.)

Effective date. - This section becomes effective January 1, 2019.

Editor's notes. - Ga. L. 2018, p. 119, § 7/HB 85, not codified by the General Assembly, provides, in part, that this section becomes effective on January 1, 2019, only if an amendment to the Constitution of Georgia is ratified at the November, 2018, general election modifying constitutional prescriptions for forest land conservation use property and related assistance grants, permitting the withholding of a portion of assistance grants to provide for certain state administrative costs, and establishing qualified timberland property as a subclassification of tangible property for purposes of ad valorem taxation. The constitutional amendment was approved by a majority of the qualified voters voting at the general election held on November 6, 2018.

CHAPTER 5B MORATORIUM PERIOD FOR VALUATION INCREASES IN PROPERTY

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, Chapter 5B of Title 48, as enacted by Ga. L. 2012, p. 257, § 1-4/HB 386, was redesignated as Chapter 5C.

48-5B-1. Moratorium on increases in value; corrections of errors in valuation; decrease in value; fair market value for improvements; role of commissioner.

Reserved. Repealed by Ga. L. 2009, p. 780, § 1/HB 233, effective January 10, 2011.

Editor's notes. - This chapter consisted of Code Section 48-5B-1 , relating to the moratorium period for valuation increases in property, and was based on Code 1981, § 48-5B-1 , enacted by Ga. L. 2009, p. 780, § 1/HB 233; Ga. L. 2010, p. 1104, § 6-2/SB 346.

Ga. L. 2014, p. 866, § 48/SB 340, reserved the designation of this chapter, effective April 29, 2014.

CHAPTER 5C ALTERNATIVE AD VALOREM TAX ON MOTOR VEHICLES

Sec.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, Chapter 5B of Title 48, as enacted by Ga. L. 2012, p. 257, § 1-4/HB 386, was redesignated as Chapter 5C.

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

48-5C-1. (For effective date, see note.) Definitions; exemption from taxation; allocation and disbursement of proceeds collected by tag agents; fair market value of vehicle appealable; report.

  1. As used in this Code section, the term:
    1. "Fair market value of the motor vehicle" means:
      1. For a used motor vehicle, the average of the current fair market value and the current wholesale value of a motor vehicle for a vehicle listed in the current motor vehicle ad valorem assessment manual utilized by the state revenue commissioner and based upon a nationally recognized motor vehicle industry pricing guide for fair market and wholesale market values in determining the taxable value of a motor vehicle under Code Section 48-5-442, and, in the case of a used car dealer, less any reduction for the trade-in value of another motor vehicle;
      2. For a used motor vehicle which is not so listed in such current motor vehicle ad valorem assessment manual, the value from the bill of sale or the value from a reputable used car market guide designated by the commissioner, whichever is greater, and, in the case of a used car dealer, less any reduction for the trade-in value of another motor vehicle;
      3. Upon written application and supporting documentation submitted by an applicant under this Code section, a county tag agent may deviate from the fair market value as defined in subparagraph (A) or (B) of this paragraph based upon mileage and condition of the used vehicle. Supporting documentation may include, but not be limited to, bill of sale, odometer statement, and values from reputable pricing guides. The fair market value as determined by the county tag agent pursuant to this subparagraph shall be appealable as provided in subsection (e) of this Code section;
      4. For a new motor vehicle, the greater of the retail selling price or, in the case of a lease of a new motor vehicle, the agreed upon value of the vehicle pursuant to the lease agreement or the average of the current fair market value and the current wholesale value of a motor vehicle for a vehicle listed in the current motor vehicle ad valorem assessment manual utilized by the state revenue commissioner in determining the taxable value of a motor vehicle under Code Section 48-5-442, less any reduction for the trade-in value of another motor vehicle and any rebate or any cash discounts provided by the selling dealer and taken at the time of sale. The retail selling price or agreed upon value shall include any charges for labor, freight, delivery, dealer fees, and similar charges and dealer add-ons and mark-ups, but shall not include any extended warranty or maintenance agreement itemized on the dealer's invoice to the customer or any finance, insurance, and interest charges for deferred payments billed separately; or
      5. For a new motor vehicle that is leased, the total of the base payments pursuant to the lease agreement.
    2. "Immediate family member" means spouse, parent, child, sibling, grandparent, or grandchild.
    3. "Loaner vehicle" means a motor vehicle owned by a dealer which is withdrawn temporarily from dealer inventory for exclusive use as a courtesy vehicle loaned at no charge for a period not to exceed 30 days within a 366 day period to any one customer whose motor vehicle is being serviced by such dealer.
    4. "Rental charge" means the total value received by a rental motor vehicle concern for the rental or lease for 31 or fewer consecutive days of a rental motor vehicle, including the total cash and nonmonetary consideration for the rental or lease, including, but not limited to, charges based on time or mileage and charges for insurance coverage or collision damage waiver but excluding all charges for motor fuel taxes or sales and use taxes.
    5. "Rental motor vehicle" means a motor vehicle designed to carry 15 or fewer passengers and used primarily for the transportation of persons that is rented or leased without a driver.
    6. "Rental motor vehicle concern" means a person or legal entity which owns or leases five or more rental motor vehicles and which regularly rents or leases such vehicles to the public for value.
    7. "Trade-in value" means the value of the motor vehicle as stated in the bill of sale for a vehicle which has been traded in to the dealer in a transaction involving the purchase of another vehicle from the dealer.
      1. Except as otherwise provided in this subsection, any motor vehicle for which a title is issued in this state on or after March 1, 2013, shall be exempt from sales and use taxes to the extent provided under paragraph (95) of Code Section 48-8-3 and shall not be subject to the ad valorem tax as otherwise required under Chapter 5 of this title. Any such motor vehicle shall be titled as otherwise required under Title 40 but shall be subject to a state title fee and a local title fee which shall be alternative ad valorem taxes as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution. Motor vehicles registered under the International Registration Plan shall not be subject to state and local title ad valorem tax fees but shall continue to be subject to apportioned ad valorem taxation under Article 10 of Chapter 5 of this title.
        1. As used in this subparagraph, the term:
          1. "Local base amount" means $1 billion.
          2. "Local current collection amount" means the total amount of sales and use taxes on the sale of motor vehicles under Chapter 8 of this title and motor vehicle local ad valorem tax proceeds under this Code section and Chapter 5 of this title which were collected during the calendar year which immediately precedes the tax year in which the title ad valorem tax adjustments are required to be made under this subparagraph.
          3. "Local target collection amount" means an amount equal to the local base amount added to the product of 2 percent of the local base amount multiplied by the number of years since 2012 with a maximum amount of $1.2 billion.
          4. "State base amount" means $535 million.
          5. "State current collection amount" means the total amount of sales and use taxes on the sale of motor vehicles under Chapter 8 of this title and motor vehicle state ad valorem tax proceeds under this Code section and Chapter 5 of this title which were collected during the calendar year which immediately precedes the tax year in which the state and local title ad valorem tax rate is to be reviewed for adjustment under division (xiv) of this subparagraph. Notwithstanding the other provisions of this subdivision to the contrary, the term "state current collection amount" for the 2014 calendar year for the purposes of the 2015 review under division (xiv) of this subparagraph shall be adjusted so that such amount is equal to the amount of motor vehicle state ad valorem tax proceeds that would have been collected under this Code section in 2014 if the combined state and local title ad valorem tax rate was 7 percent of the fair market value of the motor vehicle less any trade-in value plus the total amount of motor vehicle state ad valorem tax proceeds collected under Chapter 5 of this title during 2014.
          6. "State target collection amount" means an amount equal to the state base amount added to the product of 2 percent of the state base amount multiplied by the number of years since 2012.
        2. The combined state and local title ad valorem tax shall be at a rate equal to:
          1. For the period commencing March 1, 2013, through December 31, 2013, 6.5 percent of the fair market value of the motor vehicle;
          2. For the 2014 tax year, 6.75 percent of the fair market value of the motor vehicle; and
          3. Except as provided in division (xiv) of this subparagraph, for the 2015 and subsequent tax years, 7 percent of the fair market value of the motor vehicle.
        3. For the period commencing March 1, 2013, through December 31, 2013, the state title ad valorem tax shall be at a rate equal to 57 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 43 percent of the tax rate specified in division (ii) of this subparagraph.
        4. For the 2014 tax year, the state title ad valorem tax shall be at a rate equal to 55 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 45 percent of the tax rate specified in division (ii) of this subparagraph.
        5. For the 2015 tax year, the state title ad valorem tax shall be at a rate equal to 55 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 45 percent of the tax rate specified in division (ii) of this subparagraph.
        6. For the 2016 tax year, except as otherwise provided in division (xiii) of this subparagraph, the state title ad valorem tax shall be at a rate equal to 53.5 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 46.5 percent of the tax rate specified in division (ii) of this subparagraph.
        7. For the 2017 tax year, except as otherwise provided in divisions (xiii) and (xiv) of this subparagraph, the state title ad valorem tax shall be at a rate equal to 44 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 56 percent of the tax rate specified in division (ii) of this subparagraph.
        8. For the 2018 tax year, except as otherwise provided in division (xiii) of this subparagraph, the state title ad valorem tax shall be at a rate equal to 40 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 60 percent of the tax rate specified in division (ii) of this subparagraph.
        9. For the 2019 tax year, except as otherwise provided in divisions (xiii) and (xiv) of this subparagraph, the state title ad valorem tax shall be at a rate equal to 36 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 64 percent of the tax rate specified in division (ii) of this subparagraph.
        10. For the 2020 tax year, except as otherwise provided in division (xiii) of this subparagraph, the state title ad valorem tax shall be at a rate equal to 34 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 66 percent of the tax rate specified in division (ii) of this subparagraph.
        11. For the 2021 tax year, except as otherwise provided in division (xiii) of this subparagraph, the state title ad valorem tax shall be at a rate equal to 30 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 70 percent of the tax rate specified in division (ii) of this subparagraph.
        12. For the 2022 and all subsequent tax years, except as otherwise provided in division (xiii) of this subparagraph for tax years 2022, 2023, and 2024 and except as otherwise provided in division (xiv) of this subparagraph for tax year 2023, the state title ad valorem tax shall be at a rate equal to 28 percent of the tax rate specified in division (ii) of this subparagraph, and the local title ad valorem tax shall be at a rate equal to 72 percent of the tax rate specified in division (ii) of this subparagraph.
        13. Beginning in 2016, by not later than January 15 of each tax year through the 2022 tax year, the state revenue commissioner shall determine the local target collection amount and the local current collection amount for the preceding calendar year. If such local current collection amount is equal to or within 1 percent of the local target collection amount, then the state title ad valorem tax rate and the local title ad valorem tax rate for such tax year shall remain at the rate specified in this subparagraph for that year. If the local current collection amount is more than 1 percent greater than the local target collection amount, then the local title ad valorem tax rate for such tax year shall be reduced automatically by operation of this division by such percentage amount as may be necessary so that, if such rate had been in effect for the calendar year under review, the local current collection amount would have produced an amount equal to the local target collection amount, and the state title ad valorem tax rate for such tax year shall be increased by an equal amount to maintain the combined state and local title ad valorem tax rate at the rate specified in division (ii) of this subparagraph. If the local current collection amount is more than 1 percent less than the local target collection amount, then the local title ad valorem tax rate for such tax year shall be increased automatically by operation of this division by such percentage amount as may be necessary so that, if such rate had been in effect for the calendar year under review, the local current collection amount would have produced an amount equal to the local target collection amount, and the state title ad valorem tax rate for such tax year shall be reduced by an equal amount to maintain the combined state and local title ad valorem tax rate at the rate specified in division (ii) of this subparagraph. In the event of an adjustment of such ad valorem tax rates, by not later than January 31 of such tax year, the state revenue commissioner shall notify the tax commissioner of each county in this state of the adjusted rate amounts. The effective date of such adjusted rate amounts shall be January 1 of such tax year.
        14. In tax years 2015, 2018, and 2022, by not later than July 1 of each such tax year, the state revenue commissioner shall determine the state target collection amount and the state current collection amount for the preceding calendar year. If such state current collection amount is greater than, equal to, or within 1 percent of the state target collection amount after making the adjustment, if any, required in division (xiii) of this subparagraph, then the combined state and local title ad valorem tax rate provided in division (ii) of this subparagraph shall remain at the rate specified in such division. If the state current collection amount is more than 1 percent less than the state target collection amount after making the adjustment, if any, required by division (xiii) of this subparagraph, then the combined state and local title ad valorem tax rate provided in division (ii) of this subparagraph shall be increased automatically by operation of this division by such percentage amount as may be necessary so that, if such rate had been in effect for the calendar year under review, the state current collection amount would have produced an amount equal to the state target collection amount, and the state title ad valorem tax rate and the local title ad valorem tax rate for the tax year in which such increase in the combined state and local title ad valorem tax rate shall become effective shall be adjusted from the rates specified in this subparagraph or division (xiii) of this subparagraph for such tax year such that the proceeds from such increase in the combined state and local title ad valorem tax rate shall be allocated in full to the state. In the event of an adjustment of the combined state and local title ad valorem tax rate, by not later than August 31 of such tax year, the state revenue commissioner shall notify the tax commissioner of each county in this state of the adjusted combined state and local title ad valorem tax rate for the next calendar year. The effective date of such adjusted combined state and local title ad valorem tax rate shall be January 1 of the next calendar year. Notwithstanding the provisions of this division, the combined state and local title ad valorem tax rate shall not exceed 9 percent.
        15. The state revenue commissioner shall promulgate such rules and regulations as may be necessary and appropriate to implement and administer this Code section, including, but not limited to, rules and regulations regarding appropriate public notification of any changes in rate amounts and the effective date of such changes and rules and regulations regarding appropriate enforcement and compliance procedures and methods for the implementation and operation of this Code section. The state revenue commissioner may promulgate and implement rules and regulations as may be necessary to permit seller financed sales of used vehicles to be assessed 2.5 percentage points less than the rate specified in division (ii) of this subparagraph.
      3. The application for title and the state and local title ad valorem tax fees provided for in subparagraph (A) of this paragraph shall be paid to the tag agent in the county where the motor vehicle is to be registered and shall be paid at the time the application for a certificate of title is submitted or, in the case of an electronic title transaction, at the time when the electronic title transaction is finalized. In an electronic title transaction, the state and local title ad valorem tax fees shall be remitted electronically directly to the county tag agent. A dealer of new or used motor vehicles may accept such application for title and state and local title ad valorem tax fees on behalf of the purchaser of a new or used motor vehicle for the purpose of submitting or, in the case of an electronic title application, finalizing such title application and remitting state and local title ad valorem tax fees.
      4. There shall be a penalty imposed on any person who, in the determination of the commissioner, falsifies any information in any bill of sale used for purposes of determining the fair market value of the motor vehicle. Such penalty shall not exceed $2,500.00 as a state penalty and shall not exceed $2,500.00 as a local penalty as determined by the commissioner. Such determination shall be made within 60 days of the commissioner receiving information of a possible violation of this paragraph.
      5. Except in the case in which an extension of the registration period has been granted by the county tag agent under Code Section 40-2-20, a dealer of new or used motor vehicles that accepts an application for title and state and local title ad valorem tax fees from a purchaser of a new or used motor vehicle and does not submit or, in the case of an electronic title transaction, finalize such application for title and remit such state and local title ad valorem tax fees to the county tag agent within 30 days following the date of purchase shall be liable to the county tag agent for an amount equal to 5 percent of the amount of such state and local title ad valorem tax fees. An additional penalty equal to 10 percent of the amount of such state and local title ad valorem tax fees shall be imposed if such payment is not transmitted within 60 days following the date of purchase. An additional penalty equal to 15 percent of the amount of such state and local title ad valorem tax fees shall be imposed if such payment is not transmitted within 90 days following the date of purchase, and an additional penalty equal to 20 percent of the amount of such state and local title ad valorem tax fees shall be imposed if such payment is not transmitted within 120 days following the date of purchase. An additional penalty equal to 25 percent of the amount of such state and local title ad valorem tax fees shall be imposed for each subsequent 30 day period in which the payment is not transmitted.
      6. A dealer of new or used motor vehicles that accepts an application for title and state and local title ad valorem tax fees from a purchaser of a new or used motor vehicle and converts such fees to his or her own use shall be guilty of theft by conversion and, upon conviction, shall be punished as provided in Code Section 16-8-12.
    2. A person or entity acquiring a salvage title pursuant to subsection (b) of Code Section 40-3-36 shall not be subject to the fee specified in paragraph (1) of this subsection but shall be subject to a state title ad valorem tax fee in an amount equal to 1 percent of the fair market value of the motor vehicle. Such state title ad valorem tax fee shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
    1. The amount of proceeds collected by tag agents each month as state and local title ad valorem tax fees, state salvage title ad valorem tax fees, administrative fees, penalties, and interest pursuant to subsection (b) of this Code section shall be allocated and disbursed as provided in this subsection.
    2. For the 2013 tax year and in each subsequent tax year, the amount of such funds shall be disbursed within 20 days following the end of each calendar month as follows:
      1. State title ad valorem tax fees, state salvage title ad valorem tax fees, administrative fees, penalties, and interest shall be remitted to the state revenue commissioner who shall deposit such proceeds in the general fund of the state less an amount to be retained by the tag agent not to exceed 1 percent of the total amount otherwise required to be remitted under this subparagraph to defray the cost of administration. Such retained amount shall be remitted to the collecting county's general fund. Failure by the tag agent to disburse within such 20 day period shall result in a forfeiture of such administrative fee plus interest on such amount at the rate specified in Code Section 48-2-40; and
      2. Local title ad valorem tax fees, administrative fees, penalties, and interest shall be designated as local government ad valorem tax funds. The tag agent shall then distribute the proceeds as specified in paragraph (3) of this subsection.
    3. The local title ad valorem tax fee proceeds required under this subsection shall be distributed as follows:
      1. The tag agent of the county shall within 20 days following the end of each calendar month allocate and distribute to the county governing authority and to municipal governing authorities, the board of education of the county school district, the board of education of any independent school district located in such county, the water and sewerage authority for which the county has levied an ad valorem tax in accordance with a local constitutional amendment, and in a county in which a sales and use tax is levied for purposes of a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Ga. L. 1964, p. 1008, the governing body of the transportation authority created by the Metropolitan Atlanta Rapid Transit Authority Act of 1965, Ga. L. 1965, p. 2243, as amended, and the amendment to the Constitution set out at Ga. L. 1964, p. 1008, an amount of those proceeds necessary to offset any reduction in (i) ad valorem tax on motor vehicles collected under Chapter 5 of this title in the taxing jurisdiction of each governing authority, school district, and water and sewerage authority from the amount of ad valorem taxes on motor vehicles collected under Chapter 5 of this title in each such governing authority, school district, and water and sewerage authority during the same calendar month of 2012 and (ii) with respect to the transportation authority, the monthly average portion of the sales and use tax levied for purposes of a metropolitan area system of public transportation applicable to any motor vehicle titled in a county which levied such tax in 2012. Such amount of tax may be determined by the commissioner for counties which levied such tax in 2012, and any counties which subsequently levy a tax pursuant to a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Ga. L. 1964, p. 1008, the governing body of the transportation authority created by the Metropolitan Atlanta Rapid Transit Authority Act of 1965, Ga. L. 1965, p. 2243, as amended, and the amendment to the Constitution set out at Ga. L. 1964, p. 1008, the Commissioner may determine what amount of sales and use tax would have been collected in 2012, had such tax been levied. This reduction shall be calculated, with respect to (i) above, by subtracting the amount of ad valorem tax on motor vehicles collected under Chapter 5 of this title in each such taxing jurisdiction from the amount of ad valorem tax on motor vehicles collected under Chapter 5 of this title in that taxing jurisdiction in the same calendar month of 2012. In the event that the local title ad valorem tax fee proceeds are insufficient to fully offset such reduction in ad valorem taxes on motor vehicles or the portion of the sales and use tax described in (ii) above, the tag agent shall allocate a proportionate amount of the proceeds to each governing authority, the board of education of each such school district, the water and sewerage authority, and the transportation authority, and any remaining shortfall shall be paid from the following month's local title ad valorem tax fee proceeds. In the event that a shortfall remains, the tag agent shall continue to first allocate local title ad valorem tax fee proceeds to offset such shortfalls until the shortfall has been fully repaid; and
      2. Of the proceeds remaining following the allocation and distribution under subparagraph (A) of this paragraph, the tag agent shall allocate and distribute to the county governing authority and to municipal governing authorities, the board of education of the county school district, and the board of education of any independent school district located in such county the remaining amount of those proceeds in the manner provided in this subparagraph. Such proceeds shall be deposited in the general fund of such governing authority or board of education and shall not be subject to any use or expenditure requirements provided for under any of the following described local sales and use taxes but shall be authorized to be expended in the same manner as authorized for the ad valorem tax revenues on motor vehicles under Chapter 5 of this title which would otherwise have been collected for such governing authority or board of education. Of such remaining proceeds:
        1. An amount equal to one-third of such proceeds shall be distributed to the board of education of the county school district and the board of education of each independent school district located in such county in the same manner as required for any local sales and use tax for educational purposes levied pursuant to Part 2 of Article 3 of Chapter 8 of this title currently in effect. If such tax is not currently in effect, such proceeds shall be distributed to such board or boards of education in the same manner as if such tax were in effect;
        2. (I) Except as otherwise provided in this division, an amount equal to one-third of such proceeds shall be distributed to the governing authority of the county and the governing authority of each qualified municipality located in such county in the same manner as specified under the distribution certificate for the joint county and municipal sales and use tax under Article 2 of Chapter 8 of this title currently in effect.

          (II) If such tax were never in effect, such proceeds shall be distributed to the governing authority of the county and the governing authority of each qualified municipality located in such county on a pro rata basis according to the ratio of the population that each such municipality bears to the population of the entire county.

          (III) If such tax is currently in effect as well as a local option sales and use tax for educational purposes levied pursuant to a local constitutional amendment, an amount equal to one-third of such proceeds shall be distributed in the same manner as required under subdivision (I) of this division and an amount equal to one-third of such proceeds shall be distributed to the board of education of the county school district.

          (IV) If such tax is not currently in effect and a local option sales and use tax for educational purposes levied pursuant to a local constitutional amendment is currently in effect, such proceeds shall be distributed to the board of education of the county school district and the board of education of any independent school district in the same manner as required under that local constitutional amendment.

          (V) If such tax is not currently in effect and a homestead option sales and use tax under Article 2A of Chapter 8 of this title is in effect, such proceeds shall be distributed to the governing authority of the county, each qualified municipality, and each existing municipality in the same proportion as otherwise required under Code Section 48-8-104; and

        3. (I) An amount equal to one-third of such proceeds shall be distributed to the governing authority of the county and the governing authority of each qualified municipality located in such county in the same manner as specified under an intergovernmental agreement or as otherwise required under the county special purpose local option sales and use tax under Part 1 of Article 3 of Chapter 8 of this title currently in effect; provided, however, that this subdivision shall not apply if subdivision (III) of division (ii) of this subparagraph is applicable.

          (II) If such tax were in effect but expired and is not currently in effect, such proceeds shall be distributed to the governing authority of the county and the governing authority of each qualified municipality located in such county in the same manner as if such tax were still in effect according to the intergovernmental agreement or as otherwise required under the county special purpose local sales and use tax under Part 1 of Article 3 of Chapter 8 of this title for the 12 month period commencing at the expiration of such tax. If such tax is not renewed prior to the expiration of such 12 month period, such amount shall be distributed in accordance with subdivision (I) of division (ii) of this subparagraph; provided, however, that if a tax under Article 2 of Chapter 8 of this title is not in effect, such amount shall be distributed in accordance with subdivision (II) of division (ii) of this subparagraph.

          (III) If such tax is not currently in effect in a county in which a tax is levied for purposes of a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Ga. L. 1964, p. 1008; the continuation of such amendment under Article XI, Section I, Paragraph IV(d) of the Constitution; and the laws enacted pursuant to such constitutional amendment, such proceeds shall be distributed in such county, in the same manner as ad valorem tax on motor vehicles collected under Chapter 5 of this title in the taxing jurisdiction of each governing authority and school district from the amount of ad valorem taxes on motor vehicles collected under Chapter 5 of this title in each such governing authority and school district during the same calendar month of 2012.

          (IV) If such tax were never in effect, such proceeds shall be distributed in the same manner as specified under the distribution certificate for the joint county and municipal sales and use tax under Article 2 of Chapter 8 of this title currently in effect; provided, however, that if such tax under such article is not in effect, such proceeds shall be distributed to the governing authority of the county and the governing authority of each qualified municipality located in such county on a pro rata basis according to the ratio of the population that each such municipality bears to the population of the entire county.

      1. Upon the death of an owner of a motor vehicle which has not become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member or immediate family members of such owner who receive such motor vehicle pursuant to a will or under the rules of inheritance shall, subsequent to the transfer of title of such motor vehicle, continue to be subject to ad valorem tax under Chapter 5 of this title and shall not be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section unless the immediate family member or immediate family members make an affirmative written election to become subject to paragraph (1) of subsection (b) of this Code section. In the event of such election, such transfer shall be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section.
      2. Upon the death of an owner of a motor vehicle which has become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member or immediate family members of such owner who receive such motor vehicle pursuant to a will or under the rules of inheritance shall be subject to a state title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle and a local title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
      1. Upon the transfer from an immediate family member of a motor vehicle which has not become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member or immediate family members who receive such motor vehicle shall, subsequent to the transfer of title of such motor vehicle, continue to be subject to ad valorem tax under Chapter 5 of this title and shall not be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section unless the immediate family member or immediate family members make an affirmative written election to become subject to paragraph (1) of subsection (b) of this Code section. In the event of such election, such transfer shall be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section.
      2. Upon the transfer from an immediate family member of a motor vehicle which has become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member who receives such motor vehicle shall transfer title of such motor vehicle to such recipient family member and shall be subject to a state title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle and a local title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
      3. Any title transfer under this paragraph shall be accompanied by an affidavit of the transferor and transferee that such persons are immediate family members to one another. There shall be a penalty imposed on any person who, in the determination of the state revenue commissioner, falsifies any material information in such affidavit. Such penalty shall not exceed $2,500.00 as a state penalty and shall not exceed $2,500.00 as a local penalty as determined by the state revenue commissioner. Such determination shall be made within 60 days of the state revenue commissioner receiving information of a possible violation of this paragraph.
    3. Any individual who:
      1. Is required by law to register a motor vehicle or motor vehicles in this state which were registered in the state in which such person formerly resided; and
      2. Is required to file an application for a certificate of title under Code Section 40-3-21 or 40-3-32

        shall only be required to pay state and local title ad valorem tax fees in the amount of 50 percent of the amount which would otherwise be due and payable under this subsection at the time of filing the application for a certificate of title, and the remaining 50 percent shall be paid within 12 months.

    4. The state and local title ad valorem tax fees provided for under this Code section shall not apply to corrected titles, replacement titles under Code Section 40-3-31, or titles reissued to the same owner pursuant to Code Sections 40-3-50 through 40-3-56.
    5. Any motor vehicle subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section shall continue to be subject to the title, license plate, revalidation decal, and registration requirements and applicable fees as otherwise provided in Title 40 in the same manner as motor vehicles which are not subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section.
    6. Motor vehicles owned or leased by or to the state or any county, consolidated government, municipality, county or independent school district, or other government entity in this state shall not be subject to the state and local title ad valorem tax fees provided for under paragraph (1) of subsection (b) of this Code section; provided, however, that such other government entity shall not qualify for the exclusion under this paragraph unless it is exempt from ad valorem tax and sales and use tax pursuant to general law.
      1. Any motor vehicle which is exempt from sales and use tax pursuant to paragraph (30) of Code Section 48-8-3 shall be exempt from state and local title ad valorem tax fees under this subsection.
      2. Any motor vehicle which is exempt from ad valorem taxation pursuant to Code Section 48-5-478, 48-5-478.1, 48-5-478.2, or 48-5-478.3 shall be exempt from state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section.
    8. There shall be a penalty imposed on the transfer of all or any part of the interest in a business entity that includes primarily as an asset of such business entity one or more motor vehicles, when, in the determination of the state revenue commissioner, such transfer is done to evade the payment of state and local title ad valorem tax fees under this subsection. Such penalty shall not exceed $2,500.00 as a state penalty per motor vehicle and shall not exceed $2,500.00 as a local penalty per motor vehicle, as determined by the state revenue commissioner, plus the amount of the state and local title ad valorem tax fees. Such determination shall be made within 60 days of the state revenue commissioner receiving information that a transfer may be in violation of this paragraph.
    9. Any owner of any motor vehicle who fails to submit within 30 days of the date such owner is required by law to register such vehicle in this state an application for a first certificate of title under Code Section 40-3-21 or a certificate of title under Code Section 40-3-32 shall be required to pay a penalty in the amount of 10 percent of the state title ad valorem tax fees and 10 percent of the local title ad valorem tax fees required under this Code section and, if such state and local title ad valorem tax fees and the penalty are not paid within 60 days following the date such owner is required by law to register such vehicle, interest at the rate of 1.0 percent per month shall be imposed on the state and local title ad valorem tax fees due under this Code section, unless a temporary permit has been issued by the tax commissioner. The tax commissioner shall grant a temporary permit in the event the failure to timely apply for a first certificate of title is due to the failure of a lienholder to comply with Code Section 40-3-56, regarding release of a security interest or lien, and no penalty or interest shall be assessed. Such penalty and interest shall be in addition to the penalty and fee required under Code Section 40-3-21 or 40-3-32, as applicable.
    10. The owner of any motor vehicle for which a title was issued in this state on or after January 1, 2012, and prior to March 1, 2013, shall be authorized to opt in to the provisions of this subsection at any time prior to February 28, 2014, upon compliance with the following requirements:
        1. The total amount of Georgia state and local title ad valorem tax fees which would be due from March 1, 2013, to December 31, 2013, if such vehicle had been titled in 2013 shall be determined; and
        2. The total amount of Georgia state and local sales and use tax and Georgia state and local ad valorem tax under Chapter 5 of this title which were due and paid in 2012 for that motor vehicle and, if applicable, the total amount of such taxes which were due and paid for that motor vehicle in 2013 and 2014 shall be determined; and
        1. If the amount derived under division (i) of subparagraph (A) of this paragraph is greater than the amount derived under division (ii) of subparagraph (A) of this paragraph, the owner shall remit the difference to the tag agent. Such remittance shall be deemed local title ad valorem tax fee proceeds; or
        2. If the amount derived under division (i) of subparagraph (A) of this paragraph is less than the amount derived under division (ii) of subparagraph (A) of this paragraph, no additional amount shall be due and payable by the owner.

          Upon certification by the tag agent of compliance with the requirements of this paragraph, such motor vehicle shall not be subject to ad valorem tax as otherwise required under Chapter 5 of this title in the same manner as otherwise provided in paragraph (1) of subsection (b) of this Code section.

      1. In the case of rental motor vehicles owned by a rental motor vehicle concern, the state title ad valorem tax fee shall be in an amount equal to .625 percent of the fair market value of the motor vehicle, and the local title ad valorem tax fee shall be in an amount equal to .625 percent of the fair market value of the motor vehicle, but only if in the immediately prior calendar year the average amount of sales and use tax attributable to the rental charge of each such rental motor vehicle was at least $400.00 as certified by the state revenue commissioner. If, in the immediately prior calendar year, the average amount of sales and use tax attributable to the rental charge of each such rental motor vehicle was not at least $400.00, this paragraph shall not apply and such vehicles shall be subject to the state and local title ad valorem tax fees prescribed in division (b)(1)(B)(ii) of this Code section.
      2. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
    12. A loaner vehicle shall not be subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section for a period of time not to exceed 366 days commencing on the date such loaner vehicle is withdrawn temporarily from inventory. Immediately upon the expiration of such 366 day period, if the dealer does not return the loaner vehicle to inventory for resale, the dealer shall be responsible for remitting state and local title ad valorem tax fees in the same manner as otherwise required of an owner under paragraph (9) of this subsection and shall be subject to the same penalties and interest as an owner for noncompliance with the requirements of paragraph (9) of this subsection.
    13. Any motor vehicle which is donated to a nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code for the purpose of being transferred to another person shall, when titled in the name of such nonprofit organization, not be subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section but shall be subject to state and local title ad valorem tax fees otherwise applicable to salvage titles under paragraph (2) of subsection (b) of this Code section.
      1. A lessor of motor vehicles that leases motor vehicles for more than 31 consecutive days to lessees residing in this state shall register with the department. The department shall collect an annual fee of $100.00 for such registrations. Failure of a lessor to register under this subparagraph shall subject such lessor to a civil penalty of $2,500.00.
      2. A lessee residing in this state who leases a motor vehicle under this paragraph shall register such motor vehicle with the tag agent in such lessee's county of residence within 30 days of the commencement of the lease of such motor vehicle or beginning residence in this state, whichever is later.
      3. A lessor that leases a motor vehicle under this paragraph to a lessee residing in this state shall apply for a certificate of title in this state within 30 days of the commencement of the lease of such motor vehicle.
    15. There shall be no liability for any state or local title ad valorem tax fees in any of the following title transactions:
      1. The addition or substitution of lienholders on a motor vehicle title so long as the owner of the motor vehicle remains the same;
      2. The acquisition of a bonded title by a person or entity pursuant to Code Section 40-3-28 if the title is to be issued in the name of such person or entity;
      3. The acquisition of a title to a motor vehicle by a person or entity as a result of the foreclosure of a mechanic's lien pursuant to Code Section 40-3-54 if such title is to be issued in the name of such lienholder;
      4. The acquisition of a title to an abandoned motor vehicle by a person or entity pursuant to Chapter 11 of Title 40 if such person or entity is a manufacturer or dealer of motor vehicles and the title is to be issued in the name of such person or entity;
      5. The obtaining of a title to a stolen motor vehicle by a person or entity pursuant to Code Section 40-3-43;
      6. The obtaining of a title by and in the name of a motor vehicle manufacturer, licensed distributor, licensed dealer, or licensed rebuilder for the purpose of sale or resale or to obtain a corrected title, provided that the manufacturer, distributor, dealer, or rebuilder shall submit an affidavit in a form promulgated by the commissioner attesting that the transfer of title is for the purpose of accomplishing a sale or resale or to correct a title only;
      7. The obtaining of a title by and in the name of the holder of a security interest when a motor vehicle has been repossessed after default in accordance with Part 6 of Article 9 of Title 11 if such title is to be issued in the name of such security interest holder;
      8. The obtaining of a title by a person or entity for purposes of correcting a title, changing an odometer reading, or removing an odometer discrepancy legend, provided that, subject to subparagraph (F) of this paragraph, title is not being transferred to another person or entity;
      9. The obtaining of a title by a person who pays state and local title ad valorem tax fees on a motor vehicle and subsequently moves out of this state but returns and applies to retitle such vehicle in this state; and
      10. The obtaining of a replacement title on a vehicle that is not less than 15 years old upon sufficient proof provided to the commissioner that such title no longer exists.
    16. It shall be unlawful for a person to fail to obtain a title for and register a motor vehicle in accordance with the provisions of this chapter. Any person who knowingly and willfully fails to obtain a title for or register a motor vehicle in accordance with the provisions of this chapter shall be guilty of a misdemeanor.
    17. Any person who purchases a 1963 through 1985 model year motor vehicle for which such person obtains a title shall be subject to this Code section, but the state title ad valorem tax fee shall be in an amount equal to .50 percent of the fair market value of such motor vehicle, and the local title ad valorem tax fee shall be in an amount equal to .50 percent of the fair market value of such motor vehicle.
  5. The fair market value of any motor vehicle subject to this Code section shall be appealable in the same manner as otherwise authorized for a motor vehicle subject to ad valorem taxation under Code Section 48-5-450; provided, however, that the person appealing the fair market value shall first pay the full amount of the state and local title ad valorem tax prior to filing any appeal. If the appeal is successful, the amount of the tax owed shall be recalculated and, if the amount paid by the person appealing the determination of fair market value is greater than the recalculated tax owed, the person shall be promptly given a refund of the difference.
  6. Beginning in 2014, on or before January 31 of each year, the department shall provide a report to the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee showing the state and local title ad valorem tax fee revenues collected pursuant to this chapter and the motor vehicle ad valorem tax proceeds collected pursuant to Chapter 5 of this title during the preceding calendar year. (Code 1981, § 48-5C-1 , enacted by Ga. L. 2012, p. 257, § 1-4/HB 386; Ga. L. 2013, p. 7, § 2/HB 266; Ga. L. 2013, p. 32, § 4/HB 463; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2015, p. 5, § 48/HB 90; Ga. L. 2015, p. 1219, § 23/HB 202; Ga. L. 2016, p. 758, § 3/SB 379; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 499, § 1/HB 340; Ga. L. 2018, p. 8, § 2-1/HB 918.)

Delayed effective date. - This Code section is set out twice in the Code. The first version is effective until July 1, 2019 and the second version becomes effective on that date.

The 2015 amendments. The first 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, substituted "Title 40" for "this title" in subparagraph (d)(15)(D). The second 2015 amendment, effective January 1, 2016, substituted the present provisions of subparagraph (c)(3)(A) for the former provisions, which read: "The tag agent of the county shall within 20 days following the end of each calendar month allocate and distribute to the county governing authority and to municipal governing authorities, the board of education of the county school district, and the board of education of any independent school district located in such county an amount of those proceeds necessary to offset any reduction in ad valorem tax on motor vehicles collected under Chapter 5 of this title in the taxing jurisdiction of each governing authority and school district from the amount of ad valorem taxes on motor vehicles collected under Chapter 5 of this title in each such governing authority and school district during the same calendar month of 2012. This reduction shall be calculated by subtracting the amount of ad valorem tax on motor vehicles collected under Chapter 5 of this title in each such taxing jurisdiction from the amount of ad valorem tax on motor vehicles collected under Chapter 5 of this title in that taxing jurisdiction in the same calendar month of 2012. In the event that the local title ad valorem tax fee proceeds are insufficient to fully offset such reduction in ad valorem taxes on motor vehicles, the tag agent shall allocate a proportionate amount of the proceeds to each governing authority and to the board of education of each such school district, and any remaining shortfall shall be paid from the following month's local title ad valorem tax fee proceeds. In the event that a shortfall remains, the tag agent shall continue to first allocate local title ad valorem tax fee proceeds to offset such shortfalls until the shortfall has been fully repaid; and"; and, in subdivision (c)(3)(B)(iii)(III), substituted "distributed in such county, in the same manner as ad valorem tax on motor vehicles collected under Chapter 5 of this title in the taxing jurisdiction of each governing authority and school district from the amount of ad valorem taxes on motor vehicles collected under Chapter 5 of this title in each such governing authority and school district during the same calendar month of 2012" for "distributed to the governing body of the authority created by local Act to operate such metropolitan area system of public transportation" at the end.

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, in subparagraph (c)(3)(A), in the first sentence, near the beginning deleted "and" preceding "the board", inserted ", the water and sewerage authority for which the county has levied an ad valorem tax in accordance with a local constitutional amendment,", near the middle twice substituted "governing authority, school district, and water and sewerage authority" for "governing authority and school district", and, in the fourth sentence, near the end substituted "authority, the board of education of each such school district, the water and sewerage authority," for "authority and to the board of education of each such school district". The second 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "division (ii) of this subparagraph" for "division (b)(1)(B)(ii) of this Code section" at the end of division (b)(1)(B)(xv).

The 2017 amendment, effective January 1, 2018, deleted "or" at the end of subparagraph (a)(1)(C), substituted "; or" for the period at the end of subparagraph (a)(1)(D), and added subparagraph (a)(1)(E). See Editor's notes for applicability.

The 2018 amendment, effective July 1, 2018, deleted "and" at the end of subparagraph (d)(15)(H); substituted "; and" for the period at the end of subparagraph (d)(15)(I); and added subparagraph (d)(15)(J).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, the first occurrence of subdivision (b)(1)(B)(i)(II) was redesignated as subdivision (b)(1)(B)(i)(I).

Pursuant to Code Section 28-9-5, in 2015, "of" was inserted preceding "subparagraph (A)" in subdivision (d)(10)(B)(i).

Editor's notes. - Ga. L. 2013, p. 32, § 5/HB 463, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be immediately applied to relevant fair market value determinations. The Governor approved this Act on April 10, 2013.

Ga. L. 2013, p. 141, § 54(f)/HB 79, not codified by the General Assembly, provides that: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2013 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict."

Ga. L. 2017, p. 499, § 2/HB 340, not codified by the General Assembly, provides that this Act shall apply to all taxable years beginning on or after January 1, 2018.

The amendment by Ga. L. 2018, p. 8, § 2-1/HB 918 inadvertently underscored the existing period at the end of subparagraph (d)(15)(J).

Administrative Rules and Regulations. - Certificate of title of a vehicle where the commissioner is not satisfied as to the ownership and bond, Official Compilation of the Rules and Regulations of the State of Georgia, Motor Vehicle Division, Scrapped vehicles under the Motor Vehicles Certificate of Title Act, § 560-10-13-.04.

State and local title ad valorem tax fee, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-14.

48-5C-1. (For effective date, see note.) Definitions; exemption from taxation; allocation and disbursement of proceeds collected by tag agents; fair market value of vehicle appealable; report.

  1. As used in this Code section, the term:
    1. "Fair market value of the motor vehicle" means:
      1. For a used motor vehicle, the average of the current fair market value and the current wholesale value of a motor vehicle for a vehicle listed in the current motor vehicle ad valorem assessment manual utilized by the state revenue commissioner and based upon a nationally recognized motor vehicle industry pricing guide for fair market and wholesale market values in determining the taxable value of a motor vehicle under Code Section 48-5-442, and, in the case of a used car dealer, less any reduction for the trade-in value of another motor vehicle;
      2. For a used motor vehicle which is not listed in such current motor vehicle ad valorem assessment manual, the value from the bill of sale or the value from a reputable used car market guide designated by the commissioner, whichever is greater, and, in the case of a used car dealer, less any reduction for the trade-in value of another motor vehicle;
      3. Upon written application and supporting documentation submitted by an applicant under this Code section, a county tag agent may deviate from the fair market value as defined in subparagraph (A), (B), or (D) of this paragraph based upon mileage and condition of the used vehicle. Supporting documentation may include, but not be limited to, bill of sale, odometer statement, and values from reputable pricing guides. The fair market value as determined by the county tag agent pursuant to this subparagraph shall be appealable as provided in subsection (e) of this Code section;
      4. For a new motor vehicle, the greater of the retail selling price or the average of the current fair market value and the current wholesale value of a motor vehicle for a vehicle listed in the current motor vehicle ad valorem assessment manual utilized by the state revenue commissioner in determining the taxable value of a motor vehicle under Code Section 48-5-442, less any reduction for the trade-in value of another motor vehicle and any rebate. The retail selling price shall include any charges for labor, freight, delivery, dealer fees and similar charges, tangible accessories, dealer add-ons, and mark-ups, but shall not include any federal retailers' excise tax or extended warranty, service contract, maintenance agreement, or similar products itemized on the dealer's invoice to the customer or any finance, insurance, and interest charges for deferred payments billed separately. No reduction for the trade-in value of another motor vehicle shall be taken unless the name of the owner and the vehicle identification number of such trade-in motor vehicle are shown on the bill of sale;
      5. For a motor vehicle that is leased:
        1. In the case of a motor vehicle that is leased to a lessee for use primarily in the lessee's trade or business and for which the lease agreement contains a provision for the adjustment of the rental price as described in Code Section 40-3-60, the agreed upon value of the motor vehicle less any reduction for the trade-in value of another motor vehicle and any rebate; or
        2. In the case of a motor vehicle that is leased other than described in division (i) of this subparagraph, the total of the base payments pursuant to the lease agreement plus any down payments.

          The term "any down payments" as used in this subparagraph shall mean cash collected from the lessee at the inception of the lease which shall include cash supplied as a capital cost reduction; shall not include rebates, noncash credits, or net trade allowances; and shall include any upfront payments collected from the lessee at the inception of the lease except for taxes or fees imposed by law and monthly lease payments made in advance; or

      6. For a kit car which is assembled by the purchaser from parts supplied by a manufacturer, the greater of the retail selling price of the kit or the average of the current fair market value and the current wholesale value of the motor vehicle if listed in the current motor vehicle ad valorem assessment manual utilized by the state revenue commissioner and based upon a nationally recognized motor vehicle industry pricing guide for fair market and wholesale market values in determining the taxable value of a motor vehicle under Code Section 48-5-442. A kit car shall not include a rebuilt or salvage vehicle.
    2. "Immediate family member" means spouse, parent, child, sibling, grandparent, or grandchild.
    3. "Loaner vehicle" means a motor vehicle owned by a dealer which is withdrawn temporarily from dealer inventory for exclusive use as a courtesy vehicle loaned at no charge for a period not to exceed 30 days within a 366 day period to any one customer whose motor vehicle is being serviced by such dealer.
    4. "Rental charge" means the total value received by a rental motor vehicle concern for the rental or lease for 31 or fewer consecutive days of a rental motor vehicle, including the total cash and nonmonetary consideration for the rental or lease, including, but not limited to, charges based on time or mileage and charges for insurance coverage or collision damage waiver but excluding all charges for motor fuel taxes or sales and use taxes.
    5. "Rental motor vehicle" means a motor vehicle designed to carry 15 or fewer passengers and used primarily for the transportation of persons that is rented or leased without a driver.
    6. "Rental motor vehicle concern" means a person or legal entity which owns or leases five or more rental motor vehicles and which regularly rents or leases such vehicles to the public for value.
    7. "Trade-in value" means the value of the motor vehicle as stated in the bill of sale for a vehicle which has been traded in to the dealer in a transaction involving the purchase of another vehicle from the dealer.
      1. Except as otherwise provided in this subsection, any motor vehicle for which a title is issued in this state on or after March 1, 2013, shall be exempt from sales and use taxes to the extent provided under paragraph (95) of Code Section 48-8-3 and shall not be subject to the ad valorem tax as otherwise required under Chapter 5 of this title. Any such motor vehicle shall be titled as otherwise required under Title 40 but shall be subject to a state title fee and a local title fee which shall be alternative ad valorem taxes as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution. Motor vehicles registered under the International Registration Plan shall not be subject to state and local title ad valorem tax fees but shall continue to be subject to apportioned ad valorem taxation under Article 10 of Chapter 5 of this title.
        1. Reserved.
        2. The combined state and local title ad valorem tax shall be at a rate equal to 7 percent of the fair market value of the motor vehicle.
        3. Beginning on July 1, 2019, the state and local title ad valorem tax proceeds each month shall be distributed by each county remitting 35 percent of the funds to the state revenue commissioner as provided in subparagraph (c)(2)(A) of this Code section and distributing 65 percent of the funds as provided in paragraph (3) of subsection (c) of this Code section.
        4. The state revenue commissioner shall promulgate such rules and regulations as may be necessary and appropriate to implement and administer this Code section, including, but not limited to, rules and regulations regarding appropriate public notification of rate amounts and rules and regulations regarding appropriate enforcement and compliance procedures and methods for the implementation and operation of this Code section. The state revenue commissioner shall promulgate a standardized form to be used by all dealers of new and used vehicles in this state in order to ease the administration of this Code section. The state revenue commissioner may promulgate and implement rules and regulations as may be necessary to permit seller financed sales of used vehicles to be assessed 2.5 percentage points less than the rate specified in division (ii) of this subparagraph.

          (C) The application for title and the state and local title ad valorem tax fees provided for in subparagraph (A) of this paragraph shall be paid to the tag agent in the county where the motor vehicle is to be registered and shall be paid at the time the application for a certificate of title is submitted or, in the case of an electronic title transaction, at the time when the electronic title transaction is finalized. In an electronic title transaction, the state and local title ad valorem tax fees shall be remitted electronically directly to the county tag agent. A dealer of new or used motor vehicles shall make such application for title and state and local title ad valorem tax fees on behalf of the purchaser of a new or used motor vehicle for the purpose of submitting or, in the case of an electronic title application, finalizing such title application and remitting state and local title ad valorem tax fees. The state and local title ad valorem tax fees provided for in this chapter shall be imposed on the purchaser, including a lessor, that acquires title to the motor vehicle; provided, however, that a lessor that pays such state and local title ad valorem tax fees may seek reimbursement for such state and local title ad valorem tax fees from the lessee.

          (D) There shall be a penalty imposed on any person who, in the determination of the commissioner, falsifies any information in any bill of sale used for purposes of determining the fair market value of the motor vehicle. Such penalty shall not exceed $2,500.00 as a state penalty and shall not exceed $2,500.00 as a local penalty as determined by the commissioner. Such determination shall be made within 60 days of the commissioner receiving information of a possible violation of this paragraph.

          (E) Except in the case in which an extension of the registration period has been granted by the county tag agent under Code Section 40-2-20, a dealer of new or used motor vehicles that makes an application for title and collects state and local title ad valorem tax fees from a purchaser of a new or used motor vehicle and does not submit or, in the case of an electronic title transaction, finalize such application for title and remit such state and local title ad valorem tax fees to the county tag agent within 30 days following the date of purchase shall be liable to the county tag agent for an amount equal to 5 percent of the amount of such state and local title ad valorem tax fees. An additional penalty equal to 10 percent of the amount of such state and local title ad valorem tax fees shall be imposed if such payment is not transmitted within 60 days following the date of purchase. An additional penalty equal to 15 percent of the amount of such state and local title ad valorem tax fees shall be imposed if such payment is not transmitted within 90 days following the date of purchase, and an additional penalty equal to 20 percent of the amount of such state and local title ad valorem tax fees shall be imposed if such payment is not transmitted within 120 days following the date of purchase. An additional penalty equal to 25 percent of the amount of such state and local title ad valorem tax fees shall be imposed for each subsequent 30 day period in which the payment is not transmitted.

          (F) A dealer of new or used motor vehicles that makes an application for title and collects state and local title ad valorem tax fees from a purchaser of a new or used motor vehicle and converts such fees to his or her own use shall be guilty of theft by conversion and, upon conviction, shall be punished as provided in Code Section 16-8-12.

    2. A person or entity acquiring a salvage title pursuant to subsection (b) of Code Section 40-3-36 shall not be subject to the fee specified in paragraph (1) of this subsection but shall be subject to a state title ad valorem tax fee in an amount equal to 1 percent of the fair market value of the motor vehicle. Such state title ad valorem tax fee shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
    1. The amount of proceeds collected by tag agents each month as state and local title ad valorem tax fees, state salvage title ad valorem tax fees, administrative fees, penalties, and interest pursuant to subsection (b) of this Code section shall be allocated and disbursed as provided in this subsection.
    2. For the 2013 tax year and in each subsequent tax year, the amount of such funds shall be disbursed within 20 days following the end of each calendar month as follows:
      1. State title ad valorem tax fees, state salvage title ad valorem tax fees, administrative fees, penalties, and interest shall be remitted to the state revenue commissioner who shall deposit such proceeds in the general fund of the state less an amount to be retained by the tag agent not to exceed 1 percent of the total amount otherwise required to be remitted under this subparagraph to defray the cost of administration. Such retained amount shall be remitted to the collecting county's general fund. Failure by the tag agent to disburse within such 20 day period shall result in a forfeiture of such administrative fee plus interest on such amount at the rate specified in Code Section 48-2-40; and
      2. Local title ad valorem tax fees, administrative fees, penalties, and interest shall be designated as local government ad valorem tax funds. The tag agent shall then distribute the proceeds as specified in paragraph (3) of this subsection, less an amount to be retained by the tag agent not to exceed 1 percent of the total amount otherwise required to be remitted under this subparagraph to defray the cost of administration. Such retained amount shall be remitted to the collecting county's general fund. Failure by the tag agent to disburse within such 20 day period shall result in a forfeiture of such administrative fee plus interest on such amount at the rate specified in Code Section 48-2-40.
    3. Beginning July 1, 2019, the portion of the title ad valorem tax fee proceeds to be retained by the county pursuant to division (b)(1)(B)(iii) of this Code section shall be distributed as follows:
      1. The tag agent of the county shall within 20 days following the end of each calendar month allocate and distribute to the water and sewerage authority for which the county has levied an ad valorem tax in accordance with a local constitutional amendment, and in a county in which a sales and use tax is levied for purposes of a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Ga. L. 1964, p. 1008, the governing body of the transportation authority created by the Metropolitan Atlanta Rapid Transit Authority Act of 1965, Ga. L. 1965, p. 2243, as amended, and the amendment to the Constitution set out at Ga. L. 1964, p. 1008, an amount of those proceeds necessary to offset any reduction in:
        1. Ad valorem taxes on motor vehicles collected under Chapter 5 of this title on behalf of such water and sewerage authority during calendar year 2012; and
        2. With respect to the transportation authority, the monthly average portion of the sales and use tax levied for purposes of a metropolitan area system of public transportation applicable to any motor vehicle titled in a county which levied such tax in 2012.

          Such amount of tax under division (ii) of this subparagraph may be determined by the commissioner for counties which levied such tax in 2012, and in any counties which subsequently levy a tax pursuant to a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Ga. L. 1964, p. 1008, the governing body of the transportation authority created by the Metropolitan Atlanta Rapid Transit Authority Act of 1965, Ga. L. 1965, p. 2243, as amended, and the amendment to the Constitution set out at Ga. L. 1964, p. 1008, the commissioner may determine what amount of sales and use tax would have been collected in calendar year 2012, had such tax been levied. The amount of the reduction to be offset under this subparagraph with respect to division (i) of this subparagraph shall be calculated by the county governing authority by subtracting the amount of title ad valorem tax on motor vehicles collected under Chapter 5 of this title on behalf of such water and sewerage authority in the current calendar month from one-twelfth of the amount of such ad valorem tax on motor vehicles collected on behalf of such water and sewerage authority in calendar year 2012. The amount of the reduction to be offset under this subparagraph with respect to division (ii) of this subparagraph shall be calculated by the county governing authority by subtracting the amount of sales tax collected or determined to have been collected on such motor vehicles by the state revenue commissioner in the current calendar month in any such county from one-twelfth of the amount of sales and use tax collected, or determined to have been collected, on such motor vehicles, by the state revenue commissioner in calendar year 2012 in such county. In the event that the local title ad valorem tax proceeds are insufficient to offset fully such reduction in ad valorem taxes on motor vehicles or the portion of the sales and use tax described in division (ii) of this subparagraph, the tag agent shall allocate a proportionate amount of the proceeds to such water and sewerage authority and the transportation authority, as appropriate, and any remaining shortfall shall be paid from the following month's local title ad valorem tax fee proceeds. In the event that a shortfall remains, the tag agent shall continue to first allocate local title ad valorem tax fee proceeds to offset such shortfalls until the shortfall has been fully repaid;

      2. As to the proceeds remaining after the distribution provided for in subparagraph (A) of this paragraph, with regard to the proceeds associated with and collected on motor vehicle titles for motor vehicles registered in the unincorporated areas of the county, the tag agent of the county shall within 20 days following the end of each calendar month allocate and distribute 51 percent of such proceeds to the county governing authority and distribute 49 percent of such proceeds to the board of education of the county school district; and
      3. As to the proceeds remaining after the distribution provided for in subparagraph (A) of this paragraph, with regard to the proceeds associated with and collected on motor vehicle titles for motor vehicles registered in the incorporated areas of the county, the tag agent of the county shall within 20 days following the end of each calendar month allocate such proceeds by the municipality from which the proceeds were derived and then, for each such municipality, distribute 28 percent of such proceeds to the county governing authority and 23 percent of such proceeds to the governing authority of such municipality, and the remaining 49 percent of such proceeds shall be distributed to the board of education of the county school district; provided, however, that, if there is an independent school district in such municipality, then such remaining 49 percent of such proceeds shall be distributed to the board of education of the independent school district.
      1. Upon the death of an owner of a motor vehicle which has not become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member or immediate family members of such owner who receive such motor vehicle pursuant to a will or under the rules of inheritance shall, subsequent to the transfer of title of such motor vehicle, continue to be subject to ad valorem tax under Chapter 5 of this title and shall not be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section unless the immediate family member or immediate family members make an affirmative written election to become subject to paragraph (1) of subsection (b) of this Code section. In the event of such election, such transfer shall be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section.
      2. Upon the death of an owner of a motor vehicle which has become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member or immediate family members of such owner who receive such motor vehicle pursuant to a will or under the rules of inheritance shall be subject to a state title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle and a local title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
      1. Upon the transfer from an immediate family member of a motor vehicle which has not become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member or immediate family members who receive such motor vehicle shall, subsequent to the transfer of title of such motor vehicle, continue to be subject to ad valorem tax under Chapter 5 of this title and shall not be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section unless the immediate family member or immediate family members make an affirmative written election to become subject to paragraph (1) of subsection (b) of this Code section. In the event of such election, such transfer shall be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section.
      2. Upon the transfer from an immediate family member of a motor vehicle which has become subject to paragraph (1) of subsection (b) of this Code section, the immediate family member who receives such motor vehicle shall transfer title of such motor vehicle to such recipient family member and shall be subject to a state title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle and a local title ad valorem tax fee in an amount equal to one-quarter of 1 percent of the fair market value of the motor vehicle. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
      3. Any title transfer under this paragraph shall be accompanied by an affidavit of the transferor and transferee that such persons are immediate family members to one another. There shall be a penalty imposed on any person who, in the determination of the state revenue commissioner, falsifies any material information in such affidavit. Such penalty shall not exceed $2,500.00 as a state penalty and shall not exceed $2,500.00 as a local penalty as determined by the state revenue commissioner. Such determination shall be made within 60 days of the state revenue commissioner receiving information of a possible violation of this paragraph.
    3. Any individual who:
      1. Is required by law to register a motor vehicle or motor vehicles in this state which were registered in the state in which such person formerly resided; and
      2. Is required to file an application for a certificate of title under Code Section 40-3-21 or 40-3-32

        shall be required to pay state and local title ad valorem tax fees in an amount equal to 3 percent of the fair market value of the motor vehicle.

    4. The state and local title ad valorem tax fees provided for under this Code section shall not apply to corrected titles, replacement titles under Code Section 40-3-31, or titles reissued to the same owner pursuant to Code Sections 40-3-50 through 40-3-56.
    5. Any motor vehicle subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section shall continue to be subject to the title, license plate, revalidation decal, and registration requirements and applicable fees as otherwise provided in Title 40 in the same manner as motor vehicles which are not subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section.
    6. Motor vehicles owned or leased by or to the state or any county, consolidated government, municipality, county or independent school district, or other government entity in this state shall not be subject to the state and local title ad valorem tax fees provided for under paragraph (1) of subsection (b) of this Code section; provided, however, that such other government entity shall not qualify for the exclusion under this paragraph unless it is exempt from ad valorem tax and sales and use tax pursuant to general law.
      1. Any motor vehicle which is exempt from sales and use tax pursuant to paragraph (30) of Code Section 48-8-3 shall be exempt from state and local title ad valorem tax fees under this subsection.
      2. Any motor vehicle which is exempt from ad valorem taxation pursuant to Code Section 48-5-478, 48-5-478.1, 48-5-478.2, or 48-5-478.3 shall be exempt from state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section.

        (B) In the case of for-hire charter buses or motor coaches, the person applying for a certificate of title shall be required to pay title ad valorem tax fees in the amount of 50 percent of the amount which would otherwise be due and payable under this subsection at the time of filing the application for a certificate of title, and the remaining 50 percent shall be paid within 12 months following the filing of such application.

      (7.1) (A) As used in this paragraph, the term "for-hire charter bus or motor coach" means a motor vehicle designed for carrying more than 15 passengers and used for the transportation of persons for compensation.

    8. There shall be a penalty imposed on the transfer of all or any part of the interest in a business entity that includes primarily as an asset of such business entity one or more motor vehicles, when, in the determination of the state revenue commissioner, such transfer is done to evade the payment of state and local title ad valorem tax fees under this subsection. Such penalty shall not exceed $2,500.00 as a state penalty per motor vehicle and shall not exceed $2,500.00 as a local penalty per motor vehicle, as determined by the state revenue commissioner, plus the amount of the state and local title ad valorem tax fees. Such determination shall be made within 60 days of the state revenue commissioner receiving information that a transfer may be in violation of this paragraph.
    9. Any owner of any motor vehicle who fails to submit within 30 days of the date such owner is required by law to register such vehicle in this state an application for a first certificate of title under Code Section 40-3-21 or a certificate of title under Code Section 40-3-32 shall be required to pay a penalty in the amount of 10 percent of the state title ad valorem tax fees and 10 percent of the local title ad valorem tax fees required under this Code section and, if such state and local title ad valorem tax fees and the penalty are not paid within 60 days following the date such owner is required by law to register such vehicle, interest at the rate of 1 percent per month shall be imposed on the state and local title ad valorem tax fees due under this Code section, unless a temporary permit has been issued by the tax commissioner. The tax commissioner shall grant a temporary permit in the event the failure to timely apply for a first certificate of title is due to the failure of a lienholder to comply with Code Section 40-3-56, regarding release of a security interest or lien, and no penalty or interest shall be assessed. Such penalty and interest shall be in addition to the penalty and fee required under Code Section 40-3-21 or 40-3-32, as applicable.
    10. The owner of any motor vehicle for which a title was issued in this state on or after January 1, 2012, and prior to March 1, 2013, shall be authorized to opt in to the provisions of this subsection at any time prior to February 28, 2014, upon compliance with the following requirements:
        1. The total amount of Georgia state and local title ad valorem tax fees which would be due from March 1, 2013, to December 31, 2013, if such vehicle had been titled in 2013 shall be determined; and
        2. The total amount of Georgia state and local sales and use tax and Georgia state and local ad valorem tax under Chapter 5 of this title which were due and paid in 2012 for that motor vehicle and, if applicable, the total amount of such taxes which were due and paid for that motor vehicle in 2013 and 2014 shall be determined; and
        1. If the amount derived under division (i) of subparagraph (A) of this paragraph is greater than the amount derived under division (ii) of subparagraph (A) of this paragraph, the owner shall remit the difference to the tag agent. Such remittance shall be deemed local title ad valorem tax fee proceeds; or
        2. If the amount derived under division (i) of subparagraph (A) of this paragraph is less than the amount derived under division (ii) of subparagraph (A) of this paragraph, no additional amount shall be due and payable by the owner.

          Upon certification by the tag agent of compliance with the requirements of this paragraph, such motor vehicle shall not be subject to ad valorem tax as otherwise required under Chapter 5 of this title in the same manner as otherwise provided in paragraph (1) of subsection (b) of this Code section.

      1. In the case of rental motor vehicles owned by a rental motor vehicle concern, the state title ad valorem tax fee shall be in an amount equal to .625 percent of the fair market value of the motor vehicle, and the local title ad valorem tax fee shall be in an amount equal to .625 percent of the fair market value of the motor vehicle, but only if in the immediately prior calendar year the average amount of sales and use tax attributable to the rental charge of each such rental motor vehicle was at least $400.00 as certified by the state revenue commissioner. If, in the immediately prior calendar year, the average amount of sales and use tax attributable to the rental charge of each such rental motor vehicle was not at least $400.00, this paragraph shall not apply and such vehicles shall be subject to the state and local title ad valorem tax fees prescribed in division (b)(1)(B)(ii) of this Code section.
      2. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
    12. A loaner vehicle shall not be subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section for a period of time not to exceed 366 days commencing on the date such loaner vehicle is withdrawn temporarily from inventory. Immediately upon the expiration of such 366 day period, if the dealer does not return the loaner vehicle to inventory for resale, the dealer shall be responsible for remitting state and local title ad valorem tax fees in the same manner as otherwise required of an owner under paragraph (9) of this subsection and shall be subject to the same penalties and interest as an owner for noncompliance with the requirements of paragraph (9) of this subsection.
    13. Any motor vehicle which is donated to a nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code shall, when titled in the name of such nonprofit organization, not be subject to state and local title ad valorem tax fees under paragraph (1) of subsection (b) of this Code section but shall be subject to state and local title ad valorem tax fees in the amount of 1 percent of the fair market value of the motor vehicle. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
      1. A lessor of motor vehicles that leases motor vehicles for more than 31 consecutive days to lessees residing in this state shall register with the department. The department shall collect an annual fee of $100.00 for such registrations. Failure of a lessor to register under this subparagraph shall subject such lessor to a civil penalty of $2,500.00.
      2. A lessee residing in this state who leases a motor vehicle under this paragraph shall register such motor vehicle with the tag agent in such lessee's county of residence within 30 days of the commencement of the lease of such motor vehicle or beginning residence in this state, whichever is later.
      3. A lessor that leases a motor vehicle under this paragraph to a lessee residing in this state shall apply for a certificate of title in this state within 30 days of the commencement of the lease of such motor vehicle.
    15. There shall be no liability for any state or local title ad valorem tax fees in any of the following title transactions:
      1. The addition or substitution of lienholders on a motor vehicle title so long as the owner of the motor vehicle remains the same;
      2. The acquisition of a bonded title by a person or entity pursuant to Code Section 40-3-28 if the title is to be issued in the name of such person or entity;
      3. The acquisition of a title to a motor vehicle by a person or entity as a result of the foreclosure of a mechanic's lien pursuant to Code Section 40-3-54 if such title is to be issued in the name of such lienholder;
      4. The acquisition of a title to an abandoned motor vehicle by a person or entity pursuant to Chapter 11 of Title 40 if such person or entity is a manufacturer or dealer of motor vehicles and the title is to be issued in the name of such person or entity;
      5. The obtaining of a title to a stolen motor vehicle by a person or entity pursuant to Code Section 40-3-43;
      6. The obtaining of a title by and in the name of a motor vehicle manufacturer, licensed distributor, licensed dealer, or licensed rebuilder for the purpose of sale or resale or to obtain a corrected title, provided that the manufacturer, distributor, dealer, or rebuilder shall submit an affidavit in a form promulgated by the commissioner attesting that the transfer of title is for the purpose of accomplishing a sale or resale or to correct a title only;
      7. The obtaining of a title by and in the name of the holder of a security interest when a motor vehicle has been repossessed after default in accordance with Part 6 of Article 9 of Title 11 if such title is to be issued in the name of such security interest holder;
      8. The obtaining of a title by a person or entity for purposes of correcting a title, changing an odometer reading, or removing an odometer discrepancy legend, provided that, subject to subparagraph (F) of this paragraph, title is not being transferred to another person or entity;
      9. The obtaining of a title by a person who pays state and local title ad valorem tax fees on a motor vehicle and subsequently moves out of this state but returns and applies to retitle such vehicle in this state; and
      10. The obtaining of a replacement title on a vehicle that is not less than 15 years old upon sufficient proof provided to the commissioner that such title no longer exists;
      11. The transfer of a title made as a result of a business reorganization when the owners, partners, members, or stockholders of the business being reorganized maintain the same proportionate interest or share in the newly formed business reorganization;
      12. The transfer of a title from a company to an owner of the company for the purpose of such individual obtaining a prestige or special license plate for the motor vehicle; and
      13. The transfer of a title from an owner of a company to the company.
    16. It shall be unlawful for a person to fail to obtain a title for and register a motor vehicle in accordance with the provisions of this chapter. Any person who knowingly and willfully fails to obtain a title for or register a motor vehicle in accordance with the provisions of this chapter shall be guilty of a misdemeanor.
      1. Any person who purchases a 1963 through 1985 model year motor vehicle for which such person obtains a title shall be subject to this Code section, but the state title ad valorem tax fee shall be in an amount equal to 0.5 percent of the fair market value of such motor vehicle, and the local title ad valorem tax fee shall be in an amount equal to 0.5 percent of the fair market value of such motor vehicle.
      2. The owner of a 1962 or earlier model year motor vehicle who obtains a conditional title pursuant to Code Section 40-3-21.1 for such motor vehicle shall be authorized to opt in to the provisions of this subsection upon the payment of a state title ad valorem tax fee in an amount equal to 0.5 percent of the fair market value of such motor vehicle and a local title ad valorem tax fee in an amount equal to 0.5 percent of the fair market value of such motor vehicle. Upon certification by the tag agent of compliance with the requirements of this subparagraph, such motor vehicle shall not be subject to ad valorem tax as otherwise required under Chapter 5 of this title in the same manner as otherwise provided in paragraph (1) of subsection (b) of this Code section.
      1. Upon the transfer of title as the result of a divorce decree or court order of a motor vehicle which has not become subject to paragraph (1) of subsection (b) of this Code section, the person who receives such motor vehicle shall, subsequent to the transfer of title of such motor vehicle, continue to be subject to the ad valorem tax under Chapter 5 of this title and shall not be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section unless such person makes an affirmative written election to become subject to paragraph (1) of subsection (b) of this Code section. In the event of such election, such transfer shall be subject to the state and local title ad valorem tax fees provided for in paragraph (1) of subsection (b) of this Code section.
      2. Upon the transfer of title as the result of a divorce decree or court order of a motor vehicle which has become subject to paragraph (1) of subsection (b) of this Code section, the person who receives such motor vehicle shall, at the time of the transfer of title of such motor vehicle, be subject to a state title ad valorem tax fee in an amount equal to one-half of 1 percent of the fair market value of the motor vehicle and a local title ad valorem tax fee in an amount equal to one-half of 1 percent of the fair market value of the motor vehicle. Such title ad valorem tax fees shall be an alternative ad valorem tax as authorized by Article VII, Section I, Paragraph III(b)(3) of the Georgia Constitution.
      3. Any title transfer under this paragraph shall be accompanied by an affidavit of the transferee that such transfer is pursuant to a divorce decree or court order, and the transferee shall attach such decree or order to the affidavit. There shall be a penalty imposed on any person who, in the determination of the state revenue commissioner, falsifies any material information in such affidavit. Such penalty shall not exceed $2,500.00 as a state penalty and shall not exceed $2,500.00 as a local penalty as determined by the state revenue commissioner. Such determination shall be made within 60 days of the state revenue commissioner receiving information of a possible violation of this paragraph.
  5. The fair market value of any motor vehicle subject to this Code section shall be appealable in the same manner as otherwise authorized for a motor vehicle subject to ad valorem taxation under Code Section 48-5-450; provided, however, that the person appealing the fair market value shall first pay the full amount of the state and local title ad valorem tax prior to filing any appeal. If the appeal is successful, the amount of the tax owed shall be recalculated and, if the amount paid by the person appealing the determination of fair market value is greater than the recalculated tax owed, the person shall be promptly given a refund of the difference.
  6. Beginning in 2014, on or before January 31 of each year, the department shall provide a report to the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee showing the state and local title ad valorem tax fee revenues collected pursuant to this chapter and the motor vehicle ad valorem tax proceeds collected pursuant to Chapter 5 of this title during the preceding calendar year.
  7. A motor vehicle dealer shall be authorized to apply to the county tag agent of the county in which such motor vehicle is registered for a refund of state and local title ad valorem taxes on behalf of the person who purchased a motor vehicle from such dealer. Such dealer shall promptly pay to such purchaser any refund received by the dealer which is owed to the purchaser, and in any event, such payment shall be made no later than ten days following the receipt of such refund by the dealer. The county tag agent shall approve or deny the request for refund within 30 days after the filing of the application for refund. If the county tag agent denies the refund, the county tag agent shall specify the reasons for such denial. The motor vehicle dealer shall be authorized to appeal such denial to the commissioner within 30 days following such denial. (Code 1981, § 48-5C-1 , enacted by Ga. L. 2012, p. 257, § 1-4/HB 386; Ga. L. 2013, p. 7, § 2/HB 266; Ga. L. 2013, p. 32, § 4/HB 463; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2015, p. 5, § 48/HB 90; Ga. L. 2015, p. 1219, § 23/HB 202; Ga. L. 2016, p. 758, § 3/SB 379; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 499, § 1/HB 340; Ga. L. 2018, p. 8, § 2-1/HB 918; Ga. L. 2018, p. 287, § 1/HB 329.)

Delayed effective date. - This Code section, as set out above, becomes effective July 1, 2019. For version of this Code section in effect until July 1, 2019, see the preceding version.

The 2015 amendments. The first 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, substituted "Title 40" for "this title" in subparagraph (d)(15)(D). The second 2015 amendment, effective January 1, 2016, substituted the present provisions of subparagraph (c)(3)(A) for the former provisions, which read: "The tag agent of the county shall within 20 days following the end of each calendar month allocate and distribute to the county governing authority and to municipal governing authorities, the board of education of the county school district, and the board of education of any independent school district located in such county an amount of those proceeds necessary to offset any reduction in ad valorem tax on motor vehicles collected under Chapter 5 of this title in the taxing jurisdiction of each governing authority and school district from the amount of ad valorem taxes on motor vehicles collected under Chapter 5 of this title in each such governing authority and school district during the same calendar month of 2012. This reduction shall be calculated by subtracting the amount of ad valorem tax on motor vehicles collected under Chapter 5 of this title in each such taxing jurisdiction from the amount of ad valorem tax on motor vehicles collected under Chapter 5 of this title in that taxing jurisdiction in the same calendar month of 2012. In the event that the local title ad valorem tax fee proceeds are insufficient to fully offset such reduction in ad valorem taxes on motor vehicles, the tag agent shall allocate a proportionate amount of the proceeds to each governing authority and to the board of education of each such school district, and any remaining shortfall shall be paid from the following month's local title ad valorem tax fee proceeds. In the event that a shortfall remains, the tag agent shall continue to first allocate local title ad valorem tax fee proceeds to offset such shortfalls until the shortfall has been fully repaid; and"; and, in subdivision (c)(3)(B)(iii)(III), substituted "distributed in such county, in the same manner as ad valorem tax on motor vehicles collected under Chapter 5 of this title in the taxing jurisdiction of each governing authority and school district from the amount of ad valorem taxes on motor vehicles collected under Chapter 5 of this title in each such governing authority and school district during the same calendar month of 2012" for "distributed to the governing body of the authority created by local Act to operate such metropolitan area system of public transportation" at the end.

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, in subparagraph (c)(3)(A), in the first sentence, near the beginning deleted "and" preceding "the board", inserted ", the water and sewerage authority for which the county has levied an ad valorem tax in accordance with a local constitutional amendment,", near the middle twice substituted "governing authority, school district, and water and sewerage authority" for "governing authority and school district", and, in the fourth sentence, near the end substituted "authority, the board of education of each such school district, the water and sewerage authority," for "authority and to the board of education of each such school district". The second 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "division (ii) of this subparagraph" for "division (b)(1)(B)(ii) of this Code section" at the end of division (b)(1)(B)(xv).

The 2017 amendment, effective January 1, 2018, deleted "or" at the end of subparagraph (a)(1)(C), substituted "; or" for the period at the end of subparagraph (a)(1)(D), and added subparagraph (a)(1)(E). See Editor's notes for applicability.

The 2018 amendments. The first 2018 amendment, effective July 1, 2018, deleted "and" at the end of subparagraph (d)(15)(H); substituted "; and" for the period at the end of subparagraph (d)(15)(I); and added subparagraph (d)(15)(J). The second 2018 amendment, effective July 1, 2019, rewrote this Code section.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, the first occurrence of subdivision (b)(1)(B)(i)(II) was redesignated as subdivision (b)(1)(B)(i)(I).

Pursuant to Code Section 28-9-5, in 2015, "of" was inserted preceding "subparagraph (A)" in subdivision (d)(10)(B)(i).

Pursuant to Code Section 28-9-5, in 2018, subparagraphs (d)(15)(J) through (d)(15)(L), as added by Ga. L. 2018, p. 287, § 1/HB 329, were redesignated as subparagraphs (d)(15)(K) through (d)(15)(M) and related stylistic changes were made.

Editor's notes. - Ga. L. 2013, p. 32, § 5/HB 463, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be immediately applied to relevant fair market value determinations. The Governor approved this Act on April 10, 2013.

Ga. L. 2013, p. 141, § 54(f)/HB 79, not codified by the General Assembly, provides that: "In the event of a conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2013 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict."

Ga. L. 2017, p. 499, § 2/HB 340, not codified by the General Assembly, provides that this Act shall apply to all taxable years beginning on or after January 1, 2018.

The amendment by Ga. L. 2018, p. 8, § 2-1/HB 918 inadvertently underscored the existing period at the end of subparagraph (d)(15)(J).

Administrative Rules and Regulations. - Certificate of title of a vehicle where the commissioner is not satisfied as to the ownership and bond, Official Compilation of the Rules and Regulations of the State of Georgia, Motor Vehicle Division, Scrapped vehicles under the Motor Vehicles Certificate of Title Act, § 560-10-13-.04.

State and local title ad valorem tax fee, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-14.

CHAPTER 6 TAXATION OF INTANGIBLES

Article 1

Real Estate Transfer Tax.

Article 2

Intangible Personal Property Tax [Repealed].

Article 3

Intangible Recording Tax.

Article 4

Taxation of Financial Institutions.

RESEARCH REFERENCES

ALR. - Taxation of intangible property of foreign corporation having chief place of business in the state, 104 A.L.R. 806 .

Tax on corporations as affected by fact that corporation is not actually engaged in or carrying on business for which it was incorporated, 124 A.L.R. 1109 .

ARTICLE 1 REAL ESTATE TRANSFER TAX

JUDICIAL DECISIONS

Real estate transfer tax is not a tax on the property as such, as is the ad valorem tax which is charged against the owner of the property or against the specific property. Rather, it is an excise tax on transactions involving the sale of property. City of Columbus v. Ronald A. Edwards Constr. Co., 155 Ga. App. 502 , 271 S.E.2d 643 (1980).

Real estate transfer tax does not preempt builder-contractor's license tax. - Real estate transfer tax does not preempt city's gross receipts tax, which is a license tax required by city ordinance as a condition precedent before a builder-contractor can carry on everyday business. City of Columbus v. Ronald A. Edwards Constr. Co., 155 Ga. App. 502 , 271 S.E.2d 643 (1980).

City gross receipts tax is not special law covering subject already covered by general law. - City's gross receipts tax is distinguishable from the real estate transfer tax, which is imposed on every transferor of real property on each individual sale of such property, regardless of whether the transferor has a license to sell real property and regardless of whether such transferor is subject to a gross receipts tax, and hence is not a special law for which provision has been made by an existing general law. City of Columbus v. Ronald A. Edwards Constr. Co., 155 Ga. App. 502 , 271 S.E.2d 643 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-8 are included in the annotations for this article.

Exemption of transactions to which national bank a party. - Real estate transfer tax cannot be levied on any transaction to which a national bank is a party. National banks are still instrumentalities of the United States government which, together with all of the government's agencies and instrumentalities, is immune from state taxation unless Congress consents to such taxation. 1968 Op. Att'y Gen. No. 68-360 (decided under former Code 1933, Ch. 92-8).

Applicability to property acquired by Department of Transportation. - Tax on transfer of real property does not apply to property acquired by the Department of Transportation under the authority of Ga. L. 1973, p. 947, § 1 (see now O.C.G.A. Art. 1, Ch. 3, T. 32). 1974 Op. Att'y Gen. No. U74-56 (decided under former Code 1933, Ch. 92-8).

Taxation of exchange of realty. - Real estate transactions which involve an exchange of realty and in which no cash or monetary consideration changes hands are subject to the transfer tax. 1968 Op. Att'y Gen. No. 68-71 (decided under former Code 1933, Ch. 92-8).

Basis for computation of tax on long-term lease. - Computation of the real estate transfer tax on a long-term lease is based on the consideration (rent) when it is definite in amount, or may be definitely determined and on the value of the interest conveyed when the consideration is indefinite or is left open to be fixed by future contingencies. 1968 Op. Att'y Gen. No. 68-519 (decided under former Code 1933, Ch. 92-8).

RESEARCH REFERENCES

ALR. - Life insurance as affecting transfer or succession tax, 63 A.L.R. 394 ; 92 A.L.R. 943 ; 118 A.L.R. 324 ; 150 A.L.R. 1268 .

"Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 143 A.L.R. 361 .

Computation of tax upon conveyance to mortgagee upon foreclosure, or upon direct conveyance by mortgagor to mortgagee, 73 A.L.R.2d 157.

48-6-1. Transfer tax rate.

There is imposed a tax at the rate of $1.00 for the first $1,000.00 or fractional part of $1,000.00 and at the rate of 10 › for each additional $100.00 or fractional part of $100.00 on each deed, instrument, or other writing by which any lands, tenements, or other realty sold is granted, assigned, transferred, or otherwise conveyed to or vested in the purchaser or purchasers, or any other person or persons by his or their direction, when the consideration or value of the interest or property conveyed (exclusive of the value of any lien or encumbrance existing prior to the sale and not removed by the sale) exceeds $100.00.

(Ga. L. 1967, p. 788, § 1; Ga. L. 1971, p. 266, § 1; Code 1933, § 91A-3001, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1998, p. 1012, § 1.)

Editor's notes. - The 1998 amendment was contingent on approval of the constitutional amendment (Ga. L. 1998, p. 1684) creating the Land, Water, Wildlife, and Recreation Heritage Fund which was defeated at the November, 1998, general election and was not given effect.

Administrative Rules and Regulations. - Substantive regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-2.

Intangible recording tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-8.

Law reviews. - For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS

Nature of tax. - Intangible tax imposed by O.C.G.A. § 48-6-61 is analogous to the real estate transfer tax imposed by O.C.G.A. § 48-6-1 , both being based on increments in the value of the instrument being recorded and being calculated in the same manner. Bankers Trust Co. v. Jackson, 236 Ga. App. 490 , 512 S.E.2d 378 (1999).

Real estate tax is an excise tax on transactions involving the sale of property. Bankers Trust Co. v. Jackson, 236 Ga. App. 490 , 512 S.E.2d 378 (1999).

Because Georgia's ad valorem taxation scheme is contained in its own chapter, entirely separate from the chapter that describes the real estate transfer tax, the definition of taxable property in O.C.G.A. § 48-5-3 did not support an argument regarding the nature of the transfer tax in O.C.G.A. § 48-6-1 et seq. Athens-Clarke County Unified Gov't v. Fed. Hous. Fin. Agency, F. Supp. 2d (M.D. Ga. May 14, 2013).

Recordation of deed and effect as notice when tax not paid. - Warranty deed which shows on the deed's face both that the deed was for a consideration in excess of $100.00, and that no tax has been paid is not entitled to be recorded nor can such a deed serve as constructive notice to a later buyer. Higdon v. Gates, 238 Ga. 105 , 231 S.E.2d 345 (1976).

Municipal Electric Authority of Georgia is exempt from the transfer tax imposed by this statute. Thompson v. Municipal Elec. Auth., 238 Ga. 19 , 231 S.E.2d 720 (1976).

Florida public authority not entitled to exemption. - Florida public authority's action under O.C.G.A. § 48-6-7(b) , protesting the denial by the Revenue Commissioner of the State of Georgia of the authority's request for a refund of real estate transfer tax, paid pursuant to O.C.G.A. § 48-6-1 , was denied when it was found that the exemption provided in O.C.G.A. § 48-6-2(a)(3) did not apply to the out-of-state public authority; the commissioner's determination that the exemption did not apply to such an entity was entitled to deference pursuant to the principles of O.C.G.A. § 48-2-12 . Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545 , 594 S.E.2d 745 (2004).

Federal mortgage companies exempt. - Exemptions from state taxation in 12 U.S.C. §§ 1452(e), 1723a(c)(2), and 4617(j)(2) apply to specific entities, not property, and include excise taxes; thus, imposition of Georgia's real estate transfer tax, O.C.G.A. § 48-6-1 et seq., on these federal mortgage companies' real estate transactions in Georgia was precluded. Athens-Clarke County Unified Gov't v. Fed. Hous. Fin. Agency, F. Supp. 2d (M.D. Ga. May 14, 2013).

Exemption of Fannie Mae, Freddie Mac, and the Federal Housing Finance Agency from "all taxation" applies to Georgia's real estate transfer tax and the exception allowing taxation of real property does not extend to transfer taxes, which are excise taxes and not taxes imposed on the property itself. Montgomery County Comm'n v. Fed. Hous. Fin. Agency, 776 F.3d 1247 (11th Cir. 2015).

Cited in Gibson v. Dismuke, 171 Ga. App. 78 , 318 S.E.2d 666 (1984); O.P.D.I.-U.S., Inc. v. Collins, 193 Ga. App. 454 , 388 S.E.2d 49 (1989); CC Office Assocs. v. DeKalb County, 219 Ga. App. 101 , 464 S.E.2d 243 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Conveyances pursuant to AT&T divestiture. - Conveyances of real estate from Southern Bell to Southern States, Southeast, and AT&T Information Systems, Inc. in connection with the divestiture of AT&T are subject to the Georgia real estate transfer tax. 1983 Op. Att'y Gen. No. 83-81.

Easements acquired by public utilities through condemnation. - Real estate transfer tax applies to easements acquired by public utilities through condemnation. 1998 Op. Att'y Gen. No. 98-19.

Exemption of transactions to which political subdivision is party. - Statute does not specifically impose a tax on transactions in which a political subdivision is a party. Accordingly, when a political subdivision is a party, it is not subject to the transfer tax. The other party is not subject to the tax on the transaction since, when the party primarily liable for the tax is not subject to it, the tax cannot be imposed on the party secondarily liable. 1968 Op. Att'y Gen. No. 68-65.

National banks, regardless of the location of their principal offices, are subject to the documentary tax imposed by Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48). 1970 Op. Att'y Gen. No. 70-52.

Foreclosure is a sale and is subject to the transfer tax. 1968 Op. Att'y Gen. No. 68-67.

Deed given in lieu of foreclosure is a sale. - Transaction involving a deed from a mortgagor to a mortgagee in lieu of foreclosure is subject to Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48). 1968 Op. Att'y Gen. No. 68-89.

Deed from the administrator of an intestate estate to the heirs of the intestate is not a taxable transfer under Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48). 1969 Op. Att'y Gen. No. 69-225.

Deed of gift. - Statute applies only to realty sold, and a deed of gift is not a sale. 1968 Op. Att'y Gen. No. 68-67.

Estate for years. - Real estate transfer tax is applicable to conveyance of an estate for years. 1968 Op. Att'y Gen. No. 68-474.

Lease may be subject to the transfer tax when the lease may be construed to convey an interest in realty. 1968 Op. Att'y Gen. No. 68-157.

Person holding a contract permitting the person to cut and remove timber during a stated period is obligated to pay ad valorem taxes on the standing timber as the person's interest therein may appear on January 1 of the tax year. A contract to remove timber is in the nature of a deed rather than a lease. 1973 Op. Att'y Gen. No. U73-96.

Cemetery deed not taxable. - Cemetery deed for interment rights is only an easement in the soil for the purpose of the grant. Since an easement in land is a mere license and does not convey an interest in land, no land has been sold and no real estate transfer tax is due. 1968 Op. Att'y Gen. No. 68-78.

Exchange of corporate stocks. - Tax is due when stock of one corporation is exchanged for property of another, even when both are owned by the same people. 1969 Op. Att'y Gen. No. 69-515.

When promissory note secured by deed is an encumbrance existing at time of sale. - Promissory note secured by a deed to secure debt given as part of the consideration in a sale of real estate is a lien or encumbrance remaining on the property at the time of sale within the meaning of this statute, when such promissory note and deed to secure debt are executed and delivered prior to the delivery of the warranty deed by the vendor to the purchaser. 1968 Op. Att'y Gen. No. 68-203.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1813 et seq.

ALR. - Discrimination between notes or obligations secured by real estate mortgage, and those unsecured, as regards property taxation or exemption therefrom, 129 A.L.R. 682 .

48-6-2. Exemption of certain instruments, deeds, or writings from real estate transfer tax; requirement that consideration be shown.

  1. The tax imposed by Code Section 48-6-1 shall not apply to:
    1. Any instrument or writing given to secure a debt;
    2. Any deed of gift;
    3. Any deed, instrument, or other writing to which any of the following is a party: the United States; this state; any agency, board, commission, department, or political subdivision of either the United States or this state; any public authority; or any nonprofit public corporation;
    4. Any lease of lands, tenements, standing timber, or other realty or any lease of any estate, interest, or usufruct in any lands, tenements, standing timber, or other realty;
    5. Any transfer of real estate between a husband and wife in connection with a divorce case;
    6. Any order for year's support awarding an interest in real property as provided in former Code Section 53-5-11 as such existed on December 31, 1997, if applicable, or Code Section 53-3-11;
    7. Any deed issued in lieu of foreclosure if the deed issued in lieu of foreclosure is for a purchase money deed to secure debt that has been in existence and properly executed and recorded for a period of 12 months prior to the recording of the deed in lieu of foreclosure;

      (7.1) The deed from the debtor to the first transferee at a foreclosure sale;

    8. Transfer of property which is acquired as provided in Code Sections 32-3-2 and 32-3-3;

      (8.1) Any deed that seeks to return any property sold at a tax sale back to the defendant in fi. fa.;

    9. Any deed of assent or distribution by an executor, administrator, guardian, trustee, or custodian; any deed or other instrument carrying out the exercise of a power of appointment; and any other instrument transferring real estate to or from a fiduciary; provided, however, that the exemption provided under this paragraph shall apply only if the transfer is without valuable consideration;
    10. Any deed, instrument, or other writing which effects a division of real property among joint tenants or tenants in common if the transaction does not involve any consideration other than the division of the property; and
      1. Any deed, instrument, or other writing through which real property is transferred from one or more individual owners to a corporation, partnership, or other entity if the individual owner or owners of the real property also have a majority ownership interest in the corporation, partnership, or other entity to which the property is transferred; or
      2. Any deed, instrument, or other writing through which real property is transferred from a corporation, partnership, or other entity to one or more individuals if the individual or individuals to whom the property is transferred also have a majority ownership interest in the corporation, partnership, or other entity by which the property is transferred.
  2. In order to exercise any exemption provided in this Code section, the total consideration of the transfer for real and personal property conveyed shall be shown on the form prescribed in subsection (c) of Code Section 48-6-4.

    (Ga. L. 1967, p. 788, § 3; Ga. L. 1968, p. 1102, § 1; Ga. L. 1969, p. 109, § 1; Ga. L. 1975, p. 782, § 1; Ga. L. 1976, p. 1059, § 3; Ga. L. 1977, p. 680, § 1; Code 1933, § 91A-3003, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 52A; Ga. L. 1980, p. 491, § 2; Ga. L. 1984, p. 936, § 1; Ga. L. 1991, p. 965, § 1; Ga. L. 1996, p. 736, § 1; Ga. L. 1998, p. 128, § 48; Ga. L. 2003, p. 874, § 1; Ga. L. 2006, p. 770, § 7/SB 585; Ga. L. 2011, p. 752, § 48/HB 142; Ga. L. 2015, p. 1219, § 24/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted "for real and personal property conveyed shall be shown on the form prescribed in subsection (c) of Code Section 48-6-4" for "shall be shown" at the end of subsection (b).

Editor's notes. - Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides the amendment by that Act shall apply to all executions transferred on or after July 1, 2006, and executions transferred prior to July 1, 2006, shall not be affected.

Law reviews. - For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004).

JUDICIAL DECISIONS

Florida public authority not entitled to exemption. - Florida public authority's action under O.C.G.A. § 48-6-7(b) , protesting the denial by the Revenue Commissioner of the State of Georgia of its request for a refund of real estate transfer tax, paid pursuant to O.C.G.A. § 48-6-1 , was denied since it was found that the exemption provided in O.C.G.A. § 48-6-2(a)(3) did not apply to the out-of-state public authority; the Commissioner's determination that the exemption did not apply to such an entity was entitled to deference pursuant to the principles of O.C.G.A. § 48-2-12 . Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545 , 594 S.E.2d 745 (2004).

Cited in Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47 , 653 S.E.2d 486 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Conveyance of right of way to Department of Transportation. - Conveyance of property as a right of way by the urban renewal agency of a city to the State Highway Department (now Department of Transportation) is not subject to the real estate transfer tax. 1969 Op. Att'y Gen. No. 69-145.

Exemption of deeds to which director of veterans service is party. - Deeds in which the administrator of veterans affairs (now director of veterans service) is either the grantor or the grantee are not subject to taxation. 1968 Op. Att'y Gen. No. 68-72.

Exemption of deeds under power of sale by director of veterans service. - Deeds under power of sale by the administrator of veterans affairs (now director of veterans service) as attorney-in-fact for a mortgagor who has obtained a direct loan are not subject to taxation under Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48) if the property is bid in by the administrator (now director). 1968 Op. Att'y Gen. No. 68-72.

Person holding a contract permitting person to cut and remove timber during a stated period is obligated to pay ad valorem taxes on the standing timber as the person's interest therein may appear on January 1 of the tax year. A contract to remove timber is in the nature of a deed rather than a lease. 1973 Op. Att'y Gen. No. U73-96.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 264 et seq. 85 C.J.S., Taxation, § 1815.

ALR. - Validity of tax on land trust certificates, 100 A.L.R. 804 .

Discrimination between notes or obligations secured by real estate mortgage, and those unsecured, as regards property taxation or exemption therefrom, 129 A.L.R. 682 .

Gift tax, 133 A.L.R. 986 ; 141 A.L.R. 452 ; 60 A.L.R.2d 1304.

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

Presumption of consideration from revenue stamps on deed, 51 A.L.R.2d 1004.

Valuation of gift property for purposes of gift tax, 60 A.L.R.2d 1304.

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in constitution, 61 A.L.R.2d 1031.

48-6-3. Persons required to pay real estate transfer tax.

The tax imposed by Code Section 48-6-1 shall be paid by the person who executes the deed, instrument, or other writing or by the person for whose use or benefit the deed, instrument, or other writing is executed.

(Ga. L. 1967, p. 788, § 2; Code 1933, § 91A-3002, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

When deed granted by federal agency is exempt, grantee also exempt. - When a deed from the secretary of housing and urban development to an individual or corporation, which deed conveys real property which previously has been acquired under mortgage insurance, is not taxable to the federal agency, the grantee, who is secondarily responsible, would not be liable for the tax on the exempt transaction. 1968 Op. Att'y Gen. No. 68-37.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1820.

ALR. - "Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 143 A.L.R. 361 .

48-6-4. Payment of tax prerequisite to filing deed, instrument, or other writing; certification of payment; recording certification with deed.

  1. It is the intent of the General Assembly that the tax imposed by this article be paid to the clerk of the superior court or his or her deputy, and that the actual consideration of real and personal property conveyed shall be shown separately on the form prescribed in subsection (c) of this Code section, prior to and as a prerequisite to the filing for record of any deed, instrument, or other writing described in Code Section 48-6-1.
  2. No deed, instrument, or other writing described in Code Section 48-6-1 shall be filed for record or recorded in the office of the clerk of the superior court or filed for record or recorded in or on any other official record of this state or of any county until the tax imposed by this article has been paid and until the actual consideration of real and personal property conveyed has been shown separately on the form prescribed in subsection (c) of this Code section; provided, however, that any such deed, instrument, or other writing filed or recorded which would otherwise constitute constructive notice shall constitute such notice whether or not such tax was in fact paid.
  3. The amount of tax to be paid on a deed, instrument, or other writing shall be determined on the basis of written disclosure of the actual consideration of the interest in the property granted, assigned, transferred, or otherwise conveyed. The disclosure of the amount of tax and the actual consideration shall be made on a form or in electronic format prescribed by the commissioner and provided by the clerk of the superior court. By the fifteenth day of the month following the month the deed, instrument, or other writing is recorded, a physical or electronic copy of each disclosure shall be forwarded or made available electronically to the state auditor and to the tax commissioner and the board of tax assessors in the county where the deed, instrument, or other writing is recorded.
  4. Upon payment of the correct amount of tax, the clerk of the superior court or his or her deputy shall enter upon or attach to the deed, instrument, or other writing a certification of the fact that the tax as imposed by this article has been paid, the date, and the amount of the tax. The certification shall be signed by the clerk or deputy clerk receiving the tax. The certification may also be attested to electronically by the clerk or deputy clerk in such manner as may be prescribed by the commissioner.
  5. The certificate entered upon or attached physically or electronically to the deed, instrument, or other writing shall be recorded with the deed, instrument, or other writing and shall be in the physical or electronic form required by the commissioner. In each case, however, the certificate shall bear the signature of the clerk or his or her deputy. The certificate may be relied upon by subsequent purchasers or lenders as evidence that the proper tax has been paid. In the event any deed, instrument, or other writing upon which tax is imposed by this article is required to be recorded in more than one county, the required tax shall be prorated among all applicable counties and the amount paid to the clerk or his or her deputy of the county in which the deed, instrument, or other writing is recorded shall be that proportion of the total tax due calculated by applying the ratio of the value of the real property in such county as it bears to the total value of the real properties in all counties described in the deed, instrument, or other writing to the total tax due. Such proportions shall be calculated pursuant to the most recently determined fair market valuations of the property as determined by the county board of tax assessors. All such values shall be disclosed on the face of the deed, instrument, or other writing or, alternatively, may be submitted in the form of an affidavit by the holder presenting the deed, instrument, or other writing for recording. The original or a duplicate original executed copy or counterpart of such deed, instrument, or other writing shall be presented for recording in all counties in which the real property is located, and the clerk or the clerk's deputy of each county may rely upon the sworn original or a duplicate original certification of values in determining the amount of tax due and payable in that county and collect such portion of the tax imposed by Code Section 48-6-1 and enter the same upon the deed, instrument, or other writing.

    (Ga. L. 1967, p. 788, § 5; Ga. L. 1971, p. 266, § 3; Code 1933, § 91A-3005, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 725, § 1; Ga. L. 1990, p. 1843, § 1; Ga. L. 2003, p. 874, § 2; Ga. L. 2010, p. 526, § 1/HB 1192; Ga. L. 2015, p. 1219, § 25/HB 202.)

The 2015 amendment, effective January 1, 2016, in subsection (a), inserted ", and that the actual consideration of real and personal property conveyed shall be shown separately on the form prescribed in subsection (c) of this Code section," in the middle; in subsection (b), inserted "and until the actual consideration of real and personal property conveyed has been shown separately on the form prescribed in subsection (c) of this Code section" in the middle; and, in subsection (c), substituted "actual consideration of the interest" for "consideration or value of the interest" in the first sentence, and inserted "of the amount of tax and the actual consideration" near the beginning of the second sentence.

Law reviews. - For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010).

JUDICIAL DECISIONS

Recordation of deed and effect as notice when tax not paid. - Warranty deed which shows on the deed's face both that the deed was for a consideration in excess of $100.00, and that no tax has been paid is not entitled to be recorded nor can such a deed serve as constructive notice to a later buyer. Higdon v. Gates, 238 Ga. 105 , 231 S.E.2d 345 (1976).

Cited in Five Star Partners v. Vincent Netherlands Properties, 169 Bankr. 994 (Bankr. N.D. Ga. 1994).

OPINIONS OF THE ATTORNEY GENERAL

Confidentiality of tax information. - Information obtained from real estate transfer tax forms and included on county tax assessors' property record cards is not confidential. 1990 Op. Att'y Gen. No. U90-25.

Access to tax disclosure forms not limited to officials of state or political subdivisions. - It is not the intention of the General Assembly to deny to federal internal revenue agents, or to all tax administrators other than those employed by either the Department of Revenue or Georgia's political subdivisions, access to real estate transfer tax disclosure forms. 1976 Op. Att'y Gen. No. U76-48.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1820.

ALR. - Discrimination in state taxation of national banks or national bank shares, 87 A.L.R. 846 .

Tax on bank stock as payable out of assets of insolvent bank or trust company, 87 A.L.R. 1018 .

"Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 143 A.L.R. 361 .

48-6-5. Clerks of superior courts responsible for tax collecting; fees.

  1. Each clerk of the superior court shall be responsible for collecting the tax provided in this article. Each clerk may affix certificates to the deeds, instruments, or other writings with respect to which a tax is required to be paid pursuant to this article. Each clerk shall also perform the duties provided in this article.
  2. In the performance of the duties imposed by this article, each clerk of the superior court shall be entitled to a fee in addition to all other fees provided by law of 50› for each deed, instrument, or other writing with respect to which a tax is required to be paid as provided in this article and filed for record and recorded in the county in which the clerk of the court holds office. The fee shall be withheld from the funds received in payment of the tax. Fees withheld by a clerk shall be distributed as follows:
    1. In the event the clerk withholding the fees is compensated on a salary basis, the amount of the fees withheld shall be paid into the treasury of the county; or
    2. In the event the clerk is not compensated on a salary basis, the amount of the fees withheld shall be retained by the clerk as compensation for the duties performed under this article.

      (Ga. L. 1967, p. 788, § 4; Ga. L. 1971, p. 266, § 2; Code 1933, § 91A-3004, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 874, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

General Assembly did not contemplate the creation of an employer-employee relationship between the department and clerks of the superior courts in Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48). 1969 Op. Att'y Gen. No. 69-168.

Clerks of the superior courts and staff may not elect to come under the Employees' Retirement System of Georgia by virtue of Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48). 1969 Op. Att'y Gen. No. 69-168.

RESEARCH REFERENCES

C.J.S. - 21 C.J.S., Courts, § 338 et seq. 85 C.J.S., Taxation, § 1124.

48-6-6. Annual report of tax distribution.

Within 60 days of the end of each calendar year, the clerk of the superior court shall file with the commissioner a report showing the total amount of tax distributed among the state, county, and municipalities during the preceding calendar year.

(Ga. L. 1967, p. 788, § 8; Code 1933, § 91A-3006, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 874, § 4.)

RESEARCH REFERENCES

C.J.S. - 21 C.J.S., Courts, § 342.

48-6-7. Refund of erroneously or illegally collected tax; procedure for filing claim; action for refund in superior court upon denial of claim; manner of paying refund.

  1. In any case in which the clerk of superior court erroneously or illegally collects the tax imposed by this article and remits the tax to the commissioner, the taxpayer from whom the tax was collected may file a claim for refund with the commissioner at any time within one year after the date of collection. Each claim for refund shall be made in writing and shall be accompanied by evidence supporting the claim that the collection was erroneous or illegal. The commissioner or his delegate shall consider the information contained in the taxpayer's claim for refund and other available information, shall approve or disapprove the claim, and shall notify the taxpayer of the decision.
    1. A taxpayer whose claim for a refund is denied by the commissioner or the commissioner's delegate or with respect to whose claim no decision is rendered by the commissioner or the commissioner's delegate within one year from the date of filing the claim shall have the right to bring an action for a refund in the superior court of the county where the disputed tax was originally collected or in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50. The taxpayer shall bring the action for refund against the clerk of superior court of the county which collected the disputed tax. The commissioner in the commissioner's official capacity shall be made a party defendant to the action in order that the interests of the state may be represented in the action. The Attorney General shall represent both defendants in the action. If it is determined in the action that an amount claimed by the taxpayer was erroneously or illegally collected, the taxpayer shall be entitled to judgment against the defendant clerk of the superior court in the clerk's official capacity for the amount erroneously or illegally collected, without interest to the date of judgment.
    2. No action for refund shall be brought after the expiration of 60 days from the date of denial of the taxpayer's claim for refund by the commissioner.
    3. For the purposes of this Code section, a failure by the commissioner to grant or deny the taxpayer's claim for refund within the one-year period shall constitute a constructive denial of the claim.
  3. If a claim for refund is allowed by the commissioner as provided in subsection (a) of this Code section or if the taxpayer obtains a final judgment as provided in subsection (b) of this Code section, the commissioner shall refund the amount erroneously or illegally collected from funds remitted by the clerk of superior court who collected the tax. The refund shall be paid and charged in the same proportion that the disputed tax was originally distributed by the commissioner as provided in this article.

    (Ga. L. 1971, p. 266, § 4; Code 1933, § 91A-3007, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2012, p. 318, § 8/HB 100.)

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides, in part, that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012). For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

JUDICIAL DECISIONS

Florida public authority not entitled to exemption. - Florida public authority's action under O.C.G.A. § 48-6-7(b) , protesting the denial by the Revenue Commissioner of the State of Georgia of its request for a refund of real estate transfer tax, paid pursuant to O.C.G.A. § 48-6-1 , was denied since it was found that the exemption provided in O.C.G.A. § 48-6-2(a)(3) did not apply to the out-of-state public authority; the Commissioner's determination that the exemption did not apply to such an entity was entitled to deference pursuant to the principles of O.C.G.A. § 48-2-12 . Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545 , 594 S.E.2d 745 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 965 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1049 et seq.

ALR. - Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778 .

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

Recovery of tax paid on exempt property, 25 A.L.R.4th 186.

48-6-8. Distribution of tax revenues among state and other tax jurisdictions and districts.

At least once every 30 days, all revenues derived from the tax imposed by this article shall be distributed among the state and municipalities in which the real property is situated and the county in which the real property is situated in the same proportion that revenues derived from the taxes imposed by Article 3 of this chapter are divided. If the real property is situated in more than one county, the appropriate portion of the tax shall be equitably divided among the counties by the clerk of the superior court.

(Ga. L. 1967, p. 788, § 9; Code 1933, § 91A-3008, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1996, p. 117, § 2; Ga. L. 1996, p. 130, § 2; Ga. L. 1997, p. 523, § 1; Ga. L. 2003, p. 874, § 5.)

Editor's notes. - Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides that the 1996 amendment enacted by that Act becomes effective on January 1, 1997, and shall be applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November, 1996, general election; if such resolution is not ratified, the amendment shall not become effective and shall stand repealed on January 1, 1997. In 1996, House Resolution 734 was ratified and this Code section became effective.

Ga. L. 1996, p. 117, § 9, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides, in part, that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 392 et seq.

48-6-9. Failure to collect, account for, and pay over tax imposed by article; penalty.

  1. It shall be unlawful for any person required by this article to collect, account for, and pay over any tax imposed by this article willfully to fail to collect or truthfully account for and pay over the tax.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1967, p. 788, § 10; Code 1933, § 91A-9914, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1148.

48-6-10. Evasion of tax imposed by article; penalty.

  1. It shall be unlawful for any person willfully to evade or defeat in any manner any tax imposed by this article or the payment of such tax.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1967, p. 788, § 11; Code 1933, § 91A-9915, enacted by Ga. L. 1978, p. 309, § 2.)

ARTICLE 2 INTANGIBLE PERSONAL PROPERTY TAX

Editor's notes. - This article consisted of Code Sections 48-6-20 through 48-6-26, 48-6-26.1, 48-6-27 through 48-6-44, and was based on Ga. L. 1937-38, Ex. Sess., p. 156, §§ 1-6, 8, 10, 11, 13; Ga. L. 1937-38, Ex. Sess., p. 170, § 1; Code 1882, § 798; Civil Code 1895, § 762; Civil Code 1910, § 998; Ga. L. 1913, p. 122, § 1; Ga. L. 1919, p. 82, § 1; Code 1933, § 92-201; Ga. L. 1937-38, Ex. Sess., p. 156, §§ 1-4, 7; Ga. L. 1939, p. 100, § 1; Ga. L. 1943, p. 105, § 1; Ga. L. 1943, p. 348, § 1; Ga. L. 1946, p. 12, § 1; Ga. L. 1947, p. 1183, §§ 1, 2; Ga. L. 1949, p. 1050, §§ 1, 2; Ga. L. 1950, p. 74, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 453, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 379, §§ 1, 2; Ga. L. 1955, p. 262, § 1; Ga. L. 1964, p. 715, § 1; Ga. L. 1965, p. 182, § 1; Ga. L. 1973, p. 924, §§ 2,3; Ga. L. 1973, p. 934, § 1; Ga. L. 1976, p. 405, §§ 1, 3; Code 1933, §§ 91A-3101--91A-3121, 91A-3123, 91A-3124, 91A-9916, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 54-56, 58; Ga. L. 1980, p. 332, §§ 1-3; Code 1933, § 91A-3125, enacted by Ga. L. 1980, p. 332, § 4; Ga. L. 1983, p. 1350, §§ 1-3; Ga. L. 1986, p. 679, §§ 1-4; Ga. L. 1987, p. 191, § 9; Ga. L. 1987, p. 266, §§ 1-3; Ga. L. 1988, p. 13, § 48; Ga. L. 1988, p. 1404, § 1; Ga. L. 1990, p. 8, § 48; Ga. L. 1990, p. 1353, § 1; Code 1981, § 48-6-26.1, enacted by Ga. L. 1990, p. 1483, § 2; Ga. L. 1990, p. 1483, § 3; Ga. L. 1992, p. 1183, § 1; Ga. L. 1993, p. 1647, § 2; Ga. L. 1996, p. 130, § 3; Ga. L. 1996, p. 181 § 1.

Ga. L. 1996, p. 117, § 9, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 3, repeals and reserves this article effective on January 1, 1997, applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November, 1996, general election; if such resolution is not ratified, the repeal shall not become effective and shall stand repealed on January 1, 1997. House Resolution 734 was ratified in 1996. Ga. L. 1996, p. 130, § 9, provides, in part, that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

48-6-20 through 48-6-44.

Reserved. Repealed by Ga. L. 1996, p. 117, § 6, effective March 21, 1996.

ARTICLE 3 INTANGIBLE RECORDING TAX

OPINIONS OF THE ATTORNEY GENERAL

Applicability of refund provisions. - Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35 ), which authorizes a refund procedure whether paid voluntarily or involuntarily, applies only to taxes paid to the state and has no application to the recording tax. 1960-61 Op. Att'y Gen. p. 521.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, §§ 569, 586, 587.

ALR. - "Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 143 A.L.R. 361 .

48-6-60. Definitions.

As used in this article, the term:

  1. "Collecting officer" means the clerk of the superior court of the county; provided, however, that in each county of this state having a population of 50,000 or less according to the United States decennial census of 1990 or any future such census, at the discretion of the clerk of the superior court of the county, "collecting officer" may mean the tax collector or tax commissioner of the county.
  2. "Instrument" or "security instrument" means any written document presented for recording for the purpose of conveying or creating a lien or encumbrance on real estate for the purpose of securing a long-term note secured by real estate.
  3. "Long-term note secured by real estate" means any note representing credits secured by real estate by means of mortgages, deeds to secure debt, purchase money deeds to secure debt, bonds for title, or any other form of security instrument, when any part of the principal of the note falls due more than three years from the date of the note or from the date of any instrument executed to secure the note and conveying or creating a lien or encumbrance on real estate for such purpose.
  4. "Short-term note secured by real estate" means any note which would be a long-term note secured by real estate were it not for the fact that the whole of the principal of the note falls due within three years from the date of the note or from the date of any instrument executed to secure the note.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 3; Code 1933, § 91A-3201, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 1; Ga. L. 1998, p. 1656, § 1.)

Cross references. - Mortgages, conveyances to secure debt, and liens, T. 44, C. 14.

Administrative Rules and Regulations. - Intangible recording tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-8.

Law reviews. - For comment, "If It Quacks Like a Duck: In Light of Today's Financial Environment, Should Credit Unions Continue to Enjoy Tax Exemptions?," see 28 Ga. St. U. L. Rev. 1367 (2012).

JUDICIAL DECISIONS

In taxing intangibles, this state recognizes a distinction between bonds and notes secured by real estate, in that the tax on bonds is at a different rate from the tax on long-term notes secured by real estate. Cosgro v. Quinn, 219 Ga. 272 , 133 S.E.2d 343 (1963).

Credit card debt did not fit the definition of a long term note secured by real estate. In re Felker, 181 Bankr. 1017 (Bankr. M.D. Ga. 1995).

Renewal of pre-existing note. - Renewal of a pre-existing note is a new note and does not become a long term note by piecing together, in serial fashion, all pre-existing and subsequent notes for the purposes of O.C.G.A. § 48-6-77 . NationsBank v. Tucker, 231 Ga. App. 622 , 500 S.E.2d 378 (1998).

No statutory authority for right of appeal. - There is no statutory authority that gives an appellant a right of direct appeal from a review by the superior court of the state revenue commissioner's denial of a refund of an intangible recording tax. Bankers Trust Co. v. Jackson, 236 Ga. App. 490 , 512 S.E.2d 378 (1999).

Cited in Moister v. Citizens Trust Bank (In re Truitt), 11 Bankr. 15 (Bankr. N.D. Ga. 1981).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality. - Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Legislative intent as to taxation of bonds and long-term notes. - It is clearly the legislative intent of Ga. L. 1953, Nov.-Dec. Sess., p. 379, §§ 3 and 4 (see now O.C.G.A. §§ 48-6-60 and 48-6-61 ) to tax long-term notes at a rate different from that on bonds. The definition of "long-term notes" is possibly broad enough to include bonds and would possibly include bonds were it not for the fact that Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 2 (see now O.C.G.A. § 48-6-23) imposes a different annual tax on bonds. 1957 Op. Att'y Gen. p. 300.

Distribution of tax based on property location. - Distribution of the intangibles tax levied under Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48) will be based solely on the location of the property. 1954-56 Op. Att'y Gen. p. 581.

How short-term and long-term notes distinguished. - Note secured by real estate is to be classified as a short-term note or a long-term note as of the time of the note's execution, according to the maturity date stated therein. The note remains in this classification as long as the note remains outstanding, notwithstanding that the indulgence of the creditor allows the indebtedness to extend beyond a three-year period. If the creditor takes a renewal note in payment thereof, the renewal note is to be classified according to the note's own terms and without regard to the period of indebtedness under the original note. 1960-61 Op. Att'y Gen. p. 519.

Whether instrument is bond or long-term note is a fact question. - Determination of whether an instrument is a bond or a long-term loan secured by real estate for purposes of determining which intangibles tax provisions shall apply is a fact question. 1954-56 Op. Att'y Gen. p. 772.

Length of period rather than number of notes determines classification of notes. - Intent of this statute is to impose a tax upon the entire long-term debt secured by real estate. It is not a tax upon the mortgage, but a tax upon the principal amount of the long-term debt as evidenced by the notes. If the debt secured by the real estate and evidenced by the loan deed is in the form of a series of notes payable in staggered annual dates over a long-term period rather than one note payable in a series of annual installments, the holder of such series of notes maturing at staggered terms cannot, by this separation of the single debt into several notes, escape the intangible tax imposed by this statute on those notes falling due in less than three years. 1954-56 Op. Att'y Gen. p. 773.

When notes secured by real estate are all part of a single transaction representing one loan, some payable within three years and some payable after a longer period, the notes are all to be considered long-term notes secured by real estate and taxable within the meaning of this statute. 1962 Op. Att'y Gen. p. 531.

Mortgage to secure a sublease agreement is a long-term note secured by real estate within the meaning of this statute. 1962 Op. Att'y Gen. p. 527.

Sales contract for purchase of a house and lot is a long-term note secured by real estate within the meaning of this statute. 1963-65 Op. Att'y Gen. p. 272.

Taxation of long-term notes on which taxes not paid due to former exception. - There is no obligation on banking associations currently holding long-term notes upon which no recording taxes have been paid, due to the former exception for banking associations, to pay the recording tax on previously recorded deeds. 1975 Op. Att'y Gen. No. 75-125.

Notes held by nonresidents when not secured by realty nor connected with business. - Notes held by a nonresident, which notes are not secured by real estate nor connected with any business done in Georgia, are not subject to ad valorem taxation in this state; mere notice of promissory notes creating no lien on property is not subject to being recorded. 1970 Op. Att'y Gen. No. U70-52.

Long-term notes secured by real estate held by the Georgia Development Authority are public property so as to be exempt from intangible taxes imposed by Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48). 1973 Op. Att'y Gen. No. U73-40.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 519.

48-6-61. Filing instruments securing long-term notes; procedure; intangible recording tax; rate; maximum tax.

Every holder of a long-term note secured by real estate shall, within 90 days from the date of the instrument executed to secure the note, record the security instrument in the county in which is located the real estate conveyed or encumbered or upon which a lien is created to secure the note and shall present, prior to presenting the instrument to the clerk of superior court for recording, the security instrument to the collecting officer of the county in which the real estate is located. The collecting officer shall determine from the face of the security instrument the date of execution of the instrument, the maturity date of the note, and the principal amount of the note. There is imposed on each instrument an intangible recording tax at the rate of $1.50 for each $500.00 or fraction thereof of the face amount of the note secured by the recording of the security instrument. The collecting officer shall collect the tax due on the security instrument from the holder of the instrument; provided, however, the holder may pass on the amount of such tax to the borrower or mortgagor but the amount of such tax passed to the borrower or mortgagor shall not be considered or treated as part of any finance charge imposed by the holder in connection with the loan transaction. If the security instrument reflects an amount greater than the principal amount of the note and, at the time the security instrument is presented for recording, the holder of the note also presents for recording with the security instrument said holder's sworn statement itemizing the principal amount of the note and the other charges included within the amount shown on the face of the security instrument, the collecting officer shall determine the principal amount of the note from the sworn statement. The maximum amount of any intangible recording tax payable as provided in this Code section with respect to any single note shall be $25,000.00.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4; Ga. L. 1955, p. 288, § 1; Ga. L. 1977, p. 635, § 1; Code 1933, § 91A-3202, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 33; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 2; Ga. L. 1995, p. 224, § 1.)

JUDICIAL DECISIONS

Section is constitutional. - Statute is a proper and constitutional exercise of the state's right to tax the transactions described therein. Columbia Bank for Coops. v. Blackmon, 232 Ga. 344 , 206 S.E.2d 424 (1974).

Scope of state's power to levy this tax. - Reach of this taxing power by the state may extend to objects of the taxation beyond the borders of the state to tax such intangible property of nonresidents if it is derived from or is used as an incident of property owned or a business conducted by such nonresident or the nonresident's agent in this state. Columbia Bank for Coops. v. Blackmon, 232 Ga. 344 , 206 S.E.2d 424 (1974).

It is the conduct of business in this state which furnishes the taxable connection, not merely the location of an office in this state. Columbia Bank for Coops. v. Blackmon, 232 Ga. 344 , 206 S.E.2d 424 (1974).

Taxable situs must be in Georgia. - For this state to impose such a tax, the taxable situs of the note or notes must be in Georgia. First Fed. Sav. & Loan Ass'n v. Abbott, 231 Ga. 864 , 204 S.E.2d 594 (1974).

Basis of tax. - Intangible tax imposed by O.C.G.A. § 48-6-61 is analogous to the real estate transfer tax imposed by O.C.G.A. § 48-6-1 , both being based on increments in the value of the instrument being recorded and being calculated in the same manner. Bankers Trust Co. v. Jackson, 236 Ga. App. 490 , 512 S.E.2d 378 (1999).

Nature of tax. - Intangible taxes imposed on long term notes secured by real estate are excise taxes, not ad valorem taxes, since the taxes are paid for the privilege of filing a document to protect the note secured by the recording of the security instrument, and the fact that it is based on the value of the property is only ancillary. Bankers Trust Co. v. Jackson, 236 Ga. App. 490 , 512 S.E.2d 378 (1999).

Trusts liable for tax even if federally exempt. - Assessment under Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4 (see now O.C.G.A. § 48-6-61 ) on long-term notes secured by real estate was not included in the exemption given by Ga. L. 1937-38, Ex. Sess., p. 156, § 4(a) (see now O.C.G.A. § 48-6-22) to trusts which are exempt from federal taxes pursuant to § 401 of the Internal Revenue Code. Warestores, Inc. v. Nash, 125 Ga. App. 210 , 186 S.E.2d 806 (1971).

Party exempt from tax may compel recordation by writ of mandamus. - When a bank chartered under the laws of this state, not being subject to the payment of an ad valorem recording fee for the recording of a deed to real estate, secures a note having a maturity date in excess of three years, it is error to sustain a general demurrer (now motion to dismiss) to the bank's petition for a writ of mandamus to require the clerk of the superior court to record a security deed given to secure the payment of a long-term note without payment of the recording fee. Washington Loan & Banking Co. v. Golucke, 212 Ga. 98 , 90 S.E.2d 575 (1955).

Credit card debt did not fit the definition of a long term note secured by real estate. In re Felker, 181 Bankr. 1017 (Bankr. M.D. Ga. 1995).

Cited in Pease & Elliman Realty Trust v. Gaines, 160 Ga. App. 125 , 286 S.E.2d 448 (1981); Moister v. Citizens Trust Bank (In re Truitt), 11 Bankr. 15 (Bankr. N.D. Ga. 1981).

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Legislative intent as to taxation of bonds and long-term notes. - It is clearly the legislative intent of Ga. L. 1953, Nov.-Dec. Sess., p. 379, §§ 3 and 4 (see now O.C.G.A. §§ 48-6-60 and 48-6-61 ) to tax long-term notes at a rate different from that on bonds. The definition of "long-term notes" is possibly broad enough to include bonds and would possibly include bonds were it not for the fact that Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 2 (see now O.C.G.A. § 48-6-22) imposes a different annual tax on bonds. 1957 Op. Att'y Gen. p. 300.

Construction with other provisions. - Tax imposed by this statute is not independent of Ga. L. 1937-38, Ex. Sess., p. 156, § 1 et seq. (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48), but is to be read as supplementing it. 1958-59 Op. Att'y Gen. p. 368.

Construction with exemption provisions. - Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4 (see now O.C.G.A. § 48-6-61 ) is not complete and exhaustive within its own terms of the law relative to this tax on long-term real estate notes, but that the statute must be read along with, and be subject to, exemptions theretofore prescribed by statutes such as Ga. L. 1937-38, Ex. Sess., p. 156, §§ 4(a) and 7 (see now O.C.G.A. § 48-6-22). 1954-56 Op. Att'y Gen. p. 797.

Meaning of "real estate." - Term "real estate" as it appeared in Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4 (see now O.C.G.A. § 48-6-61 ) should be given the meaning ascribed to it by former Code 1933, § 85-201 (see now O.C.G.A. § 44-1-2 ). 1958-59 Op. Att'y Gen. p. 379.

What constitutes a security instrument covering real estate. - Deed to secure debt conveying "all the trees and timber now standing or growing, or down, and all hereafter growing or to grow" on certain tracts of land described therein is a security instrument covering real estate, within the purview of this statute. The fact that the subject security deed embraces trees and timbers which are down, as well as those standing or growing, does not alter the deed's effect insofar as the intangibles tax is concerned, but merely means that the holder has the additional protection of personal property as security for the holder's loan. 1958-59 Op. Att'y Gen. p. 379.

Tax exempt transferee of note may not record until original holder pays intangible recording tax. - When, subsequent to execution, a "graduated payment adjustable mortgage loan" is assigned by the original holder to an entity which is exempt from the payment of intangible recording tax, the transfer by assignment or otherwise does not relieve the original holder of the note of the holder's liability for intangible recording tax and the tax commissioner may properly refuse to record the security instrument until the tax is paid. 1983 Op. Att'y Gen. No. 83-22.

Tax due from tax-exempt transferee is amount original holder would have paid. - When, subsequent to execution, a "graduated payment adjustable mortgage loan" is assigned by the original holder to an otherwise tax-exempt entity which presents the security instrument for recording, the intangible recording tax should be computed as though the note had not been transferred by the original holder; i.e., on the total extension of credit contemplated under the terms of the note. 1983 Op. Att'y Gen. No. 83-22.

Tax collector or tax commissioner is required to determine principal amount of a long-term debt solely from the face of the security deed, without resorting to any other information. Furthermore, when two or more notes are secured by the same security deed, one must determine whether the notes represent portions of the same debt, or whether the notes represent distinct and separate debts. 1980 Op. Att'y Gen. No. 80-141.

Georgia intangible recording tax must be imposed on the total extension of credit contemplated under the terms of so-called "graduated payment adjustable mortgage loans" and the total extension of credit contemplated must be shown on the face of the document presented for recording. 1983 Op. Att'y Gen. No. 83-22.

Tax held applicable. - Intangible recording tax imposed by O.C.G.A. § 48-6-61 is applicable to a long-term note secured by real estate held by a lender who was enabled to make the loan through the deposit of the proceeds of revenue bonds issued by a local housing authority and which deposit was conditioned upon the lender making the loan. 1984 Op. Att'y Gen. No. 84-17.

Distribution of tax based on property location. - Distribution of the intangible tax levied under the provisions of Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48) will be based solely on the location of the property. 1954-56 Op. Att'y Gen. p. 581.

Tax based on amount of indebtedness. - Recording tax levied by this statute is imposed upon the amount of the indebtedness, the total amount of the note. The tax is not upon the instrument securing the note, nor upon the value of the real estate security. It is upon long-term notes which are the subject of the debt secured by real estate, and is not a tax upon the security instrument evidencing the debt on the clerk's records. 1954-56 Op. Att'y Gen. p. 787; 1960-61 Op. Att'y Gen. p. 519.

This tax is due on the entire amount of the loan whether it is evidenced by one note or a series of notes, some of which mature within a three-year period. 1960-61 Op. Att'y Gen. p. 519.

Classification of demand notes as short-term notes. - For the purposes of classification for intangibles taxation of notes secured by real estate, a true demand note is always a short-term note, and may be classified as such by a statement in the instrument to be filed that the note may fall due within three years from the date of the note or from the date of the instrument to be filed. If a maturity date is set out in the instrument to be filed, the note, regardless of the note's recitals, is not a demand note, and the tax collector or tax commissioner must classify the note by the date as set out. 1970 Op. Att'y Gen. U70-9.

When any of debt is repayable more than three years from date, it is all long-term and subject to the rates applicable thereto. 1960-61 Op. Att'y Gen. p. 519.

Burden of paying the recording tax is upon the holder of the notes. Therefore, it is the holder of the long-term note rather than the borrower or maker who is required to pay the tax. 1954-56 Op. Att'y Gen. p. 787.

Responsibility for collection of this tax is upon the clerk of the superior court of the county in which is situated the real estate conveyed or encumbered, or upon which a lien is created to secure such note. 1954-56 Op. Att'y Gen. p. 787.

Effect of clerk's failure to charge recordation fee. - If a financial institution submits a security deed for recordation and the county clerk does not charge the recordation fee as is incumbent upon the clerk, the bank's lien would be jeopardized. 1975 Op. Att'y Gen. No. 75-125.

Tax based on principal when that portion clearly shown. - When a note on a security instrument clearly indicates what portion of the face amount of the note is principal and what portion is interest, the amount of the principal indebtedness determines the base of the tax, and the amount designated as interest does not figure in the computation. 1957 Op. Att'y Gen. p. 300; 1967 Op. Att'y Gen. No. 67-263.

Tax basis when principal and interest not separately indicated. - When the instrument does not disclose clearly the amount of the debt by virtue of a failure to separate the payments into principal and interest, the tax has been held to apply to the amount obtained by multiplying the stated payments by the number of monthly installments due. 1967 Op. Att'y Gen. No. 67-263.

Tax on original indebtedness and new or additional indebtedness. - Original indebtedness on which the tax is paid when the instrument securing it is recorded is not a tax-free line of secured credit but is reduced in amount as the note or notes evidencing it are paid in, total or partially. Any long-term note secured by real estate evidencing indebtedness beyond the remaining balance of the original indebtedness is subject to the tax imposed by this statute on the amount of the new or additional indebtedness. 1963-65 Op. Att'y Gen. p. 654.

Taxation of new note and security instrument issued upon cancellation of existing note. - Even though the intangibles tax has been paid upon a long-term note secured by real estate, when such note is cancelled and a new note and security instrument are executed as to the same property by a new maker, such new note is subject to the intangibles tax. 1970 Op. Att'y Gen. No. U70-58.

Payment of an insufficient tax has been held to be constructive notice as to the pro rata portion of the note upon which the tax has been paid. 1967 Op. Att'y Gen. No. 67-263.

It has been held that even though an insufficient tax has been paid, the record constitutes notice when the amount paid was the amount demanded by the tax official. 1967 Op. Att'y Gen. No. 67-263.

Exemption of notes held by nonresidents when not secured by realty nor connected with business. - Notes held by a nonresident, which notes are not secured by real estate nor connected with any business done in this state, are not subject to ad valorem taxation in this state. Mere notice of promissory notes creating no lien on property is not subject to being recorded. 1970 Op. Att'y Gen. No. U70-52.

Long-term notes secured by real estate held by the Georgia Development Authority are public property so as to be exempt from intangible taxes imposed by Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48). 1973 Op. Att'y Gen. No. U73-40.

Imposition of this tax upon national banking associations as holders is without authority and such associations are immune from this tax. It is of no difference by what name the tax is designated. 1954-56 Op. Att'y Gen. p. 776.

Immunity granted to national banks not transferrable. - Immunity of a national bank to the tax on a long-term note secured by real estate does not attach itself to the instrument. When a nonexempt building and loan association becomes the owner and holder of this instrument as transferee, the association thereby becomes liable under this statute. 1963-65 Op. Att'y Gen. p. 605.

Original holder not relieved of tax obligation upon transfer to national bank. - Transfer by assignment or otherwise of long-term notes secured by real estate to a national bank does not relieve the original holder of the holder's tax obligation and does not change the tax status of the instrument. 1963-65 Op. Att'y Gen. p. 511.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1813 et seq.

48-6-62. Certification of payment of tax; effect of filing instrument prior to payment; alternate procedure for filing new or modified note secured by previously recorded instrument.

    1. Upon payment of the correct tax as disclosed from the information recited on the face of the security instrument, the collecting officer shall enter upon or attach to the security instrument a certification that the intangible recording tax as provided by Code Section 48-6-61 has been paid, the date, and the amount of the tax. The certificate shall be signed by the collecting officer or said officer's deputy.  The holder of a security instrument upon which the tax has been paid as provided by this article may then present the security instrument together with the certificate to the clerk of superior court of the county in which the real property is located, who may then file the security instrument for record.  It is the intention of the General Assembly that the intangible tax levied by Code Section 48-6-61 shall be paid to the collecting officer prior to and as a prerequisite to the filing for record of the real property instrument securing the note with the clerk of superior court and that the clerk shall not be permitted to file the instrument for record unless the security instrument discloses on its face the principal amount of the note, the date executed, the due date, and the certificate of the collecting officer or said officer's deputy showing that the tax has been paid on the instrument.  Presentation for recording of a sworn statement as to the principal amount of the note, as authorized in Code Section 48-6-61, shall suffice for purposes of permitting the filing of a security instrument which is in compliance with this paragraph other than for the fact that the security instrument does not disclose the principal amount of the note.
    2. However, any instrument otherwise in a form sufficient for recording and actually recorded by the clerk of superior court shall constitute legal notice of the interest and title of the holder of the note in and to the real estate which, under the instrument, secures a long-term note; and this paragraph shall apply even if the intangibles tax, interest, and penalty, if any, required by this article have not been paid.
    3. The certificate entered upon or attached to the security instrument shall be recorded with the security instrument, shall be in the form required by the commissioner, and shall in each instance bear the signature of the collecting officer or said officer's deputy.
  2. In the case of a new note or modification of a preexisting note, when the instrument securing the new note or modification is taxable under Code Section 48-6-61 and is secured by a previously recorded instrument which requires no further recording, the holder of the instrument, in lieu of recording a new or amended instrument as provided for in subsection (a) of this Code section, may elect alternatively to execute a sworn affidavit in the form required by the commissioner, which affidavit shall set forth the information required by Code Section 48-6-66.  The holder of the instrument shall present the sworn affidavit to the collecting officer of the county in which the real estate is located. The tax collector or tax commissioner shall collect from the holder the tax due under Code Section 48-6-61 and upon payment of the tax shall enter upon or attach to the affidavit the certification provided for in subsection (a) of this Code section.  The certification shall evidence the payment of the required tax with respect to the new instrument or modification.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 5; Ga. L. 1955, p. 288, § 2; Ga. L. 1973, p. 271, § 1; Ga. L. 1977, p. 635, § 2; Code 1933, § 91A-3203, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 34; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Tax exempt transferee of note may not record until original holder pays intangible recording tax. - When, subsequent to execution, a "graduated payment adjustable mortgage loan" is assigned by the original holder to an entity which is exempt from the payment of an intangible recording tax, the transfer by assignment or otherwise does not relieve the original holder of the note of the holder's liability for intangible recording tax and the tax commissioner may properly refuse to record the security instrument until the tax is paid. 1983 Op. Att'y Gen. No. 83-22.

Tax due from tax-exempt transferee is amount original holder would have paid. - When, subsequent to execution, a "graduated payment adjustable mortgage loan" is assigned by the original holder to an otherwise tax-exempt entity which presents the security instrument for recording, the intangible recording tax should be computed as though the note had not been transferred by the original holder; i.e., on the total extension of credit contemplated under the terms of the note. 1983 Op. Att'y Gen. No. 83-22.

"Graduated payment adjustable mortgage loans." - Georgia intangible recording tax must be imposed on the total extension of credit contemplated under the terms of so-called "graduated payment adjustable mortgage loans" and the total extension of credit contemplated must be shown on the face of the document presented for recording. 1983 Op. Att'y Gen. No. 83-22.

Effect of clerk's failure to charge recordation fee. - If a financial institution submits a security deed for recordation and the county clerk does not charge the recordation fee as is incumbent upon the clerk, the bank's lien would be jeopardized. 1975 Op. Att'y Gen. No. 75-125.

Original holder not relieved of tax obligation upon transfer to national bank. - Transfer by assignment or otherwise of long-term notes secured by real estate to a national bank does not relieve the original holder of the holder's tax obligation and does not change the tax status of the instrument. 1963-65 Op. Att'y Gen. p. 511.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1817, 1818, 1820.

ALR. - Mortgage tax as applied to supplementary or amendatory instruments, 6 A.L.R.2d 306.

48-6-63. Ad valorem taxation of short-term notes secured by real estate; rate; exemptions.

Reserved. Repealed by Ga. L. 1996, p. 117, § 4, effective March 21, 1996, and Ga. L. 1996, p. 130, § 4, effective January 1, 1997.

Editor's notes. - This Code section was based on Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 12; Code 1933, 91A-3211, enacted by Ga. L. 1978. p. 309, § 2; Ga. L. 1983, p. 1350, § 4; Ga. L. 1990, p. 1834, § 4. Ga. L. 1996, p. 117, § 9, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 4, repeals and reserves this Code section effective on January 1, 1997, applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November, 1996, general election; if such resolution is not ratified, the repeal shall not become effective and shall stand repealed on January 1, 1997. House Resolution 734 was ratified in 1996.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides, in part, that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

48-6-64. Tax imposed on long-term and short-term notes secured by realty exclusive; Code section not to be construed as income tax exemption.

  1. The tax required by this article to be paid on instruments securing long-term notes secured by real estate shall be exclusive of all other taxes on the notes. Such intangible property shall not be taxed in any manner other than as provided in this article by the state, any county, or any municipality, nor shall the owner or holder of the property be required to pay any other tax on the property.
  2. Nothing contained in this Code section shall be construed to exempt any owner or holder of property taxed pursuant to this article from the payment of income taxes otherwise due on account of income derived from the property.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 13; Code 1933, § 91A-3212, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1996, p. 117, § 5; Ga. L. 1996, p. 130, § 5.)

Editor's notes. - Ga. L. 1996, p. 117, § 9, not codified by the General Assembly, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides, in part, that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides that the 1996 amendment enacted by that Act becomes effective on January 1, 1997, and shall be applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November, 1996, general election; if such resolution is not ratified, the amendment shall not become effective and shall stand repealed on January 1, 1997. That resolution passed at the November 1996 general election, so the amendment took effect on January 1, 1997.

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Construction with other exclusivity provisions. - Prohibition in Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 13 (see now O.C.G.A. § 48-6-64 ) against further state, county, and city taxation of long-term real estate notes appears merely to supplement a similar provision in Ga. L. 1937-38, Ex. Sess., p. 156, § 3(c), which applied to other classes of intangible property. 1954-56 Op. Att'y Gen. p. 805.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1815.

48-6-65. Extension, transfer, assignment, modification, or renewal of instrument; exemption for amount of note refinanced.

  1. No tax other than as provided for in this article shall be required to be paid on any instrument which is an extension, transfer, assignment, modification, or renewal of, or which only adds additional security for, any original indebtedness or part of original indebtedness secured by an instrument subject to the tax imposed by Code Section 48-6-61 when:
    1. It affirmatively appears that the tax as provided by this article has been paid on the original security instrument recorded; provided, however, that the tax required by Code Section 48-6-61 shall be due on any portion of the instrument which is an additional advance of indebtedness secured by a previously recorded instrument, without regard to whether the original security instrument has been assigned; or
    2. The original instrument or the holder of the original instrument was exempt from the tax provided for in Code Section 48-6-61 by virtue of any other law.
  2. No tax shall be collected on that part of the face amount of a new instrument securing a long-term note secured by real estate which represents a refinancing by the original lender of unpaid principal on a previous instrument securing a long-term note secured by real estate if:
    1. All intangible recording tax due on the previous instrument has been paid or the previous instrument was exempt from intangible recording tax; and
      1. The new instrument contains a statement of what part of its face amount represents a refinancing of unpaid principal on the previous instrument; or
      2. The holder of the new instrument submits an affidavit as to what part of the face amount of the new instrument represents a refinancing of unpaid principal on the previous instrument.

        (Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 15; Ga. L. 1955, p. 288, § 5; Ga. L. 1977, p. 635, § 5; Code 1933, § 91A-3213, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 775, § 1; Ga. L. 1990, p. 1843, § 4; Ga. L. 2018, p. 209, § 2/HB 729.)

The 2018 amendment, effective July 1, 2018, added the proviso in paragraph (a)(1).

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Statute is an exemption from the payment of intangibles taxes in that the statute exempts any extension, transfer, assignment, modification, or renewal of an instrument otherwise subject to the tax and upon which the clerk has made an entry showing payment. 1954-56 Op. Att'y Gen. p. 808.

No intangibles tax is due on note which is merely unpaid balance of old note on which the tax was paid. 1954-56 Op. Att'y Gen. p. 783.

Taxation of renewed mortgage. - If a mortgage is renewed, based upon a previously recorded security deed, this is considered a new mortgage subject to an additional tax even though a new security deed is not taken. If a new security deed is taken and recorded, the tax is payable. 1975 Op. Att'y Gen. No. 75-125.

48-6-66. Showing correct amount and due date on instruments encumbering or conveying real estate.

Every instrument conveying, encumbering, or creating a lien upon real estate shall set forth in words and figures the correct amount of the note secured by the instrument and the date upon which the note falls due. When the note falls due within three years from the date of the note or from the date of any instrument executed to secure the note, a statement of that fact in lieu of specifying the date upon which the note falls due may be made in the security instrument and shall constitute sufficient compliance with this Code section. The inclusion in the instrument of a provision that the instrument secures all other indebtedness then existing or thereafter incurred shall not require the setting forth in the instrument of existing indebtedness for loans not made on the security of the instrument.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 6; Ga. L. 1955, p. 293, § 1; Code 1933, § 91A-3204, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Purpose. - Reason for the requirement that the terms of the note be stated is to enable the clerk of the court and the state revenue commissioner to determine whether the note secured by the instrument presented to the clerk for filing is a long-term or a short-term note, and thus enable the clerk to ascertain and collect the tax. 1954-56 Op. Att'y Gen. p. 787.

Classification of demand notes as short-term notes. - For the purposes of classification for intangibles taxation of notes secured by real estate, a true demand note is always a short-term note, and may be classified as such by a statement in the instrument to be filed that the note may fall due within three years from the date of the note or from the date of the instrument to be filed. If a maturity date is set out in the instrument to be filed, the note, regardless of the note's recitals, is not a demand note, and the tax collector or tax commissioner must classify the note by the date as set out. 1970 Op. Att'y Gen. U70-9.

RESEARCH REFERENCES

C.J.S. - 26A C.J.S., Deeds, § 159 et seq. 59 C.J.S., Mortgages, § 248 et seq.

48-6-67. Violation of Code Section 48-6-66; penalty.

  1. It shall be unlawful for any person willfully to violate Code Section 48-6-66.
  2. Any person who violates Code Section 48-6-66 shall be guilty of a misdemeanor.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 16; Code 1933, § 91A-9917, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4.)

48-6-68. Bond for title in absence of security deed; recording and tax.

Any seller of real estate who retains title to the real estate as security for the purchase price and who does not convey title to the purchaser or take back a deed to secure debt shall execute and deliver to the purchaser a bond for title which shall correctly set forth the unpaid portion of the purchase price and the maturity of the indebtedness. If any part of the purchase price falls due more than three years from the date of the instrument, the seller shall have the instrument recorded before delivery of the bond for title in the county where the land is located and shall pay the tax required by this article for the recording of the instrument.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 7; Code 1933, § 91A-3205, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4.)

JUDICIAL DECISIONS

Impact of bankruptcy. - With respect to a mobile home the debtor purchased through an installment note, because the transaction was akin to a bond for title under Georgia law, giving the debtor possessory interest and equitable interest in the property, and the debtor's interests were not foreclosed by legal proceeding prepetition, those interests became part of the bankruptcy estate subject to an automatic stay. In re Guyton, 518 Bankr. 681 (Bankr. S.D. Ga. 2014).

RESEARCH REFERENCES

C.J.S. - 26A C.J.S., Deeds, §§ 7, 161.

48-6-69. Recording, payment, and certification where encumbered real property located in more than one county or located within and outside state.

  1. If any instrument required to be recorded by this article conveys, encumbers, or creates a lien upon real property located in more than one county, the tax imposed by this article shall be prorated among all applicable counties; and the amount paid to the collecting officer of each county shall be that proportion of the total tax due calculated by applying the ratio of the value of the real property in such county as it bears to the total value of the real properties in all counties described in the instrument to the total tax due. Such proportions shall be calculated pursuant to the most recently determined fair market valuations of the property as determined by the county board of tax assessors or comparable assessing entity in any affected state. All such values shall be disclosed on the face of the instrument or, alternatively, may be submitted in the form of an affidavit by the holder presenting the instrument for recording. The original or a duplicate original executed copy or counterpart of such instrument shall be presented for recording in all counties in which the real property is located, and the collecting officer of each county may rely upon the sworn original or a duplicate original certification of values in determining the amount of tax due and payable in that county and collect such portion of the tax imposed by Code Section 48-6-61 and enter the same upon the security instrument.
  2. If any instrument conveying, encumbering, or creating a lien on real property located within and outside this state as security for a long-term note is held by a nonresident of this state when presented for recording pursuant to this article, the tax required by this article shall be that proportion of the tax which would otherwise be required under this article that the value of the real property within this state bears to the total value of all the real property within and outside this state as described in the instrument. All such values shall be certified under oath by the holder presenting the instrument for recording.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 9; Ga. L. 1955, p. 288, § 4; Code 1933, § 91A-3207, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 4; Ga. L. 2010, p. 528, § 1/HB 1191.)

JUDICIAL DECISIONS

Section applicable to long-term notes. - Intangible taxes imposed on long term notes secured by real estate are excise taxes, not ad valorem taxes, since the taxes are paid for the privilege of filing a document to protect the note secured by the recording of the security instrument, and the fact that it is based on the value of the property is only ancillary. Bankers Trust Co. v. Jackson, 236 Ga. App. 490 , 512 S.E.2d 378 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Section applicable to long-term notes. - Statute would be applicable in determining the amount of tax due by the holder of a long-term note. 1954-56 Op. Att'y Gen. p. 801.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1823.

48-6-70. Filing and payment of tax where encumbered real property located outside state and secured by instrument held by resident.

Every resident holder of an instrument securing a long-term note secured by real property located outside of this state including, but not limited to, domestic corporations and foreign corporations having their principal places of business in this state shall file, in lieu of recording the instrument securing any such note, at such periodic intervals as the commissioner by regulation may designate, a memorandum of the instrument with the commissioner on forms prescribed by the commissioner. At the same time as the memorandum is filed, the holder of the instrument shall pay to the commissioner the amount of the tax required by this article with respect to the instrument. The revenue from each instrument shall be distributed to the state, counties, and municipalities as if the real property securing the instrument were located in the county of the domicile of the taxpayer or, if the taxpayer is a corporation, in the county of the principal place of business of the taxpayer.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 10; Code 1933, § 91A-3208, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Notes held by nonresidents when not secured by realty nor connected with business. - Notes held by a nonresident, which notes are not secured by real estate nor connected with any business done in this state, are not subject to ad valorem taxation in this state. Mere notice of promissory notes creating no lien on property is not subject to being recorded. 1970 Op. Att'y Gen. No. U70-52.

48-6-71. Determinations by commissioner of whether tax is payable; determinations to be public record; effect of nonpayment in reliance on determination.

The commissioner upon his own motion or upon the written request of one or more holders of instruments securing notes secured by real property shall render publicly and in writing his determination of whether the intangible recording tax provided in this article is payable with respect to a particularly described real property instrument or class of real property instruments or modifications of such instruments. The determination may be in the form of administrative regulations if applicable to a class of real property instruments. A copy of all such determinations shall be retained in the files of the department as a permanent and public record. Nonpayment of the tax provided for in this article, with respect to a real property instrument filed for record, in reliance upon a determination rendered by the commissioner pursuant to this Code section shall not constitute a bar, as provided in Code Section 48-6-77, to the collection of the indebtedness secured by any such instrument.

(Ga. L. 1973, p. 271, § 3; Ga. L. 1976, p. 405, § 5; Ga. L. 1977, p. 635, § 4; Code 1933, § 91A-3210, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

How determinations to be made. - State revenue commissioner is not limited to the face of the security deed in considering determination requests under this statute, and such determinations may be in the form of administrative regulations if applicable to a class of real estate instruments. 1980 Op. Att'y Gen. No. 80-141.

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1813 et seq.

48-6-72. Collection and distribution of revenues.

  1. The intangible recording tax imposed by Code Section 48-6-61 upon instruments securing long-term notes secured by real property shall be collected by the collecting officer of each county and said officer shall make the distributions in the manner provided for in this Code section.
  2. The governing authority of each county shall take into consideration any increase or decrease in the duties and responsibilities of the offices of the tax commissioner and the clerk of the superior court required by this article in establishing the annual budget for each such office and, where applicable, the affected officers shall cooperate fully in any transferring of responsibilities required under this Code section.
  3. The collecting officer, on the basis of the tax commissioner's or tax collector's records and of certificates which shall be supplied by each school district, municipality, and other tax district in the county, shall distribute at least monthly the revenue collected under this article. Each year the millage rates used in the distributions of revenue under this Code section shall be based upon the immediately preceding year's millage rate of each participating tax authority as provided in this article.
  4. Revenue derived from taxes under this article shall be divided among the state and all other tax jurisdictions and districts including, but not limited to, county and municipal districts, which levy or cause to be levied for their benefit a property tax on real and tangible personal property having the same taxable situs as the real property which is the subject of the intangible tax. The distribution shall be made according to the proportion that the millage rate levied for the state and each other tax jurisdiction or district respectively bears to the total millage rate levied for all purposes applicable to real and tangible personal property having the same taxable situs as the subject of the intangible tax. The revenue distributed to municipalities having independent school systems supported by taxes levied by the municipality shall be divided between the municipality and the independent school system according to the proportion that the millage rate levied by the municipality for nonschool purposes and the millage rate levied for school purposes bear to the total millage rate levied by the municipality for all purposes. The tax levied by this article shall be deemed to be levied by the participating tax authorities in the proportion that the millage rate of each participating tax authority bears to the aggregate millage rate of all the participating tax authorities.
  5. In the event any distribution or part of a distribution as provided in this article is adjudged to be invalid for any reason, such distribution or part of a distribution shall be paid into the general fund of the state in the same manner and for the same purposes as provided in this article for the state's share of the revenues derived from the tax imposed by this article.

    (Ga. L. 1955, p. 730, § 1; Code 1933, § 91A-3217, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 5; Ga. L. 1996, p. 117, § 6; Ga. L. 1996, p. 130, § 6; Ga. L. 1997, p. 523, § 2.)

Editor's notes. - Ga. L. 1996, p. 117, § 9, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides, in part, that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides that the 1996 amendment enacted by that Act becomes effective on January 1, 1997, and shall be applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November 1996 general election; if such resolution is not ratified, the amendment shall not become effective and shall stand repealed on January 1, 1997. That resolution passed at the November 1996 general election, so the amendment took effect on January 1, 1997.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1823.

48-6-73. Reports and distributions by collecting officer; failure to distribute as breach of duty and bond; commissions; long-term notes not entered on property tax digest.

Each collecting officer shall make a report to the commissioner by the tenth day of each month on forms prescribed by the commissioner of all sums collected and remitted under this article for the preceding month. The collecting officer shall retain 6 percent of the tax collected as compensation for said officer's services in collecting the tax. All such taxes shall be deemed to have been collected by the collecting officer in said officer's official capacity. Failure to collect and distribute the tax as provided by law shall constitute a breach of the official duty and of the official bond of the collecting officer. In each county in which the collecting officer is on a salary, the 6 percent commission allowed by this Code section shall be paid into the county treasury and shall become county property. The long-term notes secured by real property upon which this tax is based shall not be placed upon the property tax digest prepared and maintained by the tax receiver. It is the intention of the General Assembly that the 6 percent commission permitted under this article for the collection and distribution of this tax by the collecting officer shall be the only compensation permitted to any collecting officer with respect to this tax.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 8; Ga. L. 1955, p. 288, § 3; Code 1933, § 91A-3206, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1992, p. 1686, § 1; Ga. L. 1994, p. 1767, § 6; Ga. L. 2000, p. 1376, § 1; Ga. L. 2002, p. 1294, § 1; Ga. L. 2012, p. 738, § 1/HB 851.)

OPINIONS OF THE ATTORNEY GENERAL

Commission paid to tax official in county where instrument first recorded. - Commission provided for in this statute is to be retained by the tax collector or tax commissioner (now collection officer) of the county where the security instrument is first recorded and to whom the intangibles tax is paid. That the tax collector or tax commissioner collecting the tax is to retain the entire commission is borne out by the provisions of this statute. 1963-65 Op. Att'y Gen. p. 96.

Commission as to property lying in both 4 percent and 6 percent counties. - Properties covered by a security instrument can lie in both 4 percent and 6 percent counties. Since no specific recognition was given to this possible situation by this statute in the way of prorating the commission among the tax collectors and tax commissioners (now collection officers) of the various counties involved, it must have been the intent of the General Assembly that the rate of commission be determined by the size of the county in which the instrument was first recorded and that the tax collector and tax commissioner collecting the tax in that county retain the entire commission. 1963-65 Op. Att'y Gen. p. 96.

Commission allowed on long-term notes even when portion of tax revenues used for school purposes. - Six percent commission allowed tax commissioner or tax collector (now collection officer) on long-term notes secured by real estate is applicable even when a portion of tax revenues is used for school purposes. 1962 Op. Att'y Gen. p. 567.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1127 et seq.

48-6-74. Distribution of revenues from intangible recording tax; procedure when real property located in more than one county.

All revenues derived from the intangible recording tax imposed by this article including, but not limited to, revenues from any imposition of the tax upon intangible trust property shall be distributed among the state, county, and municipality in which the real property is located in the same proportion that revenues derived from the intangible taxes imposed by Article 3 of this chapter are distributed. If the real property is located in more than one county, the appropriate portion of the intangible recording tax shall be distributed equitably by the commissioner among the affected counties.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 17; Code 1933, § 91A-3214, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1996, p. 117, § 7; Ga. L. 1996, p. 130, § 7; Ga. L. 1997, p. 523, § 3.)

Editor's notes. - Ga. L. 1996, p. 117, § 9, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides, in part, that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides that the 1996 amendment enacted by that Act becomes effective on January 1, 1997, and shall be applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 (Ga. L. 1996, p. 1665) at the November 1996 general election; if such resolution is not ratified, the amendment by that Act shall not become effective and shall stand repealed on January 1, 1997. That resolution passed at the November 1996 general election, so the amendment took effect on January 1, 1997.

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Distribution based on property location. - Distribution of the intangible tax levied under the provisions of Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 [repealed] and 3, Ch. 6, T. 48) will be based solely on the location of the property. 1954-56 Op. Att'y Gen. p. 581.

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, §§ 283, 291. 85 C.J.S., Taxation, §§ 1815, 1823.

48-6-75. Collection procedures in absence of collecting officer.

In the event the collecting officer required to collect the tax imposed by Code Section 48-6-61 is temporarily absent from said officer's office for reasons of health, vacation, or otherwise, said officer shall designate another qualified person to collect the intangible recording tax in said officer's absence. In the event of the death of the collecting officer, the county governing authority shall immediately designate another qualified person to collect the tax until a new collecting officer qualifies for the position as required by law.

(Ga. L. 1955, p. 288, § 6; Code 1933, § 91A-3215, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 7.)

RESEARCH REFERENCES

C.J.S. - 21 C.J.S., Courts, § 338 et seq.

48-6-76. Procedure for protesting intangible recording tax; payment under protest; special escrow fund; filing claim; approval or denial by commissioner; action for refund.

  1. If a taxpayer files with the collecting officer at the time of payment of tax as provided in Code Section 48-6-61 a written protest in duplicate of the collection or any part of the collection of the tax as erroneous or illegal, the collecting officer receiving the payment under written protest shall be deemed to have made a conditional collection of the protested amount of the payment.  Each protested collection shall be effective to discharge any duty of the taxpayer to pay the tax and to require the collecting officer to enter upon or attach to the instrument securing the obligation upon which the tax is claimed to be due a certification in the form prescribed in Code Section 48-6-62 of the fact that the intangible recording tax as provided by Code Section 48-6-61 has been paid.  Each collection as provided in this Code section shall be subject to the conditions set forth in this article as to refund upon determination by the commissioner or by final judgment in a refund action that the collection was erroneous or illegal.
  2. A collecting officer receiving a payment under written protest shall deposit the protested amount of the payment in a separate account in a bank approved as a depository for state funds, shall hold the protested amount as a special escrow fund for the purposes provided in this article, and, except as provided in this Code section, shall not distribute the amount under Code Section 48-6-74 or retain from the amount or pay into the county treasury any commission under Code Section 48-6-73.  Immediately upon receiving a payment under written protest, the collecting officer shall forward to the commissioner one executed copy of the protest.
  3. The taxpayer making a payment under written protest may file at any time within 30 days after the date of the payment a claim for refund of the protested amount of the payment with the commissioner.  Each claim shall be in writing, shall be in the form and contain such information as the commissioner requires, and shall include a summary statement of the grounds upon which the taxpayer relies in contending that the collection of the amount was erroneous or illegal.  A copy of the claim shall be filed by the taxpayer within the 30 day period with the collecting officer or said officer's successor who collected the protested amount.
  4. The commissioner shall consider the claim for refund and shall approve or deny it and shall notify the taxpayer and the collecting officer or said officer's successor who collected the protested amount of said officer's action.  If the commissioner approves the claim in whole or in part, the collecting officer or said officer's successor shall forthwith pay to the taxpayer the amount so approved, without interest, from the special escrow fund held by said officer, and no appropriation or further authorization shall be necessary to authorize and require the payment to the taxpayer from the special escrow fund.
    1. Any taxpayer whose claim for refund is denied entirely or in part by the commissioner or with respect to whose claim no decision is rendered by the commissioner within 30 days from the date of filing the claim shall have the right to bring an action for refund of the amount so claimed and not approved against the collecting officer or said officer's successor who collected the amount, in said officer's official capacity, in the superior court of the county whose official collected the amount or in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50.
    2. No action for refund shall be brought after the expiration of 60 days from the date of denial of the taxpayer's claim for refund by the commissioner.
    3. For the purposes of this Code section, a failure by the commissioner to grant or deny the taxpayer's claim for refund within the 30 day period shall not constitute a constructive denial of the claim.
  6. The commissioner in said commissioner's official capacity shall be made a party defendant to each action for refund in order that the interests of the state may be represented in the action, and the Attorney General shall represent the defendants in each action.  If it is determined in the action that the amount claimed by the taxpayer was erroneously or illegally collected from the taxpayer, the taxpayer shall be entitled to judgment against the defendant county tax official in said tax official's official capacity for the amount erroneously or illegally collected, without interest to the date of judgment. Court costs charged against the defendant in such an action and any interest payable on a judgment in favor of the taxpayer in such an action for a period before the judgment becomes final shall be paid by the commissioner as part of the expenses of administering this article.  The principal amount of a final judgment in favor of the taxpayer in such an action, exclusive of court costs, shall be paid forthwith to the taxpayer by the defendant county tax official from the special escrow fund, and no appropriation or further authorization shall be necessary to authorize and require the payment of a judgment from the special escrow fund.
    1. Upon expiration of the period for filing a claim for refund of a protested payment without any claim being filed, upon expiration of the period for filing an action for refund of a protested payment without any action being filed, upon dismissal of such an action, or upon final judgment in such an action, whichever event occurs first, the collecting officer holding the protested amount in a special escrow fund shall retain from that portion of the amount which is not payable to the protesting taxpayer or shall pay into the county treasury, as provided in Code Section 48-6-73, the percentage of such portion which is allowed by Code Section 48-6-73 as compensation for such collecting officer's services in collecting the tax.
    2. The balance of the portion after the deduction provided in paragraph (1) of this subsection shall be distributed as provided in Code Section 48-6-74 with respect to revenues derived, for the year during which the amount was paid by the taxpayer, from the intangible recording tax imposed by this article.

      (Ga. L. 1956, p. 720, § 1; Ga. L. 1977, p. 635, § 7; Code 1933, § 91A-3216, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1992, p. 6, § 48; Ga. L. 1994, p. 1767, § 8; Ga. L. 2012, p. 318, § 9/HB 100.)

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides, in part, that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

JUDICIAL DECISIONS

Nature of tax. - Intangible taxes imposed on long term notes secured by real estate were excise taxes, not ad valorem taxes, since the taxes were paid for the privilege of filing a document to protect the note secured by the recording of the security instrument, and the fact that the taxes were based on the value of the property was only ancillary. Bankers Trust Co. v. Jackson, 236 Ga. App. 490 , 512 S.E.2d 378 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Purpose. - Purpose of this statute is to provide a way for a person to pay the tax for purposes of getting a prompt and unquestionable recordation of the person's security instrument, yet not pay the tax for purposes of distribution to the various local taxing districts, so that the payment could be available for refund upon an administrative or judicial decision that there is no liability. 1960-61 Op. Att'y Gen. p. 521.

Only authority for refunding of intangible taxes is that found in this statute; there is no other provision of law authorizing the refund of intangible taxes voluntarily paid. 1957 Op. Att'y Gen. p. 316.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1822, 1824.

48-6-77. Failure to pay intangible recording tax bars action on indebtedness; removal of bar; penalty; conditions under which penalty waived; acquisition of instrument by holder exempt from tax.

  1. Failure to pay the tax levied by this article shall constitute a bar to the collection by any action, foreclosure, the exercise of any power of sale, or otherwise of the indebtedness secured by any instrument required by this article to be recorded, whether the instrument is held by an original party to the instrument or by a transferee. However, failure to pay the tax levied by this article shall not affect or discharge the indebtedness and other obligations secured by such instrument or the debtor's liability on account thereof and, subject to the bar, such instrument shall continue to secure the indebtedness and other obligations secured thereby and shall continue to encumber the collateral described therein. The bar may be removed by the payment of the required tax, plus interest at the rate specified in Code Section 48-2-40 from the time the tax was due, plus a penalty of 50 percent of the amount of the tax, after which the process to collect the indebtedness, including foreclosure, may proceed as if no bar ever existed. However, if an instrument required to be recorded fails to reflect on its face that the tax levied by this article is due and after a foreclosure has taken place it is discovered that the instrument securing the indebtedness is in fact subject to the tax, any deed given pursuant to the foreclosure or in lieu of foreclosure shall be imperfected but may be perfected by the payment of the required tax, plus interest at the rate specified in Code Section 48-2-40 from the time the tax was due plus a penalty of 50 percent of the amount of the tax. Once the tax, interest, and penalty as required in this subsection have been paid, the perfection of the deed will revert back to the date of the deed, and the deed shall retain its priority over any and all intervening liens or conveyances except those conveyances and liens made or created by the grantee, its successors, and assigns named in the foreclosure deed or deed in lieu of foreclosure. These provisions shall have no effect on any instrument subject to the tax on which the statute of limitations has expired.
  2. The failure to pay the tax shall not constitute a bar to the collection of the indebtedness as provided in subsection (a) of this Code section when the commissioner has determined that the tax is not payable.
  3. The commissioner may waive the penalty provided for in subsection (a) of this Code section if he determines that the failure to pay the tax was through ignorance of the law or inadvertence and that the failure did not occur out of bad faith.
  4. This Code section shall not apply to instruments acquired at a time when the holder of the instrument was otherwise exempt from the payment of the tax imposed by this article.

    (Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 11; Ga. L. 1973, p. 271, § 2; Ga. L. 1977, p. 635, § 3; Code 1933, § 91A-3209, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 59; Ga. L. 1980, p. 10, § 16; Ga. L. 1990, p. 1843, § 4; Ga. L. 1997, p. 547, § 1.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 92-171 are included in the annotations for this Code section.

Effect of failure to pay taxes on confirmation action under § 44-14-161 . - In an action to confirm a sale under O.C.G.A. § 44-14-161 , the debtors were not permitted to raise the defense that intangible taxes had not been paid as required by O.C.G.A. § 48-6-77 ; alleged defenses to the original debt are not relevant to the confirmation proceeding. Guthrie v. Bank S., 195 Ga. App. 123 , 393 S.E.2d 60 (1990).

Section is designed primarily to assure collection of tax when due, not for the debtor's protection. Grant v. Oakey, 108 Ga. App. 759 , 134 S.E.2d 499 (1963) (decided under former Code 1933, § 92-171).

O.C.G.A. § 48-6-77 does not provide protection to the debtor, but is a method to force the payment of intangible taxes when due. NationsBank v. Tucker, 231 Ga. App. 622 , 500 S.E.2d 378 (1998).

Exempt party's transferee not barred from collection of debt. - When a bank is exempt from the payment of the recording tax and is not subject to the bar, provided for in this statute, against the collection of the debt, the bank's grantor cannot protest the sale of the property by the bank's transferee in reliance on the bar of this statute. Grant v. Oakey, 108 Ga. App. 759 , 134 S.E.2d 499 (1963) (decided under former Code 1933, § 92-171).

Cited in Pease & Elliman Realty Trust v. Gaines, 160 Ga. App. 125 , 286 S.E.2d 448 (1981); Moister v. Citizens Trust Bank (In re Truitt), 11 Bankr. 15 (Bankr. N.D Ga. 1981).

OPINIONS OF THE ATTORNEY GENERAL

Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Transfer does not relieve original holder of obligation. - Transfer by assignment or otherwise of long-term notes secured by real estate to the national bank does not relieve the original holder of the holder's tax obligation, and does not change the tax status of the instrument. 1963-65 Op. Att'y Gen. p. 511.

Waiver of penalty in absence of bad faith. - When the holders of the instrument mailed a check for the intangibles taxes shortly after acquiring the property but the tax commissioner, being unfamiliar with the commissioner's duties, held the check several months without presenting the check to the bank for payment, the state revenue commissioner is authorized to waive such penalty if the commissioner determines that the failure to pay the tax was through ignorance of the law or inadvertence, and not in bad faith. 1963-65 Op. Att'y Gen. p. 46.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1820.

ARTICLE 4 TAXATION OF FINANCIAL INSTITUTIONS

Editor's notes. - Ga. L. 1983, p. 1350, § 15, effective January 1, 1984, not codified by the General Assembly, provides that should subsection (e) of Code Section 48-6-93 or paragraph (11) of subsection (b) of Code Section 48-7-21 be declared invalid or unconstitutional, it is the intent of the General Assembly that the entire Act be held invalid and the method of taxation affected by the Act revert to the method in effect prior to January 1, 1984.

RESEARCH REFERENCES

ALR. - Discrimination in state taxation of national banks or national bank shares, 87 A.L.R. 846 .

Tax on bank stock as payable out of assets of insolvent bank or trust company, 87 A.L.R. 1018 .

"Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 143 A.L.R. 361 .

48-6-90. Definitions.

As used in this article, the term:

  1. "Bank" means any financial institution chartered under the laws of any state or under the laws of the United States which is authorized to receive deposits in this state and which has a corporate structure authorizing the issuance of capital stock.
  2. "Depository financial institution" means a bank or a savings and loan association.
  3. "Savings and loan association" means any financial institution, other than a credit union, chartered under the laws of any state or under the laws of the United States which is authorized to receive deposits in this state and which has a mutual corporate form. (Code 1981, § 48-6-90 , enacted by Ga. L. 1996, p. 181, § 2.)

Editor's notes. - Ga. L. 1996, p. 181, § 2, renumbered former Code Section 48-6-90 as Code Section 48-6-90.1 and enacted this Code section and provided that it shall be applicable to all returns due on or after March 1, 1997.

Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code.

Law reviews. - For review of 1996 revenue and taxation legislation, see 13 Ga. U. L. Rev. 294 (1996).

48-6-90.1. Depository financial institutions subject to state and local taxation as business corporations.

Except as is otherwise provided in this title, depository financial institutions shall be subject to all forms of state and local taxation in the same manner and to the same extent as other business corporations in Georgia.

(Ga. L. 1927, p. 56, § 11; Code 1933, § 92-2406; Ga. L. 1935, p. 11, § 11; Ga. L. 1955, p. 450, §§ 1, 2; Ga. L. 1959, p. 327, § 1; Ga. L. 1966, p. 284, § 1; Ga. L. 1973, p. 924, § 3; Code 1933, § 92-2406, enacted by Ga. L. 1975, p. 147, § 1; Ga. L. 1976, p. 405, § 7; Code 1933, § 91A-3301, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1350, § 5; Code 1981, § 48-6-90.1 , as redesignated by Ga. L. 1996, p. 181, § 2.)

Editor's notes. - Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code.

Law reviews. - For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For survey article on constitutional law, see 34 Mercer L. Rev. 53 (1982). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For review of 1996 revenue and taxation legislation, see 13 Ga. U. L. Rev. 294 (1996).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality of bank share tax scheme. - The 1975 Georgia bank share tax scheme did not subject banks to a tax classification that was so "palpably arbitrary" or "invidious" as to run afoul of the constitutional protections of the equal protection clause of the United States Constitution and the due process clauses of the United States and Georgia Constitutions. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 (1983).

Former bank share tax statute, Ga. L. 1975, pp. 147-153 (see now O.C.G.A. § 48-6-90 ), passed in March 1975 and stating that it did "apply to all taxable years beginning on or after January 1, 1975," did not retroactively impose a tax on property held by a bank two and one-half months before the statute was enacted in violation of the constitutional prohibition that "no . . . retroactive law . . . shall be passed." Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 (1983).

State can lawfully tax national banks only as provided by federal law. Goodwin v. Citizens & S. Nat'l Bank, 209 Ga. 908 , 76 S.E.2d 620 (1953).

To tax long-term notes separately would violate the declared policy of this state. Washington Loan & Banking Co. v. Golucke, 212 Ga. 98 , 90 S.E.2d 575 (1955).

Intent of statute is that the state shall tax full value of shares, and no more. Georgia R.R. Bank & Trust v. Richmond County Bd. of Tax Assessors, 142 Ga. App. 417 , 236 S.E.2d 95 (1977).

Notice of assessment of bank share tax on solvent bank. - Since the bank was statutorily required to act as agent for the shareholders for purposes of the bank share tax, it was proper that notice of assessment be forwarded to the bank. It was not essential, however, that personal notice be sent to the individual shareholders. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 (1983) (decided prior to 1983 amendment).

Notice of assessment of bank share tax on insolvent bank. - After a bank had ceased banking operations and was placed in receivership with the FDIC, the bank was no longer the agent of the shareholders for bank share tax purposes, and under these facts, notice of a bank share tax assessment to the receiver or the FDIC would not be notice to the shareholders. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 (1983) (decided prior to 1983 amendment).

Bank exempt from recording tax on deed to realty and may compel recordation by mandamus. - Bank chartered under the laws of this state is not subject to payment of the ad valorem recording fee imposed under Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4 (see now O.C.G.A. § 48-6-61 ). It is error to sustain a general demurrer (now motion to dismiss) to the bank's petition for a writ of mandamus to require the clerk of the superior court to record a security deed given to secure the payment of a long-term note, without payment of the recording fee. Washington Loan & Banking Co. v. Golucke, 212 Ga. 98 , 90 S.E.2d 575 (1955).

Persons and Entities Liable for Tax

Receiver of an insolvent bank is not liable for payment of bank share taxes assessed prior to insolvency, nor does the fact that the bank maintained a reserve account for payment of the taxes at the time the bank went into receivership distinguish the case since it does not appear that these funds had been set apart for the shareholders as dividends or otherwise designated as shareholder property. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 (1983) (decided prior to 1983 amendment).

Shareholders may ultimately be held liable for unpaid bank share taxes assessed prior to the insolvency of the shareholders' bank. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 (1983) (decided prior to 1983 amendment).

Taxes payable after expenses of liquidation and claims of depositors. - State taxes are payable only after all costs and expenses of the administration of the liquidation or dissolution, and the payment of the claims of depositors. Roberts v. Gunter, 251 Ga. 276 , 304 S.E.2d 369 (1983) (decided prior to 1983 amendment).

Cited in Bartow County Bank v. Bartow County Bd. of Tax Assessors, 251 Ga. 831 , 312 S.E.2d 102 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Section prohibits levy of business license tax on state banks. - Since municipalities cannot levy a business license tax on national banks, municipalities are prohibited from levying such a tax on state banks. This is true regardless of any provision in a city charter giving the city the right to levy such a tax. 1954-56 Op. Att'y Gen. p. 699.

State revenue laws inapplicable to international banking corporations. - An international banking corporation whose sole contact with this state is the corporation's operation of an agency office licensed under Ga. L. 1974, p. 705, § 1 (see now O.C.G.A. Art. 5, Ch. 1, T. 7) is not a bank for purposes of state revenue statutes. 1976 Op. Att'y Gen. No. 76-105.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 351.

C.J.S. - 84 C.J.S., Taxation, §§ 91, 179, 184 et seq., 320, 321, 443, 641 et seq.

ALR. - State income tax in respect of income from national bank stock, 127 A.L.R. 941 .

48-6-91. Domestic international banking facilities; place of business; exemption from state or local tax, license, or fee.

Domestic international banking facilities operating in this state pursuant to Article 5A of Chapter 1 of Title 7, the "Domestic International Banking Facility Act," and engaging only in those activities authorized pursuant to that article shall not be deemed to maintain a place of business in this state and shall not be subject to any state or local tax, license, or fee solely because of such activities.

(Ga. L. 1927, p. 56, § 12; Code 1933, § 92-2407; Ga. L. 1935, p. 11, § 12; Code 1933, § 92-2406.1, enacted by Ga. L. 1975, p. 147, § 2; Ga. L. 1976, p. 405, § 8; Code 1933, § 91A-3302, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1350, § 6; Ga. L. 1984, p. 22, § 48; Ga. L. 1996, p. 181, § 3.)

Editor's notes. - Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 352.

C.J.S. - 84 C.J.S., Taxation, §§ 475 et seq., 620 et seq.

48-6-92. Taxation of banks and building and loan associations under article exclusive; exception.

Reserved. Repealed by Ga. L. 1983, p. 1350, § 7, effective January 1, 1984.

Editor's notes. - This Code section was based on Ga. L. 1937-38, Ex. Sess., p. 170, § 2; Ga. L. 1973, p. 924, § 3; Ga. L. 1976, p. 405, § 4; Ga. L. 1978, p. 1448, § 1; Code 1933, § 91A-3306, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 60.

48-6-93. Local business license tax on depository financial institutions; tax rate based on Georgia gross receipts; return required; allocation of gross receipts; tax credited against state corporate income tax liability.

  1. Municipalities and counties may each levy and collect a business license tax from depository financial institutions having an office located within their respective jurisdiction at a rate not to exceed 0.25 percent of the Georgia gross receipts, as defined and allocated in Code Section 48-6-95 and this Code section, of said depository financial institutions. Municipalities and counties may provide that the minimum annual amount of such levy upon any depository financial institution shall be not more than $1,000.00.
  2. Reserved.
  3. Every depository financial institution subject to the tax authorized by this Code section shall file a return of its gross receipts with each applicable jurisdiction levying such tax by March 1 of the year following the year in which such gross receipts are measured. Said return shall be in the manner and in the form prescribed by the commissioner based on the allocation method set forth in subsection (d) of this Code section. The return shall provide the information necessary to determine the portion of the taxpayer's Georgia gross receipts to be allocated to each taxing jurisdiction in which such institution has an office. Each taxing jurisdiction which has enacted a business license tax pursuant to subsection (a) of this Code section shall assess and collect said tax based upon the information provided in the returns.
  4. A depository financial institution's Georgia gross receipts shall be allocated among each taxing jurisdiction in which such institution has an office as of December 31 of the year in which gross receipts are measured, as follows:
    1. Each jurisdiction shall be assigned the gross receipts attributable to the offices located within such jurisdiction; and
    2. In determining the amount of "gross receipts" attributable to each office, 20 percent of the institution's Georgia gross receipts shall be attributable to that institution's principal Georgia office, which for this purpose shall be the Georgia office to which the greatest amount of deposits by value are attributable. The remaining 80 percent of Georgia gross receipts shall be attributable to the institution's other Georgia offices, pro rata according to the number of such offices. The term "office" as used in this Code section means a place of business of a depository financial institution at which the institution accepts deposits but shall not include unmanned automatic teller machines, point-of-sale terminals, or other similar unmanned electronic facilities at which deposits may be accepted. If there are fewer than five offices in addition to the principal Georgia office, the amount of gross receipts attributable to each such office shall be determined by dividing the Georgia gross receipts by the aggregate number of such offices.
  5. Any tax paid by a depository financial institution pursuant to this Code section shall be credited dollar for dollar against any state income tax liability of such institution for the tax year during which any business or occupation tax authorized by this Code section is paid. Such credit shall be subject to the provisions of Code Section 48-7-29.7.
  6. Except as authorized by this Code section, no municipality or county shall levy any form of business license tax, fee, franchise, or occupation tax on any depository financial institution.

    (Ga. L. 1937-38, Ex. Sess., p. 156, § 2; Ga. L. 1949, p. 1050, § 1; Ga. L. 1973, p. 924, § 3; Ga. L. 1976, p. 405, § 1; Code 1933, § 91A-3303, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1350, § 8; Ga. L. 1984, p. 22, § 48; Ga. L. 1988, p. 13, § 48; Ga. L. 1996, p. 181, § 4; Ga. L. 2000, p. 1445, § 3.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, "Code Section 48-7-29.7" was substituted for "Code Section 48-7-29.4" at the end of subsection (e).

Editor's notes. - Ga. L. 1983, p. 1350, § 15, effective January 1, 1984, not codified by the General Assembly, provides that should subsection (e) of Code Section 48-6-93 or paragraph (11) of subsection (b) of Code Section 48-7-21 be declared invalid or unconstitutional, it is the intent of the General Assembly that the entire Act be held invalid and the method of taxation affected by the Act revert to the method in effect prior to January 1, 1984.

Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code.

Ga. L. 2000, p. 1445, § 5, not codified by the General Assembly, provided in part that the Act shall be applicable to all taxable years beginning on or after January 1, 2001.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Ga. St. U. L. Rev. 217 (2011).

JUDICIAL DECISIONS

Cited in Bartow County Bank v. Bartow County Bd. of Tax Assessors, 248 Ga. 703 , 285 S.E.2d 920 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Construction with § 48-6-98 . - O.C.G.A. § 48-6-98 operates to qualify or restrain the general terms of subsection (a) as applied to savings and loan associations. 1984 Op. Att'y Gen. No. 84-58.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 89, 90, 120, 121, 128, 184 et seq.

ALR. - Discrimination by state against foreign corporations in imposition of taxes and license fees, 49 A.L.R. 726 ; 77 A.L.R. 1490 .

Constitutionality, construction, and application of state and local public-utility-gross-receipts-tax statutes modern cases, 58 A.L.R.5th 187.

48-6-94. Rate of taxation of moneyed capital competing with national banks.

All moneyed capital in the hands of individual citizens of this state coming into competition with the business of national banks shall be subject to taxation at the rate applicable to the national banks.

(Ga. L. 1937-38, Ex. Sess., p. 156, § 3; Ga. L. 1973, p. 924, § 3; Ga. L. 1976, p. 405, § 2; Code 1933, § 91A-3305, enacted by Ga. L. 1978, p. 309, § 2.)

48-6-95. Special state occupation tax on depository financial institutions; tax rate based on Georgia gross receipts; determining gross receipts; return required; annual report of commissioner; credits.

  1. There is imposed a special state occupation tax on each depository financial institution that conducts business or owns property in this state. The rate of this tax shall be 0.25 percent of the Georgia gross receipts, as defined in subsection (b) of this Code section, of the depository financial institution. This tax shall be in addition to any and all other taxes to which such depository financial institution is subject.
    1. For purposes of this Code section, "Georgia gross receipts" means gross receipts as determined under paragraph (2) of this subsection, unless the taxpayer conducts business both within and outside this state in which case "Georgia gross receipts" means gross receipts as determined under paragraph (2) of this subsection multiplied by the taxpayer's Georgia gross receipts factor determined under paragraph (2) of subsection (d) of Code Section 48-7-31 for the year in which such gross receipts are measured.
    2. For purposes of this Code section, "gross receipts" means the total amount of revenue generated from the sources itemized in this paragraph and in paragraph (3) of this subsection during the calendar year immediately preceding the date on which the tax authorized by this Code section shall be due. Before determining gross receipts there shall be deducted:
      1. An amount equal to the amount of interest paid on all liabilities for the period;
      2. An amount equal to income derived from the authorized activities of any domestic international banking facility operating pursuant to Article 5A of Chapter 1 of Title 7, the "Domestic International Banking Facility Act";
      3. An amount equal to any income arising from the conduct of a banking business with persons or entities located outside of the United States, its territories, or possessions; and
      4. To the extent that any deductions are made pursuant to subparagraphs (B) and (C) of this paragraph, any deductions taken under subparagraph (A) of this paragraph shall be reduced by the same proportion that the deductions in subparagraphs (B) and (C) of this paragraph bear to the gross receipts of the depository financial institution as calculated before making any deductions pursuant to subparagraphs (A) through (C) of this paragraph.
    3. The items to be included in the calculation of gross receipts with respect to banks are as follows:
      1. Interest and fees on loans less any interest collected on those portions of loans sold and serviced for others;
      2. Interest on balances with other depository financial institutions;
      3. Interest on federal or correspondent funds sold and securities purchased under agreement to resell;
      4. Interest on other bonds, notes, and debentures, excluding interest on obligations of the State of Georgia or its political subdivisions and obligations of the United States;
      5. Dividends on stock;
      6. Income from direct lease financing;
      7. Income from fiduciary activities;
      8. Service charges on deposit accounts;
      9. Other service charges, commissions, and fees; and
      10. Other income.
    4. The items to be included in the calculation of gross receipts with respect to savings and loan associations are as follows:
      1. Interest on mortgage loans less any interest collected on those portions of loans sold and serviced for others;
      2. Interest on mortgages, participations, or mortgage backed securities;
      3. Interest on real estate sold on contract;
      4. Discounts on mortgage loans purchased;
      5. Interest on other loans, excluding interest on obligations of the State of Georgia or its political subdivisions and obligations of the United States;
      6. Interest and dividends on investments and deposits;
      7. Loan fees;
      8. Loan servicing fees;
      9. Other fees and charges;
      10. Gross income from real estate owned operations;
      11. Net income from office building operations;
      12. Gross income from real estate held for investment;
      13. Net income from service corporations and subsidiaries;
      14. Miscellaneous operating income;
      15. Profit on sale of real estate owned operations, investment securities, loans, and other assets; and
      16. Miscellaneous nonoperating income.
  3. Each depository financial institution shall file with the commissioner a return of its gross receipts by March 1 of the year following the year in which such gross receipts are measured. Said return shall be in the manner and in the form prescribed by the commissioner. The tax imposed by this Code section shall be paid to the commissioner at the time of filing the return.
  4. The commissioner shall make an annual report to the Governor and to the chairpersons of the House and Senate Appropriations Committees of the amount of special state occupation tax on depository financial institutions collected.
  5. Any tax paid by a depository financial institution pursuant to this Code section shall be credited dollar for dollar against any state income tax liability of such institution for the tax year during which any business or occupation tax authorized by this Code section is paid. Such credit shall be subject to the provisions of Code Section 48-7-29.7.

    (Ga. L. 1975, p. 154, § 3; Code 1933, § 91A-3304, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1350, § 9; Ga. L. 1996, p. 181, § 5; Ga. L. 2000, p. 1445, § 4; Ga. L. 2002, p. 415, § 48.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, "Code Section 48-7-29.7" was substituted for "Code Section 48-7-29.4" at the end of subsection (e).

Editor's notes. - Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code.

Ga. L. 2000, p. 1445, § 5, not codified by the General Assembly, provided in part that the Act shall be applicable to all taxable years beginning on or after January 1, 2001.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Ga. St. U. L. Rev. 217 (2011).

48-6-96. Exemptions, credits, and deductions from taxation of depository financial institutions filing consolidated returns with parent organization.

No depository financial institution shall be deprived of the benefit of any exemption, deduction, or credit authorized by law as a consequence of its election to file otherwise lawful consolidated returns with its parent organization or any corporate subsidiaries with respect to any state or local tax levied against such depository financial institution.

(Code 1981, § 48-6-96 , enacted by Ga. L. 1983, p. 1350, § 10.)

48-6-97. Taxation of credit unions; legislative intent to tax state and federally chartered credit unions equally.

Except as otherwise provided by law, credit unions organized under the provisions of Chapter 1 of Title 7, the "Financial Institutions Code of Georgia," shall be subject to all forms of state and local government taxation authorized by the Congress of the United States for the taxation of federally chartered credit unions on January 1, 1984. It is the intent of the General Assembly of the State of Georgia that credit unions organized under the laws of this state and credit unions organized under the laws of the United States and domiciled within this state be subject to the same degree of taxation whether by the state or any of its political subdivisions in which such credit union maintains a place of business. It is further the intent of the General Assembly that in the event the Congress of the United States should change the manner in which federally chartered credit unions may be taxed by state and local governments, then to the extent that state legislative authority is not preempted by the Congress, state-chartered credit unions and federally chartered credit unions operating in this state shall be taxed to the same extent and in the same manner as state-chartered savings and loan associations operating in this state.

(Code 1981, § 48-6-97 , enacted by Ga. L. 1983, p. 1350, § 10; Ga. L. 1984, p. 22, § 48.)

48-6-98. Legislative intent to tax all depository financial institutions equally; interim special tax limitation for savings and loan associations.

It is the intent of the General Assembly of the State of Georgia that depository financial institutions shall be taxed in the same manner and to the same extent for purposes of state taxation. It is the further intent of the General Assembly of Georgia that depository financial institutions shall be taxed in the same manner and to the same extent by the individual political subdivisions in which they have an office or place of business; provided, however, that the following distinctions shall be made to recognize differences between banks and savings and loan associations:

  1. Any appropriate distinctions made elsewhere in this chapter; and
  2. For a period of three years from January 1, 1984, the aggregate gross receipts taxes payable by any savings and loan association under the provisions of this chapter shall not be in excess of an amount that would be raised by a current ad valorem tax imposed upon the net worth of said association. As used in this chapter, the term "net worth" means all surplus, undivided profits, and reserves exclusive of any reserve required by any federal or state statute or regulation in force as of January 1, 1980, which statute or regulation was applicable to such federal or state-chartered association, and minus the fair market value of all real estate or equity therein owned by the association. (Code 1981, § 48-6-98 , enacted by Ga. L. 1983, p. 1350, § 10; Ga. L. 1984, p. 22, § 48.)

OPINIONS OF THE ATTORNEY GENERAL

Effect on § 48-6-93(a) . - O.C.G.A. § 48-6-98 operates to qualify or restrain the general terms of O.C.G.A. § 48-6-93(a) as applied to savings and loan associations. 1984 Op. Att'y Gen. No. 84-58.

CHAPTER 7 INCOME TAXES

Article 1

General Provisions.

Article 2

Imposition, Rate, and Computation;

Exemptions.

Article 3

Returns and Furnishing of

Information.

Article 4

Payment: Deficiencies, Assessment,

and Collection.

Article 5

Current Income Tax Payment.

Article 6

Local Income Taxes.

Article 7

Setoff Debt Collection.

Cross references. - Penalty for disclosure of information obtained by person, corporation, or others engaged in business of preparing federal or state income tax returns or assisting in such preparation, § 16-11-81 .

Selection on tax form of nonprofit corporations for contribution, § 20-3-316.1 .

Opportunity for taxpayers to contribute to Georgia Land Conservation Trust Fund, § 12-6A-4 .

Establishment of plans to provide tax deferral benefits for state, county, or other employees, § 45-18-30 et seq.

Administrative Rules and Regulations. - Signature requirements for tax returns, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fiscal Operations Division, Substantive Regulations, § 560-3-2-.27.

Law reviews. - For article, "Federal-Georgia Income Tax Differences: More Than Just a Nuisance," see 20 Ga. St. B. J. 20 (1983).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-30 through 92-33, which was subsequently repealed but was succeeded by provisions in this chapter, are included in the annotations for this chapter.

Much of the state income tax law is patterned upon the United States Internal Revenue Code of 1954. Carter v. Oxford, 102 Ga. App. 762 , 118 S.E.2d 216 (1960), aff'd, 216 Ga. 821 , 120 S.E.2d 298 (1961) (decided under former Code 1933, Ch. 92-30 through 92-33).

No intent to tax income earned outside state by domestic corporation. - It is not the purpose and intent of former Code 1933, Ch. 92-30 through 92-33 to tax the net income of a domestic corporation derived from property owned or business done outside the territorial limits of this state, although this may constitutionally be done, as regards a domestic corporation. Interstate Bond Co. v. State Revenue Comm'n, 50 Ga. App. 744 , 179 S.E. 559 (1935) (decided under former Code 1933, Ch. 92-30 through 92-33).

"Doing business" construed. - "Doing business" in order to incur tax liability under statutes imposing taxes on persons doing business in a state means that a foreign corporation must transact some substantial part of the corporation's ordinary business there, and that it must be continuous in character as distinguished from a mere casual or occasional transaction. A series of transactions is not necessarily conclusive on the question of whether the corporation is doing business. Redwine v. United States Tobacco Co., 209 Ga. 725 , 75 S.E.2d 556 (1953) (decided under former Code 1933, Ch. 92-30 through 92-33).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-99, which was subsequently repealed but was succeeded by provisions in this chapter, are included in the annotations for this chapter.

Elements of proof of criminal violation of income tax laws. - To sustain a criminal prosecution for violation of the state income tax laws, it must be shown that the violator is subject to the requirements of the laws; that after actual notice the violator failed to comply with the request of the commissioner, and that the violator resides in the county where the proceedings are instituted. 1945-47 Op. Att'y Gen. p. 564 (rendered under former Code 1933, Ch. 92-30 through 92-33).

RESEARCH REFERENCES

ALR. - Constitutionality, construction, and application provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 42 A.L.R.2d 797.

Damages for breach of contract as affected by income tax considerations, 50 A.L.R.4th 452.

ARTICLE 1 GENERAL PROVISIONS

RESEARCH REFERENCES

ALR. - Bond or warrant of governmental subdivision as subject of taxation or exemption, 26 A.L.R. 547 ; 44 A.L.R. 510 .

Tax computed upon aggregate income of husband and wife who make joint return as apportionable in respect of liability for its payment, 104 A.L.R. 430 .

Retroactive effect of income tax, 109 A.L.R. 523 ; 118 A.L.R. 1153 .

Income tax in respect of corporate earnings returned to stockholding customers in proportion to business transacted, 109 A.L.R. 969 .

Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597 .

Valuation of gift property for purposes of gift tax, 60 A.L.R.2d 1304.

Exclusion of meals and lodging from gross income under "convenience of the employer" rule, 84 A.L.R.2d 1215.

What constitutes "reasonable cause" under state statutes imposing penalty on taxpayer for failure to file timely tax return unless such failure was due to "reasonable cause,", 29 A.L.R.4th 413.

48-7-1. Definitions.

As used in this chapter, the term:

  1. "Corporation" includes, but is not limited to, all associations, professional associations organized pursuant to Chapter 10 of Title 14, and insurance companies.
  2. "Deficiency" means the amount by which the tax imposed by this chapter or any prior law exceeds the amount shown as the tax due by the taxpayer upon his return or, if no amount is shown as the tax due by a taxpayer upon his return or if no return is made by the taxpayer, the amount determined by the commissioner to be the correct amount of the tax.
  3. "Dividend," when used for the purpose of defining a taxable dividend, means any distribution made by a corporation out of its earnings or profits to its shareholders or members whether the distribution is made in cash, other property, or a stock different from the stock on which the dividend is paid. "Dividend" also includes, but is not limited to, the portion of the assets of a corporation distributed at the time of dissolution which is in effect a distribution of earnings.
  4. "Fiscal year" means an accounting period of 12 months ending on the last day of any month other than December. In the case of any taxpayer who has elected a year consisting of 52 to 53 weeks for federal income tax purposes, the term means the period so elected.
  5. "Income tax day" means December 31 of each calendar year or, if a person can show to the satisfaction of the commissioner that the person has already established the fiscal year as his taxable year for income tax reporting purposes, the last day of the person's fiscal year.
  6. "Nonresidents" means taxable nonresidents and nontaxable nonresidents.
  7. "Nontaxable nonresident" means every individual who is not otherwise a resident of this state or a taxable nonresident of this state.

    (7.1) "Owning property or doing business in this state" shall not include the following activities, either singularly or in the aggregate, with respect to any person that is not otherwise subject to income taxation in the State of Georgia that has contracted with a commercial printer for any printing, including printing related activities, and distribution services to be performed in Georgia:

    1. The ownership by that person of tangible or intangible property located at the Georgia premises of the commercial printer for use by the printer in performing its services for the owner;
    2. The sale and distribution by that person of printed material produced at and shipped or distributed from the Georgia premises of the commercial printer;
    3. The activities performed by or on behalf of that person at the Georgia premises of the commercial printer which are directly related to the services provided by that commercial printer; or
    4. The printing, including printing related activities and distribution related activities, performed by the commercial printer in Georgia for or on behalf of that person.
  8. "Paid," for the purpose of the deductions under this chapter, means "paid or accrued" or "paid or incurred." The terms "paid or accrued," "paid or incurred," and "incurred" shall be construed according to the method of accounting upon the basis of which the net income is computed under this chapter.
  9. "Received," for the purpose of the computation of the net income under this chapter, means "received or accrued." The term "received or accrued" shall be construed according to the method of accounting upon the basis of which the net income is computed under this chapter.
    1. "Resident" means:
      1. Every individual who is a legal resident of this state on income tax day;
      2. Every individual who, though not necessarily a legal resident of this state, nevertheless resides within this state on a more or less regular or permanent basis and not on the temporary or transitory basis of a visitor or sojourner and who so resides within this state on income tax day; and
      3. Every individual who on income tax day has been residing within this state for 183 days or part-days or longer, in the aggregate, of the immediately preceding 365 day period.
    2. Every individual who, having become a resident of this state for income tax purposes under divisions (i) and (ii) of subparagraph (A) of this paragraph, is deemed to continue to be a resident of this state until the person shows to the satisfaction of the commissioner that he or she has become a legal resident or domiciliary of another state and that he or she does not come within division (iii) of subparagraph (A) of this paragraph. Upon such a showing with respect to any 12 month period immediately preceding income tax day, the person shall be taxable as a resident of this state only to the date of becoming a nonresident on an apportionment basis as prescribed in Code Section 48-7-85.
    3. Every individual who becomes a resident of this state for income tax purposes under divisions (i) and (ii) of subparagraph (A) of this paragraph for the first time during the 12 month period immediately preceding income tax day and who does not otherwise come within division (iii) of subparagraph (A) of this paragraph shall be taxable as a resident only from the date of becoming a resident on an apportionment basis as prescribed in Code Section 48-7-85.
  11. "Taxable nonresident" means:
    1. Every individual who is not otherwise a resident of this state for income tax purposes and who regularly and not casually or intermittently engages within this state, by himself or herself or by means of employees, agents, or partners, in employment, trade, business, professional, or other activity for financial gain or profit, including, but not limited to, the rental of real or personal property located within this state or for use within this state. "Taxable nonresident" does not include a legal resident of another state whose only activity for financial gain or profit in this state consists of performing services in this state for an employer as an employee when the remuneration for the services does not exceed the lesser of 5 percent of the income received by the person for performing services in all places during any taxable year or $5,000.00;
    2. Every individual who is not otherwise a resident of this state for income tax purposes and who sells, exchanges, or otherwise disposes of tangible property which at the time of the sale, exchange, or other disposition has a taxable situs within this state or who sells, exchanges, or otherwise disposes of intangible personal property which has acquired at the time of the sale, exchange, or other disposition a business or commercial situs within this state;
    3. Every individual who is not otherwise a resident of this state for income tax purposes and who receives the proceeds of any lottery prize awarded by the Georgia Lottery Corporation;
    4. Every individual who is not a resident of this state for income tax purposes and who makes a withdrawal as provided for in paragraph (10) of subsection (b) of Code Section 48-7-27; and
      1. For purposes of this subparagraph, the term:
        1. "Deferred compensation" means deferred compensation received from a nonqualified deferred compensation plan.
        2. "Nonqualified deferred compensation plan" means the same as it is defined in Section 3121(v)(2) of the Internal Revenue Code.
      2. Every individual who is not otherwise a resident of this state for income tax purposes and who regularly and not casually or intermittently engaged in a prior year within this state, by himself or herself, in activity for financial gain or profit and who receives income from such activity in the form of deferred compensation or income from the exercise of stock options and such income exceeds the lesser of 5 percent of the income received by the person in all places during the taxable year or $5,000.00; provided, however, that this subparagraph shall not apply in the case of an individual who receives such income when the state is prohibited from taxing such income pursuant to federal law. For stock options granted and deferred compensation plans established before January 1, 2011, this subparagraph shall apply only to the portion earned on or after January 1, 2011. The commissioner shall by rule and regulation provide the method of determining the amount earned in Georgia using a "days worked in Georgia" method. Such earned amount shall be included in the Georgia income of the taxable nonresident.
      3. Employers shall withhold Georgia income tax as provided in Article 5 of this chapter on all deferred compensation and stock options which are required to be included in Georgia income of the taxable nonresident. For purposes of withholding only:
        1. The employer shall use records that are available to them. However, if the records are not available, the employer may reasonably rely upon a written representation, signed under penalties of perjury, from the employee of the number of days worked in Georgia. The employer shall only be held liable if the employer had actual or constructive knowledge that the employee's written representation was false or contained erroneous information; and
        2. The employer may elect to determine the number of days worked in Georgia by assuming the employee worked in Georgia only during the time the employee was a resident of Georgia.
      4. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the tax provisions of this paragraph.
  12. "Taxable year" means the calendar year or the fiscal year ending during the calendar year upon the basis of which the net income is computed under this chapter.

    (Ga. L. 1931, Ex. Sess., p. 24, §§ 2, 35; Ga. L. 1931, p. 7, § 85; Code 1933, §§ 92-3002, 92-3302(f); Ga. L. 1937, p. 109, § 1; Ga. L. 1937-38, Ex. Sess., p. 150, § 1; Ga. L. 1941, p. 221, § 1; Ga. L. 1957, p. 397, §§ 1, 2; Ga. L. 1962, p. 454, § 1; Ga. L. 1962, p. 703, § 1; Ga. L. 1963, p. 16, § 1; Ga. L. 1975, p. 858, § 1; Ga. L. 1976, p. 980, § 1; Code 1933, § 91A-3501, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 61; Ga. L. 1994, p. 597, § 1; Ga. L. 1998, p. 124, § 2; Ga. L. 2002, p. 372, § 1; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2005, p. 159, § 7/HB 488; Ga. L. 2008, p. 159, § 6/HB 1014; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 525, § 1/HB 1198; Ga. L. 2011, p. 297, § 2/HB 346.)

Editor's notes. - Ga. L. 2002, p. 372, § 15(b), not codified by the General Assembly, provides that §§ 1-4, 6, and 8-14 of this Act shall be applicable to all taxable years beginning on or after January 1, 2002.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27(c)/HB 488, not codified by the General Assembly, provides that § 7 of this Act applies to all taxable years beginning on or after January 1, 2005.

Ga. L. 2010, p. 525, § 2/HB 1198, not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2011.

Ga. L. 2011, p. 297, § 5(b)/HB 346, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall be applicable to all taxable years beginning on or after January 1, 2011.

Law reviews. - For article, "Foreign Corporations in Georgia," see 10 Ga. St. B. J. 243 (1973). For article discussing taxation of foreign businesses in Georgia, see 27 Mercer L. Rev. 629 (1976). For article surveying Georgia cases in the area of business associations from June 1977 through May 1978, see 30 Mercer L. Rev. 1 (1978). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

JUDICIAL DECISIONS

ANALYSIS

In General

Nature of income tax. - General view is that an income tax is not a property tax, but more in the nature of an excise tax. However, an income tax is not an occupation or a poll tax, nor is it a franchise tax or a sales tax, but the very antithesis thereof. Interstate Bond Co. v. State Revenue Comm'n, 50 Ga. App. 744 , 179 S.E. 559 (1935).

Income tax relates to product or income from property or business. - An income tax may be described as one relating to the product or income from property or from business pursuits, and has been defined as a tax on the yearly profits arising from property, professions, trades, or offices, or as a tax on a person's income, emoluments, profits, and the like, or the excess thereof over a certain amount. Interstate Bond Co. v. State Revenue Comm'n, 50 Ga. App. 744 , 179 S.E. 559 (1935).

Legislative intent as to income earned outside state before becoming resident. - Former Code 1933, §§ 92-3002, 92-3101, 92-3112, and 92-3302 (see now O.C.G.A. §§ 48-7-1 , 48-7-20 , and 48-7-30 ), when construed together, authorize, if they do not compel, the interpretation that the General Assembly did not intend to impose a tax upon such portion of the income of a resident as was derived by the resident from sources outside the state before the date on which the individual became a resident of this state. Forrester v. Culpepper, 194 Ga. 744 , 22 S.E.2d 595 , answer conformed to, 68 Ga. App. 382 , 23 S.E.2d 106 (1942).

Dividends

Legislative intent as to assets distributed at time of dissolution. - General Assembly's intention in enacting this section is to ensure the taxation of those portions of a corporation's assets distributed at the time of dissolution as would in effect be a distribution of earnings by not allowing corporations to liquidate at depression values and take losses on the difference between the value on the date of liquidation and the sole stockholder's cost or original basis for the stock. Chilivis v. Cleveland Elec. Co., 142 Ga. App. 751 , 236 S.E.2d 872 (1977).

Construction of definition of "dividend" with other provisions. - In light of the legislative history of former Code 1933, § 91A-3501 (see now O.C.G.A. § 48-7-1 ) and Oxford v. Carter, 216 Ga. 821 , 120 S.E.2d 298 (1961), the Court of Appeals is not willing to say that the term "dividend" as used in paragraph (b)(10) of former Code 1933, § 92-3102 (see now O.C.G.A. § 48-7-21(b)(8)), incorporates the definition in this section or that "dividend" as used in this section clearly and distinctly includes a final distribution in liquidation. Chilivis v. Cleveland Elec. Co., 142 Ga. App. 751 , 236 S.E.2d 872 (1977).

Construction with Internal Revenue Code. - Words "the portion of the assets of a corporation distributed at the time of dissolution which is in effect a distribution of earnings" in the definition of "dividend" mean such portion of the assets as would be "essentially equivalent to the distribution of a taxable dividend" under 26 U.S.C. § 302 and the regulations interpreting that section. Carter v. Oxford, 102 Ga. App. 762 , 118 S.E.2d 216 (1960), aff'd, 216 Ga. 821 , 120 S.E.2d 298 (1961).

OPINIONS OF THE ATTORNEY GENERAL

Taxation of stock distributed to shareholders pursuant to divestiture ruling. - Stock held by a corporation which stock is distributed to the corporation's stockholders in accordance with divestiture ruling of federal courts is taxable as a dividend under state income tax laws. 1962 Op. Att'y Gen. p. 521.

Becoming legal resident or domiciliary of another state. - To become a legal resident or domiciliary of another state one must not only reside there but must do so with the intention of giving up one's legal residence or domicile in Georgia. 1969 Op. Att'y Gen. No. 69-171.

Effect on status as a resident of temporary absence from state. - If a citizen is a resident of this state, the citizen will remain a resident of this state and subject to the income tax laws, even though absent and temporarily living in another jurisdiction, until the citizen is legally qualified to become a resident of another state. 1954-56 Op. Att'y Gen. p. 763.

What activity gives rise to classification as taxable nonresidents. - This section does not attach merely because a nonresident happens to be administratively assigned to, and paid from, an office located in this state. However, if employment takes place within this state beyond the extent specified in this section, then these obligations do attach, irrespective of the fact of nonresidency, or other factors. 1960-61 Op. Att'y Gen. p. 502.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 470, 471.

C.J.S. - 84 C.J.S., Taxation, §§ 142 et seq., 482 et seq, 568. 85 C.J.S., Taxation, §§ 1976, 2051, 2052, 2053.

ALR. - Inhabitancy or residence, within provisions of income tax law as equivalent of domicile, 82 A.L.R. 982 .

Validity and construction of state statutes imposing tax on income derived from dividends on stock of foreign corporations, 102 A.L.R. 77 ; 143 A.L.R. 147 .

Meaning of association or joint stock company within statutes taxing associations or joint stock companies as corporations ("Massachusetts" or business trusts), 108 A.L.R. 340 ; 144 A.L.R. 1050 ; 166 A.L.R. 1461 .

Income tax in respect of salaries of public officers and employees, 125 A.L.R. 1421 .

Income tax on income of taxpayer who dies during taxable year, 142 A.L.R. 213 .

Income tax on nonresident or on foreign corporation, 156 A.L.R. 1370 .

Income tax in relation to stock dividends (including character of corporate distributions as stock dividends), 167 A.L.R. 554 .

48-7-2. Failure of person to pay tax, file return, keep records, supply information, or exhibit books under this chapter; penalty.

  1. It shall be unlawful for any person who is required under this chapter to pay any tax, make any return, keep any records, supply any information, or exhibit any books or records for the purpose of computation, assessment, or collection of any tax imposed by this chapter to fail to:
    1. Pay the tax;
    2. Make the return;
    3. Keep the records; or
    4. When requested to do so by the commissioner:
      1. Supply the information; or
      2. Exhibit the books or records.
  2. In addition to other penalties provided by law, any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Code 1933, § 92-3217, enacted by Ga. L. 1937, p. 109, § 17; Code 1933, § 91A-9930, enacted by Ga. L. 1978, p. 309, § 2.)

Administrative Rules and Regulations. - Electronic record keeping and retention, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Administrative Unit, Organization, § 560-1-1-.19.

JUDICIAL DECISIONS

O.C.G.A. § 48-7-2 is unconstitutional to the extent that the statute authorizes imprisonment for mere nonpayment of income taxes. State v. Higgins, 254 Ga. 88 , 326 S.E.2d 728 (1985).

OPINIONS OF THE ATTORNEY GENERAL

Prosecution for violation of section. - Georgia resident who files a state income tax return but who fails and refuses to pay such tax can be prosecuted for a misdemeanor. Venue for such prosecution is Fulton County. 1969 Op. Att'y Gen. No. 69-326.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 484 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 623, 628. 85 C.J.S., Taxation, §§ 1854, 1855, 1871 et seq., 1932.

48-7-3. Unlawful assisting, procuring, counseling, or advising in filing income tax return under chapter; penalty.

  1. With respect to any matter arising under this chapter, it shall be unlawful for any person willfully to aid or assist in, or procure, counsel, or advise the preparation or presentation of, a false or fraudulent return, affidavit, claim, or document, whether or not the falsity or fraud is with the knowledge or consent of the person authorized or required to present the return, affidavit, claim, or document.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000.00 or imprisoned for not more than six months, or both, and shall be required to pay the costs of prosecution.

    (Ga. L. 1931, Ex. Sess., p. 24, § 49; Code 1933, § 92-9912; Code 1933, § 91A-9931, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

ALR. - Tax preparer's liability to taxpayer in connection with preparation of tax return, 81 A.L.R.3d 1119.

Disciplinary action against attorney or accountant for misconduct related to preparation of tax returns for others, 81 A.L.R.3d 1140.

Who is an "income tax return preparer" under 26 USCS § 7701(a)(36)?, 132 A.L.R. Fed. 265.

48-7-4. Unlawful disregard of rules and regulations of commissioner in preparing returns under this chapter; penalty.

  1. It shall be unlawful for any person, with intent to evade the income tax imposed by this chapter, willfully to advise the preparation or presentation of a return with intentional disregard of rules and regulations of the commissioner.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100.00 nor more than $500.00 or imprisoned for not more than six months, or both.

    (Ga. L. 1931, Ex. Sess., p. 24, § 50; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-9913; Code 1933, § 91A-9932, enacted by Ga. L. 1978, p. 309, § 2.)

48-7-5. Evasion of income tax, penalty, interest, or other amount in excess of $3,000.00

Any person who willfully evades or defeats or willfully attempts to evade or defeat, in any manner, any income tax, penalty, interest, or other amount in excess of $3,000.00 imposed under this chapter, including but not limited to failure to file a return or report, shall, in addition to any other criminal or civil penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000.00 in the case of an individual or not more than $500,000.00 in the case of a corporation or imprisoned not less than one nor more than five years, or both. Conduct proscribed by this Code section shall be subject to punishment under this Code section notwithstanding the applicability to such conduct of any other provision of law.

(Code 1981, § 48-7-5 , enacted by Ga. L. 1987, p. 444, § 1.)

RESEARCH REFERENCES

ALR. - Construction and application of 26 USCA § 6015(b)(1)(C) requiring that spouse not know of understatement of tax arising from erroneous deduction, credit, or basis to obtain innocent spouse exemption from liability for tax, 154 A.L.R. Fed. 233, 161 A.L.R. Fed. 373.

Construction and application of 26 U.S.C.A. § 6015(b)(1)(C), requiring that spouse not know of omission of gross income from joint tax return to obtain innocent spouse exemption from liability for tax, 161 A.L.R. Fed. 373.

48-7-6. License or registration extensions for National Guard members and reservists on active duty.

  1. Notwithstanding any provision of law to the contrary, any member of the National Guard or any reserve component of the armed services of the United States who serves on active duty for at least 90 consecutive days shall by operation of this subsection automatically be granted an extension, without fee charged for such extension, of any annual license or registration otherwise required under any other provision of law by the state or any agency, department, board, bureau, or commission of the state. Such extension shall continue until the otherwise regular expiration date which occurs in the year next succeeding the year in which such active duty ceases.
  2. Notwithstanding any provision of law to the contrary, any member of the National Guard or any reserve component of the United States who qualifies for the license or registration extension under subsection (a) of this Code section shall be exempt from any continuing education requirements during such automatic extension period.
  3. This Code section shall not apply to attorneys. (Code 1981, § 48-7-6 , enacted by Ga. L. 2005, p. 220, § 1; Ga. L. 2013, p. 141, § 48/HB 79.)

ARTICLE 2 IMPOSITION, RATE, AND COMPUTATION; EXEMPTIONS

Cross references. - Tax deduction for purchase of fluoride-removing device by person allergic to fluoridated water, § 12-5-175 .

Tax deductions and exemptions relating to making of student loans by Georgia Higher Education Assistance Corporation, § 20-3-283 et seq.

Deduction for contributions made to Georgia Student Finance Authority, § 20-3-322 .

Provision that payments for relocation assistance shall not be considered income, § 22-4-13 .

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Law reviews. - For note on the 1994 amendments of Code Sections 48-7-40 to 48-7-40.1 and enactment of Code Sections 48-7-40.2 to 48-7-40.6 of this article, see 11 Georgia St. U.L. Rev. 249 (1994).

RESEARCH REFERENCES

ALR. - Bond or warrant of governmental subdivision as subject of taxation or exemption, 26 A.L.R. 547 ; 44 A.L.R. 510 .

Licensing tax on forwarding or local agency rendering services incidental to interstate shipments, 34 A.L.R. 912 .

Nature of interest of special partner for purpose of income tax, 45 A.L.R. 1381 .

Gains from unlawful business or transactions as subject of income tax, 51 A.L.R. 1026 ; 166 A.L.R. 891 .

Year in which loss or bad debt must be charged in order to be allowed as a deduction from taxpayer's income, 55 A.L.R. 1280 ; 67 A.L.R. 1015 ; 121 A.L.R. 697 ; 135 A.L.R. 1430 .

What is a personal service corporation within Internal Revenue Act, 59 A.L.R. 1279 .

Gift or trust for benefit of employees of corporation or business as within exemption or deduction provisions of succession tax or income tax law, 71 A.L.R. 870 .

Excise tax on corporations as factor in determining question as to discrimination against individuals in favor of corporations in respect of property or income tax upon former, 73 A.L.R. 737 .

Applicability, construction, and effect of provision of Income Tax Act excluding from income subject to tax the value of property acquired by gift, devise, bequest, or descent, 73 A.L.R. 1536 ; 119 A.L.R. 415 .

Right of taxpayer to relief from his own errors in assessing his income tax or making out his income tax return, 80 A.L.R. 377 .

Liability for income tax in respect of amount of tax paid by another, 91 A.L.R. 1270 .

Interest on bonds or other obligations issued by municipalities or other political units of state as subject of state income tax in absence of express exemption, 98 A.L.R. 1346 .

What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943 .

Right of employer to deduct, for income tax purposes, premiums paid on insurance or annuity contracts for benefit of employees, 9 A.L.R.2d 280.

Income tax: market value as ascribable to agreement to pay a life annuity to another for purpose of determining capital gain or loss, 12 A.L.R.2d 589.

48-7-20. (For effective date, see note.) Individual tax rate; tax table; credit for withholding and other payments; applicability to estates and trusts.

  1. A tax is imposed upon every resident of this state with respect to the Georgia taxable net income of the taxpayer as defined in Code Section 48-7-27.  A tax is imposed upon every nonresident with respect to such nonresident's Georgia taxable net income not otherwise exempted which is received by the taxpayer from services performed, property owned, proceeds of any lottery prize awarded by the Georgia Lottery Corporation, or from business carried on in this state.  Except as otherwise provided in this chapter, the tax imposed by this subsection shall be levied, collected, and paid annually.
    1. (For effective date, see note.) The tax imposed pursuant to subsection (a) of this Code section shall be computed in accordance with the following tables:
    2. To facilitate the computation of the tax by those taxpayers whose federal adjusted gross income together with the adjustments set out in Code Section 48-7-27 for use in arriving at Georgia taxable net income is less than $10,000.00, the commissioner may construct tax tables which may be used by the taxpayers at their option. The tax shown to be due by the tables shall be computed on the bases of the standard deduction and the tax rates specified in paragraph (1) of this subsection. Insofar as practicable, the tables shall produce a tax approximately equivalent to the tax imposed by paragraph (1) of this subsection.
  3. The amount deducted and withheld by an employer from the wages of an employee pursuant to Article 5 of this chapter, relating to current income tax payments, shall be allowed the employee as a credit against the tax imposed by this Code section. Amounts paid by an individual as estimated tax under Article 5 of this chapter shall constitute payments on account of the tax imposed by this Code section. The amount withheld or paid during any calendar year shall be allowed as a credit or payment for the taxable year beginning in the calendar year in which the amount is withheld or paid.
  4. The tax imposed by this Code section applies to the Georgia taxable net income of estates and trusts, which shall be computed in the same manner as in the case of a single individual. The tax shall be computed on the Georgia taxable net income and shall be paid by the fiduciary.

    (Ga. L. 1931, Ex. Sess., p. 3, § 24; Code 1933, § 92-3101; Ga. L. 1937, p. 109, § 2; Ga. L. 1937-38, Ex. Sess., p. 150, § 2; Ga. L. 1955, Ex. Sess., p. 27, § 1; Ga. L. 1960, p. 1005, § 1; Ga. L. 1971, p. 605, §§ 1, 2; Ga. L. 1975, p. 857, § 1; Code 1933, § 91A-3601, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 62; Ga. L. 1987, p. 191, § 2; Ga. L. 1994, p. 597, § 2; Ga. L. 2018, p. 8, §§ 1-2, 1-3/HB 918.)

If Georgia Taxable Net Income Is: The Tax Is:

SINGLE PERSON

Not over $750.00 1/ % Over $750.00 but not over $2,250.00 $7.50 plus 2% of amount over $750.00 Over $2,250.00 but not over $3,750.00 $37.50 plus 3% of amount over $2,250.00 Over $3,750.00 but not over $5,250.00 $82.50 plus 4% of amount over $3,750.00 Over $5,250.00 but not over $7,000.00 $142.50 plus 5% of amount over $5,250.00 Over $7,000.00 $230.00 plus 5.75% of amount over $7,000.00

MARRIED PERSON FILING A SEPARATE RETURN

Not over $500.00 1% Over $500.00 but not over $1,500.00 $5.00 plus 2% of amount over $500.00 Over $1,500.00 but not over $2,500.00 $25.00 plus 3% of amount over $1,500.00 Over $2,500.00 but not over $3,500.00 $55.00 plus 4% of amount over $2,500.00 Over $3,500.00 but not over $5,000.00 $95.00 plus 5% of amount over $3,500.00 Over $5,000.00 $170.00 plus 5.75% of amount over $5,000.00

HEAD OF HOUSEHOLD AND MARRIED PERSONS

FILING A JOINT RETURN

Not over $1,000.00 1% Over $1,000.00 but not over $3,000.00 $10.00 plus 2% of amount over $1,000.00 Over $3,000.00 but not over $5,000.00 $50.00 plus 3% of amount over $3,000.00 Over $5,000.00 but not over $7,000.00 $110.00 plus 4% of amount over $5,000.00 Over $7,000.00 but not over $10,000.00 $190.00 plus 5% of amount over $7,000.00 Over $10,000.00 $340.00 plus 5.75% of amount over $10,000.00

Delayed effective date. - Ga. L. 2018, p. 8, § 3-1(c)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall become effective upon passage of a joint resolution that is signed by the Governor ratifying such sections by both houses of the Georgia General Assembly on or after January 13, 2020, and upon such passage shall be applicable to all taxable years beginning on or after January 1, 2020. Should Sections 1-3 and 1-5 of this Act become effective as prescribed in the foregoing, both sections shall expire by operation of law on the last moment of December 31, 2025, and revert to the language of paragraph (1) of subsection (b) of Code Section 48-7-20 and subsection (a) of Code Section 48-7-21, respectively, as they existed on the day immediately preceding the effective date of this Act." Paragraph (b)(1), as amended by Ga. L. 2018, p. 8, § 1-3/HB 918, is not set out in the supplement owing to the delayed effective date. If a joint resolution as described herein is passed and signed by the Governor, paragraph (b)(1) will read as follows:

"(b)(1) The tax imposed pursuant to subsection (a) of this Code section shall be computed in accordance with the following tables:

If Georgia Taxable Net Income Is: The Tax Is:

SINGLE PERSON

Not over $750.00 1% Over $750.00 but not over $2,250.00 $7.50 plus 2% of amount over $750.00 Over $2,250.00 but not over $3,750.00 $37.50 plus 3% of amount over $2,250.00 Over $3,750.00 but not over $5,250.00 $82.50 plus 4% of amount over $3,750.00 Over $5,250.00 but not over $7,000.00 $142.50 plus 5% of amount over $5,250.00 Over $7,000.00 $230.00 plus 5.5% of amount over $7,000.00

MARRIED PERSON FILING A SEPARATE RETURN

Not over $500.00 1% Over $500.00 but not over $1,500.00 $5.00 plus 2% of amount over $500.00 Over $1,500.00 but not over $2,500.00 $25.00 plus 3% of amount over $1,500.00 Over $2,500.00 but not over $3,500.00 $55.00 plus 4% of amount over $2,500.00 Over $3,500.00 but not over $5,000.00 $95.00 plus 5% of amount over $3,500.00 Over $5,000.00 $170.00 plus 5.5% of amount over $5,000.00

HEAD OF HOUSEHOLD AND MARRIED PERSONS

FILING A JOINT RETURN

Not over $1,000.00 1% Over $1,000.00 but not over $3,000.00 $10.00 plus 2% of amount over $1,000.00 Over $3,000.00 but not over $5,000.00 $50.00 plus 3% of amount over $3,000.00 Over $5,000.00 but not over $7,000.00 $110.00 plus 4% of amount over $5,000.00 Over $7,000.00 but not over $10,000.00 $190.00 plus 5% of amount over $7,000.00 Over $10,000.00 $340.00 plus 5.5% of amount over $10,000.00

The 2018 amendment, effective March 2, 2018, substituted "5.75%" for "6%" throughout the table in paragraph (b)(1); and, effective upon passage of a resolution, substituted "5.5%" for "5.75%" throughout the table in paragraph (b)(1). For effective date, expiration, and applicability of this amendment, see the delayed effective date note and Editor's note.

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1994, p. 597, § 4, not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 2018, p. 8, § 3-1(b)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall be applicable to all taxable years beginning on or after January 1, 2019."

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For comment on Forrester v. Culpepper, 194 Ga. 744 , 22 S.E.2d 595 (1942), see 6 Ga. B. J. 155 (1943).

JUDICIAL DECISIONS

Constitutionality of income tax rates. - Georgia Laws 1929, p. 92 (see now O.C.G.A. Ch. 7, T. 48) does not violate Ga. Const. 1877, Art. VII, Sec. II, Para. I (see now Ga. Const. 1983, Art. VII, Sec. I, Para. III), which declared that all taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject to be taxed within the territorial limits of the authority levying the tax, for the reason that income is distinguished from property from which income flows, with the result that income was not property within the meaning of this provision, and did not need to be levied ad valorem. Green & Milam v. State Revenue Comm'n, 188 Ga. 442 , 4 S.E.2d 144 (1939).

Legislative intent as to income earned outside state before becoming resident. - Former Code 1933, §§ 92-3002, 92-3101, 92-3112, 92-3302 (see now O.C.G.A. §§ 48-7-1 , 48-7-20 , and 48-7-30 ), when construed together, authorize if the statutes do not compel the interpretation that the legislature did not intend to impose a tax upon such portion of the income of a resident as was derived by the resident from sources outside the state before the date on which the individual became a resident of this state. Forrester v. Culpepper, 194 Ga. 744 , 22 S.E.2d 595 (1942); commented on in, 6 Ga. B.J. 155 (1943).

Income earned by a nonresident but received after becoming a resident. - Income earned by a cash basis taxpayer outside the state before becoming a resident is taxable under former Code 1933, Ch. 92-31 (see now O.C.G.A. Ch. 7, T. 48) if actually or constructively received after becoming a resident. Rogers v. Chilivis, 141 Ga. App. 407 , 233 S.E.2d 451 , cert. denied, 434 U.S. 891, 98 S. Ct. 266 , 54 L. Ed. 2 d 176 (1977).

Application to sentencing guidelines. - In determining the amount of the tax loss for purposes of calculating the defendant's offense level for tax evasion under U.S. Sentencing Guidelines Manual § 2T1.1(c)(1), a court took into account the defendant's state tax liability in accordance with the six percent rate specified in O.C.G.A. § 48-7-20 for individual taxpayers. United States v. Campbell, F. Supp. (N.D. Ga. June 15, 2006), aff'd, 491 F.3d 1306 (11th Cir. 2007).

OPINIONS OF THE ATTORNEY GENERAL

Resident must pay tax on income earned outside state. - Resident of this state is required to pay state income taxes, notwithstanding the fact that the resident's income is earned in another state. 1952-53 Op. Att'y Gen. p. 443.

Becoming legal resident or domiciliary of another state. - To become a legal resident or domiciliary of another state one must not only reside there but must do so with the intention of giving up one's legal residence or domicile in Georgia. 1969 Op. Att'y Gen. No. 69-171.

Payments by check, tendered by municipal corporation to municipal officers and employees for unused sick leave, are, if the payments are legal, income and subject to taxation. 1971 Op. Att'y Gen. No. U71-16.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 356.

ALR. - Constitutionality of provisions of income tax law as regards income of husband and wife, 78 A.L.R. 352 .

Deductions in respect of leasehold in computing income tax, 82 A.L.R. 332 .

Inhabitancy or residence, within provisions of income tax law as equivalent of domicile, 82 A.L.R. 982 .

Income tax in respect of exchange of properties, 102 A.L.R. 6 .

Income tax in respect of salaries of public officers and employees, 114 A.L.R. 1190 .

When dividends on corporate stock become taxable as income to a taxpayer making his return on a cash basis, 120 A.L.R. 1280 ; 143 A.L.R. 596 ; 158 A.L.R. 1432 ; 167 A.L.R. 303 .

Income tax in respect of salaries of public officers and employees, 120 A.L.R. 1477 ; 122 A.L.R. 1393 ; 125 A.L.R. 1421 .

Computation of income tax of husband and wife as affected by the fact that they make a joint return, 121 A.L.R. 650 ; 131 A.L.R. 984 .

Computation of income tax as affected by fact that taxpayer was domiciled within state for only part of taxable year, 126 A.L.R. 455 .

Liability of settlor, in absence of express provision in income tax law, for income tax on income of revocable trust or on trust income distributable to him, 159 A.L.R. 100 .

Constitutionality, construction, and application provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 42 A.L.R.2d 797.

48-7-21. (For effective date, see note.) Taxation of corporations.

  1. (For effective date, see note.) Every domestic corporation and every foreign corporation shall pay annually an income tax equivalent to 5.75 percent of its Georgia taxable net income. Georgia taxable net income of a corporation shall be the corporation's taxable income from property owned or from business done in this state. A corporation's taxable income from property owned or from business done in this state shall consist of the corporation's taxable income as defined in the Internal Revenue Code of 1986, with the adjustments provided for in subsection (b) of this Code section and allocated and apportioned as provided in Code Section 48-7-31.
      1. When interest income is derived from obligations of any state or political subdivision except this state and political subdivisions of this state, the interest income shall be added to taxable income to the extent that the interest income is not included in gross income for federal income tax purposes. Interest or dividends on obligations of any authority, commission, instrumentality, territory, or possession of the United States which by the laws of the United States are exempt from federal income tax but not from state income tax shall also be added to taxable income.
      2. There shall be subtracted from taxable income interest or dividends on obligations of the United States and its territories and possessions or of any authority, commission, or instrumentality of the United States to the extent such interest or dividends are includable in gross income for federal income tax purposes but exempt from state income taxes under the laws of the United States. There shall also be subtracted from taxable income any income derived from the authorized activities of a domestic international banking facility operating pursuant to the provisions of Article 5A of Chapter 1 of Title 7, the "Domestic International Banking Facility Act," and any income arising from the conduct of a banking business with persons or entities located outside the United States, its territories, or possessions. Any amount subtracted pursuant to this subparagraph shall be reduced by any interest expenses directly or indirectly attributable to the production of the interest or dividend income.
    2. There shall be added to taxable income any taxes on, or measured by, net income or net profits paid or accrued within the taxable year imposed by the authority of the United States or any foreign country, by any state except the State of Georgia, or by any territory, county, school district, municipality, or other tax subdivision of any state, territory, or foreign country to the extent such taxes are deducted in determining federal taxable income.
    3. No portion of any deductions or losses which occurred in a year in which the taxpayer was not subject to taxation in this state including, but not limited to, net operating losses may be deducted in any tax year. When the federal adjusted gross income or net income of a corporation includes such deductions or losses, an adjustment deleting them shall be made under rules established by the commissioner. The provisions of this subsection shall not prohibit the carry-over of any deductions or losses including, but not limited to, net operating losses of any taxpayer which were incurred in a year or years in which the taxpayer was subject to methods of taxation in this state other than the corporate income tax.
    4. Income, losses, and deductions previously used in computing Georgia taxable income shall not again be used in computing Georgia taxable income. The commissioner shall provide for needed adjustments by regulation.
    5. All elections under Section 338 of the Internal Revenue Code of 1986 shall also apply under this article.
    6. This article shall not be construed to repeal any tax exemptions contained in other laws of this state not referred to in this article. Those exemptions and the exemptions provided for by federal law and treaty shall be deducted on forms provided by the commissioner.
    7. All elections made by corporate taxpayers under the Internal Revenue Code of 1954 or the Internal Revenue Code of 1986 shall also apply under this article except elections involving consolidated corporate returns and Subchapter "S" elections which shall be treated as follows:
        1. Affiliated corporations which file a consolidated federal income tax return must file separate income tax returns with this state unless they have prior approval or have been requested to file a consolidated return by the department. The commissioner shall by regulation provide the time period within which the permission must be requested. A request for permission beyond such time period will not be considered and will result in the filing of separate income tax returns for the applicable year.
        2. No depository financial institution shall be deprived of the benefit of any exemption, deduction, or credit authorized by this title as a consequence of its election to file otherwise lawful consolidated returns with its parent organization or any corporate subsidiaries with respect to any state or local tax levied against such depository financial institution as a result of this title. As used in this division, the term:
          1. "Bank" means any financial institution chartered under the laws of this state or under the laws of the United States and domiciled in this state which is authorized to receive deposits in this state and which has a corporate structure authorizing the issuance of capital stock.
          2. "Depository financial institution" means a "bank" or a "savings and loan association."
          3. "Savings and loan association" means any financial institution, other than a credit union, chartered under the laws of this state or under the laws of the United States and domiciled in this state which is authorized to receive deposits in this state and which has a mutual corporate form;
      2. Subchapter "S" elections apply only if all stockholders are subject to tax in this state on their portion of the corporate income. If all nonresident stockholders pay the Georgia income tax on their portion of the corporate income, the election shall be allowed.
    8. There shall be subtracted from taxable income dividends received by:
      1. A corporation from sources outside the United States as defined in the Internal Revenue Code of 1986. For purposes of this subparagraph, dividends received by a corporation from sources outside of the United States shall include amounts treated as a dividend and income deemed to have been received under provisions of the Internal Revenue Code of 1986 by such corporation if such amounts could have been subtracted from taxable income under this paragraph, had such amounts actually been received. The deduction provided by Section 250 shall apply to the extent the same income was included in Georgia taxable net income. The deduction, exclusion, or subtraction provided by Section 245A, Section 965, or any other section of the Internal Revenue Code of 1986 shall not apply to the extent income has been subtracted pursuant to this subparagraph. Amounts to be subtracted under this subparagraph shall include the following unless excluded by this paragraph, as defined by the Internal Revenue Code of 1986:
        1. Qualified electing fund income;
        2. Subpart F income, including income specified in Section 951A of the Internal Revenue Code of 1986; and
        3. Income attributable to an increase in United States property by a controlled foreign corporation.

          The amount subtracted under this subparagraph shall be reduced by any expenses directly attributable to the dividend income; and

      2. Corporations from affiliated corporations within the United States, when the corporation receiving the dividends is engaged in business in this state and is subject to the payment of taxes under the income tax laws of this state, to the extent that the dividends have been included in net income under this Code section. Dividends from affiliates shall be reduced by any expenses directly attributable to the dividend income.
    9. Where a corporation's salary and wage deductions are reduced in computing federal taxable income because the corporation has taken a federal jobs tax credit which required, as a condition to using the federal jobs tax credit, the elimination of salary and wage deductions, the eliminated salary and wage deductions shall be subtracted from taxable income.
    10. Georgia taxable income shall be adjusted as provided in Code Section 48-7-28.3.

      (10.1) Net operating losses for corporations shall be treated as follows:

      1. For any taxable year in which the taxpayer takes a federal net operating loss deduction on its federal income tax return, the amount of such deduction shall be added back to federal taxable income, and Georgia taxable net income for such taxable year shall be computed from the taxpayer's federal taxable income as so adjusted. There shall be allowed as a separate deduction from Georgia taxable net income so computed an amount equal to the aggregate of the Georgia net operating loss carryovers to such year, plus the Georgia net operating loss carrybacks to such year if such carrybacks are allowed by the Internal Revenue Code of 1986. Any limitations included in the Internal Revenue Code of 1986 on the amount of net operating loss that can be used in a taxable year shall be applied for purposes of this Code section; provided, however, that such limitations, including, but not limited to, the 80 percent limitation, shall be applied to Georgia taxable net income;
      2. The Georgia net operating loss for such taxable year shall be computed by making the adjustments to federal taxable income required by this article and in the case of corporations doing business both within and outside Georgia, by apportioning and allocating to Georgia, as provided in Code Section 48-7-31, only the amount of the loss attributable to operations within Georgia. The term "Georgia net operating loss" shall mean the loss computed as provided in this paragraph. In the event the net Georgia adjustments completely offset a federal net operating loss, there shall be no Georgia net operating loss for the taxable year, and any excess of net Georgia adjustments over the federal net operating loss shall constitute Georgia taxable net income after any such excess has been allocated and apportioned to Georgia as provided in Code Section 48-7-31.  The procedural sequence of taxable years to which a Georgia net operating loss may be carried back or carried over, and the number of years for which a net operating loss may be carried back or carried over, shall be the same as provided in the Internal Revenue Code.  The terms "Georgia net operating loss carryback" and "Georgia net operating loss carryover" shall mean the Georgia net operating loss for the applicable year carried back or carried over in the manner and for the number of years as provided in this paragraph;
      3. In the event the taxpayer elects to forgo the carryback period for the federal net operating loss as allowed under the Internal Revenue Code, the taxpayer shall also forgo the carryback period for Georgia purposes.  If the taxpayer does not elect to forgo the carryback period for the federal net operating loss, the election to forgo the net operating loss period shall not be allowed for Georgia purposes.  If the taxpayer does not have a federal net operating loss, the taxpayer may make an irrevocable election to forgo the carryback period for the Georgia net operating loss, provided that an affirmative statement is attached to the Georgia return for the year of the loss.  Such election must be made on or before the due date for filing the income tax return for the taxable year wherein the loss was incurred, including any extensions which have been granted;
      4. The provisions of Sections 108, 381, 382, and 384 of the Internal Revenue Code of 1986, as amended, as they relate to net operating losses also apply for Georgia purposes.  The commissioner shall by regulation provide the method of determining how such sections apply;
      5. In the event a taxpayer is entitled to a refund of income taxes by reason of a net operating loss carryback, a claim for such refund must be filed within three years after the due date for filing the income tax return for the taxable year wherein the loss was incurred, including any extensions which have been granted.  Such tax refund shall be deemed to have been erroneously assessed and collected, and shall be paid under the provisions of Code Section 48-2-35; provided, however, that no interest shall accrue or be paid for any period prior to the close of the taxable year in which such net operating loss arises and no interest shall be paid if the claim for refund is processed within 90 days from the last day of the month in which the claim for such refund is filed; and
      6. The commissioner shall have the authority to promulgate regulations regarding net operating losses with respect to this paragraph and with respect to consolidated return net operating losses.
    11. There shall be subtracted from taxable income a portion of qualified payments to minority subcontractors, as provided in Code Section 48-7-38.
    12. Georgia taxable income shall, if the taxpayer so elects, be adjusted with respect to federal depreciation deductions as provided in Code Section 48-7-39.
    13. If the taxpayer claims the tax credit provided for in subsection (d) of Code Section 48-7-40.6 with respect to qualified child care property, Georgia taxable income shall be increased by any depreciation deductions attributable to such property to the extent such deductions are used in determining federal taxable income.
    14. There shall be subtracted from taxable income the deduction provided and allowed by Section 179 of the Internal Revenue Code of 1986 as enacted on or before January 1, 2005, to the extent the deduction has not been included in the corporation's taxable income, as defined under the Internal Revenue Code of 1986.
    15. Georgia taxable income shall be increased by the amount of the payments, compensation, or other economic benefit disallowed by Code Section 48-7-21.1.
    16. Georgia taxable income shall be adjusted as provided in Code Section 48-7-28.4.
    17. Georgia taxable net income shall be adjusted as provided in Code Section 48-7-53.

      (Ga. L. 1931, Ex. Sess., p. 26, § 4; Code 1933, § 92-3102; Ga. L. 1935, p. 121, § 1; Ga. L. 1937, p. 109, § 3; Ga. L. 1937-38, Ex. Sess., p. 150, § 3; Ga. L. 1949, Ex. Sess., p. 18, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 625, § 1; Ga. L. 1955, Ex. Sess., p. 27, § 2; Ga. L. 1964, p. 67, § 1; Ga. L. 1969, p. 114, § 1; Ga. L. 1973, p. 924, § 3; Ga. L. 1976, p. 646, § 1; Ga. L. 1976, p. 980, § 1; Ga. L. 1977, p. 1133, § 2; Ga. L. 1979, p. 888, § 1; Code 1933, § 91A-3602, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 63; Ga. L. 1979, p. 888, § 3; Ga. L. 1982, p. 3, § 48; Ga. L. 1983, p. 1350, § 11; Ga. L. 1984, p. 22, § 48; Ga. L. 1984, p. 1644, § 1; Ga. L. 1987, p. 191, § 2; Ga. L. 1988, p. 13, § 48; Ga. L. 1993, p. 1649, § 1; Ga. L. 1996, p. 117, § 8; Ga. L. 1996, p. 130, § 8; Ga. L. 1996, p. 181, § 6; Ga. L. 1999, p. 13, § 1; Ga. L. 2000, p. 1445, § 1; Ga. L. 2005, p. 30, § 2/HB 191; Ga. L. 2005, p. 157, § 1/HB 282; Ga. L. 2005, p. 159, §§ 8-10, 11/HB 488; Ga. L. 2007, p. 271, § 1/SB 184; Ga. L. 2008, p. 898, § 4/HB 1151; Ga. L. 2009, p. 796, § 1/HB 379; Ga. L. 2010, p. 895, § 2/HB 1138; Ga. L. 2018, p. 8, §§ 1-4, 1-5, 1-6/HB 918; Ga. L. 2018, p. 113, § 1/SB 328; Ga. L. 2018, p. 319, § 1/HB 849.)

Delayed effective date. - Ga. L. 2018, p. 8, § 3-1(c)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall become effective upon passage of a joint resolution that is signed by the Governor ratifying such sections by both houses of the Georgia General Assembly on or after January 13, 2020, and upon such passage shall be applicable to all taxable years beginning on or after January 1, 2020. Should Sections 1-3 and 1-5 of this Act become effective as prescribed in the foregoing, both sections shall expire by operation of law on the last moment of December 31, 2025, and revert to the language of paragraph (1) of subsection (b) of Code Section 48-7-20 and subsection (a) of Code Section 48-7-21, respectively, as they existed on the day immediately preceding the effective date of this Act." Subsection (a), as amended by Ga. L. 2018, p. 8, § 1-5/HB 918, is not set out in the supplement owing to the delayed effective date. If a joint resolution as described herein is passed and signed by the Governor, subsection (a) will read as follows: "Every domestic corporation and every foreign corporation shall pay annually an income tax equivalent to 5.5 percent of its Georgia taxable net income. Georgia taxable net income of a corporation shall be the corporation's taxable income from property owned or from business done in this state. A corporation's taxable income from property owned or from business done in this state shall consist of the corporation's taxable income as defined in the Internal Revenue Code of 1986, with the adjustments provided for in subsection (b) of this Code section and allocated and apportioned as provided in Code Section 48-7-31."

The 2018 amendments. The first 2018 amendment, effective March 2, 2018, substituted "5.75 percent" for "6 percent" near the end of the first sentence of subsection (a); in subparagraph (b)(8)(A), added "but shall not include income specified in Section 951A of the Internal Revenue Code of 1986" at the end of the second sentence, added the third and fourth sentences, and inserted "unless excluded by this paragraph" in the fifth sentence; and, in subparagraph (b)(10.1)(A), added "if such carrybacks are allowed by the Internal Revenue Code of 1986" at the end of the second sentence and added the third sentence; and, effective upon passage of a joint resolution, substituted "5.5 percent" for "5.75 percent" near the end of the first sentence of subsection (a). For applicability and effective date, see the Editor's note. The second 2018 amendment, effective March 27, 2018, deleted "but shall not include income specified in Section 951A of the Internal Revenue Code of 1986" following "received" at the end of the second sentence of subparagraph (b)(8)(A) as added by the first amendment; and added ", including income specified in Section 951A of the Internal Revenue Code of 1986" at the end of subdivision (b)(8)(A)(ii). The third 2018 amendment, effective May 3, 2018, added paragraph (b)(17).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2005, paragraph (b)(10) of this Code section, as enacted by Ga. L. 2005, p. 159, § 11, was redesignated as paragraph (b)(10.1).

Editor's notes. - Ga. L. 1983, p. 1350, § 15, not codified by the General Assembly, effective January 1, 1984, provides that, should subsection (e) of Code Section 48-6-93 or paragraph (11) of subsection (b) of Code Section 48-7-21 be declared invalid or unconstitutional, it is the intent of the General Assembly that the entire Act be held invalid and that the method of taxation affected by the Act revert to the method in effect prior to January 1, 1984.

Ga. L. 1984, p. 1644, § 4, not codified by the General Assembly, provided that that Act would apply to taxable years beginning on or after January 1, 1985.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1996, p. 117, § 9, not codified by the General Assembly, provides that the Act shall not repeal any provision of Ga. L. 1996, p. 130 if Ga. L. 1996, p. 130 is passed at the 1996 regular session of the General Assembly, becomes law, and becomes effective. Ga. L. 1996, p. 130 was passed at the 1996 Session and became effective January 1, 1997.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provided that the 1996 amendment became effective on January 1, 1997, and shall be applicable to all taxable years beginning on or after January 1, 1996, upon the ratification of House Resolution 734 at the November, 1996, general election. House Resolution 734 was ratified in 1996.

Ga. L. 1996, p. 130, § 9, not codified by the General Assembly, provides, in part, that the provisions of the Act shall not repeal but shall supersede and control over any conflicting provisions of any other Act enacted at the 1996 regular session, including, but not limited to, Ga. L. 1996, p. 117.

Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code.

Ga. L. 2000, p. 1445, § 5, not codified by the General Assembly, provides that this Act shall apply to all taxable years beginning on or after January 1, 2001.

Ga. L. 2005, p. 30, § 7(a)/HB 191, not codified by the General Assembly, provides that the 2005 amendment to paragraph (b)(10) shall be applicable to all taxable years beginning on or after January 1, 2006.

Ga. L. 2005, p. 157, § 4/HB 282, not codified by the General Assembly, provides that this Act shall apply to all taxable years beginning on or after January 1, 2005.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27(c)/HB 488, not codified by the General Assembly, provides that the 2005 amendments to division (b)(1)(B) and (b)(10.1) shall apply to all taxable years beginning on or after January 1, 2005.

Ga. L. 2005, p. 159, § 27(h)/HB 488, not codified by the General Assembly, provides that the 2005 amendment to paragraph (b)(5) shall apply to all taxable years beginning on or after January 1, 2004.

Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2009, p. 796, § 4/HB 379, not codified by the General Assembly, provides, in part, that the amendment by that Act shall be applicable to all taxable years beginning on or after January 1, 2010.

Ga. L. 2010, p. 895, § 4(c)/HB 1138, not codified by the General Assembly, provides that the 2010 amendment shall apply with respect to stock purchases and sales occurring on or after June 3, 2010.

Ga. L. 2018, p. 8, § 3-1(a), (b)/HB 918, not codified by the General Assembly, provides that: "(a) Sections 1-1, 1-6, and 1-8 of this Act shall become effective upon the approval of this Act by the Governor or upon this Act becoming law without such approval and such sections shall be applicable to all taxable years beginning on or after January 1, 2017."

"(b) Sections 1-2 and 1-4 of this Act shall become effective upon the approval of this Act by the Governor or upon this Act becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2019. Sections 1-2 and 1-4 of this Act shall expire by operation of law on the last moment of December 31, 2025, and revert to the language of paragraph (1) of subsection (b) of Code Section 48-7-20 and subsection (a) of Code Section 48-7-21, respectively, as they existed on the day immediately preceding the effective date of this Act." This Act became effective March 2, 2018. Section 1-4 substituted "5.75 percent" for "6 percent" near the end of the first sentence of subsection (a). Section 1-5 substituted "5.5 percent" for "5.75 percent" near the end of the first sentence of subsection (a).

Ga. L. 2018, p. 113, § 5/SB 328, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall be applicable to all taxable years beginning on or after January 1, 2018.

Ga. L. 2018, p. 113, § 1/SB 328, purported to amend O.C.G.A. § 48-7-21 but actually amended O.C.G.A. § 48-7-21 as amended by Ga. L. 2018, p. 8, §§ 1-4, 1-5, and 1-6/H.B. 918, signed by the Governor on March 2, 2018, and designated as Act 284.

U.S. Code. - The Internal Revenue Code, referred to throughout this Code section, is codified as 26 U.S.C. § 1 et seq.

Subchapter "S" of the Internal Revenue Code, referred to in paragraph (b)(7) of this Code section, is codified at 26 U.S.C. § 1361 et seq.

Administrative Rules and Regulations. - Taxation of corporations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-3-.06.

Consolidated returns, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Substantive Regulations, § 560-7-3-.13.

Law reviews. - For article, "Foreign Corporations in Georgia," see 10 Ga. St. B. J. 243 (1973). For article, "Primary Tax Incentives for Industrial Investment in the Southeastern United States," see 25 Emory L.J. 789 (1976). For article surveying Georgia cases in the area of business associations from June 1977 through May 1978, see 30 Mercer L. Rev. 1 (1978). For article, "Common State Tax Pitfalls in the Acquisition or Disposition of Businesses in Georgia," see 22 Ga. St. B. J. 82 (1985). For article, "Issues and Opportunities Under Georgia's Updated Income Tax Provisions," see 25 Ga. St. B. J. 144 (1989). For article, "Post-Creation Checklist for Georgia Business Entities," see 9 Ga. St. B. J. 24 (2004). For annual survey of law on administrative law, see 62 Mercer L. Rev. 1 (2010). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For note on 1993 amendment of this Code section, see 10 Georgia St. U.L. Rev. 218 (1993). For review of 1996 revenue and taxation legislation, see 13 Georgia St. U.L. Rev. 294 (1996). For comment on Williams v. Stockham Valves & Fittings, Inc., 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959), upholding constitutionality of state net income tax levied on revenues of foreign corporation derived from interstate commerce where tax is "fairly apportioned," see 22 Ga. B. J. 107 (1959).

JUDICIAL DECISIONS

Constitutionality of income tax. - Right to impose an income tax is an inherent right of the people and there is nothing in the Constitution of Georgia which denies to the General Assembly the power to impose an income tax if the tax is levied without infringing some provision of that instrument. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

Income tax not violation of due process when corporation accepts and uses state services. - Having accepted and utilized valuable state services, a corporation cannot consistently contend or successfully assert that the corporation's property, the taxes collected, has been taken from the corporation in violation of the due process clause of the Constitution of Georgia. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

Legislative intent. - The General Assembly clearly and plainly showed the legislature's intention to tax the activities or transactions which every corporation carries on within this state for the purpose of financial profit or gain. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

Exemptions to be strictly construed in state's favor. - Any and all tax exemptions must be strictly construed, and unless the language clearly grants the exemption, it is the duty of the court to rule in favor of the state and against the corporation. Thompson v. Atlantic Coast Line R.R., 200 Ga. 856 , 38 S.E.2d 774 (1946), aff'd sub nom. Atlantic Coast Line R.R. v. Phillips, 332 U.S. 168, 67 S. Ct. 1584 , 91 L. Ed. 1977 (1947).

Taxation of foreign corporations. - Foreign corporation is not permitted to engage in income producing activities or transactions within this state in competition with domestic corporations, and at the same time escape payment of income tax to the very government which makes it possible for the corporation to earn profits from such activities or transactions. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

State income taxation of interstate operations of a foreign corporation. - Net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing state forming a sufficient nexus to support the taxation. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959).

Sale of whiskey by unlicensed nonresident. - It is illogical and unreasonable to contend that the sale of whiskey in this state by an unlicensed nonresident upon orders taken in this state and approved by the state revenue commissioner in conformity with regulations is doing business in this state and is subject to income tax on the income arising therefrom. Redwine v. Schenley Indus., Inc., 210 Ga. 769 , 83 S.E.2d 16 (1954).

Obligations and duties of domesticated foreign corporations. - Foreign corporation domesticated under the laws of this state becomes subject to the same obligations, duties, liabilities, and disabilities as if originally created under the laws of Georgia. Montag Bros. v. State Revenue Comm'n, 50 Ga. App. 660 , 179 S.E. 563 (1935), aff'd, 182 Ga. 568 , 186 S.E. 558 (1936).

Law does not purport to provide a formula for deducting the cost of earning interest. - Method used in arriving at such cost will and must be examined in the light and circumstances of each case. Any fair means of arriving at such costs is available. State Revenue Comm'n v. Carson Naval Stores Co., 63 Ga. App. 540 , 11 S.E.2d 678 (1940).

Construction of definition of "dividend" with other provisions. - In light of the legislative history of former Code 1933, § 92-3002 and Oxford v. Carter, 216 Ga. 821 , 120 S.E.2d 298 (1961), the Court of Appeals was not willing to say that the term "dividend" as used in paragraph (b)(10) of former Code 1933, § 92-3102 incorporated the definition of "dividend" in former Code 1933, § 92-3002 or that "dividend" as used in former Code 1933, § 92-3102 (see now O.C.G.A. § 48-7-21 ) clearly and distinctly included a final distribution in liquidation. Chilivis v. Cleveland Elec. Co., 142 Ga. App. 751 , 236 S.E.2d 872 (1977).

Distribution of earnings and profits does not qualify as dividend. - It is the Internal Revenue Code of 1954 definition of dividends received from sources outside the United States, not the treatment by the federal tax authorities, that is controlling. Under the Internal Revenue Code of 1954, the distribution of earnings and profits does not qualify as a dividend. Chilivis v. Cleveland Elec. Co., 142 Ga. App. 751 , 236 S.E.2d 872 (1977).

Constitutional provision revoking perpetual corporate charter is void. - When a perpetual corporate charter granted by the General Assembly confers tax exemptions upon the corporation, the exemption is irrevocable. Accordingly, former Ga. Const. 1945, Art. I, Sec. III, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. X) purporting to revoke such charter provisions, is void and of no effect. Thompson v. Atlantic Coast Line R.R., 200 Ga. 856 , 38 S.E.2d 774 (1946), aff'd sub nom. Atlantic Coast Line R.R. v. Phillips, 332 U.S. 168, 67 S. Ct. 1584 , 91 L. Ed. 1977 (1947).

Effect of charter provision limiting tax on stock of corporation. - Charter provision which limits the tax on the stock of the corporation to a certain percentage of the net proceeds of their investments is a property tax and constitutes no bar to the collection by the state of an income tax from a lessee of the corporation on the lessee's net income derived from the use of the corporate property on which the charter thus limits the property tax. Thompson v. Atlantic Coast Line R.R., 200 Ga. 856 , 38 S.E.2d 774 (1946), aff'd sub nom. Atlantic Coast Line R.R. v. Phillips, 332 U.S. 168, 67 S. Ct. 1584 , 91 L. Ed. 1977 (1947).

Effect of tax exemption found in charter enacted before existence of income tax. - When there existed in Georgia no corporate income tax law at the time a corporate charter exemption was enacted and in the exemption clause it was expressly stated that the limitation there provided was upon the taxation of stock of the corporation, the General Assembly in enacting this exemption clause did not intend to include exemption from an income tax. Such limitation or exemption was not necessary because no income tax, under the law as the law then existed, would have been exacted of the corporation. Thompson v. Atlantic Coast Line R.R., 200 Ga. 856 , 38 S.E.2d 774 (1946), aff'd sub nom. Atlantic Coast Line R.R. v. Phillips, 332 U.S. 168, 67 S. Ct. 1584 , 91 L. Ed. 1977 (1947).

Research tax credit. - Trial court erred in finding invalid a regulation which interpreted a research tax credit codified in a statute; the regulation's requirement that a business enterprise have a positive state taxable net income for each of the preceding three years in order to be eligible for the tax credit was authorized by statute and was reasonable because the regulation reflected the legislature's intent that research activities be increased, which was most likely to occur when a business enterprise was able to generate income through the enterprise's activities rather than when a business had a negative income or, in other words, a net operating loss. Ga. Dep't of Revenue v. Ga. Chemistry Council, Inc., 270 Ga. App. 615 , 607 S.E.2d 207 (2004).

Cited in Graham v. Hanna, 297 Ga. App. 542 , 677 S.E.2d 686 (2009).

OPINIONS OF THE ATTORNEY GENERAL

What activity constitutes doing business in this state. - When an out-of-state lending institution intermittently merely purchases from a Georgia real estate and mortgage company notes secured by mortgages on Georgia real estate, such activity is not enough to constitute doing business in this state for purposes of income tax liability under former Code 1933, §§ 92-3102 and 92-3113 (see now O.C.G.A. §§ 48-7-21 and 48-7-31 ). 1960-61 Op. Att'y Gen. p. 501.

When a foreign corporation merely qualifies as a fiduciary or merely holds a fiduciary title to property located in this state, and engages in no other activity in this state with respect to such property, it is not engaged in sufficient activity in this state to constitute its personally doing business in this state. Such corporation, as a fiduciary, would have an income tax liability on account of income or gains derived from such property. 1960-61 Op. Att'y Gen. p. 497.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 345, 378, 381 et seq., 391.

Business Bad Debt, 5 POF2d 89.

C.J.S. - 85 C.J.S., Taxation, §§ 1970 et seq., 1998 et seq.

ALR. - Deduction of salaries in computing excise or income tax of corporations, 15 A.L.R. 1316 ; 145 A.L.R. 834 .

Constitutionality of taxing statute which refuses to corporation deduction of credits allowed to individual taxpayer, 42 A.L.R. 1049 .

Income tax: deduction for loss or depreciation of good will, 49 A.L.R. 469 .

Deduction on account of exempt securities in taxation of corporations or their shareholders, 57 A.L.R. 899 ; 65 A.L.R. 878 .

What is a personal service corporation within Internal Revenue Act, 59 A.L.R. 1279 .

Deduction on account of exempt securities in taxation of corporations or their shareholders, 65 A.L.R. 878 .

Deduction of salaries in computing excise or income tax on corporations, 68 A.L.R. 705 ; 145 A.L.R. 834 .

Income tax: deductibility as business expense of contributions by corporation for benevolent, charitable, or religious purposes, 68 A.L.R. 742 ; 111 A.L.R. 1226 .

Constitutionality of tax on corporations in nature of, or purporting to be, excise or privilege tax measured by income or receipts, 71 A.L.R. 256 .

Deduction of fixed periodical percentage ("straight-line method") as proper method of determining depreciation for purposes of property or income taxes, 71 A.L.R. 971 .

"Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 76 A.L.R. 806 ; 143 A.L.R. 361 .

Discrimination by state against foreign corporations in imposition of taxes and license fees, 77 A.L.R. 1490 .

Taxation of insurance reserves, 78 A.L.R. 562 .

Building and loan associations as within contemplation of constitutional or statutory provisions relating to taxation of corporation or stockholders, 86 A.L.R. 826 .

What amounts to "reorganization" of corporation within income tax statutes, 97 A.L.R. 1359 ; 173 A.L.R. 912 .

Holding companies as within contemplation of statutes taxing franchises or property of certain classes of corporations, 98 A.L.R. 1511 .

Subjection to public supervision because of public service nature of business as basis of classification for purposes of taxation, 99 A.L.R. 1164 .

Right of bank in computing income tax to deduction corresponding to amount which it has been required by banking authorities to write down or charge off in respect of securities held by it, 100 A.L.R. 702 .

State excise, privilege, or franchise tax upon foreign corporation as affected by commerce clause, 105 A.L.R. 11 ; 139 A.L.R. 950 .

Premium or discount at which a corporation issues or sells, or purchases or retires, its stock, bonds, or other obligations as income, or as deductible in computing income tax of corporation, 112 A.L.R. 186 .

Tax on corporations as affected by fact that corporation is not actually engaged in or carrying on business for which it was incorporated, 124 A.L.R. 1109 .

Transactions between affiliated corporations as basis of "bad debt" deduction in computing income tax or corporate franchise tax, 128 A.L.R. 1251 .

State income tax in respect of business that extends into other states, 130 A.L.R. 1183 .

Express limitations on deduction of interest paid to stockholders or their families, in computing state income tax or franchise tax of corporation, 140 A.L.R. 1350 .

Validity and construction of state statutes as applied to the taxation of income derived from dividends on stock of foreign corporations, 143 A.L.R. 147 .

Constitutionality, construction, and application of privilege dividend tax, 146 A.L.R. 1214 .

Stock contemplated by statute imposing tax upon, or measuring it by, capital stock, 153 A.L.R. 693 .

Meaning of association or joint-stock company within statutes taxing associations or joint-stock companies as corporations ("Massachusetts" or business trusts), 166 A.L.R. 1461 .

Income of subsidiary as taxable to it or to parent corporation, 10 A.L.R.2d 576.

Constitutionality, construction, and application provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 42 A.L.R.2d 797.

Validity, under federal Constitution, of state tax on, or measured by, income of foreign corporation, 67 A.L.R.2d 1322.

Reasonableness of compensation paid to officers or employees, so as to warrant deduction thereof in computing employer's income tax, 10 A.L.R.3d 125.

Construction and application of state corporate income tax statutes allowing net operation loss deductions, 33 A.L.R.5th 509.

State income tax treatment of intangible holding companies, 11 A.L.R.6th 543.

State corporate income taxation of foreign dividends, 17 A.L.R.6th 623.

48-7-21.1. Definitions; compensation paid by taxpayer disallowed as business expense; applicability.

  1. As used in this Code section, the term:
    1. "Authorized employee" means any individual whose hiring for employment or continuing employment in the United States does not violate the provisions of 8 U.S.C. Section 1324a.
    2. "Basic pilot program" shall mean the electronic verification of a work authorization program of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996, P. L. 104-208, Division C, Section 1324a note, and operated by the United States Department of Homeland Security.
    3. "Labor services" means the physical performance of services in this state.
  2. On or after January 1, 2008, no payment or compensation or other remuneration, including but not limited to wages, salaries, bonuses, benefits, in-kind exchanges, expenses, or any other economic benefit, paid for labor services to an individual totaling $600.00 or more in a taxable year, may be claimed and allowed as a deductible business expense for state income tax purposes by a taxpayer unless such individual is an authorized employee. The provisions of this subsection shall apply whether or not an Internal Revenue Service Form 1099 or Form W-2 is issued in conjunction with such payments, compensation, or other remuneration.
  3. This Code section shall not apply to any business which:
    1. Has enrolled and participates in the basic pilot program; or
    2. Is exempt from compliance with federal employment verification procedures under federal law which makes the employment of unauthorized aliens unlawful.
  4. This Code section shall not apply to any individual hired by the taxpayer prior to January 1, 2008.
  5. This Code section shall not apply to any taxpayer where the individual being paid is not directly compensated or employed by said taxpayer.
  6. This Code section shall not apply to payments, compensation, or other remuneration paid for labor services to any individual who holds and presents to the taxpayer a valid license or identification card issued by the Georgia Department of Driver Services.
  7. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section. (Code 1981, § 48-7-21.1 , enacted by Ga. L. 2006, p. 105, § 7/SB 529; Ga. L. 2007, p. 271, § 2/SB 184.)

Editor's notes. - Ga. L. 2006, p. 105, § 1/SB 529, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Security and Immigration Compliance Act.' All requirements of this Act concerning immigration or the classification of immigration status shall be construed in conformity with federal immigration law."

Law reviews. - For article on 2006 enactment of this Code section, see 23 Georgia St. U.L. Rev. 247 (2006). For annual survey of labor and employment law, see 58 Mercer L. Rev. 211 (2006). For article, "The Georgia Security and Immigration Compliance Act: Comprehensive Immigration Reform in Georgia - 'Think Globally ... Act Locally'," see 13 Ga. St. B. J. 14 (2007).

48-7-22. Taxation of fiduciaries; rate; taxable net income of estate or trust; exemptions; computation of net income; when taxable year of beneficiary differs from that of estate or trust; tax as charge against estate or trust.

  1. The tax imposed by this chapter shall be:
    1. Imposed upon resident fiduciaries and upon nonresident fiduciaries:
      1. Receiving income from business done in this state;
      2. Managing funds or property located in this state; or
      3. Managing funds or property for the benefit of a resident of this state;
    2. Imposed upon fiduciaries subject to the tax at the rates provided in this article for single individuals;
    3. Levied, collected, and paid annually with respect to:
      1. That part of the net income of an estate or trust which has not become distributable during the taxable year. It is the purpose of this Code section to tax fiduciaries or beneficiaries on all income otherwise taxable under this chapter. Income received by a resident fiduciary shall not be subject to the tax imposed by this chapter when the income is accumulated for, is distributed, or becomes distributable during the taxable year to a nonresident of this state and when the income was received from business done outside this state, property held outside this state, or intangible property, other than from the licensing for use of the property, held by a fiduciary, including, but not limited to, gains from the sale or exchange of the property. No return of income exempt under this subparagraph shall be required;
      2. The taxable net income received during the taxable year by a deceased individual who at the time of death was a taxpayer and who died during the taxable year or subsequent to the taxable year without having made a return; and
      3. The entire taxable net income of an insolvent or incompetent person, whether or not any portion of the taxable net income is held for the future use of the beneficiaries, when the fiduciary has complete charge of the net income.
  2. The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual.
  3. If the taxable year of a beneficiary is different from that of the estate or trust, the amount which the beneficiary is required to include in computing his net income shall be based upon the income of the estate or trust for any taxable year of the estate or trust ending with or within the beneficiary's taxable year.
  4. The tax imposed upon a fiduciary shall be a charge against the estate or trust.

    (Ga. L. 1931, Ex. Sess., p. 24, § 6; Code 1933, § 92-3103; Ga. L. 1937, p. 109, § 4; Ga. L. 1937-38, Ex. Sess., p. 150, § 4; Ga. L. 1966, p. 219, § 1; Code 1933, § 91A-3603, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 64; Ga. L. 1987, p. 191, § 2.)

Cross references. - Trusts generally, T. 53, C. 12.

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1989 et seq.

ALR. - Deductibility, in determining individual income tax of trustee or other fiduciary, or amount paid by him, or for which he is responsible, on account of an improper investment, 107 A.L.R. 443 .

Allocation between capital and income of income tax in respect of trust, 108 A.L.R. 1138 .

Liability of settlor for income tax in respect of income of short-term trust, or trust over which he retains control and management, 166 A.L.R. 1308 .

Income tax: construction and application of 1942 amendment of § 162(b) of Internal Revenue Code as to taxation or deduction of income of trust or estate to be distributed by fiduciary to legatees, heirs, or beneficiaries, 1 A.L.R.2d 1283.

Modern status of rules governing allocation of stock dividends or splits between principal and interest, 81 A.L.R.3d 876.

48-7-23. Taxation of partnerships; computation of net income; disallowance of charitable contributions; individual liability of partners; individual returns of distributive shares; when taxable year of partner differs from that of partnership.

The net income of a partnership shall be computed in the same manner and on the same basis as in the case of an individual except that the deduction of contributions for charitable purposes allowed by the Internal Revenue Code of 1986 shall not be allowed. Individuals carrying on business in partnership shall be liable for income tax only in their individual capacity; and each partner shall include in his or her individual return his or her distributive shares, whether distributed or not, of the net income of the partnership for the taxable year except as provided in subsection (c) of Code Section 48-7-24. If the taxable year of a partner is different from that of the partnership, the amount included in a partner's individual return shall be based upon the income of the partnership for the taxable year of the partnership ending with or within the partner's taxable year.

(Ga. L. 1931, Ex. Sess., p. 24, § 7; Code 1933, § 92-3104; Code 1933, § 91A-3604, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2; Ga. L. 1997, p. 450, § 1.)

Cross references. - Partnerships generally, T. 14, C. 8.

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Administrative Rules and Regulations. - Partnerships, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Substantive Regulations, § 560-7-3-.08.

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Georgia St. U.L. Rev. 271 (1997). For article, "Aggregate-Plus Theory of Partnership Taxation," see 43 Ga. L. Rev. 717 (2009).

JUDICIAL DECISIONS

Deduction for fixed liability to make rebate to copartners. - Fixed liability to rebate to copartners a percentage of the purchase price of goods offered for sale to such partners and to the public generally, when based upon the amount of merchandise purchased by the partner, rather than upon the partner's interest in the partnership or upon total sales, and when the rebate is actually paid during the taxable year, may be an ordinary and necessary expense paid or incurred during the taxable year in carrying on any trade or business, so as to be deductible from the gross income of the partnership in arriving at the net income of the partnership. Bessemer Auto Parts, Inc. v. State Revenue Comm'r, 110 Ga. App. 500 , 139 S.E.2d 157 (1964).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 392.

C.J.S. - 85 C.J.S., Taxation, § 1992.

ALR. - Wife's share of income of partnership of which husband is also a member as taxable to husband or wife, 164 A.L.R. 1144 .

Constitutionality, construction, and application provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 42 A.L.R.2d 797.

State income tax treatment of partnerships and partners, 2 A.L.R.6th 1.

48-7-24. Nonresident members of resident partnerships; resident members of nonresident partnerships.

  1. When one or more of the individual members of a partnership doing business in this state are nonresidents of this state, the nonresidents shall be taxable on their share of the net profits of the partnership.
  2. When one or more of the individual members of a partnership doing business outside this state are residents of this state, the residents shall include in their individual returns their distributable share, whether distributed or not, of the net income of the partnership for the taxable year.
  3. Notwithstanding any other provision of this chapter to the contrary, the distributive share of a nonresident member of a resident limited partnership or other similar nontaxable entity which derives income exclusively from buying, selling, dealing in, and holding securities on its own behalf and not as a broker shall not constitute taxable income under this chapter. For purposes of this subsection, a resident limited partnership or similar nontaxable entity shall not include a family limited partnership or similar nontaxable entity the majority interest of which is owned by one or more natural or naturalized citizens related to each other within the fourth degree of reckoning according to the laws of descent and distribution. This subsection shall not apply to a person that participates in the management of the resident limited partnership or other similar nontaxable entity or that is engaged in a unitary business with another person that participates in the management of the resident limited partnership or other similar nontaxable entity.

    (Ga. L. 1931, Ex. Sess., p. 24, § 19; Code 1933, § 92-3117; Ga. L. 1937, p. 109, § 10; Ga. L. 1937-38, Ex. Sess., p. 150, § 6; Code 1933, § 91A-3615, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2; Ga. L. 1997, p. 450, § 2; Ga. L. 2005, p. 159, § 12/HB 488.)

Cross references. - Partnerships generally, T. 14, C. 8.

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Georgia St. U.L. Rev. 271 (1997).

JUDICIAL DECISIONS

Legislative intent. - Former Code 1933, § 92-3117 (see now O.C.G.A. § 48-7-24 ) was enacted to eliminate any doubt as to taxation of net income of a resident of this state who had an income from business or property not located in Georgia. However, former Code 1933, § 92-3111 (see now O.C.G.A. § 48-7-28 ) was broad enough to cover such income. Head v. Maxwell, 60 Ga. App. 488 , 4 S.E.2d 45 (1939).

As applicable to tax years 1992, 1993, and 1994, when a partnership did business in Georgia, the individual members were taxable on the partners' share of the net profits of the partnership - regardless of whether the individual members qualified as doing business in Georgia. Department of Revenue v. Sledge, 241 Ga. App. 833 , 528 S.E.2d 260 (2000).

Deduction for fixed liability to make rebate to copartners. - Fixed liability to rebate to copartners a percentage of the purchase price of goods offered for sale to such partners and to the public generally, when based upon the amount of merchandise purchased by the partner, rather than upon the partner's interest in the partnership or upon total sales, and when the rebate is actually paid during the taxable year, may be an ordinary and necessary expense paid or incurred during the taxable year in carrying on any trade or business so as to be deductible from the gross income of the partnership in arriving at the net income of the partnership. Bessemer Auto Parts, Inc. v. State Revenue Comm'r, 110 Ga. App. 500 , 139 S.E.2d 157 (1964).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1992.

ALR. - Nature of interest of special partner for purpose of income tax, 45 A.L.R. 1381 .

Income tax on gain or loss realized by partner upon sale of his interest in partnership, 144 A.L.R. 354 .

Wife's share of income of partnership of which husband is also a member as taxable to husband or wife, 164 A.L.R. 1144 .

What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943 .

State income tax treatment of partnerships and partners, 2 A.L.R.6th 1.

48-7-25. Exempt corporations and organizations; procedure for obtaining exempt status; revocation of exempt status; grounds; retroactivity; statute of limitations; information returns; unrelated business income; deductibility of death benefit payments.

  1. The following organizations shall be exempt from taxation imposed by Code Section 48-7-21 as indicated:
    1. Subject to subsections (b) and (c) of this Code section, those organizations which are exempt from federal income taxation pursuant to Section 501(c), 501(d), 501(e), 664, or 401 of the Internal Revenue Code of 1986 shall be deemed to have similar exempt status for purposes of Code Section 48-7-21; and
    2. Insurance companies which pay to the state a tax upon premium income.
    1. An organization's exempt status under paragraph (1) of subsection (a) of this Code section shall be subject to review and revocation by the commissioner in accordance with the provisions of paragraph (2) of this subsection.
      1. The commissioner may revoke the exempt status of any organization described in paragraph (1) of subsection (a) of this Code section when:
        1. The Internal Revenue Service revokes the exempt status of the organization;
        2. The organization ceases to be organized or operated in the manner in which it was organized or operated at the time the exempt status was granted;
        3. The organization engages in any prohibited transaction as set forth in the Internal Revenue Code of 1986; or
        4. There is any material change in the character or purpose of the organization or in the mode of operation of the organization.
      2. Revocation of an exempt status shall revoke the exempt status retroactively to the time of the occurrence of the disqualifying event or events. All exempt organizations shall immediately notify the commissioner in writing of the occurrence of any of the disqualifying events described in subparagraph (A) of this paragraph or of receipt by the organization of a notice of intent to terminate its exempt status by the Internal Revenue Service. The statute of limitations governing the assessment of any taxes determined to be due this state due to the revocation of exempt status shall be tolled as of the date of the occurrence of the disqualifying event or events described in subparagraph (A) of this paragraph. The commissioner at any time may require an organization which is exempt from taxation to file an information return stating the organization's gross income, receipts, disbursements, accumulation of income, and other data deemed necessary for the proper administration of this Code section.
    1. A tax is imposed on income of an organization exempted pursuant to paragraph (1) of subsection (a) of this Code section when the income is derived from trade or business which is not related to exempt purposes of organizations described in paragraph (1) of subsection (a) of this Code section. This income shall be referred to as unrelated business income and shall be the income which is defined in Section 512 of the Internal Revenue Code of 1986. The tax imposed on unrelated business income shall be at the rate provided in Code Section 48-7-21.
    2. If an organization is exempt under Section 501(c)(4) of the United States Internal Revenue Code of 1986, if the organization makes payments of death benefits as a result of the death of a member of the organization, and if payments have been made by the organization for at least five years prior to January 1, 1977, the payments shall be deductible from the unrelated business income tax which might be owed by the organization. The payment of such death benefits shall not operate to generate a rebate or a refund. If the amount of death benefits paid within the taxable year exceeds the unrelated business income tax owed for the same taxable year, the excess may be carried forward for a period of five years.

      (Ga. L. 1931, Ex. Sess., p. 24, § 5; Code 1933, § 92-3105; Ga. L. 1937, p. 109, § 5; Ga. L. 1943, p. 320, § 1; Ga. L. 1950, p. 75, § 1; Ga. L. 1952, p. 273, § 3; Ga. L. 1955, Ex. Sess., p. 27, § 7; Ga. L. 1960, p. 249, § 1; Ga. L. 1961, p. 180, § 1; Ga. L. 1973, p. 924, § 3; Ga. L. 1975, p. 154, § 2; Ga. L. 1976, p. 405, § 9; Ga. L. 1976, p. 613, § 1; Ga. L. 1977, p. 1133, § 1; Code 1933, § 91A-3605, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 65; Ga. L. 1983, p. 1350, § 12; Ga. L. 1987, p. 191, § 2; Ga. L. 1988, p. 13, § 48; Ga. L. 2008, p. 898, § 5/HB 1151.)

Cross references. - Authority of the Georgia Athletic and Entertainment Commission, § 43-4B-4 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, a period was deleted preceding the semicolon at the end of paragraph (a)(1).

Editor's notes. - Ga. L. 1983, p. 1350, § 15, not codified by the General Assembly, effective January 1, 1984, provides that, should subsection (e) of Code Section 48-6-93 or paragraph (b)(11) of Code Section 48-7-21 be declared invalid or unconstitutional, it is the intent of the General Assembly that the entire Act be held invalid and that the method of taxation affected by the Act revert to the method in effect prior to January 1, 1984.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 2008, p. 898, § 13, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

U.S. Code. - The Internal Revenue Code of 1986, referred to in this Code section, is codified at Title 26 of U.S.C.

Administrative Rules and Regulations. - Corporations and organizations exempt from tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-3-.09.

Law reviews. - For article, "Why Captives, Lord, What Have They Ever Done?: The Georgia Captive Insurance Company Act," see 26 Ga. St. B. J. 119 (1990). For article, "Tackling the Social Determinants of Health: A Central Role for Providers," see 33 Georgia St. U.L. Rev. 217 (2017). For note on discriminatory charitable trusts in Georgia, with regard to application of the cy pres doctrine, in light of Evans v. Newton, 382 U.S. 296, 86 S. Ct. 486 , 15 L. Ed. 2 d 373 (1966), see 6 Ga. St. B. J. 428 (1970).

OPINIONS OF THE ATTORNEY GENERAL

What income of tax exempt corporation taxable. - State can tax the unrelated business income of a tax exempt corporation, but when this tax exempt corporation is engaged in competitive commerce with a nonexempt business the corporation loses the corporation's tax exemption as to that portion of the corporation's net income attributable to such competitive commerce, notwithstanding the fact that all other businesses are excluded from the plants where this business is conducted, or that this business is only conducted within these plants. 1968 Op. Att'y Gen. No. 68-378.

Out-of-state university is exempt from payment of Georgia income taxes on the income derived from real property owned in Georgia in the name of the university so long as the university continues to operate exclusively for educational purposes and so long as no part of the university's earnings inure to the benefit of any private stockholder or individual. The university would of course be required to pay ad valorem property tax on the realty owned under these circumstances and should qualify to do business with the Secretary of State. 1967 Op. Att'y Gen. No. 67-13.

Medical College of Georgia exempt from ad valorem taxes. - Medical College of Georgia Foundation, Inc., being a corporation established for educational purposes with no part of its proceeds or property capable of inuring to the benefit of private persons, is exempt from ad valorem taxes. 1962 Op. Att'y Gen. p. 503.

Limits on scope of exemption for banks and trust companies. - Exemption for banks and trust companies doing a general banking business must be applied narrowly to only state or federally chartered companies doing such business and is not to be applied broadly to every enterprise engaged in the banking business. The General Assembly intends to treat private banks in the same manner as private individuals for income tax purposes and not like chartered banks. Private banks may not avail themselves of an exemption granted national and state banks under income tax provisions. 1954-56 Op. Att'y Gen. p. 693.

Applicability of state revenue laws to international banking corporation. - International banking corporation whose sole contact with Georgia is the corporation's operation of an agency office licensed under O.C.G.A. Art. 5, Ch. 1, T. 7 is not a bank for purposes of state revenue laws. 1976 Op. Att'y Gen. No. 76-105.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 243, 244. 71 Am. Jur. 2d, State and Local Taxation, § 365 et seq.

C.J.S. - 63 C.J.S., Municipal Corporations, §§ 924, 931, 962 et seq. 85 C.J.S., Taxation, § 1989 et seq.

ALR. - Exemption from taxation of the property of a Y.M.C.A. or Y.W.C.A., 34 A.L.R. 1067 ; 81 A.L.R. 1453 .

What is a social club within statute imposing tax on dues or membership fees, 80 A.L.R. 1296 ; 143 A.L.R. 1381 .

Exemption from taxation of property of fraternal or relief associations, 83 A.L.R. 773 .

Subjection to public supervision because of public service nature of business as basis of classification for purposes of taxation, 99 A.L.R. 1164 .

Exemption of charitable organization from taxation or special assessment, 108 A.L.R. 284 .

What is a municipal corporation within constitutional or statutory tax exemption provisions, 108 A.L.R. 577 .

Tax on corporations as affected by fact that corporation is not actually engaged in or carrying on business for which it was incorporated, 124 A.L.R. 1109 .

Hospital as within tax exemption provision not specifically naming hospitals, 144 A.L.R. 1483 .

Exemption of chamber of commerce from taxation, 152 A.L.R. 181 .

Tax exemption of property of religious, educational, or charitable body as extending to property or income thereof used in publication or sale of literature, 154 A.L.R. 895 .

Tax exemptions and the contract clause, 173 A.L.R. 15 .

Constitutionality, construction, and application provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 42 A.L.R.2d 797.

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in constitution, 61 A.L.R.2d 1031.

State tax on trust income as affected by foreign elements, 5 A.L.R.3d 606.

Qualification of health care entities for federal tax exemption as charitable organization under 26 USCS § 501(c)(3), 134 A.L.R. Fed 395.

What constitutes trade or business under Internal Revenue Code (U.S.C.A. Title 26), 161 A.L.R. Fed. 245.

48-7-26. Personal exemptions.

  1. As used in this Code section, the term "dependent" shall have the same meaning as in the Internal Revenue Code of 1986.
    1. An exemption of $7,400.00 shall be allowed as a deduction in computing Georgia taxable income of a taxpayer and spouse, but only if a joint return is filed. If a taxpayer and spouse file separate returns, $3,700.00 shall be allowed to each person as a deduction in computing Georgia taxable income.
    2. An exemption of $2,700.00 shall be allowed as a deduction in computing Georgia taxable income for all taxpayers other than taxpayers who qualify for the exemption provided for in paragraph (1) of this subsection.
    3. Commencing with the taxable year beginning January 1, 2003, an exemption of $3,000.00 for each dependent of a taxpayer shall be allowed as a deduction in computing Georgia taxable income of the taxpayer.
  3. No exemption shall be allowed under this Code section for any dependent who has made a joint return with such dependent's spouse for the taxable year beginning in the calendar year in which the taxable year of the taxpayer begins.
  4. A deduction in lieu of a personal exemption deduction shall be allowed an estate or a trust as follows:
    1. An estate - $2,700.00; and
    2. A trust - $1,350.00. (Code 1981, § 48-7-26 , enacted by Ga. L. 1987, p. 191, § 2; Ga. L. 1994, p. 381, § 1; Ga. L. 1998, p. 1, § 1; Ga. L. 1999, p. 81, § 48; Ga. L. 2012, p. 257, § 2-1/HB 386.)

Editor's notes. - Ga. L. 1987, p. 191, § 2, effective March 11, 1987, repealed the former Code section and enacted the current Code section covering substantially the same subject matter. The former Code section was based on Ga. L. 1931, Ex. Sess., p. 24, § 8; Code 1933, § 91A-3606; Code 1933, § 92-3106; Ga. L. 1937, p. 109, § 6; Ga. L. 1941, p. 210, § 1; Ga. L. 1943, p. 321, § 1; Ga. L. 1952, p. 273, §§ 1, 2; Ga. L. 1952, p. 405, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 272, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 297, § 1; Ga. L. 1953, Nov.-Dec. Sess., p. 197, § 1; Ga. L. 1955, Ex. Sess., p. 27, § 3; Ga. L. 1960, p. 1005, § 2; Ga. L. 1965, p. 260, §§ 1, 2; Ga. L. 1966, p. 239, § 1; Ga. L. 1966, p. 271, § 1; Ga. L. 1968, p. 1037, § 1; Ga. L. 1971, p. 605, § 3; Ga. L. 1976, p. 250, § 1; Ga. L. 1978, p. 1471, § 1; Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 66; Ga. L. 1981, Ex. Sess., p. 8; and Ga. L. 1982, p. 3, § 48.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1998, p. 1, § 4, not codified by the General Assembly, makes subsections (b)-(d) of this Code section applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2012, p. 257, § 7-1(e)/HB 386, not codified by the General Assembly, provides that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Law reviews. - For review of 1998 legislation relating to revenue and taxation, see 15 Georgia St. U.L. Rev. 217 (1998). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2012 amendment of this Code section, see 29 Georgia St. U.L. Rev. 112 (2012).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 92-3106, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Recipient of income liable for income tax. - Liability for income tax rests upon the person by whom the income, in respect of which the tax is imposed, is received or receivable. The recipient of the income is the person taxable, and unless expressly exempted every recipient is liable therefore. Brandon v. State Revenue Comm'n, 54 Ga. App. 62 , 186 S.E. 872 (1936), aff'd, 184 Ga. 225 , 190 S.E. 660 (1937) (decided under former Code 1933, § 92-3106).

Liability for income received by a married woman. - When a married woman living with her husband has an income of her own independent of her marital status, that income is not to be considered as a part of her husband's income. The wife is the recipient, the income is taxable, and the wife is the person liable. Brandon v. State Revenue Comm'n, 54 Ga. App. 62 , 186 S.E. 872 (1936), aff'd, 184 Ga. 225 , 190 S.E. 660 (1937) (decided under former Code 1933, § 92-3106).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-3106, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Personal exemptions and credits are not considered in arriving at net income. 1969 Op. Att'y Gen. No. 69-17 (decided under former Code 1933, § 92-3106).

No exemption for child cared for but not adopted by grandparents. - Grandparent, caring for a grandchild under an award of custody in divorce proceedings, without formal or virtual adoption, is not entitled to an exemption by reason thereof. 1948-49 Op. Att'y Gen. p. 674 (decided under former Code 1933, § 92-3106).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 415.

C.J.S. - 85 C.J.S., Taxation, § 2022 et seq.

ALR. - Deductions in respect of leasehold in computing income tax, 82 A.L.R. 332 .

Income tax: deductibility of amount paid or expense incurred by taxpayer on account of his liability or alleged liability for tort, crime, or statutory violation, 104 A.L.R. 680 ; 20 A.L.R.2d 600.

Deductibility, in determining individual income tax of trustee or other fiduciary, or amount paid by him, or for which he is responsible, on account of an improper investment, 107 A.L.R. 443 .

Constitutionality, construction, and application of state statutes relating to exemption from taxation of amounts paid as pensions, war risk insurance, compensation, bonus, or other relief for veterans of World War, 116 A.L.R. 1437 .

Income tax: deductibility of taxes on property sold or purchased by taxpayer, 128 A.L.R. 769 .

Construction and application of statutory provisions allowing deduction, in computing income tax of decedent's estate or of trust, of amounts distributable or distributed to legatees, heirs, or beneficiaries, 142 A.L.R. 1109 .

Liability of settlor for income tax in respect of income of short-term trust, or trust over which he retains control and management, 153 A.L.R. 550 ; 166 A.L.R. 1308 .

Income taxes: when deduction for traveling and living expenses while away from home on business may be claimed, 159 A.L.R. 1217 .

Tax exemptions and the contract clause, 173 A.L.R. 15 .

Construction of provisions of Internal Revenue Code relating to alimony or maintenance payments, 4 A.L.R.2d 252.

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in constitution, 61 A.L.R.2d 1031.

48-7-27. (For effective date, see note.) Computation of taxable net income.

  1. Georgia taxable net income of an individual shall be the taxpayer's federal adjusted gross income, as defined in the United States Internal Revenue Code of 1986, less:
    1. (For effective date, see note.) Either the sum of all itemized nonbusiness deductions used in computing federal taxable income if the taxpayer used itemized nonbusiness deductions in computing federal taxable income or, if the taxpayer could not or did not itemize nonbusiness deductions, then a standard deduction as provided for in the following subparagraphs:
      1. In the case of a single taxpayer or a head of household, $4,600.00;
      2. In the case of a married taxpayer filing a separate return, $3,000.00;
      3. In the case of a married couple filing a joint return, $6,000.00;
      4. An additional deduction of $1,300.00 for the taxpayer if the taxpayer has attained the age of 65 before the close of the taxpayer's taxable year. An additional deduction of $1,300.00 for the spouse of the taxpayer shall be allowed if a joint return is made by the taxpayer and the taxpayer's spouse and the spouse has attained the age of 65 before the close of the taxable year; and
      5. An additional deduction of $1,300.00 for the taxpayer if the taxpayer is blind at the close of the taxable year. An additional deduction of $1,300.00 for the spouse of the taxpayer shall be allowed if a joint return is made by the taxpayer and the taxpayer's spouse and the spouse is blind at the close of the taxable year. For the purposes of this subparagraph, the determination of whether the taxpayer or the spouse is blind shall be made at the close of the taxable year except that, if either the taxpayer or the spouse dies during the taxable year, the determination shall be made as of the time of the death;
    2. The exemptions provided for in Code Section 48-7-26 together with the adjustments provided for in subsection (b) of this Code section;
      1. The amount of salary and wage expenses eliminated in computing the individual's federal adjusted gross income because the individual has taken a federal jobs tax credit which requires, as a condition to using the federal jobs tax credit, the elimination of related salary and wage expenses.
      2. The amount of mortgage interest eliminated from federal itemized deductions for the purpose of computing mortgage interest credit on the federal return;
      1. Income received from public pension or retirement funds, programs, or systems the income from which is exempted by federal law or treaty when the income is otherwise included in the taxpayer's federal adjusted gross income.
      2. Except as specifically provided in subparagraph (A) of this paragraph, paragraph (5) of this subsection, and paragraph (7) of this subsection, for taxable years beginning on or after January 1, 1989, no income from a public pension or retirement fund, program, or system (including those pension or retirement funds, programs, or systems provided for in Title 47) shall be exempt from income taxation in this state, notwithstanding any provision of Title 47 or any other provision of law to the contrary;
      1. Retirement income otherwise included in Georgia taxable net income shall be subject to an exclusion amount as follows:
        1. For taxable years beginning on or after January 1, 1989, and prior to January 1, 1990, retirement income not to exceed an exclusion amount of $8,000.00 per year received from any source;
        2. For taxable years beginning on or after January 1, 1990, and prior to January 1, 1994, retirement income not to exceed an exclusion amount of $10,000.00 per year received from any source;
        3. For taxable years beginning on or after January 1, 1994, and prior to January 1, 1995, retirement income from any source not to exceed an exclusion amount of $11,000.00;
        4. For taxable years beginning on or after January 1, 1995, and prior to January 1, 1999, retirement income from any source not to exceed an exclusion amount of $12,000.00;
        5. For taxable years beginning on or after January 1, 1999, and prior to January 1, 2000, retirement income from any source not to exceed an exclusion amount of $13,000.00;
        6. For taxable years beginning on or after January 1, 2000, and prior to January 1, 2001, retirement income not to exceed an exclusion amount of $13,500.00 per year received from any source;
        7. For taxable years beginning on or after January 1, 2001, and prior to January 1, 2002, retirement income from any source not to exceed an exclusion amount of $14,000.00;
        8. For taxable years beginning on or after January 1, 2002, and prior to January 1, 2003, retirement income from any source not to exceed an exclusion amount of $14,500.00;
        9. For taxable years beginning on or after January 1, 2003, and prior to January 1, 2006, retirement income from any source not to exceed an exclusion amount of $15,000.00;
        10. For taxable years beginning on or after January 1, 2006, and prior to January 1, 2007, retirement income from any source not to exceed an exclusion amount of $25,000.00;
        11. For taxable years beginning on or after January 1, 2007, and prior to January 1, 2008, retirement income from any source not to exceed an exclusion amount of $30,000.00;
        12. For taxable years beginning on or after January 1, 2008, and prior to January 1, 2012, retirement income from any source not to exceed an exclusion amount of $35,000.00; and
        13. For taxable years beginning on or after January 1, 2012, retirement income from any source not to exceed an exclusion amount of $35,000.00 for each taxpayer meeting the eligibility requirement set forth in division (i) or (ii) of subparagraph (D) of this paragraph or an amount of $65,000.00 for each taxpayer meeting the eligibility requirement set forth in division (iii) of subparagraph (D) of this paragraph.
      2. In the case of a married couple filing jointly, each spouse shall if otherwise qualified be individually entitled to exclude retirement income received by that spouse up to the exclusion amount.
      3. The exclusions provided for in this paragraph shall not apply to or affect and shall be in addition to those adjustments to net income provided for under any other paragraph of this subsection.
      4. A taxpayer shall be eligible for the exclusions granted by this paragraph only if the taxpayer:
        1. Is 62 years of age or older but less than 65 years of age during any part of the taxable year; or
        2. Is permanently and totally disabled in that the taxpayer has a medically demonstrable disability which is permanent and which renders the taxpayer incapable of performing any gainful occupation within the taxpayer's competence; or
        3. Is 65 years of age or older during any part of the year.
        1. For the purposes of this paragraph, retirement income shall include but not be limited to income from military retirement, interest income, dividend income, net income from rental property, capital gains income, income from royalties, income from pensions and annuities, and no more than $4,000.00 of an individual's earned income. Earned income in excess of $4,000.00, including but not limited to net business income earned by an individual from any trade or business carried on by such individual, wages, salaries, tips, and other employer compensation, shall not be regarded as retirement income. The receipt of earned income shall not diminish any taxpayer's eligibility for the retirement income exclusions allowed by this paragraph except to the extent of the express limitation provided in this division.
        2. Any income received by a surviving family member that is based on the service record of a deceased veteran shall be excluded from Georgia taxable net income without regard to the age of the surviving family member.
      6. The commissioner shall by regulation require proof of the eligibility of the taxpayer for the exclusions allowed by this paragraph.
      7. The commissioner shall by regulation provide that for taxable years beginning on or after January 1, 1989, and ending before October 1, 1990, penalty and interest may be waived or reduced for any taxpayer whose estimated tax payments and tax withholdings are less than 70 percent of such taxpayer's Georgia income tax liability if the commissioner determines that such underpayment or deficiency is due to an increase in net taxable income attributable directly to amendments to this paragraph or paragraph (4) of this subsection enacted at the 1989 special session of the General Assembly and not due to willful neglect or fraud;
    6. A portion of the qualified payments to minority subcontractors, as provided in Code Section 48-7-38;
    7. Social security benefits and tier 1 railroad retirement benefits, to the extent included in federal taxable income;
    8. The amount of a dependent's unearned income included in federal adjusted gross income of a parent's return;
    9. An amount equal to the amount of contributions to the Teachers Retirement System of Georgia made by a taxpayer between July 1, 1987, and December 31, 1989, which contributions were not subject to federal income taxation but were subject to Georgia income taxation.  The purpose of the exclusion provided for in this paragraph is to allow a taxpayer a recovery adjustment for such amount after commencement of distributions by such retirement system to such taxpayer and to establish the same basis for federal and state income tax purposes;
    10. With respect to a taxpayer who is a self-employed individual treated as an employee pursuant to Section 401(c)(1) of the Internal Revenue Code, an amount equal to the amount paid by the taxpayer during the taxable year for insurance which constitutes medical care for the taxpayer and the spouse and dependents of the taxpayer which is not otherwise deductible by the taxpayer for federal income tax purposes because the applicable percentage for that taxable year as specified pursuant to Section 162(l) of the Internal Revenue Code is less than 100 percent;
    11. For taxable years beginning on or after January 1, 2002, and prior to January 1, 2007:
      1. An amount equal to the amount of contributions by parents or guardians of a designated beneficiary to a savings trust account established pursuant to Article 11 of Chapter 3 of Title 20 on behalf of the designated beneficiary who is claimed as a dependent on the Georgia income tax return of the beneficiary's parents or guardians, but not exceeding $2,000.00 per beneficiary;
      2. If the parents or guardians file joint returns, separate returns, or single returns, the sum of contributions constituting deductions on their returns under this paragraph shall not exceed $2,000.00 per beneficiary;
      3. In order to claim the deduction for a taxable year:
        1. Such parent or guardian must have claimed and been allowed itemized deductions pursuant to Section 63(d) of the Internal Revenue Code of 1986 and paragraph (1) of this subsection;
        2. The federal adjusted gross income for such taxable year cannot exceed $100,000.00 for a joint return or $50,000.00 for a separate or single return except as provided in subparagraph (D) of this paragraph; and
        3. Such parent or guardian must be the account owner of the designated beneficiary's account;
      4. The maximum deduction authorized by this paragraph for each beneficiary shall decrease by $400.00 for each $1,000.00 of federal adjusted gross income over $100,000.00 for a joint return or $50,000.00 for a separate or single return; and
      5. For purposes of this paragraph, contributions or payments for any such taxable year may be made during or after such taxable year but on or before the deadline for making contributions to an individual retirement account pursuant to Section 219(f)(3) of the Internal Revenue Code of 1986;
        1. An amount equal to the amount of contributions to a savings trust account established pursuant to Article 11 of Chapter 3 of Title 20 on behalf of the designated beneficiary, but not exceeding $2,000.00 per beneficiary;
        2. If the contributor files a separate return or single return, the sum of contributions constituting deductions on the contributor's return under this paragraph shall not exceed $2,000.00 per beneficiary;
        3. If the contributor files a joint return, the sum of contributions constituting deductions on the contributor's return under this paragraph shall not exceed $4,000.00 per beneficiary; and
        4. For purposes of this paragraph, contributions or payments for any such taxable year may be made during or after such taxable year but on or before the deadline for making contributions to an individual retirement account under federal law for such taxable year;

      (11.1) For taxable years beginning on or after January 1, 2016:

    12. Military income received by a member of the National Guard or any reserve component of the armed services of the United States stationed in a combat zone or stationed in defense of the borders of the United States pursuant to military orders. The exclusion provided under this paragraph:
      1. Shall apply with respect to each taxable year, or portion thereof, covered by such military orders; and
      2. Shall apply only with respect to such member of the National Guard or any reserve component of the armed forces and only with respect to military income earned during the period covered by such military orders;

        (B) As used in this paragraph, the term "disabled veteran" means any wartime veteran who was discharged under honorable conditions and who has been adjudicated by the United States Department of Veterans Affairs as being at least 90 percent totally and permanently disabled and entitled to receive service connected benefits and any veteran who is receiving or who is entitled to receive a statutory award from the United States Department of Veterans Affairs for:

        1. Loss or permanent loss of use of one or both feet;
        2. Loss or permanent loss of use of one or both hands;
        3. Loss of sight in one or both eyes; or
        4. Permanent impairment of vision of both eyes of the following status: Central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends on angular distance no greater than 20 degrees in the better eye;

      (12.1) (A) Disability income from the United States Department of Veterans Affairs received by a disabled veteran who is a citizen and resident of Georgia.

      (12.2) Payments received by a firefighter pursuant to paragraph (2) of subsection (b) of Code Section 25-3-23, to any extent such amounts are included in the taxpayer's federal adjusted gross income and are not otherwise exempt under any other provision of this Code section;

      (12.3) An amount equal to 100 percent of any premium paid by the individual taxpayer during the taxable year for coverage pursuant to paragraph (2) of subsection (b) of Code Section 25-3-23, to any extent such deduction has not been included in the taxpayer's federal adjusted gross income and such amount is not otherwise deductible under any other provision of this Code section;

      1. An amount equal to the actual amount expended for organ donation expenses not to exceed the amount of $10,000.00 incurred in accordance with the "National Organ Procurement Act."
      2. In order to qualify for the exclusion under subparagraph (A) of this paragraph, such taxpayer must, while living, donate all or part of such person's liver, pancreas, kidney, intestine, lung, or bone marrow. In the taxable year in which the donation is made, the taxpayer shall be entitled to claim the exclusion provided in subparagraph (A) of this paragraph only with respect to unreimbursed travel expenses, lodging expenses, and lost wages incurred as a direct result of the organ donation;

        (B) An amount equal to $1,000.00 for any physician who served as the community based faculty physician for a physician assistant core clerkship provided by community based faculty.

        (C) An amount equal to $1,000.00 for any physician who served as the community based faculty physician for a nurse practitioner core clerkship provided by community based faculty.

        (D) As used in this paragraph, the term:

        1. "Community based faculty physician" means a noncompensated physician who provides a minimum of three and a maximum of ten clerkships within a calendar year.
        2. "Medical core clerkship," "physician assistant core clerkship," or "nurse practitioner core clerkship" means a clerkship for a student who is enrolled in a Georgia medical school, a Georgia physician assistant school, or a Georgia nurse practitioner school and who completes a minimum of 160 hours of community based instruction in family medicine, internal medicine, pediatrics, obstetrics and gynecology, emergency medicine, psychiatry, or general surgery under the guidance of a community based faculty physician.

          (E) The state-wide Area Health Education Centers Program Office at Georgia Regents University shall administer the program and certify rotations for the department.

          (F) This paragraph shall apply to all taxable years beginning on or after January 1, 2014;

      (13.1) An amount equal to 100 percent of the premium paid by the taxpayer during the taxable year for high deductible health plans as defined by Section 223 of the Internal Revenue Code to the extent the deduction has not been included in federal adjusted gross income, as defined under the Internal Revenue Code of 1986, and the expenses have not been provided from a health reimbursement arrangement and have not been included in itemized nonbusiness deductions;

      (13.2) (A) An amount equal to $1,000.00 for any physician who served as the community based faculty physician for a medical core clerkship provided by community based faculty.

    14. The deduction for school teachers provided and allowed by Section 62(a)(2)(D) of the Internal Revenue Code of 1986 as enacted on or before January 1, 2005, to the extent the deduction has not been included in federal adjusted gross income, as defined under the Internal Revenue Code of 1986, and the expenses have not been included in itemized nonbusiness deductions; and
    15. The deduction provided and allowed by Section 179 of the Internal Revenue Code of 1986 as enacted on or before January 1, 2005, to the extent the deduction has not been included in federal adjusted gross income, as defined under the Internal Revenue Code of 1986, and the expenses have not been included in itemized nonbusiness deductions.
    1. There shall be added to the taxable income:
      1. Dividend or interest income, to the extent that the dividend or interest income is not included in gross income for federal income tax purposes, on obligations of any state except this state or of political subdivisions except political subdivisions of this state;
      2. Interest or dividends on obligations of the United States or of any authority, commission, instrumentality, territory, or possession of the United States which by the laws of the United States are exempt from federal income taxes but not from state income taxes; and
      3. Income consisting of lump sum distributions from an annuity, pension plan, or similar source which were removed from federal adjusted gross income for the purposes of special federal tax computations or treatment.
    2. There shall be subtracted from taxable income interest or dividends on obligations of the United States and its territories and possessions or of any authority, commission, or instrumentality of the United States to the extent includable in gross income for federal income tax purposes but exempt from state income taxes under the laws of the United States. Any amount subtracted under this paragraph shall be reduced by any interest expenses directly or indirectly attributable to the production of the interest or dividend income.
    3. There shall be added to taxable income any income taxes imposed by any tax jurisdiction except the State of Georgia to the extent deducted in determining federal taxable income.
    4. No portion of any deductions or losses including, but not limited to, net operating losses, which occurred in a year in which the taxpayer was not subject to taxation in this state, may be deducted in any tax year. When federal adjusted gross income includes deductions or losses not allowed pursuant to this paragraph, an adjustment deleting them shall be made under rules established by the commissioner.
    5. Income, losses, and deductions previously used in computing Georgia taxable income shall not again be used in computing Georgia taxable income; and the commissioner shall provide for needed adjustments by regulation.
    6. Reserved.
    7. Except as otherwise provided in paragraph (4) of subsection (a) of this Code section, this chapter shall not be construed to repeal any tax exemptions contained in other laws of this state not referred to in this Code section. Those exemptions and the exemptions provided by federal law and treaty shall be deducted on forms provided by the commissioner.
    8. All elections made by the taxpayer under the Internal Revenue Code of 1954 or the Internal Revenue Code of 1986 shall also apply under this article.
    9. If the taxpayer claims the tax credit provided for in subsection (d) of Code Section 48-7-40.6 with respect to qualified child care property, Georgia taxable income shall be increased by any depreciation deductions attributable to such property to the extent such deductions are used in determining federal taxable income.
      1. Except as otherwise provided in subparagraph (C) of this paragraph, the amount of any qualified withdrawals from a savings trust account under Article 11 of Chapter 3 of Title 20 shall not be subject to state income tax under this chapter.
      2. For withdrawals other than qualified withdrawals from such a savings trust account, the proportion of earnings in the account balance at the time of the withdrawal shall be applied to the total funds withdrawn to determine the earnings portion to be included in the account owner's taxable net income in the year of withdrawal.
      3. For withdrawals other than qualified withdrawals from such a savings trust account and for withdrawals from such a savings trust account which are rolled over to a qualified tuition program other than the qualified tuition program established under Article 11 of Chapter 3 of Title 20, the proportion of the contributions in an account balance at the time of a withdrawal which previously have been used to reduce taxable net income pursuant to subsection (a) of this Code section shall be applied to the nonearnings portion of the total funds withdrawn to determine an amount to be included in the account owner's taxable net income in the same taxable year.

        (B) For withdrawals other than qualified withdrawals from such an ABLE account, the proportion of earnings in the account balance at the time of the withdrawal shall be applied to the total funds withdrawn to determine the earnings portion to be included in the designated beneficiary's taxable net income in the year of withdrawal.

      (10.1) (A) The amount of any qualified withdrawals from an ABLE account established pursuant to a Georgia ABLE program or any Qualified ABLE Program, as such programs are defined under Chapter 9 of Title 30, shall not be subject to state income tax under this chapter.

    11. Georgia taxable income shall be adjusted as provided in Code Section 48-7-28.3.
    12. Georgia taxable income shall be increased by the amount of the payments, compensation, or other economic benefit disallowed by Code Section 48-7-21.1.
    13. Georgia taxable income shall be adjusted as provided in Code Section 48-7-28.4.
    14. Georgia net operating losses shall be treated in the same manner as provided in paragraph (10.1) of subsection (b) of Code Section 48-7-21 but shall be based on the income as computed pursuant to this Code section. Any limitations included in the Internal Revenue Code of 1986 on the amount of net operating loss that can be used in a taxable year shall be applied for purposes of this Code section; provided, however, that such limitations, including, but not limited to, the 80 percent limitation, shall be applied to Georgia taxable net income.
    15. Georgia taxable net income shall be adjusted as provided in Code Section 48-7-53.
  3. Georgia taxable income shall, if the taxpayer so elects, be adjusted with respect to federal depreciation deductions as provided in Code Section 48-7-39.
      1. As used in this paragraph, the term "individual" shall mean the same as is defined in Code Section 48-1-2.
      2. Georgia resident shareholders of Subchapter "S" corporations may make an adjustment to federal adjusted gross income for Subchapter "S" corporation income where another state does not recognize a Subchapter "S" corporation.
      3. A Georgia individual resident who is a partner in a partnership, who is a member of a limited liability company taxed as a partnership, or who is a single member of a limited liability company which is disregarded for federal income tax purposes may make an adjustment to federal adjusted gross income for the  entity's income taxed in another state which imposes on the entity a tax on or measured by income.
      4. Adjustments pursuant to this paragraph shall only be allowed for the portion of the income on which such tax was actually paid by such Subchapter "S" corporation, partnership, or limited liability company. In multitiered situations, the adjustment for such individual shall be determined by allocating such income between the shareholders, partners, or members at each tier based upon their profit/loss percentage.
    2. Nonresident shareholders of a Georgia Subchapter "S" corporation shall execute a consent agreement to pay Georgia income tax on their portion of the corporate income in order for such Subchapter "S" corporation to be recognized for Georgia purposes. A consent agreement for each shareholder shall be filed by the corporation with its corporate tax return in the year in which the Subchapter "S" corporation is first required to file a Georgia income tax return. For a Subchapter "S" corporation in existence prior to January 1, 2008, the consent agreement shall be filed for each shareholder in the first Georgia tax return filed for a year beginning on or after January 1, 2008. A consent agreement shall also be filed in any subsequent year for any additional nonresident who first becomes a shareholder of the Subchapter "S" corporation in that year. Shareholders of a federal Subchapter "S" corporation which is not recognized for Georgia purposes may make an adjustment to federal adjusted gross income in order to avoid double taxation on this type of income. Adjustments shall not be allowed unless tax was actually paid by such corporation.

      (Code 1933, § 92-3107, enacted by Ga. L. 1971, p. 605, § 4; Ga. L. 1975, p. 843, § 1; Ga. L. 1978, p. 1456, § 1; Ga. L. 1979, p. 888, § 2; Code 1933, § 91A-3607, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 67; Ga. L. 1979, p. 888, § 4; Ga. L. 1980, p. 10, §§ 17, 18; Ga. L. 1981, p. 1857, §§ 35, 36; Ga. L. 1981, p. 1903, §§ 3, 4; Ga. L. 1982, p. 3, § 48; Ga. L. 1984, p. 1644, § 2; Ga. L. 1986, p. 749, § 1; Ga. L. 1986, p. 1480, § 1; Ga. L. 1987, p. 191, § 2; Ga. L. 1988, p. 475, § 2; Ga. L. 1989, p. 1112, §§ 1-3; Ga. L. 1989, Ex. Sess., p. 5, § 1; Ga. L. 1990, p. 1369, § 1; Ga. L. 1992, p. 1296, § 1; Ga. L. 1992, p. 2977, § 1; Ga. L. 1994, p. 381, § 2; Ga. L. 1998, p. 1, § 2; Ga. L. 1998, p. 1515, § 1; Ga. L. 1998, p. 1516, § 1; Ga. L. 1999, p. 13, § 2; Ga. L. 2000, p. 408, § 1; Ga. L. 2001, p. 76, §§ 2, 3; Ga. L. 2002, p. 372, §§ 2, 3; Ga. L. 2002, p. 1149, § 1; Ga. L. 2003, p. 637, § 1; Ga. L. 2003, p. 665, §§ 4, 5; Ga. L. 2004, p. 102, § 1; Ga. L. 2005, p. 18, § 1/HB 263; Ga. L. 2005, p. 30, § 1/HB 191; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2005, p. 157, § 2/HB 282; Ga. L. 2005, p. 159, §§ 13, 14/HB 488; Ga. L. 2005, p. 529, § 1/HB 556; Ga. L. 2006, p. 526, § 1/HB 1160; Ga. L. 2007, p. 112, § 2/HB 225; Ga. L. 2007, p. 271, §§ 3, 4/SB 184; Ga. L. 2008, p. 159, §§ 7, 8/HB 1014; Ga. L. 2008, p. 292, § 4/HB 977; Ga. L. 2008, p. 324, § 48/SB 455; Ga. L. 2008, p. 898, §§ 6, 7/HB 1151; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2009, p. 652, § 4/HB 410; Ga. L. 2009, p. 796, § 2/HB 379; Ga. L. 2010, p. 9, § 4-1/HB 1055; Ga. L. 2012, p. 108, § 1/HB 808; Ga. L. 2012, p. 257, § 2-2/HB 386; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2014, p. 83, § 2-1/SB 391; Ga. L. 2016, p. 588, § 2/HB 768; Ga. L. 2016, p. 805, § 1/HB 802; Ga. L. 2017, p. 336, § 5/HB 146; Ga. L. 2018, p. 8, §§ 1-7, 1-8/HB 918; Ga. L. 2018, p. 308, § 1/HB 749; Ga. L. 2018, p. 319, § 2/HB 849.)

The 2016 amendments. The first 2016 amendment, effective May 3, 2016, added paragraph (b)(10.1). The second 2016 amendment, effective April 26, 2016, substituted "2016" for "2007" in paragraph (a)(11.1); and substituted "$4,000.00" for "$2,000.00" in subparagraph (a)(11.1)(C). See Editor's notes for applicability.

The 2017 amendment, effective January 1, 2018, added paragraphs (a)(12.2) and (a)(12.3).

The 2018 amendments. The first 2018 amendment, effective March 2, 2018, substituted "$4,600.00" for "$2,300.00" in subparagraph (a)(1)(A); substituted "$3,000.00" for "$1,500.00" in subparagraph (a)(1)(B); substituted "$6,000.00" for "$3,000.00" in subparagraph (a)(1)(C); and added paragraph (b)(14). See Editor's note for applicability and expiration. The second 2018 amendment, effective July 1, 2018, designated the existing provisions of subparagraph (a)(5)(E) as division (a)(5)(E)(i); in division (a)(5)(E)(i), inserted "income from military retirement," in the middle of the first sentence, and substituted "division" for "subparagraph" at the end of the last sentence; and added division (a)(5)(E)(ii). See Editor's notes for applicability. The third 2018 amendment, effective May 3, 2018, added paragraph (b)(14).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2005, "and" was deleted at the end of paragraph (a)(13), "; and" was substituted for the period at the end of paragraph (a)(14), and paragraph (a)(14), as enacted by Ga. L. 2005, p. 157, § 2, was redesignated as paragraph (a)(15).

Pursuant to Code Section 28-9-5, in 2010, "to" was inserted between "subject" and "an" in subparagraph (a)(5)(A).

Pursuant to Code Section 28-9-5, in 2018, paragraph (b)(14), as added by Ga. L. 2018, p. 319, § 2/HB 849, was redesignated as paragraph (b)(15).

Editor's notes. - Ga. L. 1984, p. 1644, § 4, not codified by the General Assembly, provided that the Act would apply to taxable years beginning on or after January 1, 1985.

Ga. L. 1986, p. 749, § 2, not codified by the General Assembly, provided: "This Act shall become effective upon its approval by the Governor [approved April 3, 1986] or upon its becoming law without his approval and shall apply to tax years beginning on or after January 1, 1986".

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1988, p. 475, § 3, not codified by the General Assembly, provided that the Act applies to taxable years beginning on or after January 1, 1988.

Ga. L. 1988, p. 475, § 3, not codified by the General Assembly, also provided that provisions of the Internal Revenue Code of 1986 which were as of January 1, 1988, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes.

Ga. L. 1989, p. 1112, § 4, not codified by the General Assembly, provides that the Act shall be effective for tax years beginning on or after January 1, 1989.

Ga. L. 1989, Ex. Sess., p. 5, § 2, not codified by the General Assembly, provided: "(a) This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to taxable years beginning on or after January 1, 1989.

"(b) Tax, penalty, and interest liabilities for taxable years beginning prior to January 1, 1989, shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Code Section 48-7-27 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." The Act was approved by the Governor September 20, 1989.

Ga. L. 1990, p. 1369, § 2, not codified by the General Assembly, provides that the Act shall be applicable to all taxable years beginning on or after January 1, 1990.

Ga. L. 1998, p. 1, § 4, not codified by the General Assembly, makes subsection (a) of this Code section applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 1998, p. 1515, § 2, not codified by the General Assembly, makes subsection (a) of this Code section applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 1999, p. 13, § 4, not codified by the General Assembly, makes subsection (b) of this Code section applicable to all taxable years beginning on or after January 1, 2000.

Ga. L. 2000, p. 408, § 2, not codified by the General Assembly, makes subsection (a) applicable to all taxable years beginning on or after January 1, 2000.

Ga. L. 2002, p. 372, § 15(b), not codified by the General Assembly, provides that §§ 1-4, 6, and 8-14 of this Act shall be applicable to all taxable years beginning on or after January 1, 2002.

Ga. L. 2003, p. 637, § 2, not codified by the General Assembly, provides that this Act "shall be applicable to all taxable years beginning on or after January 1, 2003."

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(b), not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2003.

Ga. L. 2004, p. 102, § 2, not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2005.

Ga. L. 2005, p. 18, § 2/HB 263, not codified by the General Assembly, provides that the Act shall be applicable to all taxable years beginning on or after January 1, 2004.

Ga. L. 2005, p. 30, § 7(a)/HB 191, not codified by the General Assembly, provides that the 2005 amendment to paragraph (b)(11) shall be applicable to all taxable years beginning on or after January 1, 2006.

Ga. L. 2005, p. 157, § 4/HB 282, not codified by the General Assembly, provides that the Act shall be applicable to all taxable years beginning on or after January 1, 2005.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27(c)/HB 488, not codified by the General Assembly, provides that the 2005 amendment to paragraph (b)(2) shall be applicable to all taxable years beginning on or after January 1, 2005.

Ga. L. 2005, p. 159, § 27(h)/HB 488, not codified by the General Assembly, provides that the 2005 amendment to paragraph (b)(6) shall be applicable to all taxable years beginning on or after January 1, 2004.

Ga. L. 2006, p. 526, § 2/HB 1160, not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2006.

Ga. L. 2007, p. 271, § 7(b)/SB 184, not codified by the General Assembly, provides that the amendment to paragraph (a)(12) shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2008, p. 159, § 10/HB 1014, not codified by the General Assembly, provides that the 2008 amendment to paragraph (b)(10) shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2008, p. 292, § 6(a)/HB 977, not codified by the General Assembly, provides, in part, that the 2008 amendment shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2009, p. 652, § 6(a)/HB 410, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2009, p. 796, § 4/HB 379, not codified by the General Assembly, provides, in part, that the amendment by that Act shall be applicable to all taxable years beginning on or after January 1, 2010.

Ga. L. 2012, p. 108, § 2/HB 808, not codified by the General Assembly, provides, in part, that the amendment by that Act shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2012, p. 257, § 7(e)/HB 386, not codified by the General Assembly, provides, in part, that the amendment by that Act shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Ga. L. 2016, p. 805, § 2/HB 802, not codified by the General Assembly, provides that this Act shall apply to all taxable years beginning on and after January 1, 2016.

Ga. L. 2018, p. 8, § 3-1(a)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall be applicable to all taxable years beginning on or after January 1, 2017."

Ga. L. 2018, p. 8, § 3-1(d)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall become effective upon the approval of this Act by the Governor or upon this Act becoming law without such approval and shall be applicable to all taxable years beginning on or after January 1, 2018. Section 1-7 of this Act shall expire by operation of law on the last moment of December 31, 2025, and revert to the language of paragraph (1) of subsection (a) of Code Section 48-7-27 as it existed on the day immediately preceding the effective date of this Act." This Act was signed by the Governor on March 2, 2018.

Ga. L. 2018, p. 308, § 2/HB 749, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2018, and shall be applicable to all taxable years beginning on or after January 1, 2018."

Administrative Rules and Regulations. - Net taxable income, individual, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Chapter 560-7-4.

Law reviews. - For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For article, "Issues and Opportunities Under Georgia's Updated Income Tax Provisions," see 25 Ga. St. B. J. 144 (1989). For review of 1998 legislation relating to revenue and taxation, see 15 Georgia St. U.L. Rev. 217 (1998). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2012 amendment of this Code section, see 29 Georgia St. U.L. Rev. 112 (2012). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 193 (2016). For note on 1990 amendment to this Code section, see 7 Georgia St. U.L. Rev. 363 (1990). For note on 1992 amendment to this Code section, see 9 Georgia St. U.L. Rev. 338 (1992). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 84 (2001). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1929, p. 92, former Code 1933, §§ 92-3107 and 92-3109 are included in the annotations for this Code section.

Retirement benefits not exempted. - Subjecting retirement benefits of retired school teachers to state income taxation did not violate the constitutional prohibition against state laws impairing the obligation of contracts since the teachers had no vested right to an irrevocable exemption which was barred under Ga. Const. 1983, Art. VII, Sec. I, Para. I. Parrish v. Employees' Retirement Sys., 260 Ga. 613 , 398 S.E.2d 353 (1990), cert. denied, 500 U.S. 353, 111 S. Ct. 2016 , 114 L. Ed. 2 d 103 (1991).

Income tax is not a property tax, but is more nearly within category of an excise tax. Brandon v. State Revenue Comm'n, 54 Ga. App. 62 , 186 S.E. 872 (1936), aff'd, 184 Ga. 225 , 190 S.E. 660 (1937) (decided under former Code 1933, § 92-3107).

Meaning of "income tax" and "income." - Term "income tax" means a tax on the actual gain or an actual increase in wealth, and does not include a mere unrealized increased in value. "Income" is the gain derived from capital or labor, or both combined. "Income" for any given period of time is the amount of gain so derived during a designated period. Brandon v. State Revenue Comm'n, 54 Ga. App. 62 , 186 S.E. 872 (1936), aff'd, 184 Ga. 225 , 190 S.E. 660 (1937) (decided under former Code 1933, § 92-3107).

Research tax credit. - Trial court erred in finding invalid a regulation which interpreted a research tax credit codified in a statute; the regulation's requirement that a business enterprise have had a positive state taxable net income for each of the preceding three years in order to be eligible for the tax credit was authorized by statute and was reasonable because the regulation reflected the legislature's intent that research activities be increased, which was most likely to occur when a business enterprise was able to generate income through the enterprise's activities rather than when a business had a negative income or, in other words, a net operating loss. Ga. Dep't of Revenue v. Ga. Chemistry Council, Inc., 270 Ga. App. 615 , 607 S.E.2d 207 (2004).

Compromise settlement with Internal Revenue Service as basis for assessing state income tax. - Commissioner is authorized to use a compromise agreement with the U.S. Internal Revenue Service on the amount of changed income of the taxpayer as the basis for assessment of Georgia income tax, even if it is the sole basis for assessing state tax. Blackmon v. Monroe, 233 Ga. 656 , 212 S.E.2d 827 (1975).

Adoption of federal tax procedures not a delegation of state power to federal authorities. - When the State Revenue Commission (now state revenue commissioner) merely adopted the federal method of calculating net income under the federal statute as the state's method of accomplishing that result, and properly assesses the tax due to the state as part of the amount which the taxpayer paid to the United States, such adoption is not a delegation to the federal authorities of the state's power to tax. Head v. McKenney, 61 Ga. App. 552 , 6 S.E.2d 405 (1939) (decided under former Ga. L. 1929, p. 92).

Taxation of rebates given to partners on their individual purchases. - When rebates have no connection with the total sales or profits of a partnership or with the interest of a particular partner in the partnership, but are merely a discount to the partners on the partners' own individual purchases and, hence, only such rebates do not constitute profits and are not taxable. Undercofler v. Bessemer Auto Parts, Inc., 221 Ga. 61 , 142 S.E.2d 912 (1965).

No deduction for losses incurred by shareholder on distribution of dissolved corporation's assets. - When the taxpayer owns all or a majority of the capital stock of a corporation and the corporation is dissolved, and the correct proportionate share of the assets of the corporation is turned over to the taxpayer owning a majority of the capital stock, such a distribution of the assets is treated as a sale of the stock by the taxpayer stockholder to the corporation, and losses incurred by reason of such transaction are not deductible as losses in computing the net income. State Revenue Comm'n v. Glenn, 61 Ga. App. 567 , 6 S.E.2d 384 (1939) (decided under former Code 1933, § 92-3109).

Adjustment to shareholder in S corporations federal adjusted gross income. - Former paragraph (d)(2) of O.C.G.A. § 48-7-27 did not permit a taxpayer, who was a shareholder in an S corporation, to adjust the taxpayer's federal adjusted gross income by subtracting the entire share of the taxpayer's passed-through income from the corporation as the double taxation to be avoided was the payment of income taxes by the corporation at the corporate level and then the payment of income taxes by the taxpayer as an individual on the same income in the same year; the taxpayer should have only subtracted the taxpayer's share of the amount of the corporation's income on which corporate taxes were paid in Georgia. Graham v. Hanna, 297 Ga. App. 542 , 677 S.E.2d 686 (2009), cert. denied, No. S09C1403, 2009 Ga. LEXIS 789 (Ga. 2009).

Cited in Collins v. Waldron, 259 Ga. 582 , 385 S.E.2d 74 (1989); Silliman v. Cassell, 292 Ga. 464 , 738 S.E.2d 606 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 92-3107 and 92-3109 are included in the annotations for this Code section.

Treatment of employee's unrestricted subsistence allowance. - Unrestricted subsistence allowance, that is, an allowance which is in no wise limited to expenditures incurred on account of the employee's business, is an allowance to defray the employee's personal living expenses and is, in substance, a form of compensation or remuneration within the scope of the statute and the definition of "wages" in Ga. L. 1960, p. 7 (see now O.C.G.A. § 48-7-100 ). To the extent that an employee incurs expenses on account of the business of the employer, and the employee is not otherwise reimbursed therefor, so that such expenses are a charge against this subsistence allowance, then the situation is one to be handled under regulations of the commissioner promulgated in accordance with Ga. L. 1960, p. 7 (see now O.C.G.A. § 48-7-101(f)(4)). 1960-61 Op. Att'y Gen. p. 506(decided under former Code 1933, §§ 92-3107 and 92-3109).

Amounts paid to state officials for expenses are part of such official's gross income and are taxable to the extent that those amounts are not used for such official business purposes. 1969 Op. Att'y Gen. No. 69-190(decided under former Code 1933, § 92-3109).

Payments by check, tendered by municipal corporation to municipal officers and employees for unused sick leave are, if the payments are legal, income and subject to taxation. 1971 Op. Att'y Gen. No. U71-16(decided under former Code 1933, § 92-3107).

Income from Superior Court Clerk's Retirement Fund is subject to state income tax except that all but three percent of aggregate contributions of taxpayer to fund is excluded from tax base until entire cost to taxpayer has been recovered tax free. 1962 Op. Att'y Gen. p. 519(decided under former Code 1933, § 92-3107).

Applicant for homestead exemption for elderly must include social security benefits in computations. - Social security benefits must be included in determining whether a person over 65 and that person's spouse have met the income requirements for the increased homestead exemption. 1969 Op. Att'y Gen. No. 69-112(decided under former Code 1933, § 92-3107).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 412.

C.J.S. - 85 C.J.S., Taxation, § 1998 et seq.

ALR. - Commissions as executor, administrator, guardian, etc., as income subject to income tax, 18 A.L.R. 414 .

Income tax on profit upon sale by executor or administrator at advance over cost to decedent, 33 A.L.R. 813 .

Gains from unlawful business or transactions as subject of income tax, 43 A.L.R. 799 ; 51 A.L.R. 1026 ; 166 A.L.R. 891 .

Nature of interest of special partner for purpose of income tax, 45 A.L.R. 1381 .

Gains from unlawful business or transactions as subject of income tax, 51 A.L.R. 1026 ; 166 A.L.R. 891 .

Deduction on account of exempt securities in taxation of corporations or their shareholders, 57 A.L.R. 899 ; 65 A.L.R. 878 .

Income tax in respect of amounts received by stockholder upon liquidation of corporation, 65 A.L.R. 148 .

Computation for purposes of income tax of gain or loss from sale of stock rights, 70 A.L.R. 1305 .

Deduction of fixed periodical percentage ("straight-line method") as proper method of determining depreciation for purposes of property or income taxes, 71 A.L.R. 971 .

Computation of income tax of stockholder in event of reorganization, merger, or consolidation of corporations, 78 A.L.R. 677 .

Interest deductible in computing income tax, 80 A.L.R. 214 ; 154 A.L.R. 934 .

Military service as basis of discrimination in statutes or ordinances relating to taxation or licenses, 83 A.L.R. 1231 .

State income tax on resident in respect of income earned outside the state, 87 A.L.R. 380 .

Computation of losses or profits on sale of securities for purposes of income tax, 90 A.L.R. 732 ; 108 A.L.R. 1261 ; 149 A.L.R. 988 .

Liability for income tax in respect of amount of tax paid by another, 91 A.L.R. 1270 .

Income tax in respect of compensation for services rendered under contract to governmental or political body by one not an officer or employee, 93 A.L.R. 190 .

Computation of income tax as affected by fact that taxpayer was domiciled within state for only part of the taxable year, 93 A.L.R. 1199 ; 126 A.L.R. 455 .

Income as "property" within constitutional limitation on taxation, 97 A.L.R. 1488 .

Income tax as payable in respect of difference between cost to donor of securities or other property and value at time of gift, 99 A.L.R. 468 .

Income tax in respect of that part of extraordinary cash dividend on stock held by trustee that is allocated to corpus as regards respective rights of life beneficiary and remaindermen, 99 A.L.R. 518 .

Income tax: deductibility of loss incurred as director, officer, or stockholder of corporation, 99 A.L.R. 566 .

Income tax: purchased annuities, 99 A.L.R. 624 .

Income tax in respect of exchange of properties, 102 A.L.R. 6 .

Validity and construction of state statutes imposing tax on income derived from dividends on stock of foreign corporations, 102 A.L.R. 77 ; 143 A.L.R. 147 .

Method or formula for determination for income tax purposes of value of corporate stock absent sufficient basis in transactions of purchase and sale, 103 A.L.R. 955 .

Income tax in relation to stock dividends (including character of corporate distributions as stock dividends), 105 A.L.R. 761 ; 130 A.L.R. 408 ; 143 A.L.R. 230 ; 144 A.L.R. 1337 ; 167 A.L.R. 554 .

Income tax in respect of accrued interest on purchase of mortgaged property by mortgagee, 108 A.L.R. 441 .

Deductibility in computing state income tax of amount paid or payable in respect of succession, inheritance, or estate tax, 108 A.L.R. 1401 .

Income tax in respect of salaries of public officers and employees, 108 A.L.R. 1439 ; 114 A.L.R. 1190 ; 120 A.L.R. 1477 ; 122 A.L.R. 1393 ; 125 A.L.R. 1421 .

Payment to one performing services as compensation subject to income tax or gift exempt therefrom, 110 A.L.R. 285 .

Construction and application of statutory provisions allowing deduction, in computing income tax of decedent's estate or of trust, of amounts distributable or distributed to legatees, heirs or beneficiaries, 117 A.L.R. 372 ; 142 A.L.R. 1109 .

Applicability, construction, and effect of provision of income tax act excluding from income subject to tax the value of property acquired by gift, devise, bequest, or descent, 119 A.L.R. 415 .

Construction and application of provision of income tax statute regarding exclusion from gross income of proceeds of life insurance received on death of insured, 119 A.L.R. 1195 ; 133 A.L.R. 413 ; 170 A.L.R. 315 .

When dividends on corporate stock become taxable as income to a taxpayer making his return on a cash basis, 120 A.L.R. 1280 ; 143 A.L.R. 596 ; 158 A.L.R. 1432 ; 167 A.L.R. 303 .

Year in which loss or bad debt must be charged in order to be allowed as a deduction from taxpayer's income, 121 A.L.R. 697 ; 135 A.L.R. 1430 .

Scope of term "obligations" in provision of Internal Revenue Act exempting interest upon obligations of state, territory, or political subdivisions from tax, 121 A.L.R. 1276 .

Income tax: deductibility of interest or penalties paid or incurred by taxpayer on account of delinquent or deferred taxes, 121 A.L.R. 1464 .

Question whether gift is valid, or a mere sham, as regards income tax of donor, 125 A.L.R. 779 .

Constitutionality of tax upon privilege of declaring or receiving dividends as regards dividends by foreign corporations, 130 A.L.R. 1237 ; 46 A.L.R. 1214 .

Constitutionality, construction, and application of statutory provisions for taxation of grantor on income of revocable trust and trust income distributable to him, 132 A.L.R. 785 ; 143 A.L.R. 1116 .

Liability of settlor for income tax in respect of trust income applied to relieve him of financial obligation or burden, 132 A.L.R. 819 ; 158 A.L.R. 1315 .

Liability of settlor for income tax in respect of income of short-term trust, or trust over which he retains control and management, 132 A.L.R. 844 ; 153 A.L.R. 550 ; 166 A.L.R. 1308 .

Construction and application of provision of income tax statute regarding exclusion from gross income of proceeds of life insurance received on death of insured, 133 A.L.R. 413 ; 170 A.L.R. 315 .

Income tax on stockholders in respect of undistributed profits of corporation, 133 A.L.R. 806 .

Time as of which value of property taken by remainderman is to be determined in ascertaining profit or loss from its sale for income tax purposes, 134 A.L.R. 1163 .

Income tax on gain or loss realized by partner upon sale of his interest in partnership, 144 A.L.R. 354 .

Provisions of income tax statutes as to inclusion of interest as applicable to interest on tax refunds, 147 A.L.R. 846 .

Trustor as subject to income tax in respect of income of irrevocable trust for charitable purposes, 148 A.L.R. 1236 .

What is an "income tax" within deduction provisions of income tax statute, 151 A.L.R. 983 .

Interest deductible in computing income tax, 154 A.L.R. 934 .

Income tax in respect of amount received by, or credited or accrued to, taxpayer who has returned, or may be required to return, it, or to cancel the credit which it represents, 154 A.L.R. 1276 .

Income tax: deductibility of expenses of one seeking public office or public or private employment, 155 A.L.R. 128 .

When dividends on corporate stock become taxable as income, 158 A.L.R. 1432 ; 167 A.L.R. 303 .

Income taxes: when deduction for traveling and living expenses while away from home on business may be claimed, 159 A.L.R. 1217 .

Character for tax purposes of arrangement whereby one obtains an annuity contract having a surrender value, or obtains at the same time a life insurance policy and an annuity or endowment contract, 159 A.L.R. 1336 .

Year as of which an assignment, in whole or in part, of unsettled claim against a third person becomes a realized gain for purposes of income tax of assignee, 162 A.L.R. 318 .

Right to deduct from taxable income as business expense share of profits of business which taxpayer has agreed to pay to another for property, 162 A.L.R. 836 .

Income tax of owner as affected by disposition of mortgaged premises, 162 A.L.R. 907 .

Right of owner of all shares of corporation or association taxable as corporation to have its income taxed as his personal income, 162 A.L.R. 996 .

Gain or loss on sale of business as computable on basis of sale of single piece of property or of separate fragments or ingredients, 162 A.L.R. 1041 .

Constitutionality, construction, and application of provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 166 A.L.R. 516 ; 42 A.L.R.2d 797.

Year in which corporate stock becomes worthless for purpose of deducting loss from taxpayer's income, 166 A.L.R. 716 .

Gains from unlawful business or transaction as subject of income tax, 166 A.L.R. 891 .

Liability of settlor for income tax in respect of income of short-term trust, or trust over which he retains control and management, 166 A.L.R. 1308 .

When dividends on corporate stock become taxable as income, 167 A.L.R. 303 .

What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943 .

Construction and application of provision of income tax statute regarding exclusion from gross income of proceeds of life insurance received on death of insured, 170 A.L.R. 315 .

Interest paid to assignee or donee of obligation, for period antedating assignment or transfer, as taxable income of assignor or donor, 174 A.L.R. 619 .

Income tax: recognition of gain or loss on receipt of public refunding bonds for old bonds, 1 A.L.R.2d 415.

Employee's acquisition of employer's commodities at discount or without cost as within sales or gross income tax statute, 1 A.L.R.2d 1020.

Income tax treatment of payment to spouse for relinquishment of inchoate marital rights in property of other spouse, 1 A.L.R.2d 1037.

Construction of provisions of Internal Revenue Code relating to alimony or maintenance payments, 4 A.L.R.2d 252.

Giving negotiable paper for debt as payment for purposes of federal income tax laws, 4 A.L.R.2d 1223.

Scope and application of term "other obligations" in federal statute exempting stocks, bonds, treasury notes and other obligations from taxation by or under state or municipal or local authority, 9 A.L.R.2d 521.

What constitute amounts received under workmen's compensation acts within exemption provisions of federal income tax law, 16 A.L.R.2d 1334.

What constitutes transaction entered into for profit for purposes of income tax deduction, 39 A.L.R.2d 878.

Constitutionality, construction, and application provisions of state tax law for conformity with federal income tax law or administrative and judicial interpretation, 42 A.L.R.2d 797.

Income tax consequences to shareholder of dividend in kind, 56 A.L.R.2d 474.

Tips as wages for purposes of Federal Labor Standards Act and state wage laws, 65 A.L.R.2d 974.

Payment of premiums by corporation on policy on life of stockholder as constituting taxable income to the insured, 73 A.L.R.2d 708.

Modern status of rules governing allocation of stock dividends or splits between principal and interest, 81 A.L.R.3d 876.

Decision to take foreign income taxes as federal credit under § 901 of the Internal Revenue Code (26 USCS § 901) as precluding their deduction for state income tax purposes, 77 A.L.R.4th 823.

Construction and application of state corporate income tax statutes allowing net operation loss deductions, 33 A.L.R.5th 509.

State income tax treatment of S corporations and their shareholders, 118 A.L.R.5th 597.

What constitutes trade or business under Internal Revenue Code (U.S.C.A. Title 26), 161 A.L.R. Fed. 245.

48-7-28. Reciprocity.

A resident individual who has an established business in another state, has investment in property having a taxable situs in another state, or engages in employment in another state may deduct from the tax due upon the entire net income of the resident individual the tax paid upon the net income of the business, investment, or employment in another state when the business, investment, or employment is in a state that levies a tax upon net income. In no case shall the credit permitted under this Code section exceed the tax which would be payable to this state upon a like amount of taxable income.

(Ga. L. 1931, Ex. Sess., p. 24, § 13; Code 1933, § 92-3111; Ga. L. 1957, p. 397, § 4; Ga. L. 1962, p. 703, § 2; Ga. L. 1963, p. 16, § 1; Code 1933, § 91A-3608, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

JUDICIAL DECISIONS

Scope of term "established business." - Term "established business" is broad enough to cover a business conducted or operated by the individual alone or a business operated by the individual and partners. Head v. Maxwell, 60 Ga. App. 488 , 4 S.E.2d 45 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 419 et seq.

C.J.S. - 85 C.J.S., Taxation, § 2074.

ALR. - Income tax: constitutionality, construction, and application of statutory provisions allowing credit for income tax paid to another state or country, 134 A.L.R. 1433 ; 12 A.L.R.2d 359.

What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943 .

Income tax: constitutionality, construction, and application of statutory provisions allowing credit for income tax paid to another state or country, 12 A.L.R.2d 359.

48-7-28.1. Tax benefit.

  1. If a taxpayer repays in the current tax year certain amounts of income that were subject to tax under this chapter in a prior year and a tax benefit would be allowed under similar circumstances under Section 1341 of the Internal Revenue Code, a tax benefit shall be allowed on the Georgia income tax return. The tax benefit shall be the reduced tax for the current tax year due to the deduction for the repaid income or the reduction in tax for the prior year or years due to the exclusion of the repaid income. The reduction in tax shall qualify as a refundable tax credit on the return for the current year.
  2. No credit will be allowed unless Georgia income tax was actually paid in the prior year or if the taxpayer was not subject to Georgia income tax. (Code 1981, § 48-7-28.1 , enacted by Ga. L. 1997, p. 525, § 1.)

Editor's notes. - Ga. L. 1997, p. 525, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1997.

48-7-28.2. Employer social security credits.

  1. As used in this Code section, the term "employer social security credit" means the employer social security credit defined in Section 45B(a) of the Internal Revenue Code of 1986, as amended.
  2. If an employer elects to take an employer social security credit pursuant to Section 38 of the Internal Revenue Code of 1986, as amended, the employer, in calculating Georgia taxable net income, shall be allowed a deduction equal to the employer social security credit. (Code 1981, § 48-7-28.2 , enacted by Ga. L. 1998, p. 580, § 1.)

Editor's notes. - Ga. L. 1998, p. 580, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1999.

U.S. Code. - Sections 38 and 45B of the Internal Revenue Code of 1986, referred to in this Code section, are codified as 26 U.S.C. §§ 38 and 45B, respectively.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

48-7-28.3. Expenses from transactions with related members.

  1. As used in this Code section, the term:
    1. "Comprehensive income tax treaty" means a convention or agreement, entered into by the United States and approved by Congress, with a foreign government for the allocation of all categories of income subject to taxation or the withholding of tax on interest, dividends, and royalties for the prevention of double taxation of the respective nations' residents and the sharing of information.
    2. "Corporation" means:
      1. A corporation incorporated under the laws of this state or incorporated or organized under the laws of any other state, territory, or nation; or
      2. A limited liability company treated as a corporation for federal income tax purposes or any other person treated as a corporation for federal income tax purposes. A limited liability company which is disregarded as a separate entity for income tax purposes shall also be disregarded as a separate entity for purposes of this Code section.
    3. "Foreign nation" means an established sovereign government that is recognized as such by the United States Department of State.
    4. "Intangible expenses and costs" means expenses, losses, and costs directly or indirectly for, related to, or in connection with the direct or indirect acquisition, use, maintenance, management, ownership, sale, exchange, or disposition of intangible property, to the extent such amounts are allowed as deductions or costs in determining taxable income before net operating loss deduction and special deductions for the taxable year under the Internal Revenue Code of 1986. The term includes but is not limited to:
      1. Royalty, patent, technical, and copyright fees;
      2. Licensing fees; and
      3. Other similar expenses and costs.
    5. "Intangible property" includes but is not limited to patents, patent applications, trade names, trademarks, service marks, copyrights, mask words, trade secrets, and similar types of intangible assets.
    6. "Interest expenses and costs" includes but is not limited to amounts directly or indirectly allowed as deductions under Section 163 of the Internal Revenue Code of 1986 for purposes of determining taxable income under the Internal Revenue Code of 1986 to the extent such expenses and costs are directly or indirectly for, related to, or in connection with the direct or indirect acquisition, use, maintenance, management, ownership, sale, exchange, or disposition of intangible property.
    7. "Related person" means:
      1. A stockholder who is an individual or a member of the stockholder's family enumerated in Section 318 of the Internal Revenue Code of 1986 if the stockholder and the members of the stockholder's family own, directly or indirectly, beneficially or constructively, in the aggregate at least 50 percent of the value of the taxpayer's outstanding stock;
      2. A stockholder, or a stockholder's partnerships, estate, trusts, or corporations, if the stockholder and the stockholder's partnerships, estate, trusts, and corporations own, directly or indirectly, beneficially or constructively, in the aggregate at least 50 percent of the value of the taxpayer's outstanding stock; or
      3. A corporation, or a person related to the corporation in a manner that would require an attribution of stock from the corporation to the person or from the person to the corporation under the attribution rules of Section 318 of the Internal Revenue Code of 1986, if the taxpayer owns, directly or indirectly, beneficially or constructively, at least 50 percent of the value of the corporation's outstanding stock.
      4. The attribution rules of Section 318 of the Internal Revenue Code of 1986 apply for purposes of determining whether the ownership requirements in subparagraphs (A) through (C) of this paragraph have been met.
      5. A limited liability company treated as a partnership for federal income tax purposes shall be considered a partnership for purposes of this paragraph and paragraph (8) of this subsection.
    8. "Related member" means a person, with respect to the taxpayer during all or any portion of the tax year:
      1. That is a related person;
      2. That is a component member as defined in Section 1563(b) of the Internal Revenue Code of 1986;
      3. To or from whom there would be required an attribution of stock ownership in accordance with Section 1563(e) of the Internal Revenue Code of 1986; or
      4. That, notwithstanding its form of organization, bears the same relationship to the taxpayer as a person described in subparagraphs (A) through (C) of this paragraph.
    9. "Valid business purpose" means one or more business purposes, other than the avoidance or reduction of taxation, which alone or in combination constitute the primary motivation for some business activity or transaction, which activity or transaction changes in a meaningful way, apart from tax effects, the economic position of the taxpayer. The economic position of the taxpayer includes an increase in the market share of the taxpayer, or the entry by the taxpayer into new business markets.
  2. For purposes of computing its Georgia taxable net income under Code Sections 48-7-21 and 48-7-27, a taxpayer shall add back otherwise deductible interest expenses and costs and intangible expenses and costs directly or indirectly paid, accrued, or incurred to, or in connection directly or indirectly with one or more direct or indirect transactions with, one or more related members. Such expenses and costs shall be added before the income is apportioned or allocated as provided by Code Section 48-7-31.
  3. The commissioner shall have the authority to reverse in whole or in part the adjustments required in subsection (b) of this Code section when the taxpayer and the commissioner agree in writing to the application or use of an alternative method of apportionment under subparagraph (d)(2)(C) of Code Section 48-7-31, Code Section 48-7-35, or Code Section 48-7-31.1. Nothing in this Code section shall be construed to limit or negate the commissioner's authority otherwise to enter into agreements and compromises otherwise allowed by law.
    1. For purposes of this subsection, the term:
      1. "Allocated or apportioned, or both" does not mean the amount of income that is subject to allocation or apportionment, or both. Rather it means the amount that is arrived at after applying the allocation and apportionment rules of a state as defined in subparagraph (B) of this paragraph. A tax or the portion of a tax, which is or would be imposed regardless of the amount of the income, shall not be considered to be a tax on or measured by the income of the related member.
      2. "State" means a state in the United States of America, including the District of Columbia, but does not include those states under whose laws the taxpayer files with the related member, or the related member files with another related member, a combined income tax report or return, a consolidated income tax report or return, or any other report or return where such report or return is due because of the imposition of a tax on, or measured by, income and where such combined income tax report or return, consolidated income tax report or return, or other report or return results in the elimination of the tax effects from transactions directly or indirectly between the taxpayer and the related member.
    2. The amount of the adjustment required by subsection (b) of this Code section shall be reduced, but not below zero, to the extent the corresponding interest expenses and costs and intangible expenses and costs:
      1. Are received as income in an arm's length transaction by the related member; and
      2. Such income is allocated or apportioned, or both, to and taxed by Georgia or another state that imposes a tax on or measured by the income of the related member.
    3. In claiming the exception allowed by this subsection, the taxpayer shall disclose on its return, with respect to the related member, the name of the related member, the federal identification number of the related member, the name of each state, the amount of the interest expenses and costs and intangible expenses and costs allocated or apportioned to and taxed by each state for such related member, and such other information as the commissioner may prescribe.
    1. The adjustment required by subsection (b) of this Code section shall be reduced, but not below zero, if and to the extent:
      1. The interest expenses and costs and intangible expenses and costs are paid, accrued, or incurred to a related member domiciled in a foreign nation which has in force a comprehensive income tax treaty with the United States;
      2. The transaction giving rise to the interest expenses and costs and intangible expenses and costs has a valid business purpose; and
      3. The amounts of such interest expenses and costs and intangible expenses and costs were determined at arm's length rates.
    2. In claiming the exception allowed by this subsection, the taxpayer shall disclose on its return:
      1. The name and federal identification number of the related member;
      2. The amount of the interest expenses and costs and intangible expenses and costs;
      3. The country of domicile of the related member; and
      4. Such other information as the commissioner may prescribe.
  6. The adjustment required in subsection (b) of this Code section shall not apply to the portion of interest expenses and costs and intangible expenses and costs that the taxpayer establishes by a preponderance of the evidence that meets both of the following:
    1. The related member during the same taxable year directly or indirectly paid, accrued, or incurred such portion to a person that is not a related member; and
    2. The transaction giving rise to the interest expenses and costs and intangible expenses and costs has a valid business purpose.
  7. Nothing in this Code section shall require a taxpayer to add to its Georgia taxable net income more than once any amount of interest expenses and costs and intangible expenses and costs that the taxpayer pays, accrues, or incurs to a related member.
  8. Nothing in this Code section shall be construed to limit or negate the commissioner's authority to make adjustments under Code Section 48-7-58.
  9. The adjustment required by this Code section shall apply to a corporation that files a separate return with Georgia and to the separate taxable income computation of each member of a Georgia consolidated return.
  10. In addition to other penalties imposed by this title, the penalty for failure to make the adjustment required by this Code section shall be 10 percent of the additional tax that results because of this Code section. The commissioner may waive this penalty pursuant to the provisions of Code Section 48-2-43.
  11. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to effectuate this Code section. (Code 1981, § 48-7-28.3 , enacted by Ga. L. 2004, p. 30, § 3.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2013, "subparagraph (d)(2)(C)" was substituted for "subparagraph (d)(2)(E)" in subsection (c).

Editor's notes. - Ga. L. 2004, p. 30, § 7(a), not codified by the General Assembly, provides that this Code section applies to all taxable years beginning on or after January 1, 2006.

48-7-28.4. Adjustments to taxes; disallowing expenses paid to certain real estate investment trusts; procedures, conditions, and limitations.

  1. As used in this Code section, the term:
    1. "Association taxable as a corporation" does not include:
      1. A real estate investment trust other than a captive real estate investment trust;
      2. Any qualified real estate investment trust subsidiary under Section 856(i) of the Internal Revenue Code of 1986, as amended, other than a qualified REIT subsidiary of a captive real estate investment trust;
      3. Any Listed Australian Property Trust, meaning an Australian unit trust registered as a "Managed Investment Scheme" under the Australian Corporations Act in which the principal class of units is listed on a recognized stock exchange in Australia and is regularly traded on an established securities market, or an entity organized as a trust, provided that a Listed Australian Property Trust owns or controls, directly or indirectly, 75 percent or more of the voting power or value of the beneficial interests or shares of such trust; or
      4. Any qualified foreign entity, meaning a corporation, trust, association or partnership organized outside the laws of the United States and which satisfies the following criteria:
        1. At least 75 percent of the entity's total asset value at the close of its taxable year is represented by real estate assets, as defined at Section 856(c)(5)(B) of the Internal Revenue Code of 1986, as amended, thereby including shares or certificates of beneficial interest in any real estate investment trust, cash and cash equivalents, and United States government securities;
        2. The entity is not subject to tax on amounts distributed to its beneficial owners, or is exempt from entity-level taxation;
        3. The entity distributes at least 85 percent of its taxable income, as computed in the jurisdiction in which it is organized, to the holders of its shares or certificates of beneficial interest on an annual basis;
        4. Not more than 10 percent of the voting power or value in such entity is held directly or indirectly or constructively by a single entity or individual, or the shares or beneficial interests of such entity are regularly traded on an established securities market; and
        5. The entity is organized in a country which has a tax treaty with the United States.
    2. "Captive real estate investment trust" means any real estate investment trust the shares or beneficial interests of which are not regularly traded on an established securities market and more than 50 percent of the voting power or value of the shares or beneficial interests of which are owned or controlled, directly or indirectly or constructively, by a single entity that is:
      1. Treated as an association taxable as a corporation under the Internal Revenue Code of 1986, as amended; and
      2. Not exempt from federal income tax pursuant to the provisions of Section 501(a) of the Internal Revenue Code of 1986, as amended.
    3. "Dividends paid deduction" means the deduction for dividends paid which is allowed pursuant to Sections 561 through 565 and Sections 856 through 859 of the Internal Revenue Code of 1986, as amended.
    4. "Real estate investment trust" means an entity that has elected such status for federal income tax purposes and meets the requirements of Section 856 of the Internal Revenue Code of 1986, as amended.
    5. "Related member" means the same as is defined in Code Section 48-7-28.3.
  2. For purposes of computing Georgia taxable net income under Code Sections 48-7-21 and 48-7-27, a taxpayer shall add back all expenses and costs directly or indirectly paid, accrued, or incurred to a captive real estate investment trust. Such expenses and costs shall be added back before the income is apportioned or allocated as provided by Code Section 48-7-31.
  3. The amount of the adjustment required by subsection (b) of this Code section shall be reduced, but not below zero, to the extent the corresponding expenses and costs received as income by the captive real estate investment trust are reduced by expenses paid, accrued, or incurred to persons that are not related members, and such expenses shall be allowed in computing the captive real estate investment trust's federal taxable income.
  4. The commissioner shall have the authority to reverse in whole or in part the adjustments required in subsection (b) of this Code section when the taxpayer and the commissioner agree in writing to the application or use of an alternative method of apportionment under subparagraph (d)(2)(C) of Code Section 48-7-31, Code Section 48-7-35, or Code Section 48-7-31.1. Nothing in this Code section shall be construed to limit or negate the commissioner's authority otherwise to enter into agreements and compromises otherwise allowed by law.
    1. For purposes of this subsection, the term:
      1. "Allocated or apportioned, or both" means the amount of income that is arrived at after applying the allocation and apportionment rules of a state.  A tax or the portion of a tax, which is or would be imposed regardless of the amount of the income, shall not be considered to be a tax on or measured by the income of the captive real estate investment trust.  The term shall not mean the amount of income that is subject to allocation or apportionment, or both.
      2. "State" means a state in the United States of America, including the District of Columbia, but does not include those states under whose laws the taxpayer files with the captive real estate investment trust, or the captive real estate investment trust files with another related member, a combined income tax report or return, a consolidated income tax report or return, or any other report or return where such report or return is due because of the imposition of a tax on, or measured by, income and where such combined income tax report or return, consolidated income tax report or return, or other report or return results in the elimination of the tax effects from transactions directly or indirectly between the taxpayer and the captive real estate investment trust or between the captive real estate investment trust and another related member.
    2. The amount of the adjustment required by subsection (b) of this Code section shall be reduced, but not below zero, to the extent the corresponding expenses and costs are received as income in an arm's length transaction by the captive real estate investment trust and to the extent such income is allocated or apportioned, or both, to and taxed by Georgia or another state that imposes a tax on or measured by the income of the captive real estate investment trust. For purposes of this paragraph, the corresponding expenses and costs shall not be considered to have been received as income by the captive real estate investment trust to the extent such income is reduced, in computing the income of the captive real estate investment trust in Georgia or another state, by the dividends paid deduction or by expenses paid, accrued, or incurred to persons that are not related members, or both.
    3. In claiming the exception allowed by this subsection, the taxpayer shall disclose on its return, with respect to the captive real estate investment trust, the name, the federal identification number, the name of each state, the amount of the expenses and costs allocated or apportioned to and taxed by each state, and such other information as the commissioner may prescribe.
  6. Nothing in this Code section shall require a taxpayer to add to its Georgia taxable net income more than once any amount of expenses and costs that the taxpayer pays, accrues, or incurs to a captive real estate investment trust.
  7. Nothing in this Code section shall be construed to limit or negate the commissioner's authority to make adjustments under Code Section 48-7-58.
  8. Except as otherwise provided in this Code section, a real estate investment trust that is intended to be regularly traded on an established securities market, and that satisfies the requirements of Section 856(a)(5) and (6) of the Internal Revenue Code of 1986, as amended, by reason of Section 856(h)(2) of the Internal Revenue Code of 1986, as amended, shall not be deemed a captive real estate investment trust within the meaning of this Code section.
  9. A real estate investment trust that does not become regularly traded on an established securities market within one year of the date on which it first becomes a real estate investment trust shall be deemed not to have been regularly traded on an established securities market, retroactive to the date it first became a real estate investment trust. For purposes of this subsection, a real estate investment trust becomes a real estate investment trust on the first day that it has both met the requirements of Section 856 of the Internal Revenue Code of 1986, as amended, and has elected to be treated as a real estate investment trust pursuant to Section 856(c)(1) of the Internal Revenue Code of 1986, as amended.
  10. For purposes of this Code section, the constructive ownership rules of Section 318(a) of the Internal Revenue Code of 1986, as amended, as modified by Section 856(d)(5) of the Internal Revenue Code of 1986, as amended, shall apply in determining the ownership of stock, assets, or net profits of any person.
  11. The adjustment required by this Code section shall apply to a corporation that files a separate return with Georgia and to the separate taxable income computation of each member of a Georgia consolidated return.
  12. In addition to other penalties imposed by this title, the penalty for failure to make the adjustment required by this Code section shall be 10 percent of the additional tax that results because of this Code section. The commissioner may waive this penalty pursuant to the provisions of Code Section 48-2-43.
  13. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to effectuate this Code section. (Code 1981, § 48-7-28.4 , enacted by Ga. L. 2009, p. 796, § 3/HB 379; Ga. L. 2013, p. 141, § 48/HB 79.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, a comma was deleted following "as amended" at the end of subsection (i).

Editor's notes. - Ga. L. 2009, p. 796, § 4/HB 379, not codified by the General Assembly, provides, in part, that this Code section shall be applicable to all taxable years beginning on or after January 1, 2010.

Administrative Rules and Regulations. - Captive real estate investment trust expenses and costs, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Substantive Regulations, § 560-7-3-.04.

48-7-29. Tax credits for rural physicians.

  1. As used in this Code section, the term:
    1. "Rural county" means a county in this state that has 65 persons per square mile or fewer according to the United States decennial census of 1990 or any future such census.
    2. "Rural hospital" means an acute-care hospital located in a rural county that contains fewer than 100 beds.
    3. "Rural physician" means a physician licensed to practice medicine in this state, who practices in a rural county and resides in a rural county or a county contiguous to the rural county in which such physician practices and primarily admits patients to a rural hospital and practices in the fields of family practice, obstetrics and gynecology, pediatrics, internal medicine, or general surgery.
    1. A person qualifying as a rural physician shall be allowed a credit against the tax imposed by Code Section 48-7-20 in an amount not to exceed $5,000.00. The tax credit may be claimed for not more than five years, provided that the physician continues to qualify as a rural physician. In no event shall the amount of the tax credit exceed the taxpayer's income tax liability, and any unused tax credit shall not be allowed to be carried forward to apply to the taxpayer's succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
    2. No physician who on July 1, 1995, is currently practicing in a rural county shall be eligible to receive the credit provided for in paragraph (1) of this subsection. No credit shall be allowed for a physician who has previously practiced in a rural county, unless, after July 1, 1995, that physician returns to practice in a rural county after having practiced in a nonrural county for at least three years.
  3. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29 , enacted by Ga. L. 1995, p. 960, § 1; Ga. L. 2002, p. 1478, § 1.)

Editor's notes. - Ga. L. 1987, p. 191, § 2, effective March 11, 1987, repealed former Code Section 48-7-29. The former Code section was based on Ga. L. 1977, p. 772, § 1; Ga. L. 1978, p. 309, § 2; and Ga. L. 1979, p. 5, § 68, and related to child care credit and credit for household and dependent care expenses.

Ga. L. 1995, p. 960, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1996.

Ga. L. 2002, p. 1478, § 2, not codified by the General Assembly, provides that the amendments to paragraphs (a)(2) and (a)(3) are applicable to all taxable years beginning on or after January 1, 2003.

Administrative Rules and Regulations. - Rural physician credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-8-.20.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

48-7-29.1. Retrofitting certain single-family homes with accessibility features.

  1. As used in this Code section, the term:
    1. "Accessibility features" means:
      1. One no-step entrance allowing access into the residence;
      2. Interior passage doors providing a 32 inch wide clear opening;
      3. Reinforcements in bathroom walls allowing later installation of grab bars around the toilet, tub, and shower, where such facilities are provided; and
      4. Light switches and outlets placed in accessible locations.
    2. "Taxpayer" means a permanently disabled person who has been issued a permanent permit under subsection (c) of Code Section 40-2-74.1 or a person who has been issued a special permanent permit under subsection (e) of Code Section 40-2-74.1.
  2. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 as follows:
    1. In the amount of $500.00 with respect to the purchase during that taxable year of a new, single-family home containing all of the accessibility features defined under subsection (a) of this Code section; or
    2. For qualifying expenditures made to retrofit an existing, single-family home with one or more accessibility features as defined under subsection (a) of this Code section, a credit shall be allowed with respect to each such accessibility feature in the amount of $125.00 or the actual cost of such accessibility feature, whichever is lower, provided that the aggregate amount of such credit under this paragraph for such accessibility features shall not exceed $500.00.
  3. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed $500.00 per residence or the taxpayer's income tax liability, whichever is less. Any unused tax credit shall be allowed to be carried forward to apply to the taxpayer's next three succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
  4. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.1 , enacted by Ga. L. 1998, p. 599, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2013, "Code Section 40-2-74.1" was substituted for "Code Section 40-6-222" twice in paragraph (a)(2).

Editor's notes. - Ga. L. 1987, p. 191, § 2 repealed former Code Section 48-7-29.1, relating to work place modification credit, effective March 11, 1987.

Ga. L. 1998, p. 599, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1999.

Administrative Rules and Regulations. - Disabled person home purchase or retrofit credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-8-.44.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

48-7-29.2. Tax credit for qualified caregiving expenses.

  1. As used in this Code section, the term:
    1. "Qualified caregiving expenses" means payments by the taxpayer for home health agency services, personal care services, personal care attendant services, homemaker services, adult day care, respite care, or health care equipment and supplies which equipment and supplies have been determined to be medically necessary by a physician which services, care, or equipment and supplies are:
      1. Provided to the qualifying family member; and
      2. Purchased or obtained from an organization or individual not related to the taxpayer or the qualifying family member.
    2. "Qualifying family member" means the taxpayer or an individual who is related to the taxpayer by blood, marriage, or adoption and who:
      1. Is at least 62 years of age; or
      2. Has been determined to be disabled by the Social Security Administration.
  2. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 for qualified caregiving expenses in an amount not to exceed 10 percent of the total amount expended for qualified caregiving expenses. No taxpayer shall be entitled to such credit with respect to the same qualified caregiving expenses claimed by another taxpayer.
  3. In no event shall the amount of the tax credit exceed $150.00 or the taxpayer's income tax liability, whichever is less. Any unused tax credit shall not be allowed to be carried forward to apply to the taxpayer's succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
  4. No credit shall be allowed under this Code section with respect to any qualifying caregiving expenses either deducted or subtracted by the taxpayer in arriving at Georgia taxable net income or with respect to any qualified caregiving expenses for which amounts were excluded from Georgia taxable net income.
  5. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.2 , enacted by Ga. L. 1998, p. 927, § 1; Ga. L. 2002, p. 415, § 48.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, Code Section 48-7-29.1 as enacted by Ga. L. 1998, p. 927, § 1, was redesignated as Code Section 48-7-29.2.

Editor's notes. - Ga. L. 1987, p. 191, § 2 repealed former Code Section 48-7-29.2, relating to solar energy credit, effective March 11, 1987.

Ga. L. 1998, p. 927, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1999.

Administrative Rules and Regulations. - Qualified caregiving expense credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-8-.43.

48-7-29.3. (Repealed effective December 31, 2018) Tax credit for federal qualified transportation fringe benefits.

  1. As used in this Code section, the term "federal qualified transportation fringe benefit" means only the following transportation benefits provided by an employer to any employee as provided in Section 132(f) of the Internal Revenue Code of 1986, as amended:
    1. Transportation in a commuter highway vehicle if such transportation is in connection with travel between the employee's residence and place of employment;
    2. Any transit pass;
    3. Qualified parking on or near a location from which the employee commutes to work by transportation described in paragraph (1) of this subsection, in a commuter highway vehicle, or by carpool. Qualified parking shall not include parking provided to an employee on or near the business premises of the employer and shall not include any parking on or near property used by the employee for residential purposes.
  2. A taxpayer shall be allowed a state income tax credit against the tax imposed by this chapter for any federal qualified transportation fringe benefit provided by the taxpayer to an employee which benefit is in addition to and not in lieu of compensation otherwise payable to the employee, in an amount equal to $25.00 per employee receiving such benefit; provided, however, that in no event shall the total amount of such tax credit exceed the annual amount expended by such employer in providing such federal qualified transportation fringe benefits to such employees.
  3. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed to be carried forward to apply to the taxpayer's next three succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
  4. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. Such rules and regulations shall include, but not be limited to, a minimum required usage of ten workdays per month of the federal qualified transportation fringe benefit provided to the employee in order to obtain the credit authorized under this Code section.
  5. This Code section shall stand repealed on December 31, 2018. (Code 1981, § 48-7-29.3 , enacted by Ga. L. 1999, p. 651, § 1; Ga. L. 2000, p. 1294, § 1; Ga. L. 2018, p. 113, § 2/SB 328.)

The 2018 amendment, effective March 27, 2018, added subsection (e). See Editor's notes for applicability.

Editor's notes. - Ga. L. 1999, p. 651, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2018, p. 113, § 3/SB 328, provides for the repeal of this Code section effective December 31, 2018.

Ga. L. 2018, p. 113, § 5/SB 328, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall be applicable to all taxable years beginning on or after January 1, 2018.

U.S. Code. - Section 132 of the Internal Revenue Code of 1986, referred to in subsection (a), is codified at 26 U.S.C. § 132.

48-7-29.4. Tax credit for disaster assistance funds received; rules and regulations.

  1. A taxpayer who receives disaster assistance during a taxable year from the Georgia Emergency Management and Homeland Security Agency or the Federal Emergency Management Agency shall be allowed a credit against the tax imposed by Code Section 48-7-20 in an amount equal to $500.00 or the actual amount of such disaster assistance, whichever is less. The commissioner may require adequate supporting documentation showing that the taxpayer received such assistance.
  2. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed the taxpayer against succeeding years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
  3. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section. (Code 1981, § 48-7-29.4 , enacted by Ga. L. 2000, p. 410, § 1; Ga. L. 2016, p. 91, § 21/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" the first sentence of subsection (a).

Cross references. - Emergency management, T. 38, C. 3.

Code Commission notes. - Ga. L. 2000, p. 410, § 1; Ga. L. 2000, p. 451, § 1; Ga. L. 2000, p. 845, § 1; and Ga. L. 2000, p. 1445, § 2 each enacted a Code Section 48-7-29.4. Pursuant to Code Section 28-9-5, in 2000, the Code section enacted by Ga. L. 2000, p. 451, § 1 was redesignated as Code Section 48-7-29.5, the Code section enacted by Ga. L. 2000, p. 845, § 1 was redesignated as Code Section 48-7-29.6, and the Code section enacted by Ga. L. 2000, p. 1445, § 2 was redesignated as Code Section 48-7-29.7.

Editor's notes. - Ga. L. 2000, p. 410, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2000.

48-7-29.5. (Repealed effective December 31, 2018) Tax credit for private driver education courses of minors; required documentation; rules and regulations.

  1. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 with respect to the amount expended by such taxpayer for a completed course of driver education for a dependent minor child of such taxpayer at a private driver training school licensed by the Department of Driver Services under Chapter 13 of Title 43, "The Driver Training School and Commercial Driver Training School License Act," except as otherwise provided by this Code section. The amount of such tax credit per dependent minor child of a taxpayer shall be the actual amount expended for such course, or $150.00, whichever is less.
    1. The tax credit provided by this Code section shall be allowed not more than once for each dependent minor child of a taxpayer.
    2. In no event shall the aggregate amount of the tax credit provided by this Code section exceed the taxpayer's income tax liability.
  3. No credit shall be allowed under this Code section with respect to any driver education expenses either deducted or subtracted by the taxpayer in arriving at Georgia taxable net income or with respect to any driver education expenses for which amounts were excluded from Georgia net taxable income.
  4. No credit shall be allowed under this Code section unless the taxpayer has obtained written proof of the successful completion of the course of driver education by the dependent minor child and the amount expended by the taxpayer for such course.
  5. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section.
  6. This Code section shall stand repealed on December 31, 2018. (Code 1981, § 48-7-29.5 , enacted by Ga. L. 2000, p. 451, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2005, p. 334, § 29-4/HB 501; Ga. L. 2008, p. 898, § 8/HB 1151; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 113, § 3/SB 328.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "The Driver Training School and Commercial Driver Training School License Act" for "The Driver Training School License Act" at the end of the first sentence in subsection (a).

The 2018 amendment, effective March 27, 2018, added subsection (f). See Editor's notes for applicability.

Cross references. - Driver education course accepted for Carnegie unit elective credits, § 20-2-151.2 .

Grants for driver education courses for secondary school students, § 20-2-257 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, this Code section, enacted as Code Section 48-7-29.4, was redesignated as Code Section 48-7-29.5.

Editor's notes. - Ga. L. 2000, p. 451, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2018, p. 113, § 3/SB 328, provides for the repeal of this Code section effective December 31, 2018.

Ga. L. 2018, p. 113, § 5/SB 328, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall be applicable to all taxable years beginning on or after January 1, 2018.

48-7-29.6. Tax credit for qualified low-income building.

  1. As used in this Code section, the term:
    1. "Federal housing tax credit" means the federal tax credit as provided in Section 42 of the Internal Revenue Code of 1986, as amended.
    2. "Median income" means those incomes that are determined by the federal Department of Housing and Urban Development guidelines and adjusted for family size.
    3. "Project" means a housing project that has restricted rents that do not exceed 30 percent of median income for at least 40 percent of its units occupied by persons or families having incomes of 60 percent or less of the median income, or at least 20 percent of the units occupied by persons or families having incomes of 50 percent or less of the median income.
    4. "Qualified basis" means that portion of the tax basis of a qualified Georgia project eligible for the federal housing tax credit, as that term is defined in Section 42 of the Internal Revenue Code of 1986, as amended.
    5. "Qualified Georgia project" means a qualified low-income building as that term is defined in Section 42 of the Internal Revenue Code of 1986, as amended, that is located in Georgia.
    1. A state tax credit against the tax imposed by this article, to be termed the Georgia housing tax credit, shall be allowed with respect to each qualified Georgia project placed in service after January 1, 2001. The amount of such credit shall, when combined with the total amount of credits authorized under Code Section 33-1-18, in no event exceed an amount equal to the federal housing tax credit allowed with respect to such qualified Georgia project.
      1. If under Section 42 of the Internal Revenue Code of 1986, as amended, a portion of any federal housing tax credit taken on a project is required to be recaptured as a result of a reduction in the qualified basis of such project, the taxpayer claiming any state tax credit with respect to such project shall also be required to recapture a portion of any state tax credit authorized by this Code section. The state recapture amount shall be equal to the proportion of the state tax credit claimed by the taxpayer that equals the proportion the federal recapture amount bears to the original federal housing tax credit amount subject to recapture. The tax credit under this Code section shall not be subject to recapture if such recapture is due solely to the sale or transfer of any direct or indirect interest in such qualified Georgia project.
      2. In the event that recapture of any Georgia housing tax credit is required, any amended return submitted to the commissioner as provided in this Code section shall include the proportion of the state tax credit required to be recaptured, the identity of each taxpayer subject to the recapture, and the amount of tax credit previously allocated to such taxpayer.
    3. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed to be carried forward to apply to the taxpayer's next three succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
    4. The tax credit allowed under this Code section, and any recaptured tax credit, shall be allocated among some or all of the partners, members, or shareholders of the entity owning the project in any manner agreed to by such persons, whether or not such persons are allocated or allowed any portion of the federal housing tax credit with respect to the project.
  3. The commissioner and the state department designated by the Governor as the state housing credit agency for purposes of Section 42(h) of the Internal Revenue Code of 1986, as amended, shall each be authorized to promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.6 , enacted by Ga. L. 2000, p. 845, § 1; Ga. L. 2001, p. 1098, § 2; Ga. L. 2001, p. 1181, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, this Code section, enacted as Code Section 48-7-29.4, was redesignated as Code Section 48-7-29.6.

Editor's notes. - Ga. L. 2000, p. 845, § 2, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2001, p. 1181, § 3, effective January 1, 2002, not codified by the General Assembly, provides that the 2001 amendment shall be applicable to all taxable years beginning on or after January 1, 2002.

48-7-29.7. Tax credit for depository financial institutions.

  1. There shall be a dollar-for-dollar credit against the state income tax liability of depository financial institutions which shall be equal to the amount of taxes, if any, paid by such taxpayers pursuant to Code Section 48-6-93 and Code Section 48-6-95. If the liability of any such institutions under the taxes authorized by Code Section 48-6-93 and Code Section 48-6-95 exceeds the income tax liability of such institution for any year, the amount of any unused credit under this Code section may be credited over a period of five years from the tax year in which the unused credit arose. If the assets of an institution are acquired by another institution in a transaction described in Section 381(a) of the Internal Revenue Code of 1986, the acquiring institution shall succeed to and take into account any unused credit of the distributor or transferor institution. If a depository financial institution has elected Subchapter "S" status pursuant to the conditions specified in subparagraph (b)(7)(B) of Code Section 48-7-21, the credits authorized by this subsection may be passed through on a pro rata basis to the institution's shareholders. If the amount of any such pro rata credit exceeds a shareholder's individual income tax liability, then such unused credit may be credited over a period of five years from the tax year in which the unused credit arose. No such credit shall be allowed the taxpayer against prior years' tax liability.
  2. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section. (Code 1981, § 48-7-29.7 , enacted by Ga. L. 2000, p. 1445, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, this Code section, enacted as Code Section 48-7-29.4, was redesignated as Code Section 48-7-29.7.

Editor's notes. - Ga. L. 2000, p. 1445, § 5, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2001.

48-7-29.8. (Effective until December 31, 2021) Tax credits for the rehabilitation of historic structures; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Certified rehabilitation" means repairs or alterations to a certified structure which are certified by the Department of Natural Resources as meeting the United States Secretary of the Interior's Standards for Rehabilitation or the Georgia Standards for Rehabilitation as provided by the Department of Natural Resources.
    2. "Certified structure" means a historic building or structure that is located within a national historic district, individually listed on the National Register of Historic Places, individually listed in the Georgia Register of Historic Places, or is certified by the Department of Natural Resources as contributing to the historic significance of a Georgia Register Historic District.
    3. "Historic home" means a certified structure which, or any portion of which is or will, within a reasonable period, be owned and used as the principal residence of the person claiming the tax credit allowed under this Code section. Historic home shall include any structure or group of structures that constitute a multifamily or multipurpose structure, including a cooperative or condominium. If only a portion of a building is used as such person's principal residence, only those qualified rehabilitation expenditures that are properly allocable to such portion shall be deemed to be made to a historic home.
    4. "Qualified rehabilitation expenditure" means any qualified rehabilitation expenditure as defined by Section 47(c)(2) of the Internal Revenue Code of 1986 and any amount properly chargeable to a capital account expended in the substantial rehabilitation of a structure that by the end of the taxable year in which the certified rehabilitation is completed is a certified structure. This term does not include the cost of acquisition of the certified structure, the cost attributable to enlargement or additions to an existing building, site preparation, or personal property.
    5. "Substantial rehabilitation" means rehabilitation of a certified structure for which the qualified rehabilitation expenditures, at least 5 percent of which must be allocable to the exterior during the 24 month period selected by the taxpayer ending with or within the taxable year, exceed:
      1. For a historic home, the lesser of $25,000.00 or 50 percent of the adjusted basis of the property as defined in subparagraph (a)(1)(B) of Code Section 48-5-7.2; or, in the case of a historic home located in a target area, $5,000.00; or
      2. For any other certified structure, the greater of $5,000.00 or the adjusted basis of the property.
    6. "Target area" means a qualified census tract under Section 42 of the Internal Revenue Code of 1986, found in the United States Department of Housing and Urban Development document number N-94-3821; FR-3796-N-01.
  2. A taxpayer shall be allowed a tax credit against the tax imposed by this chapter for the taxable year in which the certified rehabilitation is completed:
    1. In the case of a historic home, equal to 25 percent of qualified rehabilitation expenditures, except that, in the case of a historic home located within a target area, an additional credit equal to 5 percent of qualified rehabilitation expenditures shall be allowed; and
    2. In the case of any other certified structure, equal to 25 percent of qualified rehabilitation expenditures.

      Qualified rehabilitation expenditures may only be counted once in determining the amount of the tax credit available, and more than one entity may not claim a credit for the same qualified rehabilitation expenditures.

    1. In no event shall credits for a historic home exceed $100,000.00 in any 120 month period.
    2. The maximum credit for any other individual certified structure shall be $5 million for any taxable year, except in the case that the project creates 200 or more full-time, permanent jobs or $5 million in annual payroll within two years of the placed in service date, in which case the project is eligible for credits up to $10 million for an individual certified structure. In no event shall more than one application for any individual certified structure under this paragraph be approved in any 120 month period.
    3. In no event shall credits issued under this Code section for projects earning more than $300,000.00 in credits exceed in the aggregate $25 million per calendar year.
    1. A taxpayer seeking to claim a tax credit under paragraph (2) of subsection (b) of this Code section shall submit an application to the commissioner for preapproval of such tax credit. Such application shall include a precertification from the Department of Natural Resources certifying that the improvements to the certified structure are to be consistent with the Department of Natural Resources Standards for Rehabilitation. The Department shall have the authority to require electronic submission of such application in the manner specified by the department. The commissioner shall preapprove the tax credits within 30 days based on the order in which properly completed applications were submitted. In the event that two or more applications were submitted on the same day and the amount of funds available will not be sufficient to fully fund the tax credits requested, the commissioner shall prorate the available funds between or among the applicants. For applications on projects over the annual $25 million limitation, those applications shall be given priority the following year.
    2. In order to be eligible to receive the credit authorized under subsection (b) of this Code section, a taxpayer must attach to the taxpayer's state tax return a copy of the completed certification of the Department of Natural Resources verifying that the improvements to the certified structure are consistent with the Department of Natural Resources Standards for Rehabilitation.
    1. If the credit allowed under paragraph (1) of subsection (b) of this Code section in any taxable year exceeds the total tax otherwise payable by the taxpayer for that taxable year, the taxpayer may apply the excess as a credit for succeeding years until the earlier of:
      1. The full amount of the excess is used; or
      2. The expiration of the tenth taxable year after the taxable year in which the certified rehabilitation has been completed.
    2. Any tax credits with respect to credits earned by a taxpayer under paragraph (2) of subsection (b) of this Code section and previously claimed but not used by such taxpayer against its income tax may be transferred or sold in whole or in part by such taxpayer to another Georgia taxpayer, subject to the following conditions:
      1. A taxpayer who makes qualified rehabilitation expenditures may sell or assign all or part of the tax credit that may be claimed for such costs and expenses to one or more entities, but no further sale or assignment of any credit previously sold or assigned pursuant to this subparagraph shall be allowed. All such transfers shall be subject to the maximum total limits provided by subsection (c) of this Code section;
      2. A taxpayer who sells or assigns a credit under this Code section and the entity to which the credit is sold or assigned shall jointly submit written notice of the sale or assignment to the department not later than 30 days after the date of the sale or assignment. The notice must include:
        1. The date of the sale or assignment;
        2. The amount of the credit sold or assigned;
        3. The names and federal tax identification numbers of the entity that sold or assigned the credit or part of the credit and the entity to which the credit or part of the credit was sold or assigned; and
        4. The amount of the credit owned by the selling or assigning entity before the sale or assignment and the amount the selling or assigning entity retained, if any, after the sale or assignment;
      3. The sale or assignment of a credit in accordance with this Code section does not extend the period for which a credit may be carried forward and does not increase the total amount of the credit that may be claimed. After an entity claims a credit for eligible costs and expenses, another entity may not use the same costs and expenses as the basis for claiming a credit; and
      4. Notwithstanding the requirements of this subsection, a credit earned or purchased by, or assigned to, a partnership, limited liability company, Subchapter "S" corporation, or other pass-through entity may be allocated to the partners, members, or shareholders of that entity and claimed under this Code section in accordance with the provisions of any agreement among the partners, members, or shareholders of that entity and without regard to the ownership interest of the partners, members, or shareholders in the rehabilitated certified structure, provided that the entity or person that claims the credit must be subject to Georgia tax.
      5. Only a taxpayer who earned a credit, and no subsequent good faith transferee, shall be responsible in the event of a recapture, reduction, disallowance, or other failure related to such credit.
    3. No such credit shall be allowed the taxpayer against prior years' tax liability.
  6. In the case of any rehabilitation which may reasonably be expected to be completed in phases set forth in architectural plans and specifications completed before the rehabilitation begins, a 60 month period may be substituted for the 24 month period provided for in paragraph (5) of subsection (a) of this Code section.
    1. Except as otherwise provided in subsection (h) of this Code section, in the event a tax credit under this Code section has been claimed and allowed the taxpayer, upon the sale or transfer of the certified structure, the taxpayer shall be authorized to transfer the remaining unused amount of such credit to the purchaser of such certified structure. If a historic home for which a certified rehabilitation has been completed by a nonprofit corporation is sold or transferred, the full amount of the credit to which the nonprofit corporation would be entitled if taxable shall be transferred to the purchaser or transferee at the time of sale or transfer.
    2. Such purchaser shall be subject to the limitations of subsection (e) of this Code section. Such purchaser shall file with such purchaser's tax return a copy of the approval of the rehabilitation by the Department of Natural Resources as provided in subsection (d) of this Code section and a copy of the form evidencing the transfer of the tax credit.
    3. Such purchaser shall be entitled to rely in good faith on the information contained in and used in connection with obtaining the approval of the credit including, without limitation, the amount of qualified rehabilitation expenditures.
    1. If an owner other than a nonprofit corporation sells a historic home within three years of receiving the credit, the seller shall recapture the credit to the Department of Revenue as follows:
      1. If the property is sold within one year of receiving the credit, the recapture amount will equal the lesser of the credit or the net profit of the sale;
      2. If the property is sold within two years of receiving the credit, the recapture amount will equal the lesser of two-thirds of the credit or the net profit of the sale; or
      3. If the property is sold within three years of receiving the credit, the recapture amount will equal the lesser of one-third of the credit or the net profit of the sale.
    2. The recapture provisions of this subsection shall not apply to a sale resulting from the death of the owner.
    1. In the event that a taxpayer claims the tax credit under paragraph (2) of subsection (b) of this Code section and leases such certified structure, the department shall aggregate all total sales tax receipts from the certified structure.
    2. Any taxpayer claiming credits under paragraph (2) of subsection (b) of this Code section shall report to the department the average full-time employees employed at the certified structure. A full-time employee for the purposes of this Code section shall mean a person who works a job that requires 30 or more hours per week. Such reports must be submitted to the department for five calendar years following the year in which the credit is claimed by the taxpayer.
    3. In the event that a taxpayer claims the tax credit under paragraph (2) of subsection (b) of this Code section and leases such certified structure, the department shall aggregate all total full-time employees at the certified structure.
  10. Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, the department shall furnish a report to the chairperson of the House Committee on Ways and Means and the chairperson of the Senate Finance Committee by June 30 of each year. Such report shall contain the total sales tax collected in the prior calendar year and the average number of full-time employees at the certified structure and the total value of credits claimed for each taxpayer claiming credits under paragraph (2) of subsection (b) of this Code section.
  11. The tax credit allowed under paragraph (1) of subsection (b) of this Code section, and any recaptured tax credit, shall be allocated among some or all of the partners, members, or shareholders of the entity owning the project in any manner agreed to by such persons, whether or not such persons are allocated or allowed any portion of any other tax credit with respect to the project.
  12. The Department of Natural Resources and the Department of Revenue shall prescribe such regulations as may be appropriate to carry out the purposes of this Code section.
  13. The Department of Natural Resources shall report, on an annual basis, on the overall economic activity, usage, and impact to the state from the rehabilitation of eligible properties for which credits provided by this Code section have been allowed. (Code 1981, § 48-7-29.8 , enacted by Ga. L. 2002, p. 954, § 1; Ga. L. 2008, p. 1179, §§ 1, 2/HB 851; Ga. L. 2015, p. 1340, § 1/HB 308; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective January 1, 2016, rewrote this Code section. See Editor's notes for applicability.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (a)(5)(A).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "subsection (d) of this Code section" for "subsection (d)" near the end of the last sentence of paragraph (g)(2).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, "the" was inserted preceding "House Committee" in subsection (j).

Editor's notes. - Code Section 48-7-29.8 is set out twice in this Code. The first version is effective until December 31, 2021, and the second version becomes effective on that date.

Ga. L. 2002, p. 954, § 5, not codified by the General Assembly, provides that this Code section is applicable to taxable years beginning on or after January 1, 2004.

Ga. L. 2008, p. 1179, § 3/HB 851, not codified by the General Assembly, provides that the 2008 amendment to this Code section shall apply to all taxable years beginning on or after January 1, 2009.

Ga. L. 2015, p. 1340, § 2/HB 308, not codified by the General Assembly, provides that: "The amendments enacted in this Act shall take effect on January 1, 2016, and shall be applicable to certified rehabilitations completed on or after January 1, 2017, and shall stand repealed on December 31, 2021, unless otherwise modified by the General Assembly. In the event the amendments provided for in this Act are repealed, the provisions of Code Section 48-7-29.8 as they existed prior to this Act shall remain in full force and effect."

Administrative Rules and Regulations. - Georgia state income tax credit program for rehabilitated historic property, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Natural Resources, Chapter 391-5-14.

48-7-29.8. (Effective after December 31, 2021) Tax credits for the rehabilitation of historic structures; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Certified rehabilitation" means repairs or alterations to a certified structure which are certified by the Department of Natural Resources as meeting the United States Secretary of the Interior's Standards for Rehabilitation or the Georgia Standards for Rehabilitation as provided by the Department of Natural Resources.
    2. "Certified structure" means a historic building or structure that is individually listed in the Georgia Register of Historic Places, or is certified by the Department of Natural Resources as contributing to the historic significance of a Georgia Register Historic District.
    3. "Historic home" means a certified structure which, or any portion of which is or will, within a reasonable period, be owned and used as the principal residence of the person claiming the tax credit allowed under this Code section. Historic home shall include any structure or group of structures that constitute a multifamily or multipurpose structure, including a cooperative or condominium. If only a portion of a building is used as such person's principal residence, only those qualified rehabilitation expenditures that are properly allocable to such portion shall be deemed to be made to a historic home.
    4. "Qualified rehabilitation expenditure" means any amount properly chargeable to a capital account expended in the substantial rehabilitation of a structure that by the end of the taxable year in which the certified rehabilitation is completed is a certified structure. This term does not include the cost of acquisition of the certified structure, the cost attributable to enlargement or additions to an existing building, site preparation, or personal property.
    5. "Substantial rehabilitation" means rehabilitation of a certified structure for which the qualified rehabilitation expenditures, at least 5 percent of which must be allocable to the exterior during the 24 month period selected by the taxpayer ending with or within the taxable year, exceed:
      1. For a historic home, the lesser of $25,000.00 or 50 percent of the adjusted basis of the property as defined in subparagraph (a)(1)(B) of Code Section 48-5-7.2; or, in the case of a historic home located in a target area, $5,000.00; or
      2. For any other certified structure, the greater of $5,000.00 or the adjusted basis of the property.
    6. "Target area" means a qualified census tract under Section 42 of the Internal Revenue Code of 1986, found in the United States Department of Housing and Urban Development document number N-94-3821; FR-3796-N-01.
  2. A taxpayer shall be allowed a tax credit against the tax imposed by this chapter for the taxable year in which the certified rehabilitation is completed:
    1. In the case of a historic home, equal to 25 percent of qualified rehabilitation expenditures, except that, in the case of a historic home located within a target area, an additional credit equal to 5 percent of qualified rehabilitation expenditures shall be allowed; and
    2. In the case of any other certified structure, equal to 25 percent of qualified rehabilitation expenditures.
    1. In no event shall credits for a historic home exceed $100,000.00 in any 120 month period.
    2. In no event shall credits for a certified structure exceed $300,000.00 in any 120 month period.
  4. In order to be eligible to receive the credit authorized under subsection (b) of this Code section, a taxpayer must attach to the taxpayer's state tax return a copy of the certification of the Department of Natural Resources verifying that the improvements to the certified structure are consistent with the Department of Natural Resources Standards for Rehabilitation.

    (2) In order to be eligible to receive the credit authorized under subsection (b) of this Code section, a taxpayer must attach to the taxpayer's state tax return a copy of the completed certification of the Department of Natural Resources verifying that the improvements to the certified structure are consistent with the Department of Natural Resources Standards for Rehabilitation.

    1. If the credit allowed under this Code section in any taxable year exceeds the total tax otherwise payable by the taxpayer for that taxable year, the taxpayer may apply the excess as a credit for succeeding years until the earlier of:
      1. The full amount of the excess is used; or
      2. The expiration of the tenth taxable year after the taxable year in which the certified rehabilitation has been completed.
    2. No such credit shall be allowed the taxpayer against prior years' tax liability.
  6. In the case of any rehabilitation which may reasonably be expected to be completed in phases set forth in architectural plans and specifications completed before the rehabilitation begins, a 60 month period may be substituted for the 24 month period provided for in paragraph (5) of subsection (a) of this Code section.
    1. Except as otherwise provided in subsection (h) of this Code section, in the event a tax credit under this Code section has been claimed and allowed the taxpayer, upon the sale or transfer of the certified structure, the taxpayer shall be authorized to transfer the remaining unused amount of such credit to the purchaser of such certified structure. If a historic home for which a certified rehabilitation has been completed by a nonprofit corporation is sold or transferred, the full amount of the credit to which the nonprofit corporation would be entitled if taxable shall be transferred to the purchaser or transferee at the time of sale or transfer.
    2. Such purchaser shall be subject to the limitations of subsection (e) of this Code section. Such purchaser shall file with such purchaser's tax return a copy of the approval of the rehabilitation by the Department of Natural Resources as provided in subsection (d) of this Code section and a copy of the form evidencing the transfer of the tax credit.
    3. Such purchaser shall be entitled to rely in good faith on the information contained in and used in connection with obtaining the approval of the credit including, without limitation, the amount of qualified rehabilitation expenditures.
    1. If an owner other than a nonprofit corporation sells a historic home within three years of receiving the credit, the seller shall recapture the credit to the Department of Revenue as follows:
      1. If the property is sold within one year of receiving the credit, the recapture amount will equal the lesser of the credit or the net profit of the sale;
      2. If the property is sold within two years of receiving the credit, the recapture amount will equal the lesser of two-thirds of the credit or the net profit of the sale; or
      3. If the property is sold within three years of receiving the credit, the recapture amount will equal the lesser of one-third of the credit or the net profit of the sale.
    2. The recapture provisions of this subsection shall not apply to a sale resulting from the death of the owner.
  9. The tax credit allowed under paragraph (1) of subsection (b) of this Code section, and any recaptured tax credit, shall be allocated among some or all of the partners, members, or shareholders of the entity owning the project in any manner agreed to by such persons, whether or not such persons are allocated or allowed any portion of any other tax credit with respect to the project.
  10. The Department of Natural Resources and the Department of Revenue shall prescribe such regulations as may be appropriate to carry out the purposes of this Code section.
  11. The Department of Natural Resources shall report, on an annual basis, on the overall economic activity, usage, and impact to the state from the rehabilitation of eligible properties for which credits provided by this Code section have been allowed. (Code 1981, § 48-7-29.8 , enacted by Ga. L. 2002, p. 954, § 1; Ga. L. 2008, p. 1179, §§ 1, 2/HB 851; Ga. L. 2015, p. 1340, § 1/HB 308; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective January 1, 2016, rewrote this Code section. See Editor's notes for applicability.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised punctuation in subparagraph (a)(5)(A).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "subsection (d) of this Code section" for "subsection (d)" near the end of the last sentence of paragraph (g)(2).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, "the" was inserted preceding "House Committee" in subsection (j).

Editor's notes. - Code Section 48-7-29.8 is set out twice in this Code. The first version is effective until December 31, 2021, and the second version becomes effective on that date.

Ga. L. 2002, p. 954, § 5, not codified by the General Assembly, provides that this Code section is applicable to taxable years beginning on or after January 1, 2004.

Ga. L. 2008, p. 1179, § 3/HB 851, not codified by the General Assembly, provides that the 2008 amendment to this Code section shall apply to all taxable years beginning on or after January 1, 2009.

Ga. L. 2015, p. 1340, § 2/HB 308, not codified by the General Assembly, provides that: "The amendments enacted in this Act shall take effect on January 1, 2016, and shall be applicable to certified rehabilitations completed on or after January 1, 2017, and shall stand repealed on December 31, 2021, unless otherwise modified by the General Assembly. In the event the amendments provided for in this Act are repealed, the provisions of Code Section 48-7-29.8 as they existed prior to this Act shall remain in full force and effect."

Administrative Rules and Regulations. - Georgia state income tax credit program for rehabilitated historic property, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Natural Resources, Chapter 391-5-14.

48-7-29.9. Tax credit for qualified life insurance premiums for National Guard and Air National Guard members.

  1. As used in this Code section, the term:
    1. "Active duty" means full-time duty in the United States armed forces, other than active duty for training, for a period of more than 90 consecutive days.
    2. "Active duty for training" means full-time duty in the United States armed forces for a period of more than 90 consecutive days for training purposes performed by members of the National Guard and Air National Guard who are residents of this state.
    3. "Qualified life insurance" means insurance coverage through the Servicemembers' Group Life Insurance Program administered by the United States Department of Veterans Affairs for the maximum benefit amount available under such program for the loss of life of a member of the National Guard or Air National Guard who is a resident of this state while on active duty or active duty for training.
  2. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 in an amount not to exceed the amount expended for qualified life insurance premiums.
  3. The credit provided under this subsection:
    1. Shall be claimed and allowed in the year in which the majority of such days are served. In the event an equal number of consecutive days are served in two calendar years, then the exclusion shall be claimed and allowed in the year in which the ninetieth day occurs; and
    2. Shall apply with respect to each taxable year in which such member serves for such qualifying period of time.
  4. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed the taxpayer against succeeding years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
  5. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section. (Code 1981, § 48-7-29.9 , enacted by Ga. L. 2005, p. 220, § 2/HB 538; Ga. L. 2009, p. 8, § 48/SB 46.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2005, in paragraphs (a)(1) and (a)(2), "full-time duty" was substituted for "full time duty".

48-7-29.10. Credit for qualified child and dependent care expenses; carryover of credit prohibited.

  1. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 for qualified child and dependent care expenses. Such credit shall be determined by applying a percentage to the amount of the credit provided for in Section 21 of the Internal Revenue Code which is claimed and allowed pursuant to the Internal Revenue Code. Such percentage shall be:
    1. Ten percent for all taxable years beginning on or after January 1, 2006, and prior to January 1, 2007;
    2. Twenty percent for all taxable years beginning on or after January 1, 2007, and prior to January 1, 2008; and
    3. Thirty percent for all taxable years beginning on or after January 1, 2008.
  2. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall not be allowed to be carried forward to apply to the taxpayer's succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
  3. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.10 , enacted by Ga. L. 2006, p. 64, § 1/HB 1080.)

Editor's notes. - Ga. L. 2006, p. 64, § 2/HB 1080, not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2006.

48-7-29.11. Income tax credits for teleworking; definitions; powers and duties.

  1. As used in this Code section, the term:
    1. "Eligible telework expenses" means expenses incurred during the calendar year pursuant to a telework agreement, up to a limit of $1,200.00 for each participating employee, to enable a participating employee to begin to telework, which expenses are not otherwise the subject of a deduction from income claimed by the employer in any tax year. Such expenses shall include, but not be limited to, expenses paid or incurred to purchase computers, computer related hardware and software, modems, data processing equipment, telecommunications equipment, high-speed Internet connectivity equipment, computer security software and devices, and all related delivery, installation, and maintenance fees. Such expenses shall not include replacement costs for computers, computer related hardware and software, modems, data processing equipment, telecommunications equipment, or computer security software and devices at the principal place of business when that equipment is relocated to the telework site. Such expenses shall not include expenses for which a credit is claimed under any other provision of this article. Such expenses may be incurred only once per employee. Such expenses may be incurred directly by the employer on behalf of the participating employee or directly by the participating employee and subsequently reimbursed by the employer.
    2. "Employer" means any employer upon whom an income tax is imposed by this article.
    3. "Participating employee" means an employee who has entered into a telework agreement with his or her employer on or after July 1, 2007. This term shall not include an individual who is self-employed or an individual who ordinarily spends a majority of his or her workday at a location other than the employer's principal place of business.
    4. "Telework" means to perform normal and regular work functions on a workday that ordinarily would be performed at the employer's principal place of business at a different location, thereby eliminating or substantially reducing the physical commute to and from that employer's principal place of business. This term shall not include home based businesses, extensions of the workday, or work performed on a weekend or holiday.
    5. "Telework agreement" means an agreement signed by the employer and the participating employee, on or after July 1, 2007, that defines the terms of a telework arrangement, including the number of days per year the participating employee will telework, as provided in subsection (b) of this Code section in order to qualify for the credit, and any restrictions on the place from which the participating employee will telework.
    6. "Telework assessment" means an optional assessment leading to the development of policies and procedures necessary to implement a formal telework program which would qualify the employer for the credit provided in subsection (b) of this Code section, including but not limited to a workforce profile, a telework program business case and plan, a detailed accounting of the purpose, goals, and operating procedures of the telework program, methodologies for measuring telework program activities and success, and a deployment schedule for increasing telework activity.
  2. For taxable years beginning or ending on or after January 1, 2008, and prior to January 1, 2012, an employer shall be allowed a state income tax credit against the tax imposed by Code Section 48-7-20 or Code Section 48-7-21 for a percentage of eligible telework expenses incurred in the corresponding calendar year. The amount of such credit shall be calculated as follows:
    1. The credit shall be equal to 100 percent of the eligible telework expenses incurred pursuant to a telework agreement requiring the participating employee to telework at least 12 days per month if the employer's principal place of business is located in an area designated by the United States Environmental Protection Agency as a nonattainment area under the federal Clean Air Act, 42 U.S.C. Section 7401 et seq.;
    2. The credit shall be equal to 75 percent of the eligible telework expenses incurred pursuant to a telework agreement requiring the participating employee to telework at least 12 days per month; or
    3. The credit shall be equal to 25 percent of the eligible telework expenses incurred pursuant to a telework agreement requiring the participating employee to telework at least five days per month.
    1. In addition to the credit provided by subsection (b) of this Code section, an employer conducting a telework assessment on or after July 1, 2007, shall be allowed a credit in the calendar year of implementation of the employer's formal telework program against the tax imposed by Code Section 48-7-20 or Code Section 48-7-21 for 100 percent of the cost, up to a maximum credit of $20,000.00 per employer, of preparing the assessment. Such costs shall not be eligible for such credit if they are otherwise the subject of a deduction from income claimed by the employer in any tax year. Costs incurred on or after July 1, 2007, and before January 1, 2008, shall be treated as being incurred on January 1, 2008, for purposes of this Code section. The credit provided by this subsection is intended to include program planning expenses, including direct program development and training costs, raw labor costs, and professional consulting fees; the credit shall not include expenses for which a credit is claimed under any other provision of this article. This credit shall be allowed only once per employer.
    2. All telework assessments eligible for a state income tax credit under this subsection shall meet standards for eligibility promulgated by the commissioner.
  4. In no event shall the total amount of any tax credit under this Code section for a taxable year exceed the employer's income tax liability. No unused tax credit shall be allowed to be carried forward to apply to the employer's succeeding years' tax liability. No such tax credit shall be allowed the employer against prior years' tax liability.
    1. An employer seeking to claim a tax credit provided for under subsections (b) and (c) of this Code section must submit an application to the commissioner for tentative approval of the tax credit provided for in subsections (b) and (c) of this Code section between September 1 and October 31 of the year preceding the calendar year for which the tax credit is to be earned. The commissioner shall promulgate the rules and forms on which the application is to be submitted. Amounts specified on such application shall not be changed by the employer after the application is approved by the commissioner. Such applications must certify that the employer would not have incurred the eligible telework expenses mentioned therein but for the availability of the tax credit. The commissioner shall review such application and shall tentatively approve such application upon determining that it meets the requirements of this Code section.
    2. The commissioner shall provide tentative approval of the applications by the date provided in paragraph (3) of this subsection. In no event shall the aggregate amount of tax credits approved by the commissioner for all qualified employers under this Code section in a calendar year exceed:
      1. For credits earned in calendar year 2008, $2 million;
      2. For credits earned in calendar year 2009, $2 million;
      3. For credits earned in calendar year 2010, $2.5 million; and
      4. For credits earned in calendar year 2011, $2.5 million.
    3. The department shall notify each employer of the tax credits tentatively approved and allocated to such employer by December 31 of the year in which the application was submitted. In the event that the credit amounts on the tax credit applications filed with the commissioner exceed the maximum aggregate limit of tax credits under this subsection, then the tax credits shall be allocated among the employers who filed a timely application on a pro rata basis based upon the amounts otherwise allowed by this Code section. Once the tax credit application has been approved and the amount approved has been communicated to the applicant, the employer may make purchases approved for the tax credit at any time during the calendar year following the approval of the application. The employer may then apply the amount of the approved tax credit to its tax liability for the tax year or years for which the approved application applies. In the event the employer has a tax year other than a calendar year and the calendar year expenses are incurred in more than one taxable year, the credit shall be applied to each taxable year based upon when the expenses were incurred.
  6. Notwithstanding the provisions of Code Sections 48-2-15, 48-7-60, and 48-7-61, the commissioner shall make available a public report disclosing the employer names and amounts of credit claimed under this Code section as follows:
    1. On or before December 31, 2010, for credits allowed in calendar year 2008;
    2. On or before December 31, 2011, for credits allowed in calendar year 2009;
    3. On or before December 31, 2012, for credits allowed in calendar year 2010; and
    4. On or before December 31, 2013, for credits allowed in calendar year 2011.
  7. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.11 , enacted by Ga. L. 2006, p. 242, § 1/HB 194; Ga. L. 2007, p. 47, § 48/SB 103; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2009, p. 999, §§ 1, 2, 3/HB 186.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, Code Section 48-7-29.10, as enacted by Ga. L. 2006, p. 242, § 1/HB 194, was redesignated as Code Section 48-7-29.11; and "July 1, 2007" was substituted for "the effective date of this Code section" in paragraphs (a)(3) and (a)(5) and twice in paragraph (c)(1).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 390 et seq.

48-7-29.12. Tax credit for qualified donation of real property; carryover of credit; appraisals; transfer of credit; penalty.

  1. As used in this Code section, the term:
    1. "Conservation easement" means a nonpossessory interest in real property imposing limitations or affirmative obligations, the purposes of which are consistent with at least two conservation purposes.
    2. "Conservation purpose" means any of the following:
      1. Water quality protection for wetlands, rivers, streams, or lakes;
      2. Protection of wildlife habitat consistent with state wildlife conservation policies;
      3. Protection of outdoor recreation consistent with state outdoor recreation policies;
      4. Protection of prime agricultural or forestry lands; and
      5. Protection of cultural sites, heritage corridors, or archeological and historic resources.
    3. "Donated property" means the real property of which a qualified donation is made pursuant to this Code section.
    4. "Eligible donor" means any person who owns an interest in a qualified donation.
    5. "Fair market value" means the value of the donated property as determined pursuant to subsections (c.1) and (c.2) of this Code section.
    6. "Qualified donation" means the fee simple conveyance to the state; a county, a municipality, or a consolidated government of this state; the federal government; or a bona fide charitable nonprofit organization qualified under the Internal Revenue Code and, beginning on January 1, 2014, accredited by the Land Trust Accreditation Commission of 100 percent of all right, title, and interest in the entire parcel of donated real property, and the donation is accepted by such state, county, municipality, consolidated government, federal government, or bona fide charitable nonprofit organization for use in a manner consistent with at least two conservation purposes. Such term shall also include the donation to and acceptance by the state; a county, a municipality, or a consolidated government of this state; the federal government; or a bona fide charitable nonprofit organization qualified under the Internal Revenue Code and, beginning on January 1, 2014, accredited by the Land Trust Accreditation Commission of a conservation easement. Any real property which is otherwise required to be dedicated pursuant to local government regulations or ordinances or to increase building density levels shall not be eligible as a qualified donation under this Code section. Any real property which is used for or associated with the playing of golf or is planned to be so used or associated shall not be eligible as a qualified donation under this Code section.
    7. "Related person" has the meaning provided by Code Section 48-7-28.3.
    8. "Substantial valuation misstatement" means a valuation such that the claimed value of any property on the appraisal as submitted to the State Properties Commission is 150 percent or more of the amount determined to be the correct amount of such valuation pursuant to subsections (c.1) and (c.2) of this Code section.
    1. A taxpayer shall be allowed a state income tax credit against the tax imposed by Code Section 48-7-20 or 48-7-21 for each qualified donation under this Code section.
    2. Except as otherwise provided in paragraph (3) of this subsection and in subsection (d) of this Code section, such credit shall be limited to an amount not to exceed the lesser of $500,000.00, 25 percent of the fair market value of the donated real property as fair market value is established for the year in which the donation occurred, or 25 percent of the difference between the fair market value and the amount paid to the donor if the donation is effected by a sale of property for less than fair market value as established for the year in which the donation occurred.
    3. Except as otherwise provided in subsection (d) of this Code section, in the case of a taxpayer whose net income is determined under Code Section 48-7-23, the aggregate total credit allowed to all partners in a partnership shall be limited to an amount not to exceed the lesser of $500,000.00, 25 percent of the fair market value of the donated real property as fair market value is established for the year in which the donation occurred, or 25 percent of the difference between the fair market value and the amount paid to the donor if the donation is effected by a sale of property for less than fair market value as established for the year in which the donation occurred.
  3. No tax credit shall be allowed under this Code section unless the taxpayer files with the taxpayer's income tax return a copy of the State Property Commission's determination and a copy of a certification issued by the Department of Natural Resources that the donated property is suitable for conservation purposes and meets the following additional requirements, where applicable:
    1. Subdivision is prohibited for a donated property of less than 500 acres and limited to one subdivision for a donated property of 500 acres or more;
    2. New construction on donated property of structures, roads, impoundments, ditches, dumping, or any other activity that would harm the protected conservation values of such donation is prohibited on such property;
    3. New construction on donated property within 150 feet of any perennial or intermittent stream is prohibited;
    4. A buffer of at least 100 feet on each side of any perennial streams on donated property which ensures at least 75 percent tree canopy evenly distributed after harvest is maintained and a buffer of at least 50 feet on each side of any intermittent streams on donated property which ensures at least 75 percent tree canopy evenly distributed after harvest is maintained;
    5. Timber and agricultural activities undertaken on the donated property are prohibited unless in accordance with best management practices published by the State Forestry Commission or the Soil and Water Conservation Commission, as the case may be;
    6. New construction on donated property causing more than 1 percent of such property's total surface area to be covered by impervious surfaces is prohibited;
    7. Mining on the property is prohibited; and
    8. Planting on the donated property of non-native invasive species listed in Category 1, Category 1 Alert, or Category 2 of the "List of Non-Native Invasive Plants in Georgia" developed by the Georgia Exotic Pest Council is prohibited.

      (1) A certification page, as established by the Uniform Standards of Professional Appraisal Practice, signed by the appraiser; and

      (2) An affidavit signed by the appraiser which includes a statement specifying:

      1. The value of the unencumbered property, the total value of the qualified donation in gross, and an accompanying statement identifying the methods used to determine such values;
      2. Whether a subdivision analysis was used in the appraisal;
      3. Whether the landowner or related persons own any other property, the value of which is increased as a result of the donation; and
      4. That the appraiser is certified pursuant to Chapter 39A of Title 43.

        Appraisals received by the Department of Natural Resources shall be forwarded to the State Properties Commission for review. The State Properties Commission shall approve the appraisal amount submitted or recommend a lower amount based on its review and inform the Department of Natural Resources of its determination. The State Properties Commission shall be authorized to promulgate any rules and regulations necessary to administer the provisions of this subsection. Any appraisal deemed to contain a substantial valuation misstatement shall be submitted to the Georgia Real Estate Commission for further investigation and disciplinary action. Upon receipt of the State Properties Commission's determination, the Department of Natural Resources may proceed with the certification process.

    (c.1) For each application for certification, the Department of Natural Resources shall require submission of an appraisal of the qualified donation by the taxpayer along with a nonrefundable $5,000.00 application fee; provided, however, that the nonrefundable application fee for property donated to the state shall be 1 percent of the total value of the donation, unless such donation is being made to qualify the state for a federal or state grant. The appraisal required by this subsection shall be a full narrative appraisal and include:

    (c.2) The Board of Natural Resources shall promulgate any rules and regulations necessary to implement and administer subsections (c) and (c.1) of this Code section. A final determination by the Department of Natural Resources or the State Properties Commission shall be subject to review and appeal under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    1. In no event shall the total amount of any tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. In no event shall the total amount of the tax credit allowed to a taxpayer under subsection (b) of this Code section exceed $250,000.00 with respect to tax liability determined under Code Section 48-7-20 or $500,000.00 with respect to tax liability determined under Code Section 48-7-21. Any unused tax credit shall be allowed to be carried forward to apply to the taxpayer's succeeding ten years' tax liability. However, the amount in excess of such annual dollar limits shall not be eligible for carryover to the taxpayer's succeeding years' tax liability nor shall such excess amount be claimed by or reallocated to any other taxpayer. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
    2. Only one qualified donation may be made with respect to any real property that was, in the five years prior to donation, within the same tax parcel of record, except that a subsequent donation may be made by a person who is not a related person with respect to any prior eligible donors of any portion of such tax parcel.
      1. Beginning on January 1, 2016, the aggregate amount of tax credits allowed under this Code section shall not exceed $30 million per calendar year. The Department of Natural Resources shall accept no new applications for the tax credits allowed under this Code section after December 31, 2021.
      2. Prior to any renewal of the exemption for donations of real property beyond the date authorized by subparagraph (A) of this paragraph, the Department of Natural Resources shall provide a report to the Governor, the President of the Senate, the Speaker of the House of Representatives, and the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee on the activity of the program occurring during the preceding years. The report shall include, but not be limited to:
        1. The number of applications and the total number of acres donated;
        2. The value of the qualified donations accepted into the program and which two of the five conservation purposes contained in paragraph (2) of subsection (a) of this Code section were the basis for the qualification of the property;
        3. The aggregate amount of income tax credits granted pursuant to this Code section; and
        4. A listing of the direct and indirect benefits to the state due to the donation of land for conservation purposes.
        1. The transferor may make only a single transfer or sale of tax credits earned in a taxable year; however, the transfer or sale may involve one or more transferees;
        2. The transferor shall submit to the department a written notification of any transfer or sale of tax credits within 30 days after the transfer or sale of such tax credits. The notification shall include such transferor's tax credit balance prior to transfer, the remaining balance after transfer, all tax identification numbers for each transferee, the date of transfer, the amount transferred, and any other information required by the department;
        3. Failure to comply with this subsection shall result in the disallowance of the tax credit until the taxpayer is in full compliance;
        4. Any unused credit may be carried forward to subsequent taxable years provided that the transfer or sale of this tax credit does not extend the time in which such tax credit can be used. The carry-forward period for tax credit that is transferred or sold shall begin on the date on which the tax credit was originally earned; and
        5. A transferee shall have only such rights to claim and use the tax credit that were available to the transferor at the time of the transfer. To the extent that such transferor did not have rights to claim and use the tax credit at the time of the transfer, the department shall either disallow the tax credit claimed by the transferee or recapture the tax credit from the transferee. The transferee's recourse is against the transferor.

    (d.1) Any tax credits under this Code section earned by a taxpayer in the taxable years beginning on or after January 1, 2013, and previously claimed but not used by such taxpayer against such taxpayer's income tax may be transferred or sold in whole or in part by such taxpayer to another Georgia taxpayer, subject to the following conditions:

    1. Whenever:

      (A) Any person prepares an appraisal of the value of property and knows, or reasonably should have known, that the appraisal would be used in connection with a return or a claim for refund claiming a tax credit under this Code section; and

      (B) The claimed value of the property on such appraisal as submitted to the State Properties Commission results in a substantial valuation misstatement with respect to such property for purposes of claiming a tax credit under this Code section,

      then such person shall pay a penalty in the amount determined under paragraph (2) of this subsection.

    2. The amount of the penalty imposed under paragraph (1) of this subsection on any person with respect to an appraisal shall be equal to the lesser of:
      1. The greater of:
        1. Twenty-five percent of the difference between the amount of the tax credit claimed on the taxpayer's return or claim for refund and the amount of the tax credit to which the taxpayer is actually entitled, to the extent the difference is attributable to the misstatement described in paragraph (1) of this subsection; or
        2. Ten thousand dollars; or
      2. One hundred twenty-five percent of the gross income received by the person described in paragraph (1) of this subsection for the preparation of the appraisal.
    3. No penalty shall be imposed under paragraph (1) of this subsection if the person establishes to the satisfaction of the commissioner that the value established in the appraisal was more likely than not the proper value.
    4. Except as otherwise provided, the penalty provided by this subsection shall be in addition to any other penalties provided by law. The amount of any penalty under this subsection shall be assessed within three years after the return or claim for refund with respect to which the penalty is assessed was filed, and no proceeding in court without assessment for the collection of such penalty shall be begun after the expiration of such period. Any claim for refund of an overpayment of the penalty assessed under this subsection shall be filed within three years from the time the penalty was paid.
  6. No credit shall be allowed under this Code section with respect to any amount deducted from taxable net income by the taxpayer as a charitable contribution.
  7. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.12 , enacted by Ga. L. 2006, p. 351, § 1/HB 1107; Ga. L. 2008, p. 101, § 1/HB 1274; Ga. L. 2011, p. 297, § 3/HB 346; Ga. L. 2012, p. 257, § 3-1/HB 386; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2015, p. 370, § 3/HB 464; Ga. L. 2016, p. 585, § 1/HB 1014.)

The 2015 amendment, effective July 1, 2015, added paragraph (d)(3).

The 2016 amendment, effective July 1, 2016, added the subparagraph (d)(3)(A) designation, substituted "2021" for "2016" in subparagraph (d)(3)(A), and added subparagraph (d)(3)(B).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, Code Section 48-7-29.10, as enacted by Ga. L. 2006, p. 351, § 1/HB 1107, was redesignated as Code Section 48-7-29.12.

Editor's notes. - Ga. L. 2006, p. 351, § 2/HB 1107, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 2006.

Ga. L. 2008, p. 101, § 2/HB 1274, not codified by the General Assembly, provides, in part, that the 2008 amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2011, p. 297, § 5(d)/HB 346, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall become effective on January 1, 2012, and shall apply to all taxable years beginning on or after January 1, 2012.

Ga. L. 2012, p. 257, § 7-1(e)/HB 386, not codified by the General Assembly, provides that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Georgia St. U.L. Rev. 112 (2012).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 390, 393, 397.

48-7-29.13. Tax credit for qualified health insurance expenses.

  1. As used in this Code section, the term:
    1. "Qualified health insurance" means a high deductible health plan as defined by Section 223 of the Internal Revenue Code.
    2. "Qualified health insurance expense" means the expenditure of funds of at least $250.00 annually for health insurance premiums for qualified health insurance.
    3. "Taxpayer" means an employer who employs directly, or who pays compensation to individuals whose compensation is reported on Form 1099, 50 or fewer persons and for whom the taxpayer provides high deductible health plans as defined by Section 223 of the Internal Revenue Code and in which such employees are enrolled.
  2. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 or 48-7-21, as applicable, for qualified health insurance expenses in an amount of $250.00 for each employee enrolled for 12 consecutive months in a qualified health insurance plan if such qualified health insurance is made available to all of the employees and compensated individuals of the employer pursuant to the applicable provisions of Section 125 of the Internal Revenue Code.
  3. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed the taxpayer against succeeding years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
  4. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section.
  5. The credit allowed by this Code section shall apply only with regard to qualified health insurance expenses. (Code 1981, § 48-7-29.13 , enacted by Ga. L. 2008, p. 292, § 5/HB 977; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2009, p. 652, § 5/HB 410.)

Cross references. - Georgia Affordable HSA Eligible High Deductible Health Plan, T. 33, C. 51.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 841, § 1/HB 670, was redesignated as Code Section 48-7-29.14; Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 942, § 1/HB 1159, was redesignated as Code Section 48-7-29.15; and Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 1108, § 2/HB 1133, was redesignated as Code Section 48-7-29.16.

Editor's notes. - Ga. L. 2008, p. 292, § 6(a)/HB 977, not codified by the General Assembly, provides, in part, that this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2009, p. 652, § 6(a)/HB 410, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

48-7-29.14. Income tax credit for clean energy property.

  1. As used in this Code section, the term:
    1. "Authority" means the Georgia Environmental Finance Authority.
    2. "Business property" means tangible personal property that is used by the taxpayer in connection with a business or for the production of income and is capitalized by the taxpayer for federal income tax purposes. The term does not include, however, a luxury passenger automobile taxable under Section 4001 of the Internal Revenue Code or a watercraft used principally for entertainment and pleasure outings for which no admission is charged.
    3. "Clean energy property" includes any of the following:
      1. Solar energy equipment that uses solar radiation as a substitute for traditional energy for water heating, active space heating and cooling, passive heating, daylighting, generating electricity, distillation, desalinization, or the production of industrial or commercial process heat, as well as related devices necessary for collecting, storing, exchanging, conditioning, or converting solar energy to other useful forms of energy;
      2. Energy Star certified geothermal heat pump systems;
      3. Energy efficient projects as follows:
        1. Lighting retrofit projects. "Lighting retrofit project" means a lighting retrofit system that employs dual switching (ability to switch roughly half the lights off and still have fairly uniform light distribution), delamping, daylighting, relamping, or other controls or processes which reduce annual energy and power consumption by 30 percent compared to the American Society of Heating, Refrigerating, and Air Conditioning Engineers 2004 standard (ASHRAE 90.1.2004); and
        2. Energy efficient buildings. "Energy efficient building" means for other than single-family residential property new or retrofitted buildings that are designed, constructed, and certified to exceed the standards set forth in the American Society of Heating, Refrigerating, and Air Conditioning Engineers 2004 standard (ASHRAE 90.1.2004) by 30 percent;
      4. Wind equipment required to capture and convert wind energy into electricity or mechanical power as well as related devices that may be required for converting, conditioning, and storing the electricity produced by wind equipment; and
      5. Biomass equipment to convert wood residuals into electricity through gasification and pyrolysis.
    4. "Cost" means:
      1. In the case of clean energy property owned by the taxpayer, cost is the aggregate funds actually invested and expended by a taxpayer to put into service the clean energy property; and
      2. In the case of clean energy property the taxpayer leases from another, cost is eight times the net annual rental rate, which is the annual rental rate paid by the taxpayer less any annual rental rate received by the taxpayer from subrentals.
    5. "Installation" means the year in which the clean energy property is put into service and becomes eligible for a tax credit allowed by this Code section.
    6. "Renewable biomass qualified facility" means a renewable biomass qualified facility as defined by the Federal Energy Regulatory Commission which facility meets the open loop biomass standards promulgated pursuant to Section 45 of the Internal Revenue Code.
    7. "Wood residuals" means wood residuals that include land-clearing residue, urban wood residue, and pellets and do not include wood from any United States national forest.
  2. A tax credit under this Code section is subject to the following limits:
    1. A tax credit is allowed against the tax imposed under this article to a taxpayer for the construction, purchase, or lease of clean energy property that is placed into service in this state between July 1, 2008, and December 31, 2014; provided, however, that this credit shall be further subject to the following conditions and limitations:
      1. A credit allowed by this Code section shall be taken for the taxable year in which the clean energy property is installed and may be taken against income tax or, if the taxpayer is an insurance company, against gross premium tax; provided, however, that for any credit under this Code section which is allowed for calendar year 2012, 2013, or 2014, the entire credit may not be taken for the year in which the property is placed in service but must be taken in four equal installments over four successive taxable years beginning with the taxable year in which the credit is allowed;
      2. A taxpayer that claims a credit allowed under this subsection shall not be eligible to claim any other credit under this subsection with respect to the same clean energy property;
      3. A taxpayer may not take the credit allowed in this subsection for clean energy property the taxpayer leases from another unless the taxpayer obtains the lessor's written certification that the lessor will not claim a credit under this subsection with respect to the same clean energy property; and
      4. In no event shall the amount of the tax credits allowed by this Code section for a taxable year exceed the taxpayer's liability for such taxes. Any unused credit amount shall be allowed to be carried forward for five years from the close of the taxable year in which the installment of the clean energy property occurred. No such credit shall be allowed the taxpayer against prior years' tax liability.

        To claim a credit allowed by this paragraph, the taxpayer shall provide any information required by the authority or department. Every taxpayer claiming a credit under this Code section shall maintain and make available for inspection by the authority or department any records that either entity considers necessary to determine and verify the amount of the credit to which the taxpayer is entitled. The burden of proving eligibility for a credit and the amount of the credit rests upon the taxpayer, and no credit may be allowed to a taxpayer that fails to maintain adequate records or to make them available for inspection;

    2. A taxpayer who transports or diverts wood residuals to a renewable biomass qualified facility shall be allowed a credit against the tax imposed by this article in an amount not to exceed the actual amount certified by the State Forestry Commission to the taxpayer. The value of such credit shall be determined on a per tonnage basis. Such certification shall be based upon vouchers provided to the taxpayer by the renewable biomass qualified facility to whom the wood residuals are provided for the purpose of providing bioelectric power to a third party. The State Forestry Commission shall calculate and attribute a dollar value to such wood residuals;
    3. In no event shall the total amount of tax credits allowed by this subsection exceed:
      1. For calendar year 2008, $2.5 million;
      2. For calendar year 2009, $2.5 million;
      3. For calendar year 2010, $2.5 million;
      4. For calendar year 2011, $2.5 million;
      5. For calendar year 2012, $5 million;
      6. For calendar year 2013, $5 million; and
      7. For calendar year 2014, $5 million.
      1. A taxpayer seeking to claim any tax credit provided for under this Code section must submit an application to the commissioner for tentative approval of such tax credit. The commissioner shall promulgate the rules and forms on which the application is to be submitted. The commissioner shall review such application and shall tentatively approve such application upon determining that it meets the requirements of this Code section within 60 days after receiving such application.
      2. The commissioner shall allow the tax credits on a first come, first served basis. In no event shall the aggregate amount of tax credits approved by the commissioner for all taxpayers under this Code section in a calendar year exceed the limitations specified in paragraph (3) of this subsection. In the event a taxpayer filed a timely application for such credit but is not allowed all or part of the credit amount such taxpayer would be authorized to receive because the limitations specified in paragraph (3) of this subsection have been reached, the commissioner shall add such taxpayer to a priority waiting list of applications, prioritized by the date of the taxpayer's first filed application. With respect to the credit allocation in subsequent years, taxpayers on the priority waiting list shall have priority over other taxpayers who apply for the credit for an installation in the subsequent years;
    5. The credit allowed by this subsection shall not exceed the following amounts:
      1. For all types of clean energy property placed into service for any purpose other than single-family residential, the credit allowed by this subsection may not exceed the lesser of 35 percent of the cost of the clean energy property described in subparagraphs (a)(3)(A) through (a)(3)(C) of this Code section or the following credit amounts for any clean energy property:
        1. A ceiling of $500,000.00 per installation applies to solar energy equipment for solar electric (photovoltaic), other solar thermal electric applications, and active space heating, wind equipment, and biomass equipment as described in subparagraphs (a)(3)(A), (a)(3)(D), and (a)(3)(E) of this Code section;
        2. The sum of $100,000.00 per installation applies to clean energy property related to solar energy equipment for domestic water heating as described in subparagraph (a)(3)(A) of this Code section which is certified for performance by the Solar Rating Certification Corporation, Florida Solar Energy Center, or by a comparable entity approved by the authority to have met the certification of Solar Rating Certification Corporation OG-100 or Florida Solar Energy Center-GO-80 for solar thermal collectors;
        3. For Energy Star certified geothermal heat pump systems as described in subparagraph (a)(3)(B) of this Code section, the sum of $100,000.00;
        4. For a lighting retrofit project as described in division (a)(3)(C)(i) of this Code section, the sum of $0.60 per square foot of the building with a maximum of $100,000.00; and
        5. For an energy efficient building as described in division (a)(3)(C)(ii) of this Code section, the sum of the cost of energy efficient products installed during construction at $1.80 per square foot of the building, with a maximum of $100,000.00; and
      2. The following ceilings apply to clean energy property placed in service for single-family residential purposes, the lesser of 35 percent of the cost or:
        1. The sum of $2,500.00 per dwelling unit applies for clean energy property related to solar energy equipment for domestic water heating as described in subparagraph (a)(3)(A) of this Code section which is certified for performance by the Solar Rating Certification Corporation, Florida Solar Energy Center, or by a comparable entity approved by the authority to have met the certification of Solar Rating Certification Corporation OG-100 or Florida Solar Energy Center-GO-80 for solar thermal collectors, Solar Rating Certification Corporation certification OG-300 or Florida Solar Energy Center-GP-5-80 for solar thermal residential systems, or both;
        2. The sum of $10,500.00 per dwelling unit applies for clean energy property related to solar energy equipment for solar electric (photovoltaic), other solar thermal electric applications, and active space heating as described in subparagraph (a)(3)(A) of this Code section, or to wind as described in subparagraph (a)(3)(B) of this Code section; and
        3. The sum of $2,000.00 per installation for Energy Star certified geothermal heat pump systems applies as described in subparagraph (a)(3)(B) of this Code section; and
      1. Where the amount of any credits allowed by this Code section except for the credit under paragraph (2) of subsection (b) of this Code section exceeds the taxpayer's liability for such taxes in a taxable year, the excess may be taken as a credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103. Each employee whose employer receives credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer.
      2. In no event shall the total amount of the tax credit under paragraph (2) of subsection (b) of this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed the taxpayer against succeeding years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
  3. The authority and department shall be authorized to adopt rules and regulations to provide for the administration of any tax credit provided by this Code section. Specifically, the authority and department shall create a mechanism to track and report the status and availability of credits for the public to review at a minimum on a quarterly basis.
  4. The authority and the department shall provide an annual report of:
    1. The number of taxpayers that claimed the credits allowed in this Code section;
    2. The cost of business property and clean energy property with respect to which credits were claimed;
    3. The type of clean energy property installed and the location;
    4. A determination of associated energy and economic benefits to the state; and
    5. The total amount of credits allowed. (Code 1981, § 48-7-29.14 , enacted by Ga. L. 2008, p. 841, § 1/HB 670; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 949, § 1/HB 244; Ga. L. 2010, p. 1163, § 3/HB 1069; Ga. L. 2011, p. 297, § 3A/HB 346; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that this" for "provided, however, this" near the end of paragraph (b)(1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 841, § 1/HB 670, was redesignated as Code Section 48-7-29.14; Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 942, § 1/HB 1159, was redesignated as Code Section 48-7-29.15; and Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 1108, § 2/HB 1133, was redesignated as Code Section 48-7-29.16.

Pursuant to Code Section 28-9-5, in 2008, "subparagraph (a)(3)(B)" was substituted for "division (a)(3)(B)" in division (b)(5)(A)(iii).

Editor's notes. - Ga. L. 2010, p. 1163, § 7/HB 1069, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2010.

Ga. L. 2011, p. 297, § 5(c)/HB 346, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall be applicable to all taxable years beginning on or after January 1, 2011.

Administrative Rules and Regulations. - Clean energy property and wood residuals tax credits, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-8-.48.

48-7-29.15. Tax credit for adoption of foster child.

  1. As used in this Code section, the term "qualified foster child" means a foster child who is less than 18 years of age and who is in a foster home or otherwise in the foster care system under the Division of Family and Children Services of the Department of Human Services.
  2. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 for the adoption of a qualified foster child. The amount of such credit shall be $2,000.00 per qualified foster child per taxable year commencing with the year in which the adoption becomes final and ending in the year in which the adopted child attains the age of 18.
  3. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed to be carried forward to apply to the taxpayer's succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
  4. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.15 , enacted by Ga. L. 2008, p. 942, § 1/HB 1159; Ga. L. 2009, p. 453, § 2-2/HB 228.)

Cross references. - Foster parents bill of rights, T. 49, C. 5, A. 14.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 841, § 1/HB 670, was redesignated as Code Section 48-7-29.14; Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 942, § 1/HB 1159, was redesignated as Code Section 48-7-29.15; and Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 1108, § 2/HB 1133, was redesignated as Code Section 48-7-29.16.

Editor's notes. - Ga. L. 2008, p. 942, § 2/HB 1159, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

48-7-29.16. Qualified education tax credit.

  1. As used in this Code section, the term:
    1. "Eligible student" shall have the same meaning as in paragraph (1) of Code Section 20-2A-1.
    2. "Qualified education expense" means the expenditure of funds by the taxpayer during the tax year for which a credit under this Code section is claimed and allowed to a student scholarship organization operating pursuant to Chapter 2A of Title 20 which are used for tuition and fees for a qualified school or program.
    3. "Qualified school or program" shall have the same meaning as in paragraph (2) of Code Section 20-2A-1.
    4. "Student scholarship organization" shall have the same meaning as in paragraph (3) of Code Section 20-2A-1.
  2. An individual taxpayer shall be allowed a credit against the tax imposed by this chapter for qualified education expenses as follows:
    1. In the case of a single individual or a head of household, the actual amount expended or $1,000.00 per tax year, whichever is less;
    2. In the case of a married couple filing a joint return, the actual amount expended or $2,500.00 per tax year, whichever is less; or
    3. Anything to the contrary contained in paragraph (1) or (2) of this subsection notwithstanding, in the case of an individual who is a member of a limited liability company duly formed under state law, a shareholder of a Subchapter "S" corporation, or a partner in a partnership, the amount expended or $10,000.00 per tax year, whichever is less; provided, however, that tax credits pursuant to this paragraph shall only be allowed for the portion of the income on which such tax was actually paid by such member of the limited liability company, shareholder of a Subchapter "S" corporation, or partner in a partnership.
  3. A corporation or other entity shall be allowed a credit against the tax imposed by this chapter for qualified education expenses in an amount not to exceed the actual amount expended or 75 percent of the corporation's income tax liability, whichever is less.
    1. The tax credit shall not be allowed if the taxpayer designates the taxpayer's qualified education expense for the direct benefit of any particular individual, whether or not such individual is a dependent of the taxpayer.
    2. In soliciting contributions, a student scholarship organization shall not represent, or direct a qualified private school to represent, that, in exchange for contributing to the student scholarship organization, a taxpayer shall receive a scholarship for the direct benefit of any particular individual, whether or not such individual is a dependent of the taxpayer. The status as a student scholarship organization shall be revoked for any such organization which violates this paragraph.
  5. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed the taxpayer against the succeeding five years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
    1. The aggregate amount of tax credits allowed under this Code section shall not exceed:
      1. Fifty-eight million dollars for the tax year ending on December 31, 2018;
      2. One hundred million dollars for tax years beginning on January 1, 2019, and ending on December 31, 2028; and
      3. Fifty-eight million dollars for the tax year beginning on January 1, 2029, and for all subsequent tax years.
    2. The commissioner shall allow the tax credits on a first come, first served basis.
    3. For the purposes of paragraph (1) of this subsection, a student scholarship organization shall notify a potential donor of the requirements of this Code section. Before making a contribution to a student scholarship organization, the taxpayer shall electronically notify the department, in a manner specified by the department, of the total amount of contributions that the taxpayer intends to make to the student scholarship organization. The commissioner shall preapprove, deny, or prorate the requested amount within 30 days after receiving the request from the taxpayer and shall provide notice to the taxpayer and the student scholarship organization of such preapproval, denial, or proration which shall not require any signed release or notarized approval by the taxpayer. In order to receive a tax credit under this Code section, the taxpayer shall make the contribution to the student scholarship organization within 60 days after receiving notice from the department that the requested amount was preapproved. If the taxpayer does not comply with this paragraph, the commissioner shall not include this preapproved contribution amount when calculating the limit prescribed in paragraph (1) of this subsection. The department shall establish a web based donation approval process to implement this subsection.
    4. Preapproval of contributions by the commissioner shall be based solely on the availability of tax credits subject to the aggregate total limit established under paragraph (1) of this subsection. The department shall maintain an ongoing, current list on its website of the amount of tax credits available under this Code section.
    5. Notwithstanding any laws to the contrary, the department shall not take any adverse action against donors to student scholarship organizations if the commissioner preapproved a donation for a tax credit prior to the date the student scholarship organization is removed from the Department of Education list pursuant to Code Section 20-2A-7, and all such donations shall remain as preapproved tax credits subject only to the donor's compliance with paragraph (3) of this subsection.
    6. In addition to the reporting requirements in Code Section 20-2A-3, each student scholarship organization shall file an annual report with the department showing any fees or assessments retained by the student scholarship organization during the calendar year.
  7. In order for the taxpayer to claim the student scholarship organization tax credit under this Code section, a letter of confirmation of donation issued by the student scholarship organization to which the contribution was made shall be attached to the taxpayer's tax return. However, in the event the taxpayer files an electronic return, such confirmation shall only be required to be electronically attached to the return if the Internal Revenue Service allows such attachments when the data is transmitted to the department. In the event the taxpayer files an electronic return and such confirmation is not attached because the Internal Revenue Service does not, at the time of such electronic filing, allow electronic attachments to the Georgia return, such confirmation shall be maintained by the taxpayer and made available upon request by the commissioner. The letter of confirmation of donation shall contain the taxpayer's name, address, tax identification number, the amount of the contribution, the date of the contribution, and the amount of the credit.
    1. No credit shall be allowed under this Code section with respect to any amount deducted from taxable net income by the taxpayer as a charitable contribution to a bona fide charitable organization qualified under Section 501(c)(3) of the Internal Revenue Code.
    2. The amount of any scholarship received by an eligible student or eligible pre-kindergarten student shall be excluded from taxable net income for Georgia income tax purposes.
  9. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the tax provisions of this Code section. (Code 1981, § 48-7-29.16 , enacted by Ga. L. 2008, p. 1108, § 2/HB 1133; Ga. L. 2009, p. 816, § 6/HB 485; Ga. L. 2011, p. 529, § 2/HB 325; Ga. L. 2013, p. 1061, § 33D/HB 283; Ga. L. 2018, p. 644, § 1/HB 217.)

The 2018 amendment, effective May 7, 2018, substituted the present provisions of paragraph (f)(1) for the former provisions, which read: "In no event shall the aggregate amount of tax credits allowed under this Code section exceed $58 million per tax year."; in paragraph (f)(3), in the third sentence, substituted "preapprove, deny, or prorate" for "preapprove or deny" near the beginning, and substituted "preapproval, denial, or proration" for "preapproval or denial" in the middle; and added paragraph (f)(6). See Editor's notes for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 841, § 1/HB 670, was redesignated as Code Section 48-7-29.14; Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 942, § 1/HB 1190, was redesignated as Code Section 48-7-29.15; and Code Section 48-7-29.13, as enacted by Ga. L. 2008, p. 1108, § 2/HB 1133, was redesignated as Code Section 48-7-29.16.

Editor's notes. - Ga. L. 2008, p. 1108, § 3/HB 1133, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2009, p. 816, § 1/HB 485, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Improved Taxpayer Customer Service Act of 2009.'"

Ga. L. 2009, p. 816, § 8(b)/HB 485, not codified by the General Assembly, provides, in part, that the amendment of subsection (g) by this Act shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2011, p. 529, § 3/HB 325, not codified by the General Assembly, provides that the 2011 amendment shall be applicable to all taxable years beginning on or after January 1, 2011.

Ga. L. 2013, p. 1061, § 33E/HB 283, not codified by the General Assembly, provides, in part, that this Code section shall apply to all taxable years beginning on or after January 1, 2013.

Ga. L. 2018, p. 644, § 6/HB 217, not codified by the General Assembly, provides that the amendment of subsection (f) of this Code section "shall be applicable to tax years beginning on or after January 1, 2019."

U.S. Code. - Section 501(c)(3) of the Internal Revenue Code, referred to in paragraph (h)(1), is codified as 26 U.S.C. § 501(c)(3).

JUDICIAL DECISIONS

Dollar-for-dollar tax credits. - The tax credit statute, O.C.G.A. § 48-7-29.16 , permits Georgia taxpayers to take a dollar-for-dollar credit against their Georgia income tax liability for donations to student scholarship organizations of up to $1,000 per individual taxpayer or $2,500 for married taxpayers filing jointly. Gaddy v. Ga. Dep't of Revenue, 301 Ga. 552 , 802 S.E.2d 225 (2017).

Tax credit never becomes property of state. - It is clear that "tax expenditures" are different from "appropriations," and only the latter involve money taken from the state treasury. The Georgia Qualified Education Tax Credits', , O.C.G.A. § 48-7-29.16 , represent money appropriated from the state treasury; however, it does not involve the distribution of public funds out of the state treasury because none of the money involved ever becomes the property of the State of Georgia. Gaddy v. Ga. Dep't of Revenue, 301 Ga. 552 , 802 S.E.2d 225 (2017).

48-7-29.17. Tax credit for purchase of one eligible single-family residence.

  1. As used in this Code section, the term "eligible single-family residence" means:
    1. A single-family structure, including a condominium unit as defined in Code Section 44-3-71 that is occupied for residential purposes by a single family, that is a new residence, a residence occupied at the time of sale, or a previously occupied residence that was for sale prior to May 11, 2009, and is still for sale after May 11, 2009; or
    2. A single-family structure, including a condominium unit as defined in Code Section 44-3-71 that is occupied for residential purposes by a single family, that is:
      1. An owner occupied residence with respect to which the owner's acquisition indebtedness, as defined in Section 163(h)(3)(B) of the Internal Revenue Code, determined without regard to clause (ii) thereof, was in default on or before March 1, 2009; or
      2. A residence with respect to which a foreclosure event has taken place and which is owned by the mortgagor or the mortgagor's agent.
  2. A taxpayer shall be allowed a credit against the tax imposed by Code Section 48-7-20 for the purchase of one eligible single-family residence made during the six-month period commencing on June 1, 2009, and ending on November 30, 2009. The amount of such credit shall be either 1.2 percent of the purchase price of such eligible single-family residence or $1,800.00, whichever is less.
  3. The amount of the tax credit under subsection (b) of this Code section which may be claimed and allowed in a single tax year shall not exceed the taxpayer's income tax liability or one-third of the total amount of the credit allowed under subsection (b) of this Code section, whichever is less. Any excess or unused tax credit amount shall be carried forward to apply to the taxpayer's succeeding years' tax liability. No such tax credit shall be allowed the taxpayer against prior years' tax liability.
    1. A taxpayer shall submit to the commissioner a bona fide listing agreement with a real estate agent or broker licensed in this state, documentation that the eligible single-family residence was for sale directly by the owner without a real estate agent or broker, or other appropriate documentation deemed sufficient by the commissioner to validate the eligibility of the single-family residence for purposes of the tax credit under this Code section.
    2. In the event the taxpayer files an electronic return, the documentation required under paragraph (1) of this subsection shall only be required to be electronically attached to the return if the Internal Revenue Service allows such attachments when the data is transmitted to the department. In the event the taxpayer files an electronic return and such documentation is not attached because the Internal Revenue Service does not, at the time of such electronic filing, allow electronic attachments to the Georgia return, such documentation shall be maintained by the taxpayer and made available upon request of the commissioner.
  5. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-29.17 , enacted by Ga. L. 2009, p. 945, § 1/HB 261.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, in paragraph (a)(1), "to May 11, 2009, and is still for sale after May 11, 2009; or" was substituted for "to the effective date of this Code section and is still for sale after the effective date of this Code section; or"; at the end of the first sentence of subsection (b), "commencing on June 1, 2009, and ending on November 30, 2009" was substituted for "commencing on the first day of the month following the effective date of this Code section and ending on the last day of the sixth complete month thereafter"; and a misspelling of "eligibility" was corrected in paragraph (d)(1).

48-7-29.18. Tax credit for purchasers of alternative fuel heavy duty and medium duty vehicles.

  1. As used in this Code section, the term:
    1. "Affiliated entity" means a person or business entity that is a member of the taxpayer's affiliated group within the meaning of Section 1504(a) of the Internal Revenue Code.
    2. "Alternative fuel" means electricity, liquid petroleum gas, natural gas, or hydrogen fuel. The term does not include hybrid electric drives unless the vehicle has a gross weight equal to or greater than 8,500 pounds and less than 26,000 pounds.
    3. "Alternative fuel heavy-duty vehicle" means a new commercial vehicle, with a gross vehicle weight ratio equal to or more than 26,001 pounds, that is primarily fueled by an alternative fuel. As used in this paragraph, "primarily fueled by an alternative fuel" means a vehicle that is produced by an original equipment manufacturer and operates on 90 percent or more alternative fuel and on 10 percent or less gasoline or diesel fuel. In order to qualify for a tax credit under this Code section, the vehicle shall be registered in Georgia and be certified by the Department of Natural Resources as meeting all requirements set forth in paragraph (1) of subsection (a) of Code Section 48-7-29.19.
    4. "Alternative fuel medium-duty vehicle" means a new commercial vehicle, with a gross vehicle weight ratio equal to 8,500 pounds or more and less than 26,001 pounds, that is solely fueled by an alternative fuel and that is produced by an original equipment manufacturer. In order to qualify for a tax credit under this Code section, the vehicle shall be registered in Georgia and be certified by the Department of Natural Resources as meeting all requirements set forth in paragraph (1) of subsection (a) of Code Section 48-7-29.19.
    5. "New commercial vehicle" means a new commercial vehicle that: (A) is manufactured by an original equipment manufacturer, or (B) is manufactured by an original equipment manufacturer and any third-party equipment manufacturers, provided that such third-party manufacturers provide such parts or services prior to the original sale of such vehicle to a purchaser, and all vehicle components, including the alternative fuel system, are covered by the original equipment manufacturer or covered under separate warranties by the original equipment manufacturer and the third-party equipment manufacturer that together provide warranty for the complete vehicle.
    6. "Taxpayer" means any person or business entity required by law to file a return or to pay taxes.
    1. A taxpayer shall be allowed a credit against tax imposed under this article for the amount expended on or after July 1, 2015, and before June 30, 2017, to purchase an alternative fuel heavy-duty vehicle not to exceed $20,000.00 per vehicle.
    2. A taxpayer shall be allowed a credit against tax imposed under this article for the amount expended on or after July 1, 2015, and before June 30, 2017, to purchase an alternative fuel medium-duty vehicle not to exceed $12,000.00 per vehicle.
  3. The tax credits allowed under this Code section shall be limited to $2.5 million in each fiscal year beginning with fiscal year 2016 and ending with fiscal year 2017.
  4. In no event shall the total amount of any tax credit under this Code section for a taxpayer or an affiliated entity for a taxable year exceed the lesser of (i) a taxpayer's income tax liability, or (ii) $250,000.00. No unused portion of such tax credit shall be allowed the taxpayer or an affiliated entity against succeeding years' tax liabilities. No such credit shall be allowed the taxpayer or an affiliated entity against prior years' tax liabilities. The tax credit provided for in this Code section shall not apply to any vehicle for which the taxpayer or an affiliated entity has applied for and received a tax credit as set forth in Code Section 48-7-40.16.
  5. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section. (Code 1981, § 48-7-29.18 , enacted by Ga. L. 2014, p. 14, § 1/HB 348.)

Editor's notes. - Ga. L. 2014, p. 14, § 2/HB 348, not codified by the General Assembly, provides that the 2014 amendment shall be applicable to all taxable years beginning on or after January 1, 2015.

Administrative Rules and Regulations. - Alternative fuel heavy-duty vehicle and alternative fuel medium-duty vehicle tax credits, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.53.

48-7-29.19. Procedures, conditions, and limitations on amount of tax credits for purchasers of alternative fuel vehicles.

  1. A taxpayer seeking to claim a tax credit under the provisions of Code Section 48-7-29.18 shall submit an application to the commissioner for preapproval of such tax credit. Before any such application for such tax credit is filed, the applicant shall have completed the purchase and shall have registered the qualified vehicle or vehicles in this state. The application shall include:
    1. Certification from the Department of Natural Resources that the vehicle is an alternative fuel heavy-duty vehicle, or alternative fuel medium-duty vehicle, as defined in Code Section 48-7-29.18;
    2. A sworn affidavit from the taxpayer certifying that the vehicle shall accumulate at least 75 percent of its mileage in Georgia in each year for a five-year period, that is registered in Georgia and shall remain registered in Georgia for no less than five years; and
    3. Any other information requested by the commissioner pursuant to a rule or regulation promulgated hereunder. The commissioner shall create and make available the forms to be used for such applications. Within 60 days of receipt of a properly completed application, the commissioner shall preapprove the application if a sufficient amount of available tax credits remain.
  2. The commissioner shall preapprove the tax credits based on the order in which properly completed applications were submitted. In the event that two or more applications were submitted on the same day and the amount of funds available will not be sufficient to fully fund the tax credits requested, the commissioner shall prorate the available funds between or among the applicants.
  3. In no event shall the aggregate amount of the tax credits preapproved by the commissioner for all taxpayers under the provisions of this Code section exceed the amounts specified in subsection (c) of Code Section 48-7-29.18.
  4. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section, including provisions for repayment of any credit in the event any of the certifications of paragraph (2) of subsection (a) of this Code section are or become untrue during the five-year period following the date of application. (Code 1981, § 48-7-29.19 , enacted by Ga. L. 2014, p. 14, § 1/HB 348.)

Editor's notes. - Ga. L. 2014, p. 14, § 2/HB 348, not codified by the General Assembly, provides that the 2014 amendment shall be applicable to all taxable years beginning on or after January 1, 2015.

Administrative Rules and Regulations. - Alternative fuel heavy-duty vehicle and alternative fuel medium-duty vehicle tax credits, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.53.

48-7-29.20. (Repealed effective December 31, 2021) Tax credits for contributions to rural hospital organizations.

  1. As used in this Code section, the term:
    1. "Qualified rural hospital organization expense" means the contribution of funds by an individual or corporate taxpayer to a rural hospital organization for the direct benefit of such organization during the tax year for which a credit under this Code section is claimed.
    2. "Rural hospital organization" means an organization that is approved by the Department of Community Health pursuant to Code Section 31-8-9.1.
  2. An individual taxpayer shall be allowed a credit against the tax imposed by this chapter for qualified rural hospital organization expenses as follows:
    1. In the case of a single individual or a head of household, the actual amount expended;
    2. In the case of a married couple filing a joint return, the actual amount expended; or
    3. In the case of an individual who is a member of a limited liability company duly formed under state law, a shareholder of a Subchapter "S" corporation, or a partner in a partnership, the amount expended; provided, however, that tax credits pursuant to this paragraph shall be allowed only for the portion of the income on which such tax was actually paid by such individual.

      (1) In the case of a single individual or a head of household, $5,000.00;

      (2) In the case of a married couple filing a joint return, $10,000.00; or

      (3) In the case of an individual who is a member of a limited liability company duly formed under state law, a shareholder of a Subchapter "S" corporation, or a partner in a partnership, $10,000.00.

    (b.1) From January 1 to June 30 each taxable year, an individual taxpayer shall be limited in its qualified rural hospital organization expenses allowable for credit under this Code section, and the commissioner shall not approve qualified rural hospital organization expenses incurred from January 1 to June 30 each taxable year, which exceed the following limits:

  3. A corporation or other entity shall be allowed a credit against the tax imposed by this chapter for qualified rural hospital organization expenses in an amount not to exceed the actual amount expended or 75 percent of the corporation's income tax liability, whichever is less.
  4. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed the taxpayer against the succeeding five years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
    1. In no event shall the aggregate amount of tax credits allowed under this Code section exceed $60 million per taxable year.
      1. No more than $4 million of the aggregate limit established by paragraph (1) of this subsection shall be contributed to any individual rural hospital organization in any taxable year. From January 1 to June 30 each taxable year, the commissioner shall only preapprove contributions submitted by individual taxpayers in an amount not to exceed $2 million, and from corporate donors in an amount not to exceed $2 million. From July 1 to December 31 each taxable year, subject to the aggregate limit in paragraph (1) of this subsection and the individual rural hospital organization limit in this paragraph, the commissioner shall approve contributions submitted by individual taxpayers and corporations or other entities.
      2. In the event an individual or corporate donor desires to make a contribution to an individual rural hospital organization that has received the maximum amount of contributions for that taxable year, the Department of Community Health shall provide the individual or corporate donor with a list, ranked in order of financial need, as determined by the Department of Community Health, of rural hospital organizations still eligible to receive contributions for the taxable year.
    3. For purposes of paragraphs (1) and (2) of this subsection, a rural hospital organization shall notify a potential donor of the requirements of this Code section. Before making a contribution to a rural hospital organization, the taxpayer shall electronically notify the department, in a manner specified by the department, of the total amount of contribution that the taxpayer intends to make to the rural hospital organization. The commissioner shall preapprove or deny the requested amount within 30 days after receiving the request from the taxpayer and shall provide written notice to the taxpayer and rural hospital organization of such preapproval or denial which shall not require any signed release or notarized approval by the taxpayer. In order to receive a tax credit under this Code section, the taxpayer shall make the contribution to the rural hospital organization within 60 days after receiving notice from the department that the requested amount was preapproved. If the taxpayer does not comply with this paragraph, the commissioner shall not include this preapproved contribution amount when calculating the limits prescribed in paragraphs (1) and (2) of this subsection.
      1. Preapproval of contributions by the commissioner shall be based solely on the availability of tax credits subject to the aggregate total limit established under paragraph (1) of this subsection and the individual rural hospital organization limit established under paragraph (2) of this subsection.
      2. Any taxpayer preapproved by the department pursuant to subsection (e) of this Code section shall retain their approval in the event the credit percentage in subsection (b) of this Code section is modified for the year in which the taxpayer was preapproved.
      3. Upon the rural hospital organization's confirmation of receipt of donations that have been preapproved by the department, any taxpayer preapproved by the department pursuant to subsection (c) of this Code section shall receive the full benefit of the income tax credit established by this Code section even though the rural hospital organization to which the taxpayer made a donation does not properly comply with the reports or filings required by this Code section.
    5. Notwithstanding any laws to the contrary, the department shall not take any adverse action against donors to rural hospital organizations if the commissioner preapproved a donation for a tax credit prior to the date the rural hospital organization is removed from the Department of Community Health list pursuant to Code Section 31-8-9.1, and all such donations shall remain as preapproved tax credits subject only to the donor's compliance with paragraph (3) of this subsection.
  6. In order for the taxpayer to claim the tax credit under this Code section, a letter of confirmation of donation issued by the rural hospital organization to which the contribution was made shall be attached to the taxpayer's tax return. However, in the event the taxpayer files an electronic return, such confirmation shall only be required to be electronically attached to the return if the Internal Revenue Service allows such attachments when the return is transmitted to the department. In the event the taxpayer files an electronic return and such confirmation is not attached because the Internal Revenue Service does not, at the time of such electronic filing, allow electronic attachments to the Georgia return, such confirmation shall be maintained by the taxpayer and made available upon request by the commissioner. The letter of confirmation of donation shall contain the taxpayer's name, address, tax identification number, the amount of the contribution, the date of the contribution, and the amount of the credit.
  7. No credit shall be allowed under this Code section with respect to any amount deducted from taxable net income by the taxpayer as a charitable contribution to a bona fide charitable organization qualified under Section 501(c)(3) of the Internal Revenue Code.
  8. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section.
  9. This Code section shall stand automatically repealed on December 31, 2021. (Code 1981, § 48-7-29.20 , enacted by Ga. L. 2016, p. 166, § 7/SB 258; Ga. L. 2017, p. 511, § 2/SB 180; Ga. L. 2018, p. 132, § 7/HB 769.)

Effective date. - This Code section became effective April 26, 2016. See Editor's notes for applicability.

The 2017 amendment, effective May 8, 2017, substituted "90 percent" for "70 percent" in paragraphs (b)(1), (b)(2) and in the middle of subsection (c); substituted "$5,000.00" for "$2,500.00" in paragraph (b)(1); substituted "$10,000.00" for "$5,000.00" in paragraph (b)(2); in paragraph (e)(1), substituted "$60 million" for "$50 million", and substituted "$60 million" for "$70 million"; substituted "within 30 days" for "with 30 days" near the middle of the third sentence of paragraph (e)(3); designated the existing provisions of paragraph (e)(4) as subparagraph (e)(4)(A); and added subparagraphs (e)(4)(B) and (e)(4)(C). See Editor's note for applicability.

The 2018 amendment, effective July 1, 2018, substituted "the actual amount expended;" for "90 percent of the actual amount expended or $5,000.00 per tax year, whichever is less; or" in paragraph (b)(1); substituted "the actual amount expended; or" for "90 percent of the actual amount expended or $10,000.00 per tax year, whichever is less" in paragraph (b)(2); added paragraph (b)(3); added subsection (b.1); deleted "90 percent of" following "not to exceed" in the middle of subsection (c); substituted "per taxable year" for "in 2017, $60 million in 2018, and $60 million in 2019" at the end of paragraph (e)(1); and substituted "2021" for "2019" in subsection (i).

Editor's notes. - Ga. L. 2016, p. 166, § 8(b)/SB 258, not codified by the General Assembly, provides that: "Sections 1 and 7 of this Act shall be applicable to all taxable years beginning on or after January 1, 2017."

Ga. L. 2017, p. 511, § 3/SB 180, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall be applicable to all taxable years beginning on or after January 1, 2017.

Administrative Rules and Regulations. - Qualified rural hospital organization expense tax credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.57.

Law reviews. - For article, "Tackling the Social Determinants of Health: A Central for Providers," see 33 Georgia St. U.L. Rev. 217 (2017).

48-7-29.21. (Repealed effective December 31, 2023) Tax credits for qualified education donations.

  1. As used in this Code section, the term:
    1. "Qualified education donation" means a donation made by a taxpayer to the Public Education Innovation Fund Foundation for the purpose of awarding grants to public schools in this state pursuant to paragraph (2) of subsection (b.1) of Code Section 20-14-26.1.
    2. "Public Education Innovation Fund Foundation" or "foundation" means the foundation established pursuant to subsection (b.1) of Code Section 20-14-26.1.
  2. An individual taxpayer shall be allowed a credit against the tax imposed by this chapter for qualified education donations as follows:
    1. In the case of a single individual or a head of household, the actual amount donated or $1,000.00 per tax year, whichever is less;
    2. In the case of a married couple filing a joint return, the actual amount donated or $2,500.00 per tax year, whichever is less; or
    3. Anything to the contrary contained in paragraph (1) or (2) of this subsection notwithstanding, in the case of an individual who is a member of a limited liability company duly formed under state law, a shareholder of a Subchapter "S" corporation, or a partner in a partnership, the amount donated or $10,000.00 per tax year, whichever is less; provided, however, that tax credits pursuant to this paragraph shall only be allowed for the portion of the income on which such tax was actually paid by such member of the limited liability company, shareholder of a Subchapter "S" corporation, or partner in a partnership.
  3. A corporation or other entity shall be allowed a credit against the tax imposed by this chapter for qualified education donations in an amount not to exceed the actual amount donated or 75 percent of the corporation's income tax liability, whichever is less.
    1. The tax credit shall not be allowed if the taxpayer designates the taxpayer's qualified education donation for the direct benefit of any particular school or program which the taxpayer's child or children attend.
    2. In soliciting donations, the foundation shall not represent that, in exchange for donating to the foundation, the school a taxpayer's child or children attend shall receive a grant pursuant to paragraph (2) of subsection (b.1) of Code Section 20-14-26.1.
  5. In no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused tax credit shall be allowed the taxpayer against the succeeding five years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
    1. In no event shall the aggregate amount of tax credits allowed under this Code section exceed $5 million per tax year.
    2. The commissioner shall allow the tax credits on a first come, first served basis.
    3. For the purposes of paragraph (1) of this subsection, the foundation shall notify a potential donor of the requirements of this Code section. Before making a donation to the foundation, the taxpayer shall electronically notify the department, in a manner specified by the department, of the total amount of donations that the taxpayer intends to make to the foundation. The commissioner shall preapprove or deny the requested amount within 30 days after receiving the request from the taxpayer and shall provide notice to the taxpayer and the foundation of such preapproval or denial which shall not require any signed release or notarized approval by the taxpayer. In order to receive a tax credit under this Code section, the taxpayer shall make the donation to the foundation within 60 days after receiving notice from the department that the requested amount was preapproved. If the taxpayer does not comply with this paragraph, the commissioner shall not include this preapproved donation amount when calculating the limit prescribed in paragraph (1) of this subsection. The department shall establish a web based donation approval process to implement this subsection.
    4. Preapproval of donations by the commissioner shall be based solely on the availability of tax credits subject to the aggregate total limit established under paragraph (1) of this subsection. The department shall maintain an ongoing, current list on its website of the amount of tax credits available under this Code section.
  7. In order for the taxpayer to claim a tax credit under this Code section, a confirmation of receipt of donation issued by the foundation shall be attached to the taxpayer's income tax return. However, in the event the taxpayer files an electronic return, such confirmation shall only be required to be electronically attached to the return if the Internal Revenue Service allows such attachments when the return is transmitted to the department. In the event the taxpayer files an electronic return and such confirmation is not attached because the Internal Revenue Service does not, at the time of such electronic filing, allow electronic attachments to the Georgia return, such confirmation shall be maintained by the taxpayer and made available upon request by the commissioner. The confirmation of receipt of donation shall contain the taxpayer's name, address, tax identification number, the amount of the donation, the date of the donation, and the amount of the credit.
  8. No credit shall be allowed under this Code section with respect to any amount deducted from taxable net income by the taxpayer as a charitable contribution to a bona fide charitable organization qualified under Section 501(c)(3) of the Internal Revenue Code.
  9. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the tax provisions of this Code section. (Code 1981, § 48-7-29.21 , enacted by Ga. L. 2017, p. 100, § 2/HB 237.)

Effective date. - This Code section became effective April 27, 2017. See Editor's note for applicability.

Editor's notes. - Ga. L. 2017, p. 100, § 3(a)/HB 237, not codified by the General Assembly, provides, in part, that this Act "shall be applicable to all taxable years beginning on or after January 1, 2018."

Ga. L. 2017, p. 100, § 3(b)/HB 237 provides for the automatic repeal of this Code section effective December 31, 2023.

48-7-30. Taxation of nonresident's entire net income derived from activities within state; separate accounting possible; applicability; allowed deductions; applicability of provisions for corporations to nonresidents.

  1. The tax imposed by this chapter shall apply to the entire net income of a taxable nonresident derived from employment, trade, business, professional, or other activity for financial gain or profit performed or carried on within this state, including, but not limited to, the rental of real or personal property located within this state or for use within this state, the sale, exchange, or other disposition of tangible or intangible property having a situs in this state, the receipt of proceeds of any lottery prize awarded by the Georgia Lottery Corporation, and withdrawals of contributions to a savings trust account under Article 11 of Chapter 3 of Title 20 which are required to be included in taxable net income as provided in subparagraph (b)(10)(C) of Code Section 48-7-27.
  2. A taxable nonresident whose income is derived from employment, trade, business, professional, or other activity performed or carried on within and outside this state shall be taxed only upon the income derived from carrying on the activity within this state. The amount of taxable income may be determined by a separate accounting of the income if the commissioner is satisfied that the separate accounting reflects correctly the income fairly attributable to this state. Otherwise, the amount of taxable income shall be determined in the manner prescribed by this chapter for the allocation and apportionment of income of corporations engaged in business within and outside this state.
  3. Except as otherwise provided by law, all provisions of this chapter with respect to the definitions, determination, and computation of taxable net income of residents of this state and with respect to the assessment, levy, and collection of the tax imposed by this chapter on the net income of residents of this state shall apply equally to the taxation of the net income of taxable nonresidents.
    1. A taxable nonresident shall be allowed to deduct allowable expenses, interest, taxes, losses, bad debts, depreciation, and similar business expenses when the income of the taxable nonresident is derived from:
      1. Employment, trade, business, professional, or other activity performed or carried on:
        1. Entirely within this state; or
        2. Within and outside this state when the nonresident is permitted by the commissioner to use separate accounting;
      2. The rental of real or personal property located within this state or for use within this state;
      3. The sale, exchange, or other disposition of tangible or intangible property having a situs in this state.
    2. Expenses allowable to a taxable nonresident as provided in paragraph (1) of this subsection shall be allowable only to the extent that the expenses are attributable to the production of income allocable to and taxable by this state. As to allowable deductions essentially personal in nature, such as contributions to charitable organizations, alimony, medical expenses, the optional standard deduction, personal exemptions, and credits for dependents, the taxable nonresident shall be allowed deductions for such deductions essentially personal in nature in the ratio that the gross income allocated to this state bears to the total gross income of the taxable nonresident computed as if the taxable nonresident were a resident of this state. The commissioner may accept total federal gross income as the equivalent of total Georgia gross income for purposes of this allocation.
  5. A taxable nonresident whose income is derived from the activities specified in subsection (d) of this Code section performed or carried on within and outside this state and who is required to allocate and apportion his income in the manner of corporations engaged in business within and outside this state shall compute his net taxable income as if he were a resident of this state. The net taxable income so computed shall be apportioned in the manner of corporations engaged in business within and outside this state.

    (Ga. L. 1931, Ex. Sess., p. 24, § 15; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3112; Ga. L. 1957, p. 397, § 3; Code 1933, § 91A-3610, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2; Ga. L. 1994, p. 597, § 3; Ga. L. 2002, p. 372, § 4; Ga. L. 2008, p. 159, § 9/HB 1014; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in the middle of subsection (a).

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 2002, p. 372, § 15(b), not codified by the General Assembly, provides that §§ 1-4, 6, and 8-14 of this Act shall be applicable to all taxable years beginning on or after January 1, 2002.

Ga. L. 2008, p. 159, § 10/HB 1014, not codified by the General Assembly, provides, in part, that the 2008 amendment shall be applicable to all taxable years beginning on or after January 1, 2008.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For comment on Forrester v. Culpepper, 194 Ga. 744 , 22 S.E.2d 595 (1942), see 6 Ga. B. J. 155 (1943).

JUDICIAL DECISIONS

Legislative intent as to income earned outside state before becoming resident. - Former Code 1933, §§ 92-3002, 92-3101, and 92-3112 (see now O.C.G.A. §§ 48-7-1 , 48-7-20 and 48-7-30 ) when construed together, authorize if the statutes do not compel the interpretation that the legislature did not intend to impose a tax upon such portion of the income of a resident as was derived by the resident from sources without the state before the date on which the individual became a resident of this state. Forrester v. Culpepper, 194 Ga. 744 , 22 S.E.2d 595 (1942); commented on in, 6 Ga. B.J. 155 (1943).

OPINIONS OF THE ATTORNEY GENERAL

Scope of term "business." - Word "business" as used in this section is not meant to include sole proprietorships or partnerships whose entire income is from professional or personal services. 1954-56 Op. Att'y Gen. p. 760.

When income received by nonresident from certificate of deposit issued by Georgia bank taxable. - Income received by a nonresident from a certificate of deposit issued by a Georgia bank would not be subject to income tax in this state unless the certificate of deposit had been acquired as income from property otherwise held in this state or as the result of regular conduct by a nonresident of a business dealing in such intangibles within the State of Georgia. 1967 Op. Att'y Gen. No. 67-250.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 354, 358.

C.J.S. - 85 C.J.S., Taxation, §§ 1971 et seq., 1979 et seq., 1998 et seq., 2026, 2027, 2042 et seq.

ALR. - "Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 76 A.L.R. 806 ; 143 A.L.R. 361 .

Power of state to extend its taxing power by its definition of residence or its declared policy of domesticating foreign corporations, 100 A.L.R. 1216 .

What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943 .

48-7-31. Taxation of corporations; allocation and apportionment of income; formula for apportionment.

  1. The tax imposed by this chapter shall apply to the entire net income, as defined in this article, received by every foreign or domestic corporation owning property within this state, doing business within this state, or deriving income from sources within this state to the extent permitted by the United States Constitution. A corporation shall be deemed to be doing business within this state if it engages within this state in any activities or transactions for the purpose of financial profit or gain whether or not:
    1. The corporation qualifies to do business in this state;
    2. The corporation maintains an office or place of doing business within this state; or
    3. Any such activity or transaction is connected with interstate or foreign commerce.
    1. If the entire business income of the corporation is derived from property owned or business done in this state, the tax shall be imposed on the entire business income.
    2. If the business income of the corporation is derived in part from property owned or business done in this state and in part from property owned or business done outside this state, the tax shall be imposed only on that portion of the business income which is reasonably attributable to the property owned and business done within this state, such portion to be determined as provided in subsections (c) and (d) of this Code section.
    1. Interest received on bonds held for investment and income received from other intangible property held for investment are not subject to apportionment. All expenses connected with such investment income shall be applied against the investment income. The net investment income from intangible property shall be allocated to this state if the situs of the corporation is in this state or if the intangible property was acquired as income from property held in this state or as a result of business done in this state.
    2. Rentals received from real estate held purely for investment purposes and not used in the operation of any business are not subject to apportionment. All expenses connected with such investment income shall be applied against the investment income. The net investment income from tangible property located in this state shall be allocated to this state.
    3. Gains from the sale of tangible or intangible property not held, owned, or used in connection with the trade or business of the corporation nor held for sale in the regular course of business shall be allocated to this state if the property sold is real or tangible personal property situated in this state or intangible property having an actual situs or a business situs within this state. Otherwise, the gains shall not be allocated to this state.
  4. Net income of the classes described in subsection (c) of this Code section having been separately allocated and deducted, the remainder of the net business income shall be apportioned as follows:
    1. Where the net business income of the corporation is derived principally from the manufacture, production, or sale of tangible personal property, the portion of net income therefrom attributable to property owned or business done within this state shall be taken to be the portion arrived at by application of the following formula:
      1. Gross receipts factor.
        1. The gross receipts factor is a fraction, the numerator of which is the total gross receipts from business done within this state during the tax period and the denominator of which is the total gross receipts from business done everywhere during the tax period. For the purposes of this subparagraph, receipts shall be deemed to have been derived from business done within this state only if the receipts are received from products shipped to customers in this state, or from products delivered within this state to customers. In determining the gross receipts within this state, receipts from sales negotiated or effected through offices of the taxpayer outside this state and delivered from storage in this state to customers outside this state shall be excluded;
        2. Where a taxpayer's gross receipts are also derived from activities described in paragraph (2) of this subsection, gross receipts shall also include the gross receipts from the activities described in paragraph (2) of this subsection and shall be attributed to Georgia based upon division (2)(A)(i) of this subsection;
      2. Apportionment formula. The net income of the corporation shall be apportioned to this state according to the gross receipts factor pursuant to subparagraph (A) of this paragraph;
    2. Except as otherwise provided in paragraph (2.1) or (2.2) of this subsection, where the net business income is derived principally from business other than the manufacture, production, or sale of tangible personal property, the net business income of the corporation shall be determined by applying the following formula:
      1. Gross receipts factor.
        1. The gross receipts factor is a fraction, the numerator of which is the total gross receipts from business done within this state during the tax period and the denominator of which is the total gross receipts from business done everywhere during the tax period. For purposes of this subparagraph, the term "gross receipts" means all gross receipts received from activities which constitute the taxpayer's regular trade or business. Gross receipts are in this state if the receipts are derived from customers within this state or if the receipts are otherwise attributable to this state's marketplace;
        2. Where a taxpayer's gross receipts are also derived from activities described in paragraph (1) of this subsection, gross receipts shall also include the gross receipts from the activities described in paragraph (1) of this subsection and shall be attributed to Georgia based upon division (1)(A)(i) of this subsection;
      2. Apportionment formula. The net income of the corporation shall be apportioned to this state according to the gross receipts factor pursuant to subparagraph (A) of this paragraph;
      3. If the allocation and apportionment provisions provided for in this paragraph do not fairly represent the extent of the taxpayer's business activity in this state, the taxpayer may petition the commissioner for, or the commissioner may by regulation require, with respect to all or any part of the taxpayer's business activity, if reasonable:
        1. Separate accounting;
        2. The exclusion of any one or more of the factors;
        3. The inclusion of one or more additional factors that will fairly represent the taxpayer's business activity within this state; or
        4. The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer's income.

          The denial of a petition under this subparagraph shall be appealable pursuant to Code Section 48-2-59. Such an appeal shall be filed within 30 days of the date of the commissioner's notice of denial;

          (B) Where the net business income of the corporation is derived principally from transporting passengers or cargo in revenue flight, the portion of the net income therefrom attributable to property owned or business done within this state shall be taken to be the portion arrived at by application of the following three-factor formula:

          1. Revenue air miles factor. The revenue air miles factor is a fraction, the numerator of which shall be equal to the total, for each flight stage which originates or terminates in this state, of revenue passenger miles by aircraft type flown in this state and revenue cargo ton miles by aircraft type flown in this state and the denominator of which shall be equal to the total, for all flight stages flown everywhere, of total revenue passenger miles by aircraft type and total revenue cargo ton miles by aircraft type;
          2. Tons handled factor. The tons handled factor is a fraction, the numerator of which shall be equal to the total of revenue passenger tons by aircraft type handled in this state and revenue cargo tons by aircraft type handled in this state and the denominator of which shall be equal to the total of revenue passenger tons by aircraft type flown everywhere and revenue cargo tons by aircraft type flown everywhere. For purposes of this division, the term "handled" means the product of 60 percent multiplied by the revenue passenger tons flown on each flight stage which originates in this state or 60 percent multiplied by the revenue cargo tons flown on each flight stage which originates in this state;
          3. Originating revenue factor. The originating revenue factor is a fraction, the numerator of which shall be equal to the total of passenger and cargo revenue by aircraft type which is attributable to this state and the denominator of which shall be the total of passenger and cargo revenue by aircraft type everywhere. For purposes of this division, passenger or cargo revenue which is attributable to this state shall be equal to the product of passenger or cargo revenue everywhere by aircraft type multiplied by the ratio of revenue passenger miles or revenue cargo ton miles in this state to total revenue passenger miles everywhere or total revenue cargo ton miles everywhere for each aircraft type as separately determined in division (i) of this subparagraph. If records of total passenger revenue everywhere by aircraft type or total cargo revenue everywhere by aircraft type are not maintained, then for purposes of this division, total passenger revenue everywhere for all aircraft types or total cargo revenue everywhere for all aircraft types shall be allocated to each aircraft type based on the ratio of total revenue passenger miles everywhere for that aircraft type to all aircraft types or total revenue cargo ton miles everywhere for that aircraft type to all aircraft types;
          4. The revenue air miles factor, the tons handled factor, and the originating revenue factor shall be separately determined and an apportionment fraction shall be calculated using the following formula:
            1. The revenue air miles factor shall represent 25 percent of the fraction;
            2. The tons handled factor shall represent 25 percent of the fraction; and
            3. The originating revenue factor shall represent 50 percent of the fraction.

              The net income of the corporation shall be apportioned to this state according to such average fraction;

              1. "Credit card data processing and related services" shall include, but not be limited to, the provision of infrastructure services for bank credit card and private label card issuers, such as new account application processing, international and domestic clearing, statement preparation, point-of-sale authorization processing, card embossing, and other related processing services for managing cardholder accounts.
              2. "Customer" means the banks and institutions to whom credit card data processing and related services are provided.
              3. "Gross receipts factor" means a fraction, the numerator of which is the total gross receipts from the taxpayer's customers during the tax period, if the principal office of the customer's credit card operation is in this state or if the principal office of the taxpayer's customer is in this state, and the denominator of which is the total gross receipts from all of the taxpayer's customers during the tax period.

                (B) Where more than 60 percent of the total gross receipts of a corporation are derived from the provision of credit card data processing and related services to banks and other institutions, the portion of the net income attributable to business done in this state shall be determined by multiplying the corporation's net income by the gross receipts factor in division (iii) of subparagraph (A) of this paragraph;

      (2.1) (A) Except as otherwise provided in this paragraph, all terms used in this paragraph shall have the same meaning as such terms are defined in 49 U.S.C. Section 1301 and the United States Department of Transportation's Uniform System of Accounts and Reports for Large Certificated Air Carriers, 14 C.F.R. Part 241, as now or hereafter amended.

      (2.2) (A) As used in this paragraph, the term:

    3. For the purposes of this subsection, the term "sale" shall include, but not be limited to, an exchange, and the term "manufacture" shall include, but not be limited to, the extraction and recovery of natural resources and all processes of fabricating and curing.
  5. The net income of a domestic or foreign corporation which is a subsidiary of another corporation or which is closely affiliated with another corporation by stock ownership shall be determined by eliminating all payments to the parent corporation or affiliated corporation in excess of fair value and by including fair compensation to the domestic business corporation for its commodities sold to or services performed for the parent corporation or affiliated corporation. For the purposes of determining net income as provided in this subsection, the commissioner may equitably determine the net income by reasonable rules of apportionment of the combined income of the subsidiary, its parent, and affiliates, or any combination of the subsidiary, its parent, and any one or more of its affiliates.

    (Ga. L. 1931, Ex. Sess., p. 24, § 15; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3113; Ga. L. 1935, p. 121, § 4; Ga. L. 1937, p. 109, § 9; Ga. L. 1941, p. 210, § 5; Ga. L. 1950, p. 299, § 1; Ga. L. 1962, p. 455, § 1; Ga. L. 1969, p. 114, §§ 3, 4; Ga. L. 1974, p. 406, § 1; Code 1933, § 91A-3611, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 69; Ga. L. 1987, p. 191, § 2; Ga. L. 1995, p. 714, §§ 1, 2; Ga. L. 1996, p. 181, §§ 7, 8; Ga. L. 1996, p. 220, § 1; Ga. L. 1997, p. 459, §§ 1, 2; Ga. L. 1998, p. 6, § 1; Ga. L. 2001, p. 984, § 5; Ga. L. 2002, p. 415, § 48; Ga. L. 2005, p. 30, §§ 4-6/HB 191; Ga. L. 2005, p. 159, § 15/HB 488; Ga. L. 2012, p. 318, § 10/HB 100.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1995, p. 714, § 4, not codified by the General Assembly, provides that the 1995 amendment shall be applicable to all taxable years beginning on or after January 1, 1995.

Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code.

Ga. L. 1996, p. 181, § 11, not codified by the General Assembly, provides that the 1996 amendment shall be applicable to all taxable years beginning on or after January 1, 1996.

Ga. L. 1996, p. 220, § 11, not codified by the General Assembly, provides that the 1996 amendment shall be applicable to all taxable years beginning on or after January 1, 1996.

Ga. L. 1997, p. 459, § 3, not codified by the General Assembly, provides that the 1997 amendment shall be applicable to all taxable years beginning on or after January 1, 1997.

Ga. L. 1998, p. 6, § 2, not codified by the General Assembly, provides that the 1998 amendment shall be applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2001, p. 984, § 20, not codified by the General Assembly, provides that the 2001 amendment shall be applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2005, p. 30, § 7(d)/HB 191, not codified by the General Assembly, provides that the 2005 amendment to paragraphs (d)(1) and (d)(2) shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Administrative Rules and Regulations. - Corporations: Allocation and appointment of income, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, § 560-7-7-.03.

Law reviews. - For article, "Foreign Corporations in Georgia," see 10 Ga. St. B. J. 243 (1973). For article, "Primary Tax Incentives for Industrial Investment in the Southeastern United States," see 25 Emory L.J. 789 (1976). For note discussing Georgia corporate income tax in light of commerce clause immunity, see 10 Ga. B. J. 172 (1947). For note on the 1995 amendment of this Code section, see 12 Georgia St. U.L. Rev. 347 (1995). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001). For comment on Redwine v. Schenley Indus., Inc., 210 Ga. 769 , 83 S.E.2d 16 (1954), see 17 Ga. B. J. 261 (1954). For comment, "Doing Business for Purposes of State Taxation of Foreign Corporations," focusing on Minnesota v. Northwestern States Portland Cement Co., CCH State Tax Reports 16-001 (Hennepin County Dist. Court, October, 1955), see 5 J. Pub. L. 263 (1956). For comment on Williams v. Stockham Valves & Fittings, Inc., 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959), upholding constitutionality of state net income tax levied on revenues of foreign corporation derived from interstate commerce where tax is "fairly apportioned, " see 22 Ga. B. J. 107 (1959). For comment on Hawes v. William L. Bonnell Co., 116 Ga. App. 184 , 156 S.E.2d 536 (1967), see 19 Mercer L. Rev. 464 (1968).

JUDICIAL DECISIONS

ANALYSIS

General Considerations

History of this Code section through Ga. L. 1950, p. 299. State v. Coca Cola Bottling Co., 212 Ga. 630 , 94 S.E.2d 708 (1956).

Legislative intent. - General Assembly clearly and plainly showed the legislature's intention to tax the activities or transactions which every corporation carries on within this state for the purpose of financial profit or gain. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

Purpose of section. - Evident purpose of this section is to require the taxpayer to pay to this state income tax on that portion of the taxpayer's business which is fairly attributable to its activities in this state. Twentieth Century-Fox Film Corp. v. Phillips, 76 Ga. App. 825 , 47 S.E.2d 183 (1948).

Obvious purpose of this section as a whole is to provide some of the rules for determining corporate net income within the state. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Section fixes a legislative definition of what constitutes basis for assessing income taxes against corporations, foreign or domestic, which engage in any activities or transactions in this state for the purpose of financial profit or gain. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

Alternative means of computing Georgia-derived income. - Under former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35 ), that part of the net income of a corporation engaged in the business of manufacturing or selling tangible personal property in this state, and elsewhere, which should be allocated and apportioned to this state, may be determined. This is especially true when such a corporation in the corporation's regular business activities does not have all of the factors of the three factor formula. State v. Coca Cola Bottling Co., 212 Ga. 630 , 94 S.E.2d 708 (1956).

Former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-3 and 48-7-35 ) conferred upon nonresidents and corporations the right to seek alternative methods of determining their Georgia-derived income when such methods would more accurately reflect that income. Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634 , 206 S.E.2d 842 (1974), aff'd, 233 Ga. 412 , 211 S.E.2d 711 (1975).

Purpose of apportionment provisions. - Common sense meaning of this section as to apportioning of business income is that a corporation carrying on an active interstate business in this state and one or more other states is entitled to apportion its total taxable income between or among those states. Its liability to this state is on the amount apportioned to Georgia. Blackmon v. Habersham Mills, Inc., 233 Ga. 501 , 212 S.E.2d 337 (1975).

Amount of business in this state historically is primary factor in allocating net income. - Throughout the history of this section, one of the primary factors in determining the proportion of the net income properly to be allocated to this state has been the amount of business within the state. Twentieth Century-Fox Film Corp. v. Phillips, 76 Ga. App. 825 , 47 S.E.2d 183 (1948).

When interstate operations of foreign corporation may be taxed. - Net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing state forming a sufficient nexus to support the levy. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S. Ct. 357 , 3 L. Ed. 2 d 421 (1959).

Jurisdiction in other states for tax purposes immaterial to liability in this state. - Whether a corporation is subject to the taxing jurisdiction of other states is immaterial. If a domestic or foreign corporation has an apportioned tax liability in this state, the remainder of the corporation's apportioned tax liability being in other states, whether those other states do or do not levy a state income tax is immaterial. Blackmon v. Habersham Mills, Inc., 233 Ga. 501 , 212 S.E.2d 337 (1975).

Apportionment provisions inapplicable when entire net income derived from doing business in this state. - When corporation's entire net income is derived from doing business in this state, the remainder of this section, relating to an apportionment of income when it is derived only in part from property owned or business done within this state and in part from property owned or business done elsewhere, is wholly inapplicable. State v. Coca-Cola Bottling Co., 214 Ga. 316 , 104 S.E.2d 574 (1958).

Apportionment under paragraph (d)(3) of section. - When subsection (5) of former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ) was applicable, equitable apportionment was mandatory unless the taxpayer made application for other treatment pursuant to former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35 ) and such application was granted by the commissioner. Blackmon v. Henry C. Beck Co., 233 Ga. 412 , 211 S.E.2d 711 (1975).

Under former paragraph (d)(3) of O.C.G.A. § 48-7-31 , a corporation engaged in a unitary-service related business with other corporations could use a unitary method of apportioning income since the provision, prior to the 1995 amendment, did not require a specific method of apportionment. Collins v. AT & T Co., 219 Ga. App. 196 , 464 S.E.2d 642 (1995).

Separate business rule inapplicable under paragraph (d)(3) of section. - "Separate business" rule cannot be supported by subsection (5) of this section, which stated that the net income shall be equitably apportioned within and outside the state under rules and regulations of the commissioner, in the ratio that the business within the state was to the total business of the corporation. Blackmon v. Henry C. Beck Co., 233 Ga. 412 , 211 S.E.2d 711 (1975).

Failure of commissioner to apportion income derived both within and outside state is abuse of discretion. - If the net income of a corporation is derived from the performance of the corporation's business operations both within and outside this state, it is an abuse of the commissioner's discretion to tax that corporation on a separate accounting basis, when the General Assembly has required that such income be equitably apportioned. Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634 , 206 S.E.2d 842 (1974), aff'd, 233 Ga. 412 , 211 S.E.2d 711 (1975).

Tax liability when principal office and place of business located in state. - When orders for the taxpayer's product come to it unsolicited and when the taxpayer's principal office and place of business is in this state, the taxpayer is liable to this state for income tax upon the net income derived from its entire business operations. Its business is done in this state and the destination or origin of its shipment in no wise alters this fact. State v. Coca-Cola Bottling Co., 214 Ga. 316 , 104 S.E.2d 574 (1958).

Sale of whiskey. - It is illogical and unreasonable to contend that the sale of whiskey in this state by an unlicensed nonresident, upon orders taken in this state and approved by the state revenue commissioner in conformity with regulations, is doing business in this state and is subject to income tax on the income arising therefrom. Redwine v. Schenley Indus., Inc., 210 Ga. 769 , 83 S.E.2d 16 ; commented on in, 17 Ga. B.J. 261 (1954).

Cited in Graham v. Hanna, 297 Ga. App. 542 , 677 S.E.2d 686 (2009).

Doing Business

Term "doing business" comports with due process requirements. - Term "doing business" within former Code 1933, §§ 92-2401 and 92-3113, which means any activity or transactions for the purpose of financial profit or gain, did not violate the due process requirement of either the Fourteenth Amendment or Ga. Const. 1976, Art. I, Sec. I, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Chattanooga Glass Co. v. Strickland, 244 Ga. 603 , 261 S.E.2d 599 (1979).

No prohibition against tax benefit or exemption for domestic corporation doing business outside state. - Regardless of constitutional limitations on the state's power to tax foreign corporations, it is not prohibited from granting a tax benefit or exemption to a domestic corporation doing business outside the state. Blackmon v. Habersham Mills, Inc., 131 Ga. App. 59 , 205 S.E.2d 21 (1974), aff'd, 233 Ga. 501 , 212 S.E.2d 337 (1975).

Constitutionality of tax on income from unsolicited orders received from outside state. - Income derived by a corporation from unsolicited orders received by the corporation from outside the state cannot, under the Fourteenth Amendment and the commerce clause of the United States Constitution, be taxed elsewhere than in the state. State v. Coca-Cola Bottling Co., 214 Ga. 316 , 104 S.E.2d 574 (1958).

Former "closed transaction" test replaced by "activities or transactions" test. - Georgia Laws 1950, p. 299, had the legal effect of shifting the operation of this section from the "closed transaction" test, which the courts of this state had previously applied to it, to the "activities or transactions" test, which Ga. L. 1950, p. 299 established as the criterion to be used thereafter in determining an income tax liability to this state of a corporation, foreign or domestic, which engages in any activities or transactions in this state for the purpose of financial profit or gain. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316 , 116 S.E.2d 293 (1960).

"Doing business" identifies who is liable, not extent of liability. - First paragraph of this section defines who was liable for the tax. The references to "doing business" do not relate in any manner to the amount of the tax liability. Blackmon v. Habersham Mills, Inc., 233 Ga. 501 , 212 S.E.2d 337 (1975).

"Doing business" means any activity or transaction for the purpose of financial profit or gain. Chattanooga Glass Co. v. Strickland, 244 Ga. 603 , 261 S.E.2d 599 (1979).

"Doing business" encompasses substantial activity on behalf of the corporation. - Courts have interpreted the words "doing business" when applied to a foreign corporation to encompass a substantial activity on the corporation's own behalf in this state. Likewise, the same test is applied as to a domestic corporation seeking to apportion the corporation's income for "doing business" outside the state. Hawes v. William L. Bonnell Co., 116 Ga. App. 184 , 156 S.E.2d 536 (1967); for comment see 19 Mercer L. Rev. 464 (1968).

Same activity not necessarily likewise doing business both within and outside state. - This section is designed to provide a broad basis for taxation of foreign corporations and to offer domestic corporations doing business outside the state commensurate tax benefits. However, this section does not provide that whatsoever would be deemed to constitute doing business within the state shall similarly constitute doing business outside the state. It merely provides a definition of "doing business". Hawes v. William L. Bonnell Co., 116 Ga. App. 184 , 156 S.E.2d 536 (1967); for comment see 19 Mercer L. Rev. 464 (1968).

What activities insufficient to constitute "doing business". - Following activities have been found insufficient to constitute "doing business": (1) customers and delivery of merchandise; (2) salaried salesman; and (3) sales arrangements and selling contracts with various companies. Hawes v. William L. Bonnell Co., 116 Ga. App. 184 , 156 S.E.2d 536 (1967); for comment see 19 Mercer L. Rev. 464 (1968).

What activity of foreign corporation constitutes doing business. - In order to incur tax liability under statutes imposing taxes on persons doing business in a state, a foreign corporation must transact some substantial part of its ordinary business, and it must be continuous in character as distinguished from a mere casual or occasional transaction. Hawes v. William L. Bonnell Co., 116 Ga. App. 184 , 156 S.E.2d 536 (1967); for comment see 19 Mercer L. Rev. 464 (1968).

Three-Factor Formula

Gross receipts factor and apportionment formula comport with due process. - Gross receipts factor, when taken in connection with the two other factors of the three factor formula and subsection (4)(d) of this section did not violate the due process clause of either the federal or state Constitutions. United States Steel Corp. v. Undercofler, 220 Ga. 553 , 140 S.E.2d 269 (1965).

Discussion of the history of the three factor formula. - See Oxford v. Nehi Corp., 215 Ga. 74 , 109 S.E.2d 329 (1959).

Object of apportionment is to fairly allocate the net income of the taxpayer, which is accomplished by the selection of factors which are causally related to the production of the income. State v. Coca Cola Bottling Co., 212 Ga. 630 , 94 S.E.2d 708 (1956).

Fair and proper allocation is obtained only when all three factors actually exist and are used by the taxpayer in making an apportionment of the taxpayer's net income. State v. Coca Cola Bottling Co., 212 Ga. 630 , 94 S.E.2d 708 (1956).

Use of fewer than all three factors in computations no longer allowed. - In determining the amount of the taxpayer's net income which should be allocated and apportioned to this state, former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ), unlike former Code 1933, § 92-3113 as it existed prior to Ga. L. 1950, p. 299, did not permit the use of two or one of the factors making up the formula, but expressly declared that all the factors must be used by the taxpayer in determining the amount of the taxpayer's net income which should be allocated and apportioned to this state. State v. Coca Cola Bottling Co., 212 Ga. 630 , 94 S.E.2d 708 (1956).

When out-of-state sales taxable as Georgia income. - Out-of-state sales of a taxpayer who is engaged in the sale of tangible goods both within and outside the state are taxable as Georgia income when the out-of-state deliveries are made under a contract that title to the goods passes to the purchaser at destination, and when the three factor formula is applicable. Oxford v. Nehi Corp., 98 Ga. App. 779 , 106 S.E.2d 857 (1958), aff'd, 215 Ga. App. 74 , 109 S.E.2d 329 (1959).

When a corporation derives the corporation's income from business done both within and without the state, Georgia taxes only that income which is "reasonably attributable to the property owned and business done within this state," pursuant to a three-part statutory formula. The three factors which are considered are: the corporation's property; payroll; and gross receipts. Strickland v. Patcraft Mills, Inc., 251 Ga. 43 , 302 S.E.2d 544 (1983).

Gross Receipts Factor

Gross receipts factor comports with due process. - Gross receipts factor in view of the property and payroll factors of the three factor formula is not unreasonable on its face or violative of the taxpayer's rights under the due process clause of either the federal or state Constitutions. United States Steel Corp. v. Undercofler, 220 Ga. 553 , 140 S.E.2d 269 (1965).

Taxable nexus for gross receipts purposes is the destination of the goods. - That the shipment of goods is F.O.B. an out-of-state factory to customers in this state makes no difference in the application of this factor. Undercofler v. United States Steel Corp., 109 Ga. App. 8 , 135 S.E.2d 69 (1964), aff'd, 220 Ga. 553 , 140 S.E.2d 269 (1965).

Adoption of "destination" or "place of market" theory for apportioning gross receipts. - O.C.G.A. § 48-7-31(d)(2)(C) must be construed in accordance with prior judicial interpretations of the law, which held that the legislature, in enacting the predecessor to that section, intended to adopt the "destination" or "place of market" theory for apportioning gross receipts under the statute. Strickland v. Patcraft Mills, Inc., 251 Ga. 43 , 302 S.E.2d 544 (1983).

Destination test, as opposed to the "transfer of physical possession" theory, is easy to apply and is not subject to manipulation by taxpayers. Strickland v. Patcraft Mills, Inc., 251 Ga. 43 , 302 S.E.2d 544 (1983).

Destination test correctly recognizes the contribution by a consumer state to the realization of corporate income, and acknowledges that the process of manufacturing results in no profits until it ends in sales. Strickland v. Patcraft Mills, Inc., 251 Ga. 43 , 302 S.E.2d 544 (1983).

Limitations as to receipts included in computing gross receipts factor. - That portion of subdivision (4)(c) (now (d)(2)(c)) of this section which read, "for the purposes of this section (now subparagraph) receipts shall be deemed to have been derived from business done within this state only if received from products shipped to customers in this state, or delivered within this state to customers," simply meant that receipts from products shipped to customers outside of this state or delivered to customers outside of this state should not be included as being Georgia receipts. Oxford v. Nehi Corp., 215 Ga. 74 , 109 S.E.2d 329 (1959).

Receipts referred to in a portion of subdivision (4)(c) of this section reading "in determining the gross receipts within this state, receipts from sales negotiated or effected through offices of the taxpayer outside the state and delivered from storage in this state to customers outside this state shall be excluded," were receipts for sales effected outside of the state for products delivered to customers outside the state, have no reference to the kind of receipts referred to in the first part of that subdivision (now subparagraph), and neither included, limited, excluded, or affected the receipts from "products shipped to customers in this state or products delivered within this state to customers." Oxford v. Nehi Corp., 215 Ga. 74 , 109 S.E.2d 329 (1959).

Receipts from carpet sales made by the taxpayer to out-of-state customers who took possession of the goods at the taxpayer's place of business in Dalton, Georgia, for immediate transport and resale out of state did not constitute "gross receipts from business done within this state" for purposes of the three factor formula for determining the taxable income of multistate corporations in Georgia under O.C.G.A. § 48-7-31(d)(2). Strickland v. Patcraft Mills, Inc., 251 Ga. 43 , 302 S.E.2d 544 (1983).

Net Income of Subsidiaries and Affiliates

Purpose of provisions as to subsidiaries and affiliates. - Obvious purpose of subsection (6) of this section, as a whole, as stated in the first sentence, was to pierce the veil of a corporate entity to reflect income as if all transactions with a parent corporation or an affiliate were at arm's length. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Construction of provisions as to subsidiaries and affiliates with other provisions. - Bifurcated accounting rule of subsection (6) of former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ) did not render former Code 1933, § 92-3209 (see now O.C.G.A. § 48-7-58 ) meaningless because the purpose of former Code 1933 § 92-3207 was much broader than specific accounting rules provided in that former section. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Commissioner alone may pierce corporate veils and apply a unitary theory to determine equitably net income by reasonable rules of apportionment. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Duty to determine net income of subsidiaries and affiliates. - First sentence of subsection (6) of this section, in failing to state who shall make adjustments, imposed a mandatory obligation on the taxpayer and the commissioner, to determine net income of the subsidiary or affiliate. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Commissioner's power discretionary. - The second sentence of subsection (6) of this section (see now subsection (e)), unlike the first, stated a discretionary rule. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Commissioner's power may be exercised only when mandatory rule cannot be used. - The two sentences of subsection (6) of this section must be read together, the second as limited by the first, which as a mandatory rule has priority. In order to exercise the discretion under the second rule, the commissioner must find that the income of the taxpayer cannot be adjusted in the manner first prescribed. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

No basis for application of unitary theory when taxpayer has done all the law requires. - When findings of fact reflect that the taxpayer has done all that the law requires, no basis exists for the commissioner to rely upon the second sentence of subsection (6) of this section as authority to apply the unitary theory. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Mere existence of unitary business is not test for exercising discretion vested in the commissioner under the second sentence of subsection (6) of this section. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

OPINIONS OF THE ATTORNEY GENERAL

Due process limits on what constitutes doing business. - This section is necessarily limited by the requirements of due process so that isolated, casual, and intermittent activity incidental to the conduct of a business conducted in another state does not constitute doing business in this state. 1960-61 Op. Att'y Gen. p. 497; 1960-61 Op. Att'y Gen. p. 498; 1960-61 Op. Att'y Gen. p. 500.

Tax on net worth, not franchise or privilege of doing business. - Income tax is imposed upon net income of the corporation and not upon the franchise or the privilege of doing business. 1950-51 Op. Att'y Gen. p. 373.

No right to file consolidated returns. - General Assembly, by adopting former Code 1933, § 92-3202 (see now § O.C.G.A. 48-7-51) did not give to corporate taxpayers, for Georgia income tax purposes, the right to file consolidated income tax returns. 1969 Op. Att'y Gen. No. 69-77.

Taxpayer may amend filing unauthorized under § 48-7-34 . - Company which filed the company's income tax return under former Code 1933, § 92-3114 (see now O.C.G.A. § 48-7-34 ), which return was accepted by the commissioner, although no express consent was given by the latter permitting the filing under former § 92-3114, may nevertheless within the statute of limitations amend the company's return by filing under former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ) and procure any refund to which the company may be entitled, since the first filing was unauthorized and therefore did not work an estoppel. 1952-53 Op. Att'y Gen. p. 434.

What activity constitutes doing business in this state. - Branch manufacturing shop in this state, shipping all its completed goods to a main plant located outside the state, which in turn makes all sales, is taxable under laws of this state to the extent that the operation in this state produced income to the main corporation and, therefore, is considered as doing business in Georgia. 1954-56 Op. Att'y Gen. p. 703.

Corporation stocking wares in this state for shipment to consumers in southeast is doing business in this state and is subject to taxation. 1957 Op. Att'y Gen. p. 280.

Foreign corporation which leases furniture, fixtures, and equipment to a company in this state for the operation of a store is doing business in this state, and is subject to the payment of income tax upon the rent received for such fixtures. 1958-59 Op. Att'y Gen. p. 366.

When a foreign corporation merely qualifies as a fiduciary or merely holds a fiduciary title to property located in this state, and engages in no other activity in this state with respect to such property, it is not engaged in sufficient activity in this state to constitute its personally doing business in this state. Such corporation, as a fiduciary, would have an income tax liability on account of income or gains derived from such property. 1960-61 Op. Att'y Gen. p. 497.

When an out-of-state lending institution intermittently merely purchases from a Georgia real estate and mortgage company notes secured by mortgages on Georgia real estate, such activity was not enough to constitute doing business in this state for purposes of income tax liability. 1960-61 Op. Att'y Gen. p. 501.

Foreign corporation which merely maintains a bank account in a bank located in this state is not engaged in sufficient activity in this state to constitute doing business under this section; nor would the activity of a bank located in this state which receives collections from the customers of such corporation and deposits those collections to such account be attributed to the foreign corporation. 1960-61 Op. Att'y Gen. p. 500.

Income received by a nonresident from a certificate of deposit issued by a Georgia bank would not be subject to income tax in this state unless the certificate of deposit had been acquired as income from property otherwise held in this state, or as the result of regular conduct by a nonresident of a business dealing in such intangibles within the State of Georgia. 1967 Op. Att'y Gen. No. 67-250.

Loan business conducted through employee, agent, or place of business in state constitutes doing business. - When a foreign corporation has a place of business in this state out of which an employee or agent solicits applications for loans to be there approved or executed, or to be submitted to an out-of-state office for approval or execution, or makes reports concerning applicants and the proffered security, etc., or makes collections on loans, or otherwise services such loans, it is doing business in this state. A foreign corporation which has no place of business in this state but does have an employee or agent in this state who is regularly engaged in any of the activities described above is doing business in this state. 1960-61 Op. Att'y Gen. p. 498.

Joint venture or partnership in such business. - If a foreign corporation is in partnership or in a joint venture with a local independent business which negotiates, effects, sells, or assigns loans secured by property in this state, the activity of the local independent business is attributable to the foreign corporation and it is doing business in this state. 1960-61 Op. Att'y Gen. p. 498.

When foreign corporation purchases or is assigned loans effected by local independent business. - When a local independent business, for the business's own account and not as an employee or agent of a foreign corporation, negotiates and effects loans secured by mortgages against property located in this state, and thereafter sells or assigns outright such loans, in whole or part, to a foreign corporation which is not otherwise regularly engaged in activity within this state, such foreign corporation is not doing business in this state even though the corporation contracts with such local business to collect and service such loans, and makes occasional inspections of the security. 1960-61 Op. Att'y Gen. p. 498.

When borrower contacts foreign corporation outside state even if loan secured by property in state. - If a foreign corporation has no place of business in this state nor any employee who is regularly engaged in activities in this state, and a borrower goes to or contacts the foreign corporation at the corporation's place of business outside this state to arrange a loan secured by property located in this state, and the corporation is regularly engaged in no other activity in this state, the foreign corporation is not engaged in sufficient activities to constitute doing business in this state merely because the property securing such loan is located in this state or because the corporation sends or brings the security instrument into this state for incidental or recording purposes. 1960-61 Op. Att'y Gen. p. 498.

What income taxable as result of foreclosure by out-of-state lender on Georgia realty. - When an out-of-state financial institution incidentally forecloses on Georgia property and holds that property for a reasonable time before the property can be disposed of by sale, there is no "doing business" within the state and such activities, while it would subject the income from the property involved to this state's income tax, would not subject the out-of-state institution to income tax on that portion of its entire investment portfolio which incidentally happened to be secured by real property located in Georgia. 1968 Op. Att'y Gen. No. 68-384.

Any sale or distribution of any alcoholic beverage within this state falls within section. 1950-51 Op. Att'y Gen. p. 369.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 152 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 152 et seq., 163 et seq., 208. 85 C.J.S., Taxation, §§ 1976, 1977, 1989 et seq.

ALR. - "Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 76 A.L.R. 806 ; 143 A.L.R. 361 .

Power of state to extend its taxing power by its definition of residence or its declared policy of domesticating foreign corporations, 100 A.L.R. 1216 .

State excise, privilege, or franchise tax upon foreign corporation as affected by commerce clause, 105 A.L.R. 11 ; 139 A.L.R. 950 .

What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943 .

Income of subsidiary as taxable to it or to parent corporation, 10 A.L.R.2d 576.

Loading or unloading interstate freight in performance of obligation resting upon one other than interstate carrier as interstate commerce as regards local taxation, 10 A.L.R.2d 651.

Validity, under federal Constitution, of state tax on, or measured by, income of foreign corporation, 67 A.L.R.2d 1322.

State income tax treatment of partnerships and partners, 2 A.L.R.6th 1.

What constitutes trade or business under Internal Revenue Code (U.S.C.A. Title 26), 161 A.L.R. Fed. 245.

Protection of out-of-state sellers from state income tax by Public Law 86-272 (15 U.S.C.A. §§ 381 to 384), 182 A.L.R. Fed. 291.

48-7-31.1. Conditions for allocating taxpayer's income pursuant to agreement; public inspection; criteria for evaluating proposals.

  1. For purposes of paragraphs (1) and (2) of subsection (d) of Code Section 48-7-31, the commissioner may enter into an agreement with a taxpayer establishing the allocation and apportionment of the taxpayer's income for a limited period, provided that the following conditions are met:
    1. The taxpayer is planning a new facility in the State of Georgia or an expansion of an existing facility;
    2. The taxpayer submits a proposal asking the commissioner to enter into a contract under this Code section requesting a different allocation and apportionment method and stating the reasons for such proposal; and
    3. Following the commissioner's referral of the proposal to a panel composed of the commissioner of community affairs, the commissioner of economic development, and the director of the Office of Planning and Budget, said panel, after reviewing the proposal, certifies that:
      1. The new facility or expansion will have a significant beneficial economic effect on the region for which it is planned; and
      2. The benefits to the public from the new facility or expansion exceed its costs to the public.
  2. The following records shall constitute public records that are open for inspection under the provisions of Article 4 of Chapter 18 of Title 50:
    1. Proposals submitted by taxpayers under this Code section or under any prior Code section that allowed taxpayers to enter into a contract or agreement with the commissioner to use a different allocation method, a different apportionment method, or both; and
    2. Any agreement or contract entered into as a result of such proposal.
  3. Taxpayers' tax information from any state or federal income tax return contained in records subject to disclosure pursuant to subsection (b) of this Code section which would otherwise be privileged or protected from disclosure by law shall be deleted or redacted from records made available for public inspection.
  4. In evaluating proposals pursuant to subsection (a) of this Code section, the panel shall not determine that a proposal has significant beneficial economic effect on the region for which it is planned unless two or more of the following criteria are met:
    1. The proposal creates new full-time jobs that meet the requirements contained in Regulations 110-9-1-.01, 110-9-1-.02, and 110-9-1-.03 of the Department of Community Affairs, relating to job tax credits, with average wages which are, as determined by the Georgia Department of Labor for all jobs for the county in question:
      1. Twenty percent above such average wage for projects located in tier 1 counties;
      2. Ten percent above such average wage for projects located in tier 2 counties; or
      3. Five percent above such average wage for projects located in tier 3 or tier 4 counties;
    2. The project invests in qualified investment property, as defined in Regulation 560-7-8-.37 of the department, which is valued at over $10 million in tier 1 counties, over $35 million in tier 2 counties, and over $75 million in tier 3 or tier 4 counties. Past investment will not be considered;
    3. The proposal creates a minimum of 50 new full-time jobs that meet the requirements contained in Regulations 110-9-1-.01, 110-9-1-.02, and 110-9-1-.03 of the Department of Community Affairs, relating to job tax credits, in a tier 1 county, 150 such jobs in a tier 2 county, or 300 such jobs in a tier 3 or tier 4 county; or
    4. The proposal demonstrates high growth potential based upon the prior year's Georgia net taxable income growth of over 20 percent from the previous year, if the company's Georgia net taxable income in each of the two preceding years also grew by 20 percent or more. (Code 1981, § 48-7-31.1 , enacted by Ga. L. 2001, p. 984, § 6; Ga. L. 2002, p. 372, § 5; Ga. L. 2004, p. 690, § 18.)

Editor's notes. - Ga. L. 2001, p. 984, § 20, not codified by the General Assembly, provides that the 2001 amendment shall be applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2002, p. 372, § 15(b), not codified by the General Assembly, provides that §§ 1-4, 6, and 8-14 of this Act shall be applicable to all taxable years beginning on or after January 1, 2002.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For note on the 2001 enactment of this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

48-7-32. Taxation of railroad and public service corporations; computation of net income where business is within and outside state; net income for all other such corporations.

  1. When the business of any corporation engaged in the operation of a railroad, express service, telephone or telegraph business, or other form of public service is partly within and partly outside the state, the net income of the corporation for the purpose of this chapter shall be that amount ascertained by apportioning to the state the sum of the net income of the corporation including, but not limited to, dividend income that may legally be taxed by the state (exclusive of income from tax-exempt securities and without any deduction for federal and state income taxes), as shown by the corporation's records kept in accordance with the standard classification of accounts prescribed by the Interstate Commerce Commission when the standard classification of accounts includes in net income rents from all sources; and when the standard classification does not include all rents, then such rents shall be included in net income in the proportion that the total gross operating revenues from business done wholly within the state plus the equal mileage proportion within the state of all gross operating revenues from interstate business of the company, wherever done, bear to the total gross operating revenues from all business done by the company. If any such corporation keeps its records of operating revenues and operating expenses on a state basis in accordance with the standard classification of accounts prescribed by the Interstate Commerce Commission and in a manner which includes in net income for the state the effect of all intrastate and interstate business applicable to the state, the state records may be used by the taxpayer under the supervision of the commissioner in reporting the net taxable income within the state.
  2. All other corporations engaged in the business of operating a railroad, express service, telephone or telegraph business, or other form of public service, whether or not the corporation is required to make reports to the Interstate Commerce Commission, shall keep records according to the standard classifications of accounting of the Interstate Commerce Commission. The net income of the corporation including, but not limited to, dividend income that can legally be taxed by the state (exclusive of tax-exempt securities and without any deduction for federal and state income taxes) shall be determined in accordance with such records. If any such corporation keeps its records of operating revenues and operating expenses on a state basis in accordance with the standard classification of accounts prescribed by the Interstate Commerce Commission and in a manner which includes in net income for the state the effect of all intrastate and interstate business applicable to the state, the state records may, with the consent of the commissioner, be used by the taxpayer in reporting the net taxable income within the state.

    (Ga. L. 1931, Ex. Sess., p. 24, § 18; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3116; Code 1933, § 91A-3614, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 112A; Ga. L. 1987, p. 191, § 2.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

JUDICIAL DECISIONS

Scope of commissioner's discretion. - Discretion of the commissioner, if any, allowed by this section refers to the method of computation and records of corporations which keep records on a state basis, and does not refer to the method and records in the other parts of the section. Atlanta, Birmingham & Coast R.R. v. Forrester, 69 Ga. App. 369 , 25 S.E.2d 581 (1943).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 327 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1979 et seq.

ALR. - What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943 .

48-7-33. Annual accounting periods.

  1. The net income shall be computed upon the basis of the taxpayer's annual accounting period in accordance with the method of accounting regularly employed in keeping the books of the taxpayer. If no such method of accounting has been so employed or if the method employed does not clearly reflect the income, the computation shall be made in accordance with the method which, in the opinion of the commissioner, clearly reflects the income. If the taxpayer's annual accounting period is other than a fiscal year or if the taxpayer has no annual accounting period or does not keep books, the net income shall be computed on the basis of the calendar year. A taxpayer utilizing a fiscal year may return his net income under this chapter on the basis of his fiscal year with the approval of the commissioner and subject to such rules and regulations as the commissioner may establish.
  2. With the approval of the commissioner and under such regulations as he may prescribe, a taxpayer may change his taxable year from fiscal year to calendar year or otherwise. In the case of any such change, the net income shall be computed upon the basis of the new taxable year when approval is obtained from the commissioner at least 30 days prior to the close of the proposed taxable year.
  3. The amount of all items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer unless, under methods of accounting permitted by this Code section, any amounts of gross income are to be properly accounted for as of a different period.
  4. The deductions and credits provided for in this chapter shall be taken for the taxable year in which "paid or accrued" or "paid or incurred" depending upon the method of accounting on the basis of which the net income is computed unless, in order to clearly reflect the income, the deductions or credits should be taken as of a different period.
  5. Whenever in the opinion of the commissioner it is necessary in order to determine clearly the income of any taxpayer, inventories shall be taken by the taxpayer on the basis prescribed by the commissioner. Each such basis shall conform as nearly as possible to the best accounting practice in the particular trade or business which most clearly reflects the income.
  6. If a return has been filed within the three years immediately preceding the date of the taxpayer's death, income and expenses of a taxpayer who dies during the taxable year shall be computed on the same method of accounting, whether cash or accrual, as was used by the taxpayer in the preparation of the last income tax return filed by him with the commissioner. If no return has been filed within the three-year period, the return of a deceased taxpayer shall be prepared on the cash method unless the commissioner certifies that the cash method, because of particular circumstances, is not reasonable to either the state or the heirs, legatees, or devisees interested in the taxpayer's estate. If the commissioner certifies that the cash method is unreasonable, he may order the preparation of the return on the accrual method.
  7. The provisions of Internal Revenue Code Section 441(f) regarding the election of a taxable year consisting of 52-53 weeks shall also apply for purposes of this chapter. Accordingly, when the effective date or the applicability of any provision of this chapter or any general law is expressed in terms of taxable years beginning with reference to a specified date which is the first day of a month, a 52-53 week taxable year shall be treated:
    1. As beginning with the first day of the calendar month beginning nearest to the first day of such 52-53 week taxable year; and
    2. As ending with the last day of the calendar month ending nearest to the last day of such 52-53 week taxable year.
  8. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section.

    (Ga. L. 1931, Ex. Sess., p. 24, § 20; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3118; Ga. L. 1941, p. 210, § 6; Ga. L. 1945, p. 483, §§ 1, 2; Ga. L. 1978, p. 1444, § 1; Code 1933, § 91A-3616, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 70; Ga. L. 1987, p. 191, § 2; Ga. L. 2006, p. 221, § 1/HB 1042.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 2006, p. 221, § 2/HB 1042, not codified by the General Assembly, provides that subsections (g) and (h) shall be applicable to all taxable years beginning on or after January 1, 2006, and to all taxable years which would be considered as beginning on January 1, 2006.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 451 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1976.

ALR. - Year in which loss or bad debt must be charged in order to be allowed as a deduction from taxpayer's income, 67 A.L.R. 1015 ; 21 A.L.R. 697 ; 135 A.L.R. 1430 .

Right of bank in computing income tax to deduction corresponding to amount which it has been required by banking authorities to write down or charge off in respect of securities held by it, 100 A.L.R. 702 .

Method of calculating value of stock of goods or the like for purposes of tangible personal property tax, 66 A.L.R.2d 833.

48-7-34. Returns of corporations and nonresidents based upon books of account; application to commissioner; time; contents.

If any corporation or nonresident employs in its books of account a detailed allocation of receipts and expenditures which reflects more clearly than the processes or formulas prescribed by this chapter the income attributable to the trade or business within this state, application for permission to base its return upon the books of account shall be considered by the commissioner. The application shall be made at least 60 days prior to the last day on which the taxpayer's return is to be filed and shall be accompanied by a full and complete explanation of the method employed.

(Ga. L. 1931, Ex. Sess., p. 24, § 16; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3114; Code 1933, § 91A-3612, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Law reviews. - For article, "Foreign Corporations in Georgia," see 10 Ga. St. B. J. 243 (1973).

JUDICIAL DECISIONS

Alternative means of computing Georgia-derived income. - Former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35 ) confer upon nonresidents and corporations the right to seek alternative methods of determining their Georgia-derived income when such methods would more accurately reflect that income than would former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ). Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634 , 206 S.E.2d 842 (1974), aff'd, 233 Ga. 412 , 211 S.E.2d 711 (1975).

Under former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35 ) that part of the net income of a corporation engaged in the business of manufacturing or selling tangible personal property in this state, and elsewhere, which should be allocated and apportioned to this state, may be determined. This is especially true when such a corporation in the corporation's regular business activities did not have all of the factors of the three factor formula in former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ). State v. Coca Cola Bottling Co., 212 Ga. 630 , 94 S.E.2d 708 (1956).

Commissioner not empowered to select basis for return when no request made. - No power is granted to the commissioner to decide personally, when no request is made, whether another formula would be more indicative of a taxpayer's tax situation. Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634 , 206 S.E.2d 842 (1974), aff'd, 233 Ga. 412 , 211 S.E.2d 711 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Taxpayer may amend unauthorized filing. - Company which files the company's income tax return under former Code 1933, § 92-3114 (see now O.C.G.A. § 48-7-34 ), which return was accepted by the commissioner, although no express consent was given by the latter permitting the filing under former § 92-3114, may nevertheless within the statute of limitations amend the company's return by filing under former Code 1933, § 92-3113 (see O.C.G.A. § 48-7-31 ) and procure any refund to which the company may be entitled since the first filing was unauthorized and therefore did not work an estoppel. 1952-53 Op. Att'y Gen. p. 434.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 463.

C.J.S. - 85 C.J.S., Taxation, §§ 2003, 2004, 2042 et seq.

48-7-35. Application for permission to use other method of allocation by corporation or nonresident; contents; effect of failure to receive notice of rejection.

If any corporation or nonresident shows by any method of allocation other than the processes or formulas prescribed by this chapter that another method reflects more clearly the income attributable to the trade or business within this state, application for permission to base its return upon the other method shall be considered by the commissioner. The application shall be accompanied by a statement setting forth in detail with full explanations the method the taxpayer believes will more clearly reflect its income from business within the state. If the commissioner concludes that the method of allocation and apportionment submitted by the taxpayer is in fact inapplicable and inequitable, he shall reject the application and shall so notify the taxpayer. Failure to receive the commissioner's notice shall not operate to relieve the taxpayer from liability for not filing the return on its due date utilizing the allocation and apportionment method prescribed by this chapter.

(Ga. L. 1931, Ex. Sess., p. 24, § 17; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3115; Code 1933, § 91A-3613, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Administrative Rules and Regulations. - Alternate method of determining income, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.03.

JUDICIAL DECISIONS

Alternative means of computing Georgia-derived income. - Under former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35 ) that part of the net income of a corporation engaged in the business of manufacturing or selling tangible personal property in this state, and elsewhere, which should be allocated and apportioned to this state may be determined. This is especially true when such a corporation in the corporation's regular business activities does not have all of the factors of the three factor formula in former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ). State v. Coca Cola Bottling Co., 212 Ga. 630 , 94 S.E.2d 708 (1956).

Former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35 ) confer upon nonresidents and corporations the right to seek alternative methods of determining their Georgia-derived income when such methods would more accurately reflect that income than would former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31 ). Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634 , 206 S.E.2d 842 (1974), aff'd, 233 Ga. 412 , 211 S.E.2d 711 (1975).

Commissioner not empowered to select basis for return when no request made. - No power is granted to the commissioner to decide personally, when no request is made, whether another formula would be more indicative of a taxpayer's tax situation. Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634 , 206 S.E.2d 842 (1974), aff'd, 233 Ga. 412 , 211 S.E.2d 711 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Reasonable interpretation of section would require the taxpayer annually to file an application. 1948-49 Op. Att'y Gen. p. 376.

48-7-36. Tolling of time limits for filings by reason of war related service in armed forces.

In the case of an individual:

  1. Serving in the armed forces of the United States or in support of the armed forces of the United States in an area designated by the President of the United States by executive order as a "combat zone," as that term is defined by the Internal Revenue Code of 1986, at any time during the period designated by the President's executive order as the period of combat activities in the zone;
  2. Hospitalized as a result of an injury received while serving in such an area during the period of combat activities; or
  3. Who is confined as a prisoner of the forces opposing the United States in a combat zone,

    the period of service in the combat zone, plus the period of continuous hospitalization attributable to an injury, plus any period of confinement, and the next 180 days thereafter shall be disregarded in determining whether any filing required by this title has been performed within the time prescribed for the filing.

    (Code 1933, § 92-3122, enacted by Ga. L. 1971, p. 605, § 8; Code 1933, § 91A-3617, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, "United States" was deleted preceding "Internal Revenue Code" in paragraph (1).

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

RESEARCH REFERENCES

ALR. - Military service as basis of discrimination in statutes or ordinances relating to taxation or licenses, 83 A.L.R. 1231 .

48-7-37. Taxes due from members of armed forces dying on active duty; applicability of tax to particular taxable years; assessment of unpaid taxes; abatement; credit or refund of collected payments.

In the case of any individual who dies while in active service as a member of the armed forces of the United States, if the death occurred while serving in a combat zone, as that term is defined by the Internal Revenue Code of 1986, or as a result of wounds, disease, or injury incurred while so serving, any tax imposed by this article:

  1. Shall not apply with respect to the taxable year in which falls the date of his death or with respect to any prior taxable year ending on or after the first day he served in a combat zone after June 24, 1960;
  2. For a taxable year preceding those specified in paragraph (1) of this Code section which is unpaid at the date of his death including, but not limited to, interest, additions to the tax, and additional amounts shall not be assessed. If assessed, the assessment shall be abated. If any such amount is collected, it shall be credited or refunded as an overpayment.

    (Code 1933, § 92-3123, enacted by Ga. L. 1971, p. 605, § 8; Code 1933, § 91A-3618, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, "United States" was deleted preceding "Internal Revenue Code" in the introductory language.

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

RESEARCH REFERENCES

ALR. - Military service as basis of discrimination in statutes or ordinances relating to taxation or licenses, 83 A.L.R. 1231 .

Income tax on income of taxpayer who dies during taxable year, 142 A.L.R. 213 .

48-7-38. Deduction for payments to minority subcontractors; certification as minority subcontractor.

  1. As used in this Code section, the term:
    1. "Member of a minority" means an individual who is:
      1. Black;
      2. Hispanic;
      3. Asian-Pacific American;
      4. Native American; or
      5. Asian-Indian American.
    2. "Minority subcontractor" means any business which is owned by:
      1. An individual who is a member of a minority who reports as his or her personal income for Georgia income tax purposes the income of such business;
      2. A partnership in which a majority of the ownership interest is owned by one or more members of a minority who report as their personal income for Georgia income tax purposes more than 50 percent of the income of the partnership; or
      3. A corporation organized under the laws of this state in which a majority of the common stock is owned by one or more members of a minority who report as their personal income for Georgia income tax purposes more than 50 percent of the distributed earnings of the corporation.
    3. "State contract" means a contract for the purchase by the state of goods, property, or services or for the construction of any building or structure for the state, which contract is executed by any department, board, bureau, commission, or agency of state government, by any state authority, or by any officer, official, employee, or agent of any of the foregoing.
  2. In computing Georgia taxable net income of a corporation, partnership, or individual, there shall be subtracted from federal taxable income or federal adjusted gross income 10 percent of the amount of qualified payments to minority subcontractors. A payment to a minority subcontractor shall be a qualified payment if:
    1. The payment is for goods, personal property, or services furnished by the minority subcontractor to the taxpayer and delivered by the taxpayer to the state in furtherance of a state contract to which the taxpayer is a party; and the payment does not exceed the value of the goods, property, or services to the taxpayer;
    2. The payment is made during the taxable year for which the subtraction from federal taxable income or federal adjusted gross income is claimed; and
    3. The payment is made to a subcontractor who at the time of the payment is certified as a minority subcontractor pursuant to subsection (d) of this Code section.
  3. The total amount which may be subtracted under this Code section from federal taxable income or federal adjusted gross income of any taxpayer shall be limited to $100,000.00 per taxable year.
  4. The commissioner of administrative services shall certify individuals, partnerships, and corporations which are within the definition of the term "minority subcontractor" specified in subsection (a) of this Code section. The department may disclose to the commissioner of administrative services the income tax returns of taxpayers applying for certification as minority subcontractors. The commissioner of administrative services shall maintain and periodically revise a list of certified minority subcontractors and shall make such list available to the department and to the general public.
  5. Any individual, partnership, or corporation certified pursuant to subsection (d) of this Code section and any small business concern which is at least 51 percent owned by one or more minorities, or, in the case of a publicly owned business, at least 51 percent of all classes or types of the stock of which is owned by one or more minorities, whose management and daily business operations are controlled by one or more minorities, and which is authorized to do and is doing business under the laws of this state paying all taxes duly assessed and domiciled within this state shall be eligible for certification as a minority business enterprise under Code Section 50-5-132 ; and, for purposes of such certification pursuant to this subsection, "minority" shall be defined as a member of a minority. Such certification shall be subject to the provisions of Code Section 50-5-133 . (Code 1981, § 48-7-38 , enacted by Ga. L. 1984, p. 1644, § 3; Ga. L. 1987, p. 191, § 2; Ga. L. 2001, p. 105, § 1; Ga. L. 2013, p. 141, § 48/HB 79.)

Editor's notes. - Ga. L. 1984, p. 1644, § 4, not codified by the General Assembly, provided that the Act would apply to taxable years beginning on or after January 1, 1985.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 2001, p. 105, § 4, not codified by the General Assembly, provides that the 2001 amendment shall be applicable to all taxable years ending on or after January 1, 2001.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

48-7-39. Depreciation of property placed in service in prior tax years.

  1. With respect to property placed in service in taxable years ending prior to March 11, 1987, a taxpayer shall in his return for the first taxable year ending on or after January 1, 1987, elect to:
    1. Continue to depreciate or otherwise recover the cost of such property according to the same method used for Georgia income tax purposes for the taxable year in which the property was placed in service; or
    2. Depreciate or otherwise recover the cost of such property according to the method used for federal income tax purposes for the taxable year in which the property was placed in service.

      The election required by this subsection shall be made for a taxpayer's first taxable year ending on or after January 1, 1987, in such manner as may be specified by the commissioner. If a return for such a taxable year has been filed without such an election prior to or within 90 days after March 11, 1987, the taxpayer may file an amended return containing such an election.

  2. The election provided for in subsection (a) of this Code section shall apply to all property of the taxpayer uniformly and shall be irrevocable and applicable to all subsequent taxable years. Except as otherwise provided in the last sentence of subsection (a) of this Code section, if no such election is made, the taxpayer shall be deemed to have elected the option afforded by paragraph (2) of subsection (a) of this Code section. The General Assembly recognizes and intends that if a taxpayer elects the option afforded by paragraph (2) of subsection (a) of this Code section then in certain cases the taxpayer may never fully depreciate or recover the cost of certain property for Georgia income tax purposes and in certain cases the taxpayer may be allowed to depreciate or recover more than the full cost of certain property for Georgia income tax purposes. Taxpayers electing the option afforded by paragraph (1) of subsection (a) of this Code section shall in determining Georgia taxable income make such adjustments to federal taxable income as are required to reflect the effect of such election. Any such election shall apply both to determination of deductions for depreciation or cost recovery of affected property and also to determination of gain or loss on the sale or other disposition of such property. The commissioner shall specify the manner in which such adjustments shall be made. (Code 1981, § 48-7-39 , enacted by Ga. L. 1987, p. 191, § 2; Ga. L. 2002, p. 415, § 48.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1987, a second "of" was deleted following "paragraph (1) of subsection (a) of" in the fourth sentence of subsection (b).

Editor's notes. - Ga. L. 1987, p. 191, § 2, effective March 11, 1987, repealed this Code section and enacted the present Code section. The former Code section, related to taxing the income of small business corporations under Subchapter S, was enacted by Ga. L. 1984, p. 1323, § 2 as Code Section 48-7-38 and was redesignated as this Code section pursuant to Code Section 28-9-5.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

48-7-40. Designation of counties as less developed areas; tax credits for certain business enterprises.

  1. As used in this Code section, the term:
    1. "Broadcasting" means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. "Broadcasting" is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries.
    2. "Business enterprise" means any business or the headquarters of any such business which is engaged in manufacturing, including, but not limited to, the manufacturing of alternative energy products for use in solar, wind, battery, bioenergy, biofuel, and electric vehicle enterprises, warehousing and distribution, processing, telecommunications, broadcasting, tourism, research and development industries, biomedical manufacturing, and services for the elderly and persons with disabilities. Such term shall not include retail businesses. Businesses are eligible for the tax credit provided by this Code section at an individual establishment of the business based on the classification of the individual establishment under the North American Industry Classification System. For purposes of this Code section, the term "establishment" means an economic unit at a single physical location where business is conducted or where services or industrial operations are performed. If more than one business activity is conducted at the establishment, then only those jobs engaged in the qualifying activity will be eligible for the tax credit provided by this Code section.
    3. "Competitive project" means expansion or location of some or all of a business enterprise's operations in this state having significant regional impact where the commissioner of economic development certifies that but for some or all of the tax incentives provided in this Code section, the business enterprise would have located or expanded outside this state.
    4. "Existing business enterprise" means any business or the headquarters of any such business which has operated for the immediately preceding three years a facility in this state which is engaged in manufacturing, including, but not limited to, the manufacturing of alternative energy products for use in solar, wind, battery, bioenergy, biofuel, and electric vehicle enterprises, warehousing and distribution, processing, telecommunications, broadcasting, tourism, biomedical manufacturing, or research and development industries. Such term shall not include retail businesses. Businesses are eligible for the tax credit provided by this Code section at an individual establishment of the business based on the classification of the individual establishment under the North American Industry Classification System. For purposes of this Code section, the term "establishment" means an economic unit at a single physical location where business is conducted or where services or industrial operations are performed. If more than one business activity is conducted at the establishment, then only those jobs engaged in the qualifying activity will be eligible for the tax credit provided by this Code section.
    5. "New full-time employee job" means a newly created position of employment that was not previously located in this state, requires a minimum of 35 hours a week, and pays at or above the average wage earned in the county with the lowest average wage earned in this state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor.
    1. Not later than December 31 of each year, using the most current data available from the Department of Labor and the United States Department of Commerce, the commissioner of community affairs shall rank and designate as less developed areas all 159 counties in this state using a combination of the following equally weighted factors:
      1. Highest unemployment rate for the most recent 36 month period;
      2. Lowest per capita income for the most recent 36 month period; and
      3. Highest percentage of residents whose incomes are below the poverty level according to the most recent data available.
    2. Counties ranked and designated as the first through seventy-first least developed counties shall be classified as tier 1, counties ranked and designated as the seventy-second through one hundred sixth least developed counties shall be classified as tier 2, counties ranked and designated as the one hundred seventh through one hundred forty-first least developed counties shall be classified as tier 3, and counties ranked and designated as the one hundred forty-second through one hundred fifty-ninth least developed counties shall be classified as tier 4.
  3. The commissioner of community affairs shall be authorized to include in the tier 2 designation provided for in subsection (b) of this Code section any tier 3 county which, in the opinion of the commissioner of community affairs, undergoes a sudden and severe period of economic distress caused by the closing of one or more business enterprises located in such county. No designation made pursuant to this subsection shall operate to displace or remove any other county previously designated as a tier 2 county.

    (c.1) The commissioner of community affairs shall be authorized to include in the tier 1 designation provided for in subsection (b) of this Code section any tier 2 county which, in the opinion of the commissioner of community affairs, undergoes a sudden and severe period of economic distress caused by the closing of one or more business enterprises located in such county. No designation made pursuant to this subsection shall operate to displace or remove any other county previously designated as a tier 1 county.

  4. For business enterprises which plan a significant expansion in their labor forces, the commissioner of community affairs shall prescribe redesignation procedures to ensure that the business enterprises can claim credits in future years without regard to whether or not a particular county is reclassified in a different tier.
    1. Business enterprises in counties designated by the commissioner of community affairs as tier 1 counties shall be allowed a tax credit for taxes imposed under this article equal to $3,500.00 annually per eligible new full-time employee job for five years beginning with the first taxable year in which the new full-time employee job is created and for the four immediately succeeding taxable years; provided, however, that where the amount of such credit exceeds a business enterprise's liability for such taxes in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year $3,500.00 for each new full-time employee job when aggregated with the credit applied against taxes under this article. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this paragraph. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this paragraph shall not constitute income to the taxpayer. Business enterprises in counties designated by the commissioner of community affairs as tier 2 counties shall be allowed a job tax credit for taxes imposed under this article equal to $2,500.00 annually, business enterprises in counties designated by the commissioner of community affairs as tier 3 counties shall be allowed a job tax credit for taxes imposed under this article equal to $1,250.00 annually, and business enterprises in counties designated by the commissioner of community affairs as tier 4 counties shall be allowed a job tax credit for taxes imposed under this article equal to $750.00 annually for each new full-time employee job for five years beginning with the first taxable year in which the new full-time employee job is created and for the four immediately succeeding taxable years. Where a business enterprise is engaged in a competitive project located in a county designated by the commissioner of community affairs as a tier 2 county and where the amount of the credit provided in this paragraph exceeds such business enterprise's liability for taxes imposed under this article in a taxable year, or where a business enterprise is engaged in a competitive project located in a county designated by the commissioner of community affairs as a tier 3 or tier 4 county and where the amount of the credit provided in this paragraph exceeds 50 percent of such business enterprise's liability for taxes imposed under this article in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year $2,500.00 for each new full-time employee job when aggregated with the credit applied against taxes under this article. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this paragraph. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this paragraph shall not constitute income to the taxpayer. The number of new full-time employee jobs shall be determined by comparing the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period of the prior taxable year. In tier 1 counties, those business enterprises that increase employment by two or more shall be eligible for the credit. In tier 2 counties, only those business enterprises that increase employment by ten or more shall be eligible for the credit. In tier 3 counties, only those business enterprises that increase employment by 15 or more shall be eligible for the credit. In tier 4 counties, only those business enterprises that increase employment by 25 or more shall be eligible for the credit. The wage of each new job created must be above the average wage of the county that has the lowest average wage of any county in the state to qualify as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. To qualify for a credit under this paragraph, the employer must make health insurance coverage available to the employee filling the new full-time employee job; provided, however, that nothing in this paragraph shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this paragraph if such employer does not pay for all or any part of health insurance coverage for other employees. Credit shall not be allowed during a year if the net employment increase falls below the number required in such tier. The state revenue commissioner shall adjust the credit allowed each year for net new employment fluctuations above the minimum level of the number required in such tier.
    2. Existing business enterprises shall be allowed an additional tax credit for taxes imposed under this article equal to $500.00 per eligible new full-time employee job the first year in which the new full-time employee job is created. The additional credit shall be claimed in the first taxable year in which the new full-time employee job is created. The number of new full-time employee jobs shall be determined by comparing the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period of the prior taxable year. In tier 1 counties, those existing business enterprises that increase employment by five or more shall be eligible for the credit. In tier 2 counties, only those existing business enterprises that increase employment by ten or more shall be eligible for the credit. In tier 3 counties, only those existing business enterprises that increase employment by 15 or more shall be eligible for the credit. In tier 4 counties, only those existing business enterprises that increase employment by 25 or more shall be eligible for the credit. The average wage of the new jobs created must be above the average wage of the county that has the lowest average wage of any county in the state to qualify as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. To qualify for a credit under this paragraph, the employer must make health insurance coverage available to the employee filling the new full-time job; provided, however, that nothing in this paragraph shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this paragraph if such employer does not pay for all or any part of health insurance coverage for other employees. Credit shall not be allowed during a year if the net employment increase falls below the number required in such tier. Any credit generated and utilized for years prior to the year in which the net employment increase falls below the number required in such tier shall not be affected. The state revenue commissioner shall adjust the credit allowed each year for net new employment fluctuations above the minimum level of the number required in such tier. This paragraph shall apply only to new eligible full-time jobs created in taxable years beginning on or after January 1, 2006, and ending no later than taxable years beginning prior to January 1, 2011.
  6. Tax credits for five years for the taxes imposed under this article shall be awarded for additional new full-time employee jobs created by business enterprises qualified under subsection (b), (c), or (c.1) of this Code section. Additional new full-time employee jobs shall be determined by subtracting the highest total employment of the business enterprise during years two through five, or whatever portion of years two through five which has been completed, from the total increased employment. The state revenue commissioner shall adjust the credit allowed in the event of employment fluctuations during the five years of credit.
  7. The sale, merger, acquisition, or bankruptcy of any business enterprise shall not create new eligibility in any succeeding business entity, but any unused job tax credit may be transferred and continued by any transferee of the business enterprise. The commissioner of community affairs shall determine whether or not qualifying net increases or decreases have occurred and may require reports, promulgate regulations, and hold hearings as needed for substantiation and qualification.
  8. Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified jobs were established, subject to forfeiture as provided in paragraph (1) of subsection (e) of this Code section, but in tiers 3 and 4 the credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. In tier 1 and 2 counties, the credit allowed under this Code section against taxes imposed under this article in any taxable year shall be limited to an amount not greater than 100 percent of the taxpayer's state income tax liability attributable to income derived from operations in this state for such taxable year.
  9. Notwithstanding any provision of this Code section to the contrary, in counties recognized and designated as the first through fortieth least developed counties in the tier 1 designation, job tax credits shall be allowed as provided in this Code section, in addition to business enterprises or existing business enterprises, to any business of any nature.
  10. Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original tax return was filed or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions.
  11. The commissioner may require such reports, promulgate such regulations, and gather such relevant data necessary and advisable for the evaluation of the job tax credits established by this Code section.
  12. Taxpayers that initially claimed the credit under this Code section for any taxable year beginning before January 1, 2012, shall be governed, for purposes of all such credits claimed as well as any credits claimed in subsequent taxable years related to such initial claim, by this Code section as it was in effect for the taxable year in which the taxpayer made such initial claim. (Code 1981, § 48-7-40 , enacted by Ga. L. 1989, p. 905, § 1; Ga. L. 1992, p. 2031, § 1; Ga. L. 1994, p. 928, § 2; Ga. L. 1995, p. 585, § 1; Ga. L. 1996, p. 220, § 2; Ga. L. 1997, p. 461, § 1; Ga. L. 1998, p. 1224, § 2; Ga. L. 2000, p. 605, § 1; Ga. L. 2001, p. 984, § 7; Ga. L. 2005, p. 210, § 1/HB 389; Ga. L. 2008, p. 874, § 1/HB 1246; Ga. L. 2009, p. 654, § 1/HB 439; Ga. L. 2012, p. 1309, § 1/HB 868; Ga. L. 2016, p. 553, § 1/HB 936.)

The 2016 amendment, effective July 1, 2016, substituted "The wage of each new job created" for "The average wage of the new jobs created" in the fourth from the last sentence of paragraph (e)(1).

Editor's notes. - Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994'."

Ga. L. 1994, p. 928, § 8, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 1995.

Ga. L. 1996, p. 220, § 11, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 1996.

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 1997.

Ga. L. 2000, p. 605, § 7, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2001, p. 984, § 20, not codified by the General Assembly, provides that the 2001 amendment is applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2005, p. 210, § 2/HB 389, not codified by the General Assembly, provides that the 2005 amendment to this Code section shall apply to all taxable years beginning on or after January 1, 2006.

Ga. L. 2008, p. 874, § 9/HB 1246, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2009, p. 654, § 7/HB 439, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable for all taxable years beginning on or after January 1, 2009.

Ga. L. 2012, p. 1309, § 7/HB 868, not codified by the General Assembly, provides, in part, that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Administrative Rules and Regulations. - Low emission vehicle certification, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Natural Resources, Chapter 391-3-25.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For note on 1992 amendment of this Code section, see 9 Georgia St. U.L. Rev. 338 (1992). For note on 1992 amendment of this Code section, see 9 Georgia St. U.L. Rev. 344 (1992). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

48-7-40.1. Tax credits for business enterprises in less developed areas.

  1. As used in this Code section, the term:
    1. "Broadcasting" means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. "Broadcasting" is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries.
    2. "Business enterprise" means any business or the headquarters of any such business which is engaged in manufacturing, including, but not limited to, the manufacturing of alternative energy products for use in solar, wind, battery, bioenergy, biofuel, and electric vehicle enterprises, warehousing and distribution, processing, telecommunications, broadcasting, tourism, biomedical manufacturing, and research and development industries. Such term shall not include retail businesses. Businesses are eligible for the tax credit provided by this Code section at an individual establishment of the business based on the classification of the individual establishment under the North American Industry Classification System. For purposes of this Code section, the term "establishment" means an economic unit at a single physical location where business is conducted or where services or industrial operations are performed. If more than one business activity is conducted at the establishment, then only those jobs engaged in the qualifying activity will be eligible for the tax credit provided by this Code section.
    3. "New full-time employee job" means a newly created position of employment that was not previously located in this state, requires a minimum of 35 hours a week, and pays at or above the average wage earned in the county with the lowest average wage earned in this state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor.
  2. Not later than December 31 of each year, using the most current data available from the Department of Labor and the United States Department of Commerce, the commissioner of community affairs shall rank and designate as less developed areas the areas composed of ten or more contiguous census tracts in this state using a combination of the following equally weighted factors:
    1. Highest unemployment rate for the most recent 36 month period;
    2. Lowest per capita income for the most recent 36 month period; and
    3. Highest percentage of residents whose income is below the poverty level according to the most recent data available.
  3. The commissioner of community affairs, and the commissioner of economic development in areas qualifying under the provisions of paragraphs (1), (3), and (4) of this subsection, also shall be authorized to include in the designation provided for in subsection (b) of this Code section:
    1. Any area composed of ten or more contiguous census tracts which, in the opinion of the commissioner of community affairs and the commissioner of economic development, undergoes a sudden and severe period of economic distress caused by the closing of one or more business enterprises located in such area;
    2. Any area composed of one or more census tracts adjacent to a federal military installation where pervasive poverty is evidenced by a 15 percent poverty rate or greater as reflected in the most recent decennial census; provided, however, that the subsequent redrawing or alteration of census tracts in a manner which results in an area no longer being in a census tract adjacent to a federal military installation shall not disqualify an area which has previously qualified under this paragraph if the area continues to have pervasive poverty as described in this paragraph;

      (2.1) Any census tract in a county that contains a federal military installation with a garrison of at least 5,000 federal or military personnel combined and also contains an industrial park that is owned and operated by a governmental entity;

    3. Any area composed of one or more contiguous census tracts which, in the opinion of the commissioner of community affairs and the commissioner of economic development, is or will be adversely impacted by the loss of one or more jobs, businesses, or residences as a result of an airport expansion, including noise buy-outs, or the closing of a business enterprise which, in the opinion of the commissioner of community affairs and the commissioner of economic development, results or will result in a sudden and severe period of economic distress; or
    4. Any area which is within or adjacent to one or more contiguous census block groups with a poverty rate of 15 percent or greater as determined from data in the most current United States decennial census, where the area is also included within a state enterprise zone pursuant to Chapter 88 of Title 36 or where a redevelopment plan has been adopted pursuant to Chapter 61 of Title 36 and which, in the opinion of the commissioner of community affairs and the commissioner of economic development, displays pervasive poverty, underdevelopment, general distress, and blight.

      No designation made pursuant to this subsection shall operate to displace or remove any other area previously designated as a less developed area. Notwithstanding any provision of this Code section to the contrary, in areas designated as suffering from pervasive poverty under this subsection, job tax credits shall be allowed as provided in this Code section, in addition to business enterprises, to any lawful business.

  4. For business enterprises which plan a significant expansion in their labor forces, the commissioner of community affairs shall prescribe redesignation procedures to ensure that the business enterprises can claim credits in future years without regard to whether or not a particular area is removed from the list of less developed areas.
  5. Business enterprises in areas designated by the commissioner of community affairs as less developed areas shall be allowed a job tax credit for taxes imposed under this article equal to $3,500.00 annually per eligible new full-time employee job for five years beginning with the first taxable year in which the new full-time employee job is created and for the four immediately succeeding taxable years; provided, however, that where the amount of such credit exceeds a business enterprise's liability for such taxes in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year $3,500.00 for each new full-time employee job when aggregated with the credit applied against taxes under this article. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer. The number of new full-time employee jobs shall be determined by comparing the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period of the prior taxable year. Only those business enterprises that increase employment by five or more in a less developed area shall be eligible for the credit; provided, however, that within areas of pervasive poverty as designated under paragraphs (2) and (4) of subsection (c) of this Code section businesses shall only have to increase employment by two or more jobs in order to be eligible for the credit, provided that, if a business only increases employment by two jobs, the persons hired for such jobs shall not be married to one another. The wage of each new job created must be above the average wage of the county that has the lowest wage of any county in the state to qualify as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. To qualify for a credit under this subsection, the employer must make health insurance coverage available to the employee filling the new full-time employee job; provided, however, that nothing in this subsection shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this subsection if such employer does not pay for all or any part of health insurance coverage for other employees. Credit shall not be allowed during a year if the net employment increase falls below five or two, as applicable. The state revenue commissioner shall adjust the credit allowed each year for net new employment fluctuations above the minimum level of five or two.
  6. Tax credits for five years for the taxes imposed under this article shall be awarded for additional new full-time employee jobs created by business enterprises qualified under subsection (b) or (c) of this Code section. Additional new full-time employee jobs shall be determined by subtracting the highest total employment of the business enterprise during years two through five, or whatever portion of years two through five which has been completed, from the total increased employment. The state revenue commissioner shall adjust the credit allowed in the event of employment fluctuations during the additional five years of credit.
  7. The sale, merger, acquisition, or bankruptcy of any business enterprise shall not create new eligibility in any succeeding business entity, but any unused job tax credit may be transferred and continued by any transferee of the business enterprise. The commissioner of community affairs shall determine whether or not qualifying net increases or decreases have occurred and may require reports, promulgate regulations, and hold hearings as needed for substantiation and qualification.
  8. Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified jobs were established, subject to forfeiture as provided in subsection (e) of this Code section, but the credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 100 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year.
  9. Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original tax return was filed or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions.
  10. Taxpayers that initially claimed the credit under this Code section for any taxable year beginning before January 1, 2012, shall be governed, for purposes of all such credits claimed as well as any credits claimed in subsequent taxable years related to such initial claim, by this Code section as it was in effect for the taxable year in which the taxpayer made such initial claim. (Code 1981, § 48-7-40.1 , enacted by Ga. L. 1993, p. 1649, § 2; Ga. L. 1994, p. 928, § 3; Ga. L. 1996, p. 220, §§ 3, 4; Ga. L. 1997, p. 461, § 2; Ga. L. 2000, p. 605, § 2; Ga. L. 2001, p. 984, § 8; Ga. L. 2004, p. 939, § 1; Ga. L. 2008, p. 874, § 2/HB 1246; Ga. L. 2008, p. 1152, § 1/HB 1273; Ga. L. 2009, p. 654, § 2/HB 439; Ga. L. 2012, p. 1309, § 2/HB 868; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2013, p. 677, § 2/SB 137; Ga. L. 2014, p. 204, § 1/HB 791; Ga. L. 2016, p. 553, § 2/HB 936; Ga. L. 2018, p. 318, § 1/HB 843.)

The 2016 amendment, effective July 1, 2016, added paragraph (a)(3); in subsection (e), inserted "employee" following "full-time" near the beginning of the fourth sentence and in the seventh sentence, and substituted "The wage of each new job created" for "The average wage of the new jobs created" in the sixth sentence.

The 2018 amendment, effective July 1, 2018, added paragraph (c)(2.1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, "this subsection" was substituted for "this paragraph" in the second sentence of the undesignated paragraph at the end of subsection (c).

Editor's notes. - Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994'."

Ga. L. 1994, p. 928, § 8, not codified by the General Assembly, provides that the 1994 amendment shall be "applicable to all taxable years beginning on or after January 1, 1994."

Ga. L. 1996, p. 220, § 11, not codified by the General Assembly, provides that the 1996 amendment shall be "applicable to all taxable years beginning on or after January 1, 1996."

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that the 1997 amendment shall be "applicable to all taxable years beginning on or after January 1, 1997."

Ga. L. 2000, p. 605, § 7, not codified by the General Assembly, provides that the 2000 amendment shall be "applicable to all taxable years beginning on or after January 1, 2000."

Ga. L. 2001, p. 984, § 20, not codified by the General Assembly, provides that the 2001 amendment "shall be applicable to all taxable years beginning on or after January 1, 2001."

Ga. L. 2004, p. 939, § 6, not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2004.

Ga. L. 2008, p. 874, § 9/HB 1246, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2008, p. 1152, § 2/HB 1273, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2009, p. 654, § 7/HB 439, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable for all taxable years beginning on or after January 1, 2009.

Ga. L. 2012, p. 1309, § 7/HB 868, not codified by the General Assembly, provides, in part, that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Administrative Rules and Regulations. - Job tax credit program regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Community Affairs, Job Tax Credit Program, Chapter 110-9-1.

Opportunity zone tax credit program regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Community Affairs, Opportunity Zone Tax Credit Program, Chapter 110-24-1.

Law reviews. - For note on the 1993 enactment of this Code section, see 10 Georgia St. U.L. Rev. 218 (1993). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

RESEARCH REFERENCES

ALR. - Validity, construction, and application of state taxes on revenues and income from communications satellite services, 51 A.L.R.6th 257.

48-7-40.2. Tax credits for existing manufacturing and telecommunications facilities in tier 1 counties; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    2. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in the construction of an additional manufacturing or telecommunications facility to be located in this state or the expansion of an existing manufacturing or telecommunications facility located in this state, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used in the manufacturing or telecommunications facility. The department shall promulgate rules defining eligible manufacturing facilities, telecommunications facilities, and qualified investment property pursuant to this paragraph.
    3. "Recovered materials" means those materials, including but not limited to such materials as aluminum, oil, plastic, paper, paper products, scrap metal, iron, glass, and rubber, which have known use, reuse, or recycling potential; can be feasibly used, reused, or recycled; and have been diverted or removed from the solid waste stream for sale, use, reuse, or recycling, whether or not requiring subsequent separation and processing.
    4. "Recycling" means any process by which materials which would otherwise become solid waste are collected, separated, or processed and reused or returned to use in the form of raw materials or products.
    5. "Recycling machinery and equipment" means all tangible personal property used, directly or indirectly, to sort, store, prepare, convert, process, fabricate, or manufacture recovered materials into finished products which are composed of at least 25 percent recovered materials, such term including, but not being limited to, power generation and pollution control machinery and equipment.
    6. "Recycling manufacturing facility" means any facility, including land, improvements to land, buildings, building improvements, and any recycling machinery and equipment used in the recycling process resulting in the manufacture of finished products from recovered materials, provided that up to 10 percent of any building that is a component of a recycling facility may be used for office space to house support staff for the recycling operation.
  2. In the case of a taxpayer which has operated for the immediately preceding three years an existing manufacturing or telecommunications facility or manufacturing or telecommunications support facility in this state in a tier 1 county designated pursuant to Code Section 48-7-40, there shall be allowed a credit against the tax imposed under this article in an amount equal to 5 percent of the cost of all qualified investment property purchased or acquired by the taxpayer in such year, subject to the conditions and limitations set forth in this Code section. In the event such qualified investment property purchased or acquired by the taxpayer in such year consists of recycling machinery or equipment, a recycling manufacturing facility, pollution control or prevention machinery or equipment, a pollution control or prevention facility, or the conversion from defense to domestic production, the amount of such credit shall be equal to 8 percent.
  3. The credit granted under subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In order to qualify as a basis for the credit, the investment in qualified investment property must occur no sooner than January 1, 1995. The credit may be taken beginning with the tax year immediately following the tax year in which the qualified investment property having an aggregate cost in excess of $50,000.00 is purchased or acquired by the taxpayer. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the project;
      2. The amount of qualified investment property acquired during the taxable year;
      3. The amount of tax credit claimed for the taxable year;
      4. The amount of qualified investment property acquired in prior taxable years;
      5. Any tax credit utilized by the taxpayer in prior taxable years;
      6. The amount of tax credit carried over from prior years;
      7. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      8. The amount of tax credit to be carried over to subsequent tax years;
    2. Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified investment property was acquired, provided that such qualified investment property remains in service. The credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. The sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility in any succeeding taxpayer, but any unused credit may be transferred and continued by any transferee of the taxpayer;
    3. In the initial year in which the taxpayer claims the credit granted in subsection (b) of this Code section, the taxpayer shall include in the description of the project required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the project includes the acquisition of qualified investment property having an aggregate cost in excess of $50,000.00;
    4. Any lease for a period of five years or longer of any real or personal property used in a new or expanded manufacturing or telecommunications facility which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition of qualified investment property by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the taxable year in which the lease becomes binding on the lessor and the taxpayer if all other conditions of this subsection have been met; and
    5. The utilization of the credit granted in subsection (b) of this Code section shall have no effect on the taxpayer's ability to claim depreciation for tax purposes on the assets acquired by the taxpayer, nor shall the credit have any effect on the taxpayer's basis in such assets for the purpose of depreciation.
    1. Except as otherwise provided in paragraph (2) of this subsection, no taxpayer shall be authorized to claim on a tax return for a given project the credit provided for in this Code section if such taxpayer claims on such tax return any of the credits authorized under Code Section 48-7-40 or 48-7-40.1 .
    2. For taxable years beginning on or after January 1, 1995, and ending on or prior to December 31, 1998, a taxpayer shall be authorized to claim on a tax return for a given project the credit provided for in this Code section and to claim, if otherwise qualified under Code Section 48-7-40 , the tax credit applicable to tier 1 counties under Code Section 48-7-40, subject to the following limitations:
      1. Not less than 250 new full-time employee jobs must be created in the first taxable year and maintained through the end of the third taxable year in which the taxpayer claims both credits as authorized under this paragraph; and
      2. An otherwise qualified taxpayer shall not be entitled to receive the additional tax credit authorized under Code Section 36-62-5.1 in any taxable year in which that taxpayer claims both of the tax credits as authorized under this paragraph. (Code 1981, § 48-7-40.2 , enacted by Ga. L. 1994, p. 928, § 4; Ga. L. 1995, p. 10, § 48; Ga. L. 1995, p. 585, § 2; Ga. L. 1996, p. 220, § 5; Ga. L. 1997, p. 461, § 3; Ga. L. 1998, p. 1224, § 3.)

Editor's notes. - Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994.'"

Ga. L. 1994, p. 928, § 8, not codified by the General Assembly, provides that the 1994 amendment "shall be applicable to all taxable years beginning on or after January 1, 1994."

Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that the 1995 amendment "shall be applicable to all taxable years beginning on or after January 1, 1995."

Ga. L. 1996, p. 220, § 11, not codified by the General Assembly, provides that the 1996 amendment "shall be applicable to all taxable years beginning on or after January 1, 1996."

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that the 1997 amendment "shall be applicable to all taxable years beginning on or after January 1, 1997."

48-7-40.3. Tax credits for existing manufacturing and telecommunications facilities in tier 2 counties; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    2. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in the construction of an additional manufacturing or telecommunications facility to be located in this state or the expansion of an existing manufacturing or telecommunications facility located in this state, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used in the manufacturing or telecommunications facility. The department shall promulgate rules defining eligible manufacturing facilities, telecommunications facilities, and qualified investment property pursuant to this paragraph.
    3. "Recovered materials" means those materials, including but not limited to such materials as aluminum, oil, plastic, paper, paper products, scrap metal, iron, glass, and rubber, which have known use, reuse, or recycling potential; can be feasibly used, reused, or recycled; and have been diverted or removed from the solid waste stream for sale, use, reuse, or recycling, whether or not requiring subsequent separation and processing.
    4. "Recycling" means any process by which materials which would otherwise become solid waste are collected, separated, or processed and reused or returned to use in the form of raw materials or products.
    5. "Recycling machinery and equipment" means all tangible personal property used, directly or indirectly, to sort, store, prepare, convert, process, fabricate, or manufacture recovered materials into products which are composed of at least 25 percent recovered materials, such term including, but not being limited to, power generation and pollution control machinery and equipment.
    6. "Recycling manufacturing facility" means any facility, including land, improvements to land, buildings, building improvements, and any recycling machinery and equipment used in the recycling process resulting in the manufacture of products from recovered materials, provided that up to 10 percent of any building that is a component of a recycling facility may be used for office space to house support staff for the recycling operation.
  2. In the case of a taxpayer which has operated for the immediately preceding three years an existing manufacturing or telecommunications facility or manufacturing or telecommunications support facility in this state in a tier 2 county designated pursuant to Code Section 48-7-40, there shall be allowed a credit against the tax imposed under this article in an amount equal to 3 percent of the cost of all qualified investment property purchased or acquired by the taxpayer in such year, subject to the conditions and limitations set forth in this Code section. In the event such qualified investment property purchased or acquired by the taxpayer in such year consists of recycling machinery or equipment, a recycling manufacturing facility, pollution control or prevention machinery or equipment, a pollution control or prevention facility, or the conversion from defense to domestic production, the amount of such credit shall be equal to 5 percent.
  3. The credit granted under subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In order to qualify as a basis for the credit, the investment in qualified investment property must occur no sooner than January 1, 1995. The credit may be taken beginning with the tax year immediately following the tax year in which the qualified investment property having an aggregate cost in excess of $50,000.00 is purchased or acquired by the taxpayer. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the project;
      2. The amount of qualified investment property acquired during the taxable year;
      3. The amount of tax credit claimed for the taxable year;
      4. The amount of qualified investment property acquired in prior taxable years;
      5. Any tax credit utilized by the taxpayer in prior taxable years;
      6. The amount of tax credit carried over from prior years;
      7. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      8. The amount of tax credit to be carried over to subsequent tax years;
    2. Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified investment property was acquired, provided that such qualified investment property remains in service. The credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. The sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility in any succeeding taxpayer, but any unused credit may be transferred and continued by any transferee of the taxpayer;
    3. In the initial year in which the taxpayer claims the credit granted in subsection (b) of this Code section, the taxpayer shall include in the description of the project required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the project includes the acquisition of qualified investment property having an aggregate cost in excess of $50,000.00;
    4. Any lease for a period of five years or longer of any real or personal property used in a new or expanded manufacturing or telecommunications facility which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition of qualified investment property by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the taxable year in which the lease becomes binding on the lessor and the taxpayer if all other conditions of this subsection have been met; and
    5. The utilization of the credit granted in subsection (b) of this Code section shall have no effect on the taxpayer's ability to claim depreciation for tax purposes on the assets acquired by the taxpayer, nor shall the credit have any effect on the taxpayer's basis in such assets for the purpose of depreciation.
  4. No taxpayer shall be authorized to claim on a tax return for a given project the credit provided for in this Code section if such taxpayer claims on such tax return any of the credits authorized under Code Section 48-7-40 or 48-7-40.1 . (Code 1981, § 48-7-40 .3, enacted by Ga. L. 1994, p. 928, § 4; Ga. L. 1995, p. 585, § 3; Ga. L. 1997, p. 461, § 4; Ga. L. 1998, p. 1224, § 4.)

Editor's notes. - Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994.'"

Ga. L. 1994, p. 928, § 8, not codified by the General Assembly, provides that the 1994 amendment shall be applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that the 1995 amendment shall be applicable to all taxable years beginning on or after January 1, 1995.

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that the 1997 amendment shall be applicable to all taxable years beginning on or after January 1, 1997.

48-7-40.4. Tax credits for existing manufacturing and telecommunications facilities or manufacturing and telecommunications support facilities in tier 3 or 4 counties; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    2. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in the construction of an additional manufacturing or telecommunications facility to be located in this state or the expansion of an existing manufacturing or telecommunications facility located in this state, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used in the manufacturing or telecommunications facility. The department shall promulgate rules defining eligible manufacturing facilities, telecommunications facilities, and qualified investment property pursuant to this paragraph.
    3. "Recovered materials" means those materials, including but not limited to such materials as aluminum, oil, plastic, paper, paper products, scrap metal, iron, glass, and rubber, which have known use, reuse, or recycling potential; can be feasibly used, reused, or recycled; and have been diverted or removed from the solid waste stream for sale, use, reuse, or recycling, whether or not requiring subsequent separation and processing.
    4. "Recycling" means any process by which materials which would otherwise become solid waste are collected, separated, or processed and reused or returned to use in the form of raw materials or products.
    5. "Recycling machinery and equipment" means all tangible personal property used, directly or indirectly, to sort, store, prepare, convert, process, fabricate, or manufacture recovered materials into products which are composed of at least 25 percent recovered materials, such term including, but not being limited to, power generation and pollution control machinery and equipment.
    6. "Recycling manufacturing facility" means any facility, including land, improvements to land, buildings, building improvements, and any recycling machinery and equipment used in the recycling process resulting in the manufacture of products from recovered materials, provided that up to 10 percent of any building that is a component of a recycling facility may be used for office space to house support staff for the recycling operation.
  2. In the case of a taxpayer which has operated for the immediately preceding three years an existing manufacturing or telecommunications facility or manufacturing or telecommunications support facility in this state in a tier 3 or a tier 4 county designated pursuant to Code Section 48-7-40, there shall be allowed a credit against the tax imposed under this article in an amount equal to 1 percent of the cost of all qualified investment property purchased or acquired by the taxpayer in such year, subject to the conditions and limitations set forth in this Code section. In the event such qualified investment property purchased or acquired by the taxpayer in such year consists of recycling machinery or equipment, a recycling manufacturing facility, pollution control or prevention machinery or equipment, a pollution control or prevention facility, or the conversion from defense to domestic production, the amount of such credit shall be equal to 3 percent.
  3. The credit granted under subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In order to qualify as a basis for the credit, the investment in qualified investment property must occur no sooner than January 1, 1995. The credit may be taken beginning with the tax year immediately following the tax year in which the qualified investment property having an aggregate cost in excess of $50,000.00 is purchased or acquired by the taxpayer. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the project;
      2. The amount of qualified investment property acquired during the taxable year;
      3. The amount of tax credit claimed for the taxable year;
      4. The amount of qualified investment property acquired in prior taxable years;
      5. Any tax credit utilized by the taxpayer in prior taxable years;
      6. The amount of tax credit carried over from prior years;
      7. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      8. The amount of tax credit to be carried over to subsequent tax years;
    2. Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified investment property was acquired, provided that such qualified investment property remains in service. The credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year. The sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility in any succeeding taxpayer, but any unused credit may be transferred and continued by any transferee of the taxpayer;
    3. In the initial year in which the taxpayer claims the credit granted in subsection (b) of this Code section, the taxpayer shall include in the description of the project required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the project includes the acquisition of qualified investment property having an aggregate cost in excess of $50,000.00;
    4. Any lease for a period of five years or longer of any real or personal property used in a new or expanded manufacturing or telecommunications facility which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition of qualified investment property by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the taxable year in which the lease becomes binding on the lessor and the taxpayer if all other conditions of this subsection have been met; and
    5. The utilization of the credit granted in subsection (b) of this Code section shall have no effect on the taxpayer's ability to claim depreciation for tax purposes on the assets acquired by the taxpayer nor shall the credit have any effect on the taxpayer's basis in such assets for the purpose of depreciation.
  4. No taxpayer shall be authorized to claim on a tax return for a given project the credit provided for in this Code section if such taxpayer claims on such tax return any of the credits authorized under Code Section 48-7-40 or 48-7-40.1 . (Code 1981, § 48-7-40.4 , enacted by Ga. L. 1994, p. 928, § 4; Ga. L. 1995, p. 585, § 4; Ga. L. 1997, p. 461, § 5; Ga. L. 1998, p. 1224, § 5; Ga. L. 2000, p. 605, § 3.)

Editor's notes. - Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994.'"

Ga. L. 1994, p. 928, § 8, not codified by the General Assembly, provides that the 1994 amendment shall be applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that the 1995 amendment shall be applicable to all taxable years beginning on or after January 1, 1995.

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that the 1997 amendment shall be applicable to all taxable years beginning on or after January 1, 1997.

Ga. L. 2000, p. 605, § 7, not codified by the General Assembly, provides that the 2000 amendment shall be applicable to all taxable years beginning on or after January 1, 2001.

48-7-40.5. Tax credits for employers providing approved retraining programs.

  1. As used in this Code section, the term:
    1. "Approved retraining" means employer provided or employer sponsored retraining that meets the following conditions:
      1. It enhances the functional skills of employees otherwise unable to function effectively on the job due to skill deficiencies or who would otherwise be displaced because such skill deficiencies would inhibit their utilization of new technology; provided, however, that approved retraining shall not include any retraining on commercially, mass produced software packages for word processing, data base management, presentations, spreadsheets, e-mail, personal information management, or computer operating systems except a retraining tax credit shall be allowable for those providing support or training on such software;
      2. It is approved and certified by the Technical College System of Georgia; and
      3. The employer does not require the employee to make any payment for the retraining, either directly or indirectly through use of forfeiture of leave time, vacation time, or other compensable time.
    2. "Cost of retraining" means direct instructional costs as defined by the Technical College System of Georgia including instructor salaries, materials, supplies, and textbooks but specifically excluding costs associated with renting or otherwise securing space.
    3. "Employee" means any employee resident in this state who is employed for at least 25 hours a week and who has been continuously employed by the employer for at least 16 consecutive weeks.
    4. "Employer" means any employer upon whom an income tax is imposed by this chapter.
    5. "Employer provided" refers to approved retraining offered on the premises of the employer or on premises approved by the Technical College System of Georgia by instructors hired by or employed by an employer.
    6. "Employer sponsored" refers to a contractual arrangement with a school, university, college, or other instructional facility which offers approved retraining that is paid for by the employer.
  2. A tax credit shall be granted to an employer who provides or sponsors one or more approved retraining programs in a taxable year. The total amount of the tax credit allowed per full-time employee shall be equal to one-half of the costs of retraining per full-time employee, or $500.00 per full-time employee, whichever is less, for each employee who has successfully completed an approved retraining program; provided, however, that in no event shall the amount of the tax credit authorized under this subsection exceed $1,250.00 per year per full-time employee who has successfully completed more than one approved retraining program. No employer shall receive a credit if the employer requires that the employee reimburse or pay the employer for the cost of retraining.
  3. Any tax credit claimed under this Code section for any taxable year beginning on or after January 1, 1998, but not used for any such taxable year may be carried forward for ten years from the close of the taxable year in which the tax credit was granted. The tax credit granted to any employer pursuant to this Code section shall not exceed 50 percent of the amount of the taxpayer's income tax liability for the taxable year as computed without regard to this Code section. Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original return was filed or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions.
  4. To be eligible to claim the credit granted under this Code section, the employer shall certify to the department the name of the employee, the coursework successfully completed by such employee, the name of the provider of the approved retraining, and such other information as may be required by the department to ensure that credits are only granted to employers who provide or sponsor approved retraining pursuant to this Code section and that such credits are only granted to employers with respect to employees who successfully complete such approved retraining. The department shall adopt rules and regulations and forms to implement this credit program. The department is expressly authorized and directed to work with the Technical College System of Georgia to ensure the proper granting of credits pursuant to this Code section.
  5. The Technical College System of Georgia is expressly authorized and directed to establish such standards as it deems necessary and convenient in approving employer provided and employer sponsored retraining programs. In establishing such standards, the Technical College System of Georgia shall establish required hours of classroom instruction, required courses, certification of teachers or instructors, progressive levels of instruction, and standardized measures of employee evaluation to determine successful completion of a course of study. (Code 1981, § 48-7-40.5 , enacted by Ga. L. 1994, p. 928, § 4; Ga. L. 1995, p. 585, § 5; Ga. L. 1996, p. 220, § 6; Ga. L. 1998, p. 1224, § 6; Ga. L. 2008, p. 335, § 9/SB 435; Ga. L. 2009, p. 654, § 3/HB 439; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in the middle of the first sentence of subsection (d).

Editor's notes. - Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994.'"

Ga. L. 1994, p. 928, § 8, not codified by the General Assembly, provides that the 1994 amendment shall be applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that the 1995 amendment shall be applicable to all taxable years beginning on or after January 1, 1995.

Ga. L. 1996, p. 220, § 11, not codified by the General Assembly, provides that the 1996 amendment shall be applicable to all taxable years beginning on or after January 1, 1996.

Ga. L 1998, p. 1224, § 8, not codified by the General Assembly, provides that the 1998 amendment shall be applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2009, p. 654, § 7/HB 439, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable for all taxable years beginning on or after January 1, 2009.

48-7-40.6. Tax credits for employers providing child care.

  1. As used in this Code section, the term:
    1. "Cost of operation" means reasonable direct operational costs incurred by an employer as a result of providing employer provided or employer sponsored child care facilities; provided, however, that the term cost of operation shall exclude the cost of any property that is qualified child care property.
    2. "Employer" means any employer upon whom an income tax is imposed by this article.
    3. "Employer provided" refers to child care offered on the premises of the employer.
    4. "Employer sponsored" refers to a contractual arrangement with a child care facility that is paid for by the employer.
    5. "Premises of the employer" refers to any location within the State of Georgia and located on the workplace premises of the employer providing the child care or one of the employers providing the child care in the event that the child care property is owned jointly or severally by the taxpayer and one or more employers; provided, however, that if such workplace premises are impracticable or otherwise unsuitable for the on-site location of such child care facility, as determined by the commissioner, such facility may be located within a reasonable distance of the premises of the employer.
    6. "Qualified child care property" means all real property and tangible personal property purchased or acquired on or after July 1, 1999, or which property is first placed in service on or after July 1, 1999, for use exclusively in the construction, expansion, improvement, or operation of an employer provided child care facility, but only if:
      1. The facility is licensed or commissioned by the Department of Early Care and Learning pursuant to Chapter 1A of Title 20;
      2. At least 95 percent of the children who use the facility are children of employees of:
        1. The taxpayer and other employers in the event that the child care property is owned jointly or severally by the taxpayer and one or more employers; or
        2. A corporation that is a member of the taxpayer's "affiliated group" within the meaning of Section 1504(a) of the Internal Revenue Code; and
          1. A description of any recapture event occurring during the taxable year, a calculation of the resulting reduction in tax credits allowable for the recapture year and future taxable years, and a calculation of the resulting increase in tax for the recapture year.
      3. The taxpayer has not previously claimed any tax credit for the cost of operation for such qualified child care property placed in service prior to taxable years beginning on or after January 1, 2000.

        Qualified child care property includes, but is not limited to, amounts expended on land acquisition, improvements, buildings, and building improvements and furniture, fixtures, and equipment.

    7. "Recapture amount" means, with respect to property as to which a recapture event has occurred, an amount equal to the applicable recapture percentage of the aggregate credits claimed under subsection (d) of this Code section for all taxable years preceding the recapture year, whether or not such credits were used.
    8. "Recapture event" refers to any disposition of qualified child care property by the taxpayer, or any other event or circumstance under which property ceases to be qualified child care property with respect to the taxpayer, except for:
      1. Any transfer by reason of death;
      2. Any transfer between spouses or incident to divorce;
      3. Any transaction to which Section 381(a) of the Internal Revenue Code applies;
      4. Any change in the form of conducting the taxpayer's trade or business so long as the property is retained in such trade or business as qualified child care property and the taxpayer retains a substantial interest in such trade or business; or
      5. Any accident or casualty.
    9. "Recapture percentage" refers to the applicable percentage set forth in the following table:
    10. "Recapture year" means the taxable year in which a recapture event occurs with respect to qualified child care property.
  2. A tax credit against the tax imposed under this article shall be granted to an employer who provides or sponsors child care for employees. The amount of the tax credit shall be equal to 75 percent of the cost of operation to the employer less any amounts paid for by employees during a taxable year.
  3. The tax credit allowed under subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. Such credit shall not exceed 50 percent of the amount of the taxpayer's income tax liability for the taxable year as computed without regard to any other credits;
    2. Any such credit claimed but not used in any taxable year may be carried forward for five years from the close of the taxable year in which the cost of operation was incurred; and
    3. The employer shall certify to the department the names of the employees, the name of the child care provider, and such other information as may be required by the department to ensure that credits are granted only to employers who provide or sponsor approved child care pursuant to this Code section.
  4. In addition to the tax credit provided under subsection (b) of this Code section, a taxpayer shall be allowed a credit against the tax imposed under this article for the taxable year in which the taxpayer first places in service qualified child care property and for each of the ensuing nine taxable years following such taxable year. The aggregate amount of the credit shall equal 100 percent of the cost of all qualified child care property purchased or acquired by the taxpayer and first placed in service during a taxable year, and such credit may be claimed at a rate of 10 percent per year over a period of ten taxable years.
  5. The tax credit allowable under subsection (d) of this Code section shall be subject to the following conditions and limitations:
    1. Any such credit claimed in any taxable year but not used in such taxable year may be carried forward for three years from the close of such taxable year. The sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility for the credit in any succeeding taxpayer;
    2. In no event shall the amount of any such tax credit, including any carryover of such credit from a prior taxable year, exceed 50 percent of the taxpayer's income tax liability as determined without regard to any other credits; and
    3. For every year in which a taxpayer claims such credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return setting forth the following information with respect to such tax credit:
      1. A description of the child care facility;
      2. The amount of qualified child care property acquired during the taxable year and the cost of such property;
      3. The amount of tax credit claimed for the taxable year;
      4. The amount of qualified child care property acquired in prior taxable years and the cost of such property;
      5. Any tax credit utilized by the taxpayer in prior taxable years;
      6. The amount of tax credit carried over from prior years;
      7. The amount of tax credit utilized by the taxpayer in the current taxable year;
      8. The amount of tax credit to be carried forward to subsequent tax years; and
  6. If a recapture event occurs with respect to qualified child care property:
    1. The credit otherwise allowable under subsection (d) of this Code section with respect to such property for the recapture year and all subsequent taxable years shall be reduced by the applicable recapture percentage; and
    2. All credits previously claimed with respect to such property under subsection (d) of this Code section shall be recaptured as follows:
      1. Any carryover attributable to such credits under paragraph (1) of subsection (e) of this Code section shall be reduced, but not below zero, by the recapture amount;
      2. The tax credit otherwise allowable under subsection (d) of this Code section for the recapture year, if any, as reduced under paragraph (1) of this subsection, shall be further reduced, but not below zero, by the excess of the recapture amount over the amount taken into account under subparagraph (A) of this paragraph; and
      3. The tax imposed under this article for the recapture year shall be increased by the excess of the recapture amount over the amounts taken into account under subparagraphs (A) and (B) of this paragraph, as applicable.
  7. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-40.6 , enacted by Ga. L. 1994, p. 928, § 4; Ga. L. 1995, p. 10, § 48; Ga. L. 1995, p. 585, § 6; Ga. L. 1999, p. 13, § 3; Ga. L. 2004, p. 645, § 6.)

If the recapture The recapture event occurs within - percentage is: Five full years after the qualified child care property is placed in service................................................................100 The sixth full year after the qualified child care property is placed in service....................................................................90 The seventh full year after the qualified child care property is placed in service....................................................................80 The eighth full year after the qualified child care property is placed in service....................................................................70 The ninth full year after the qualified child care property is placed in service....................................................................60 The tenth full year after the qualified child care property is placed in service....................................................................50 The eleventh full year after the qualified child care property is placed in service....................................................................40 The twelfth full year after the qualified child care property is placed in service....................................................................30 The thirteenth full year after the qualified child care property is placed in service....................................................................20 The fourteenth full year after the qualified child care property is placed in service....................................................................10 Any period after the close of the fourteenth full year after the qualified child care property is placed in service....................................0

Editor's notes. - Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994.'"

Ga. L. 1994, p. 928, § 8, not codified by the General Assembly, provides that the 1994 amendment shall be applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that the 1995 amendment shall be applicable to all taxable years beginning on or after January 1, 1995.

Ga. L. 1999, p. 13, § 4, not codified by the General Assembly, provides that the 1999 amendment shall be applicable to all taxable years beginning on or after January 1, 2000.

Administrative Rules and Regulations. - Child care credit, definitions and description, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.38.

48-7-40.7. Optional tax credits for existing manufacturing and telecommunications facilities in tier 1 counties; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Machinery and equipment" means all tangible personal property used, directly or indirectly, to move, sort, store, prepare, convert, process, fabricate, or manufacture products.
    2. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    3. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in the construction of an additional manufacturing or telecommunications facility to be located in this state or the expansion of an existing manufacturing or telecommunications facility located in this state, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used exclusively in the manufacturing or telecommunications facility. The department shall promulgate rules defining eligible manufacturing facilities, telecommunications facilities, and qualified investment property pursuant to this paragraph.
  2. In the case of a taxpayer which has operated for the immediately preceding three years an existing manufacturing or telecommunications facility or manufacturing or telecommunications support facility and which first places in service during a taxable year qualified investment property in this state in a tier 1 county designated pursuant to Code Section 48-7-40, there shall be allowed an optional credit against the tax imposed under this article for the ensuing ten taxable years following the taxable year the qualified investment property was first placed in service, provided that such qualified investment property remains in service. Such optional credit shall be at the irrevocable election of the taxpayer and shall be in lieu of the credit under Code Section 48-7-40.2. No taxpayer who claims the credit under Code Section 48-7-40.2 for any taxable year for a given project shall be eligible to receive the credit under this Code section with respect to the same project for any taxable year. The aggregate amount of the credit allowed under this Code section shall equal 10 percent of the cost of all qualified investment property purchased or acquired by the taxpayer and first placed in service during a taxable year. The annual amount of such credit shall be computed as follows:
    1. The taxable year in which such qualified investment property is first placed in service shall be the base year for purposes of calculating the credit provided for by this Code section;
    2. The amount of tax owed by the taxpayer for the base year and for each of the two immediately preceding taxable years shall be determined without regard to any credits and shall be added together and divided by three. The resulting figure shall be the base year average; and
    3. The credit available to the taxpayer to apply against the tax liability of any year following the base year but no later than the tenth year shall be the lesser of the following amounts:
      1. Ninety percent of the excess of the tax of the applicable year determined without regard to any credits over the base year average; or
      2. The excess of the aggregate amount of the credit allowed for the qualified investment property over the sum of the amounts of credit already used in the years following the base year.
  3. The credit granted under subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In order to qualify as a basis for the credit, the qualified investment property must be first placed in service no sooner than January 1, 1996. The credit may only be taken with respect to qualified investment property having an aggregate cost in excess of $5 million. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the project;
      2. The amount of qualified investment property placed in service during the taxable year;
      3. The base year average calculated under paragraph (2) of subsection (b) of this Code section;
      4. The tax owed by the taxpayer for the current taxable year determined without regard to any credits;
      5. The amount of the unused credit available at the end of the prior tax year;
      6. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      7. The amount of tax credit remaining for subsequent tax years;
    2. In the initial year in which the taxpayer claims the credit granted in subsection (b) of this Code section, the taxpayer shall include in the description of the project required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the project includes the placing in service of qualified investment property having an aggregate cost in excess of $5 million;
    3. Any lease for a period of five years or longer of any real or personal property used in a new or expanded manufacturing or telecommunications facility which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition of qualified investment property by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the taxable year in which the lease becomes binding on the lessor and the taxpayer if all other conditions of this subsection have been met; and
    4. The utilization of the credit granted in subsection (b) of this Code section shall have no effect on the taxpayer's ability to claim depreciation for tax purposes on the assets acquired by the taxpayer nor shall the credit have any effect on the taxpayer's basis in such assets for the purpose of depreciation.
  4. No taxpayer shall be authorized to claim on a tax return for a given project the credit provided for in this Code section if such taxpayer claims on such tax return any of the credits authorized under Code Section 48-7-40 or 48-7-40.1 . (Code 1981, § 48-7-40 .7, enacted by Ga. L. 1995, p. 585, § 7; Ga. L. 1997, p. 461, § 6.)

Editor's notes. - Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 1996.

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that the 1997 amendment shall be applicable to all taxable years beginning on or after January 1, 1997.

Administrative Rules and Regulations. - Optional investment tax credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.40.

48-7-40.8. Optional tax credits for existing manufacturing and telecommunications facilities in tier 2 counties; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Machinery and equipment" means all tangible personal property used, directly or indirectly, to move, sort, store, prepare, convert, process, fabricate, or manufacture products.
    2. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    3. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in the construction of an additional manufacturing or telecommunications facility to be located in this state or the expansion of an existing manufacturing or telecommunications facility located in this state, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used exclusively in the manufacturing or telecommunications facility. The department shall promulgate rules defining eligible manufacturing facilities, telecommunications facilities, and qualified investment property pursuant to this paragraph.
  2. In the case of a taxpayer which has operated for the immediately preceding three years an existing manufacturing or telecommunications facility or manufacturing or telecommunications support facility and which first places in service during a taxable year qualified investment property in this state in a tier 2 county designated pursuant to Code Section 48-7-40, there shall be allowed an optional credit against the tax imposed under this article for the ensuing ten taxable years following the taxable year the qualified investment property was first placed in service, provided that such qualified investment property remains in service. Such optional credit shall be at the irrevocable election of the taxpayer and shall be in lieu of the credit under Code Section 48-7-40.3. No taxpayer who claims the credit under Code Section 48-7-40.3 for any taxable year for a given project shall be eligible to receive the credit under this Code section with respect to the same project for any taxable year. The aggregate amount of the credit allowed under this Code section shall equal 8 percent of the cost of all qualified investment property purchased or acquired by the taxpayer and first placed in service during a taxable year. The annual amount of such credit shall be computed as follows:
    1. The taxable year in which such qualified investment property is first placed in service shall be the base year for purposes of calculating the credit provided for by this Code section;
    2. The amount of tax owed by the taxpayer for the base year and for each of the two immediately preceding taxable years shall be determined without regard to any credits and shall be added together and divided by three. The resulting figure shall be the base year average; and
    3. The credit available to the taxpayer to apply against the tax liability of any year following the base year but no later than the tenth year shall be the lesser of the following amounts:
      1. Ninety percent of the excess of the tax of the applicable year determined without regard to any credits over the base year average; or
      2. The excess of the aggregate amount of the credit allowed for the qualified investment property over the sum of the amounts of credit already used in the years following the base year.
  3. The credit granted under subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In order to qualify as a basis for the credit, the qualified investment property must be first placed in service no sooner than January 1, 1996. The credit may only be taken with respect to qualified investment property having an aggregate cost in excess of $10 million. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the project;
      2. The amount of qualified investment property placed in service during the taxable year;
      3. The base year average calculated under paragraph (2) of subsection (b) of this Code section;
      4. The tax owed by the taxpayer for the current taxable year determined without regard to any credits;
      5. The amount of the unused credit available at the end of the prior tax year;
      6. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      7. The amount of tax credit remaining for subsequent tax years;
    2. In the initial year in which the taxpayer claims the credit granted in subsection (b) of this Code section, the taxpayer shall include in the description of the project required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the project includes the placing in service of qualified investment property having an aggregate cost in excess of $10 million;
    3. Any lease for a period of five years or longer of any real or personal property used in a new or expanded manufacturing or telecommunications facility which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition of qualified investment property by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the taxable year in which the lease becomes binding on the lessor and the taxpayer if all other conditions of this subsection have been met; and
    4. The utilization of the credit granted in subsection (b) of this Code section shall have no effect on the taxpayer's ability to claim depreciation for tax purposes on the assets acquired by the taxpayer nor shall the credit have any effect on the taxpayer's basis in such assets for the purpose of depreciation.
  4. No taxpayer shall be authorized to claim on a tax return for a given project the credit provided for in this Code section if such taxpayer claims on such tax return any of the credits authorized under Code Section 48-7-40 or 48-7-40.1 . (Code 1981, § 48-7-40.8 , enacted by Ga. L. 1995, p. 585, § 7; Ga. L. 1997, p. 461, § 7.)

Editor's notes. - Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 1996.

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that the 1997 amendment shall be applicable to all taxable years beginning on or after January 1, 1997.

48-7-40.9. Optional tax credits for existing manufacturing and telecommunications facilities or manufacturing and telecommunications support facilities in tier 3 and 4 counties; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Machinery and equipment" means all tangible personal property used, directly or indirectly, to move, sort, store, prepare, convert, process, fabricate, or manufacture products.
    2. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    3. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in the construction of an additional manufacturing or telecommunications facility to be located in this state or the expansion of an existing manufacturing or telecommunications facility located in this state, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used exclusively in the manufacturing or telecommunications facility. The department shall promulgate rules defining eligible manufacturing facilities, telecommunications facilities, and qualified investment property pursuant to this paragraph.
  2. In the case of a taxpayer which has operated for the immediately preceding three years an existing manufacturing or telecommunications facility or manufacturing or telecommunications support facility and which first places in service during a taxable year qualified investment property in this state in a tier 3 or a tier 4 county designated pursuant to Code Section 48-7-40, there shall be allowed an optional credit against the tax imposed under this article for the ensuing ten taxable years following the taxable year the qualified investment property was first placed in service, provided that such qualified investment property remains in service. Such optional credit shall be at the irrevocable election of the taxpayer and shall be in lieu of the credit under Code Section 48-7-40.4. No taxpayer who claims the credit under Code Section 48-7-40.4 for any taxable year for a given project shall be eligible to receive the credit under this Code section with respect to the same project for any taxable year. The aggregate amount of the credit allowed under this Code section shall equal 6 percent of the cost of all qualified investment property purchased or acquired by the taxpayer and first placed in service during a taxable year. The annual amount of such credit shall be computed as follows:
    1. The taxable year in which such qualified investment property is first placed in service shall be the base year for purposes of calculating the credit provided for by this Code section;
    2. The amount of tax owed by the taxpayer for the base year and for each of the two immediately preceding taxable years shall be determined without regard to any credits and shall be added together and divided by three. The resulting figure shall be the base year average; and
    3. The credit available to the taxpayer to apply against the tax liability of any year following the base year but no later than the tenth year shall be the lesser of the following amounts:
      1. Ninety percent of the excess of the tax of the applicable year determined without regard to any credits over the base year average; or
      2. The excess of the aggregate amount of the credit allowed for the qualified investment property over the sum of the amounts of credit already used in the years following the base year.
  3. The credit granted under subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In order to qualify as a basis for the credit, the qualified investment property must be first placed in service no sooner than January 1, 1996. The credit may only be taken with respect to qualified investment property having an aggregate cost in excess of $20 million. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the project;
      2. The amount of qualified investment property placed in service during the taxable year;
      3. The base year average calculated under paragraph (2) of subsection (b) of this Code section;
      4. The tax owed by the taxpayer for the current taxable year determined without regard to any credits;
      5. The amount of unused tax credit available at the end of the prior tax year;
      6. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      7. The amount of tax credit remaining for subsequent tax years;
    2. In the initial year in which the taxpayer claims the credit granted in subsection (b) of this Code section, the taxpayer shall include in the description of the project required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the project includes the placing in service of qualified investment property having an aggregate cost in excess of $20 million;
    3. Any lease for a period of five years or longer of any real or personal property used in a new or expanded manufacturing or telecommunications facility which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition of qualified investment property by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the taxable year in which the lease becomes binding on the lessor and the taxpayer if all other conditions of this subsection have been met; and
    4. The utilization of the credit granted in subsection (b) of this Code section shall have no effect on the taxpayer's ability to claim depreciation for tax purposes on the assets acquired by the taxpayer, nor shall the credit have any effect on the taxpayer's basis in such assets for the purpose of depreciation.
  4. No taxpayer shall be authorized to claim on a tax return for a given project the credit provided for in this Code section if such taxpayer claims on such tax return any of the credits authorized under Code Section 48-7-40 or 48-7-40.1 . (Code 1981, § 48-7-40.9 , enacted by Ga. L. 1995, p. 585, § 7; Ga. L. 1997, p. 461, § 8; Ga. L. 2000, p. 605, § 4.)

Editor's notes. - Ga. L. 1995, p. 585, § 10, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 1996.

Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, provides that the 1997 amendment shall be applicable to all taxable years beginning on or after January 1, 1997.

Ga. L. 2000, p. 605, § 7, not codified by the General Assembly, provides that the 2000 amendment shall be applicable to all taxable years beginning on or after January 1, 2001.

48-7-40.10. Tax credit for water conservation facilities and qualified water conservation investment property.

Reserved. Repealed by Ga. L. 2015, p. 370, § 1/HB 464, effective December 31, 2016.

Editor's notes. - This Code section was based on Ga. L. 1996, p. 1025, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2015, p. 370, § 1/HB 464.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, this Code section was reserved.

48-7-40.11. Tax credit for shift from ground-water usage.

Reserved. Repealed by Ga. L. 2015, p. 370, § 2/HB 464, effective December 31, 2016.

Editor's notes. - This Code section was based on Ga. L. 1996, p. 1025, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2015, p. 370, § 2/HB 464.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, this Code section was reserved.

48-7-40.12. Tax credit for qualified research expenses.

  1. As used in this Code section, the term:
    1. "Base amount" means the product of a business enterprise's Georgia gross receipts in the current taxable year and the average of the ratios of its aggregate qualified research expenses to Georgia gross receipts for the preceding three taxable years or 0.300, whichever is less; provided, however, that a business enterprise need not have had a positive taxable net income for the preceding three taxable years in order to claim the credit provided in this Code section. For purposes of this paragraph, "Georgia gross receipts" shall be the numerator of the gross receipts factor provided in subsection (d) of Code Section 48-7-31.
    2. "Broadcasting" means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. "Broadcasting" is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries.
    3. "Business enterprise" means any business or the headquarters of any such business which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, broadcasting, tourism, and research and development industries. Such term shall not include retail businesses.
    4. "Qualified research expenses" means qualified research expenses for any business enterprise as that term is defined in Section 41 of the Internal Revenue Code of 1986, as amended, except that all wages paid and all purchases of services and supplies must be for research conducted within the State of Georgia.
  2. A tax credit is allowed a business enterprise which has qualified research expenses in Georgia in a taxable year exceeding a base amount, provided that the business enterprise for the same taxable year claims and is allowed a research credit under Section 41 of the Internal Revenue Code of 1986, as amended.
  3. The tax credit provided in subsection (b) of this Code section shall be 10 percent of the excess over the base amount referred to in said subsection.
  4. Any unused credit claimed under this Code section may be carried forward ten years from the close of the taxable year in which the qualified research expenses were made. The credit taken in any one taxable year shall not exceed 50 percent of the business enterprise's remaining Georgia net income tax liability after all other credits have been applied.
  5. Where the amount of a credit claimed under this Code section exceeds 50 percent of the business enterprise's remaining Georgia net income tax liability after all other credits have been applied in a taxable year, the excess may be taken as a credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103. Each employee whose employer receives credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 shall receive a credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer.
  6. Any credit earned under this Code section in any taxable year beginning before January 1, 2012, and any credit carryforward attributable thereto, shall be governed by this Code section as in effect for the taxable year in which such credit was earned, including, but not limited to, when determining whether such credit or any credit carryforward may be taken as a credit against the taxpayer's quarterly or monthly payments under Code Section 48-7-103 . (Code 1981, § 48-7-40.12 , enacted by Ga. L. 1997, p. 461, § 9; Ga. L. 1998, p. 128, § 48; Ga. L. 2008, p. 874, § 3/HB 1246; Ga. L. 2009, p. 654, § 4/HB 439; Ga. L. 2012, p. 1309, § 3/HB 868; Ga. L. 2013, p. 7, § 3/HB 266.)

Editor's notes. - Ga. L. 1997, p. 461, § 10, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2008, p. 874, § 9/HB 1246, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2009, p. 654, § 7/HB 439, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable for all taxable years beginning on or after January 1, 2009.

Ga. L. 2012, p. 1309, § 7/HB 868, not codified by the General Assembly, provides, in part, that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2013, p. 7, § 7(b)/HB 266, not codified by the General Assembly, provides, in part, that the 2013 amendment shall be applicable to all taxable years beginning on or after January 1, 2012.

Administrative Rules and Regulations. - Tax credit for qualified research expenses, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.42.

Law reviews. - For annual survey of administrative law, see 57 Mercer L. Rev. 1 (2005).

JUDICIAL DECISIONS

Trial court erred in finding invalid a regulation which interpreted a research tax credit codified in a statute; the regulation's requirement that a business enterprise have a positive state taxable net income for each of the preceding three years in order to be eligible for the tax credit was authorized by statute and was reasonable because the regulation reflected the legislature's intent that research activities be increased, which was most likely to occur when a business enterprise was able to generate income through the enterprise's activities rather than when a business had a negative income or, in other words, a net operating loss. Ga. Dep't of Revenue v. Ga. Chemistry Council, Inc., 270 Ga. App. 615 , 607 S.E.2d 207 (2004).

RESEARCH REFERENCES

ALR. - Validity, construction, and application of state taxes on revenues and income from communications satellite services, 51 A.L.R.6th 257.

48-7-40.13. "Business enterprise" defined; tax credit.

Reserved. Repealed by Ga. L. 2005, p. 1125, § 1/HB 539, effective May 9, 2005.

Editor's notes. - This Code section was based on Code 1981, § 48-7-40.13 , enacted by Ga. L. 1997, p. 461, § 9.

48-7-40.14. Calculation of new full-time jobs.

Notwithstanding any provision to the contrary of Code Sections 48-7-40 and 48-7-40.1, business enterprises may make a one-time election to calculate new full-time jobs on a calendar year rather than a taxable year basis for all jobs created during calendar year 1994 and thereafter as compared against the preceding calendar year. Such one-time election may be made by claiming job tax credits in connection with any 1995 state income tax return or amended return that is filed after April 29, 1997. Such election will not change the taxable year of the business enterprise.

(Code 1981, § 48-7-40.14 , enacted by Ga. L. 1997, p. 1344, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1997, this Code section, enacted as Code Section 48-7-40.12, was redesignated as Code Section 48-7-40.14 and "April 29, 1997" was substituted for "the effective date of this Code section" in the second sentence.

48-7-40.15. Alternative tax credits for base year port traffic increases; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Base year port traffic" means:
      1. For taxable years beginning prior to January 1, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product actually transported by way of a waterborne ship or vehicle through a port facility during the period from January 1, 1997, through December 31, 1997; provided, however, that in the event the total amount actually transported during such period was not at least 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's), then "base year port traffic" means 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's).
      2. For all taxable years beginning on or after January 1, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product actually imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility during the second preceding 12 month period; provided, however, that in the event the total amount actually imported into this state or exported out of this state during such period was not at least 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's), then "base year port traffic" means 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's).
    2. "Broadcasting" means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. "Broadcasting" is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries.
    3. "Business enterprise" means any business or the headquarters of any such business which is engaged in manufacturing, including, but not limited to, the manufacturing of alternative energy products for use in solar, wind, battery, bioenergy, biofuel, and electric vehicle enterprises, warehousing and distribution, processing, telecommunications, broadcasting, tourism, biomedical manufacturing, and research and development industries. Such term shall not include retail businesses. Businesses are eligible for the tax credit provided by subsection (b) of this Code section at an individual establishment of the business based on the classification of the individual establishment under the North American Industry Classification System. For purposes of this Code section, the term "establishment" means an economic unit at a single physical location where business is conducted or where services or industrial operations are performed. If more than one business activity is conducted at the establishment, then only those jobs engaged in the qualifying activity will be eligible for the tax credit provided by this Code section.
    4. "Port facility" means any privately owned or publicly owned facility located within this state through which product is transported by way of a waterborne ship or vehicle to or from destinations outside this state.
    5. "Port traffic" means:
      1. For taxable years beginning prior to January 1, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product transported by way of a waterborne ship or vehicle through a port facility.
      2. For all taxable years beginning on or after January 1, 2010, the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility.
    6. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    7. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in the construction of an additional manufacturing or telecommunications facility to be located in this state or in the expansion of an existing manufacturing or telecommunications facility located in this state, including, but not limited to, moneys expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used in the manufacturing or telecommunications facility. The department shall promulgate rules defining eligible manufacturing facilities, telecommunications facilities, and qualified investment property pursuant to this Code section.
    1. In the case of any business enterprise which has increased its port traffic of products during the previous 12 month period by more than 10 percent above its base year port traffic and is qualified to claim a job tax credit under Code Section 48-7-40 or 48-7-40.1 for jobs added at any time on or after January 1, 1998, there shall be allowed an additional $1,250.00 job tax credit against the tax imposed under this article.
    2. The tax credit described in this subsection shall be allowed subject to the conditions and limitations set forth in Code Section 48-7-40 or 48-7-40.1 and shall be in addition to the credit allowed under Code Section 48-7-40 or 48-7-40.1; provided, however, that such credit shall not be allowed during a year if the port traffic does not remain above the minimum level established in this Code section.
  3. In the case of any business enterprise which has increased its port traffic of products during the previous 12 month period by more than 10 percent above its base year port traffic and is qualified to claim a tax credit under Code Section 48-7-40.2, 48-7-40.3, 48-7-40.4, 48-7-40.7, 48-7-40.8, or 48-7-40.9 upon qualified investment property added at any time on or after January 1, 1998, there shall be allowed a credit against the tax imposed under this article in an amount equal to the applicable percentage amount otherwise allowed under Code Section 48-7-40.2 or 48-7-40.7 to business enterprises for the cost of such property. The tax credit described in this subsection shall be allowed subject to the conditions and limitations set forth in Code Section 48-7-40.2 or 48-7-40.7, as applicable, except that such property may be placed in service in any county without regard to its tier designation. Such credit shall also be in lieu of and not in addition to the credit authorized under Code Sections 48-7-40.2, 48-7-40.3, 48-7-40.4, 48-7-40.7, 48-7-40.8, and 48-7-40.9.
  4. No business enterprise shall be authorized to claim the credits provided for in both subsections (b) and (c) of this Code section on a tax return for any taxable year unless such business enterprise has increased its port traffic of products during the previous 12 month period by more than 20 percent above its base year port traffic, has increased employment by 400 or more no sooner than January 1, 1998, and has purchased or acquired qualified investment property having an aggregate cost in excess of $20 million no sooner than January 1, 1998.
  5. The credit granted under this Code section shall be subject to the following conditions and limitations:
    1. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's state income tax return which shall set forth the following information, as a minimum, in addition to the information required under Code Sections 48-7-40 , 48-7-40 .1, and 48-7-40.2 or 48-7-40.7 :
      1. A description of how the base year port traffic and the increase in port traffic was determined;
      2. The amount of the base year port traffic;
      3. The amount of the increase in port traffic for the taxable year, including information which demonstrates an increase in port traffic in excess of the minimum amount required to claim the tax credit under this Code section;
      4. Any tax credit utilized by the taxpayer in prior years;
      5. The amount of tax credit carried over from prior years;
      6. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      7. The amount of tax credit to be carried over to subsequent tax years.
      1. Any tax credit claimed under subsection (b) of this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified jobs were established, provided that the increase in port traffic remains above the minimum levels established in Code Section 48-7-40 or 48-7-40.1 and this Code section, respectively.
      2. Any tax credit claimed under subsection (c) of this Code section in lieu of Code Section 48-7-40.2 , 48-7-40.3 , or 48-7-40.4 but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified investment property was acquired, provided that the increase in port traffic remains above the minimum level established in this Code section and the qualified investment property remains in service.
      1. Any tax credit claimed under subsection (c) of this Code section in lieu of Code Section 48-7-40.7 , 48-7-40.8 , or 48-7-40.9 shall be allowed for the ensuing ten taxable years following the taxable year the qualified investment property was first placed in service, provided that the increase in port traffic remains above the minimum level established in this Code section and the qualified investment property remains in service.
      2. The tax credit established by this Code section in lieu of Code Section 48-7-40.2, 48-7-40.3 , or 48-7-40.4 and taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year.
      3. The tax credit established by this Code section in addition to that pursuant to Code Section 48-7-40 or 48-7-40.1 and taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year.
      4. The sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility for any succeeding taxpayer, but any unused credit may be transferred and continued by any transferee of the taxpayer. (Code 1981, § 48-7-40.15 , enacted by Ga. L. 1998, p. 744, § 1; Ga. L. 1998, p. 1224, § 7; Ga. L. 2000, p. 605, § 5; Ga. L. 2001, p. 855, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2005, p. 159, § 16/HB 488; Ga. L. 2008, p. 874, § 4/HB 1246; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2009, p. 654, § 5/HB 439; Ga. L. 2012, p. 1309, § 4/HB 868.)

Editor's notes. - Ga. L. 1998, p. 1224, § 8, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2000, p. 605, § 7, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2001, p. 855, § 2, not codified by the General Assembly, provides that this Act "shall be applicable to all taxable years beginning on or after January 1, 2001."

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2008, p. 874, § 9/HB 1246, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2009, p. 654, § 7/HB 439, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable for all taxable years beginning on or after January 1, 2009.

Ga. L. 2012, p. 1309, § 7/HB 868, not codified by the General Assembly, provides, in part, that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Law reviews. - For review of 1998 legislation relating to revenue and taxation, see 15 Georgia St. U.L. Rev. 224 (1998).

48-7-40.15A. Additional job tax credit based on increase in port traffic; conditions and limitations.

  1. As used in this Code section, the term:
    1. "Base year port traffic" means the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product actually imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility during the period from January 1, 1997, through December 31, 1997; provided, however, that in the event the total amount actually imported into this state or exported out of this state during such period was not at least 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's), then "base year port traffic" means 75 net tons, five containers, or ten twenty-foot equivalent units (TEU's).
    2. "Business enterprise" means any business located in a tier 2 or tier 3 county established pursuant to Code Section 48-7-40 and in a less developed area established pursuant to Code Section 48-7-40.1 and which qualifies and receives the tax credit under Code Section 48-7-40.1 and which:
      1. Consists of a distribution facility of greater than 650,000 square feet in operation in this state prior to December 31, 2008;
      2. Distributes product to retail stores owned by the same legal entity or its subsidiaries as such distribution facility; and
      3. Has a minimum of eight retail stores in this state in the first year of operations.
    3. "Port traffic" means the total amount of net tons, containers, or twenty-foot equivalent units (TEU's) of product imported into this state or exported out of this state by way of a waterborne ship or vehicle through a port facility.
    4. "Product" means a marketable product or component of a product which has an economic value to the wholesale or retail consumer and is ready to be used without further alteration of its form or a product or material which is marketed as a prepared material or is a component in the manufacturing and assembly of other finished products.
    1. In the case of any business enterprise which has increased its port traffic of products during the previous 12 month period by more than 10 percent above its base year port traffic and is qualified to claim a job tax credit under Code Section 48-7-40 or 48-7-40.1 for jobs added at any time on or after January 1, 1998, there shall be allowed an additional $1,250.00 job tax credit against the tax imposed under this article.
    2. The tax credit described in this subsection shall be allowed subject to the conditions and limitations set forth in Code Section 48-7-40 and shall be in addition to the credit allowed under Code Section 48-7-40; provided, however, that such credit shall not be allowed during a year if the port traffic does not remain above the minimum level established in this Code section.
  3. No business enterprise shall be authorized to claim the credits provided for in both subsection (b) of this Code section and subsection (b) of Code Section 48-7-40.15 on a tax return for any taxable year unless such business enterprise has increased its port traffic of products during the previous 12 month period by more than 20 percent above its base year port traffic and has increased employment by 400 or more no sooner than January 1, 1998.
    1. The credit granted under this Code section shall be subject to the following conditions and limitations:
    2. For every year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's state income tax return which shall set forth the following information, as a minimum, in addition to the information required under Code Sections 48-7-40 and 48-7-40.2 or Code Section 48-7-40.7:
      1. A description of how the base year port traffic and the increase in port traffic were determined;
      2. The amount of the base year port traffic;
      3. The amount of the increase in port traffic for the taxable year, including information which demonstrates an increase in port traffic in excess of the minimum amount required to claim the tax credit under this Code section;
      4. Any tax credit utilized by the taxpayer in prior years;
      5. The amount of tax credit carried over from prior years;
      6. The amount of tax credit utilized by the taxpayer in the current taxable year; and
      7. The amount of tax credit to be carried over to subsequent tax years.
      1. Any tax credit claimed under subsection (b) of this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the qualified jobs were established, provided that the increase in port traffic remains above the minimum levels established in Code Section 48-7-40 and this Code section, respectively.
      2. The tax credit established by this Code section in lieu of Code Section 48-7-40.2, 48-7-40.3, or 48-7-40.4 and taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year.
      3. The tax credit established by this Code section in addition to that pursuant to Code Section 48-7-40 and taken in any one taxable year shall be limited to an amount not greater than 50 percent of the taxpayer's state income tax liability which is attributable to income derived from operations in this state for that taxable year.
      4. The sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility for any succeeding taxpayer, but any unused credit may be transferred and continued by any transferee of the taxpayer.
  5. No tax credit may be claimed and allowed pursuant to this Code section for any jobs created on or after January 1, 2015. (Code 1981, § 48-7-40.15 A, enacted by Ga. L. 2009, p. 816, § 7/HB 485; Ga. L. 2013, p. 141, § 48/HB 79.)

Editor's notes. - Ga. L. 2009, p. 816, § 1/HB 485, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Improved Taxpayer Customer Service Act of 2009.'"

48-7-40.16. Income tax credits for low-emission vehicles.

  1. As used in this Code section, the term:
    1. "Alternative fuel" means methanol, denatured ethanol, and other alcohols; mixtures containing 85 percent or more by volume of methanol, denatured ethanol, and other alcohols with gasoline or other fuels; natural gas; liquefied petroleum gas; hydrogen; coal derived liquid fuels; fuels other than alcohol derived from biological materials; and electricity, including electricity from solar energy.
    2. "Clean fueled vehicle" means a motor vehicle which has been certified by the Environmental Protection Agency to meet, for any model year, a set of emission standards that classifies it as a low-emission vehicle or zero emission vehicle.
    3. "Conventionally fueled vehicle" means a motor vehicle which is fueled solely by a petroleum based fuel such as gasoline or diesel.
    4. "Converted vehicle" means a motor vehicle that is retrofitted so that it is fueled solely by an alternative fuel and which meets the emission standards set forth for that class of low-emission vehicles as defined under rules and regulations of the Board of Natural Resources applicable to clean fueled vehicles, as amended, when operating on such alternative fuel, or which meets the emission standards set forth for zero emission vehicles as defined under rules and regulations of the Board of Natural Resources.
    5. "Low-emission vehicle" means a motor vehicle which is fueled solely by an alternative fuel and which meets emission standards as defined under rules and regulations of the Board of Natural Resources applicable to clean fueled vehicles classified as low-emission vehicles, as amended, when operating on such alternative fuel.
    6. "Motor vehicle" means any self-propelled vehicle designed for transporting persons or property on a street or highway that is registered by the Department of Revenue, except vehicles that are defined as "low-speed vehicles" in paragraph (25.1) of Code Section 40-1-1.
    7. "Zero emission vehicle" means a motor vehicle which has zero tailpipe and evaporative emissions as defined under rules and regulations of the Board of Natural Resources applicable to clean fueled vehicles, as amended, and shall include an electric vehicle whose drive train is powered solely by electricity, provided said electricity is not provided by any on-board combustion device.
    1. A tax credit is allowed against the tax imposed under this article to a taxpayer for the purchase or lease of a new low-emission vehicle or new zero emission vehicle that is registered in the State of Georgia. The amount of the credit shall be:
      1. For any new low-emission vehicle, 10 percent of the cost of such vehicle or $2,500.00, whichever is less; and
      2. For any new zero emission vehicle, 20 percent of the cost of such vehicle or $5,000.00, whichever is less.
    2. For any new low-emission vehicle or new zero emission vehicle purchased or leased on or after July 1, 2015, the amount of the credit shall be $0.00.
  3. A tax credit is allowed against the tax imposed under this article to a taxpayer for the conversion of a conventionally fueled vehicle to a converted vehicle that is registered in the State of Georgia. The amount of the credit shall be equal to 10 percent of the cost of conversion, not to exceed $2,500.00 per converted vehicle.
  4. A tax credit is allowed against the tax imposed under this article to any business enterprise for the purchase or lease of each electric vehicle charger that is located in the State of Georgia. The amount of the credit shall be 10 percent of the cost of the charger or $2,500.00, whichever is less.
  5. The credits granted under this Code section shall be subject to the following conditions and limitations:
    1. All claims for any credit provided by subsection (b) of this Code section shall be:
      1. Accompanied by a certification approved by the Environmental Protection Division of the Department of Natural Resources; and
      2. Made only by a taxpayer who is the owner of a new clean fueled vehicle, as evidenced by the certificate of title issued for such vehicle; provided, however, that if a new clean fueled vehicle is leased to a taxpayer at retail, the taxpayer who is the lessee shall be entitled to claim the credit; provided, further, that only one taxpayer shall be eligible to claim any credit provided by subsection (b) of this Code section;
    2. All claims for any credit provided by subsection (c) of this Code section must be accompanied by a certification issued by the Environmental Protection Division of the Department of Natural Resources;
    3. All claims for any credit provided by subsection (d) of this Code section shall be:
      1. Accompanied by a certification issued by the seller where the new electric vehicle charger was purchased or leased; and
      2. Made only by a taxpayer who is the ultimate purchaser or lessee of a new electric vehicle charger at retail;
    4. Any credit claimed under this Code section but not used in any taxable year may be carried forward for five years from the close of the taxable year in which a new clean fueled vehicle was purchased or leased or a conventionally fueled vehicle was changed into a converted vehicle, provided that the applicable certification required in paragraph (1) or (2) of this subsection accompanies any such claim;
    5. In no event shall the amount of any tax credit provided in this Code section exceed the taxpayer's income tax liability; and
    6. Tax credits authorized in this Code section shall be granted to a taxpayer who purchased or leased and placed in service in Georgia a new low-emission vehicle or zero emission vehicle, which also is a low-speed vehicle, but only if such low-speed vehicle was placed in service during the taxable year ending December 31, 2001. For purposes of this paragraph, the term "low-speed vehicle" means a low-speed vehicle as defined in paragraph (25.1) of Code Section 40-1-1. Any claim for such credit must be accompanied by a manufacturer's statement of origin issued to a dealer registered in Georgia which certifies that the low-speed vehicle was manufactured in compliance with those federal motor vehicle safety standards set forth in 49 C.F.R. Section 571.500 and in effect on January 1, 2001, as well as any other documentation deemed necessary by the commissioner to establish the date that delivery was made and such vehicle was placed in service. A taxpayer shall only be eligible to claim such credit with respect to a single low-speed vehicle.
  6. The state revenue commissioner shall be authorized to adopt rules and regulations to provide for the administration of any tax credit provided by this Code section.
  7. The Board of Natural Resources shall be authorized to adopt rules and regulations to provide for:
    1. The specific standards and requirements for low-emission vehicles, zero emission vehicles, and converted vehicles and electric vehicle chargers which shall be consistent with the terms of this Code section;
    2. An approved certification form which certifies the purchase or lease of a new clean fueled vehicle that is qualified for a tax credit provided by this Code section;
    3. The certification of any converted vehicle that is qualified to claim a tax credit provided by this Code section; and
    4. An approved certification form which shall be issued by the seller which certifies the purchase or lease of a new electric vehicle charger that is qualified for a tax credit provided by this Code section. (Code 1981, § 48-7-40.16 , enacted by Ga. L. 1998, p. 1576, § 1; Ga. L. 2000, p. 1090, § 1; Ga. L. 2001, p. 109, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2002, p. 506, § 1; Ga. L. 2002, p. 512, §§ 14, 15; Ga. L. 2003, p. 665, § 6; Ga. L. 2005, p. 334, § 29-5/HB 501; Ga. L. 2015, p. 236, § 5-1/HB 170.)

The 2015 amendment, effective July 1, 2015, redesignated the former provisions of subsection (b) as present paragraph (b)(1); inserted "new" in the first sentence of paragraph (b)(1); redesignated former paragraphs (b)(1) and (b)(2) as present subparagraphs (b)(1)(A) and (b)(1)(B), respectively; and added paragraph (b)(2).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1998, Code Section 48-7-40.15 as enacted by Ga. L. 1998, p. 1576, § 1, was redesignated as Code Section 48-7-40.16.

The amendment of this Code section by Ga. L. 2002, p. 415, § 48, and Ga. L. 2002, p. 506, § 1, irreconcilably conflicted with and were treated as superseded by Ga. L. 2002, p. 512, § 15. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Editor's notes. - Ga. L. 1998, p. 1576, § 2, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2000, p. 1090, § 3, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2001, p. 109, § 2, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(b), not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2003.

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For note on the 2002 amendment of this chapter, see 19 Georgia St. U.L. Rev. 281 (2002). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

48-7-40.17. Establishing or relocating quality jobs; tax credit.

  1. As used in this Code section, the term:
    1. "Average wage" means the average wage of the county in which a new quality job is located as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor.
    2. "New quality job" means employment for an individual which:
      1. Is located in this state;
      2. Has a regular work week of 30 hours or more;
      3. Is not a job that is or was already located in Georgia regardless of which taxpayer the individual performed services for; and
      4. Pays at or above 110 percent of the average wage of the county in which it is located.
    3. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in a qualified project, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and any personal property to be used in the facility or facilities. Any lease for a period of three years or longer of any real or personal property used in a new or expanded facility or facilities which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition thereof by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the year in which the lease becomes binding on the lessor and the taxpayer.
    4. "Qualified investment property requirement" means the requirement that a minimum of $2.5 million in qualified investment property will have been purchased or acquired by the taxpayer to be used with respect to a qualified project. Such qualified investment property must be placed in service by the end of the two-year period specified in subsection (b) of this Code section.
    5. "Qualified project" means a project which meets the qualified investment property requirement and which involves the lease or construction of one or more new facilities in this state or the expansion of one or more existing facilities in this state. For purposes of this paragraph, the term "facilities" means all facilities comprising a single project, including noncontiguous parcels of land, improvements to such land, buildings, building improvements, and any personal property that is used in the facility or facilities.
    6. "Taxpayer" means any person required by law to file a return or to pay taxes, except that any taxpayer may elect to consider the jobs within its disregarded entities, as defined in the Internal Revenue Code, for purposes of calculating the number of new quality jobs created by the taxpayer under this Code section.
  2. A taxpayer establishing new quality jobs in this state or relocating quality jobs into this state which elects not to receive the tax credits provided for by Code Sections 48-7-40, 48-7-40.1, 48-7-40.2, 48-7-40.3, 48-7-40.4, 48-7-40.7, 48-7-40.8, and 48-7-40.9 for such jobs and investments created by, arising from, related to, or connected in any way with the same project and, within one year of the first date on which the taxpayer pursuant to the provisions of Code Section 48-7-101 withholds wages for employees in this state and employs at least 50 persons in new quality jobs in this state, shall be allowed a credit for taxes imposed under this article; except that if the first date on which the taxpayer, pursuant to the provisions of Code Section 48-7-101, withholds wages for employees in this state occurs in a taxable year beginning on or after January 1, 2017, the taxpayer has two years to employ at least 50 persons in new quality jobs in this state:
    1. Equal to $2,500.00 annually per eligible new quality job where the job pays 110 percent or more but less than 120 percent of the average wage of the county in which the new quality job is located;
    2. Equal to $3,000.00 annually per eligible new quality job where the job pays 120 percent or more but less than 150 percent of the average wage of the county in which the new quality job is located;
    3. Equal to $4,000.00 annually per eligible new quality job where the job pays 150 percent or more but less than 175 percent of the average wage of the county in which the new quality job is located;
    4. Equal to $4,500.00 annually per eligible new quality job where the job pays 175 percent or more but less than 200 percent of the average wage of the county in which the new quality job is located; and
    5. Equal to $5,000.00 annually per eligible new quality job where the job pays 200 percent or more of the average wage of the county in which the new quality job is located;

      provided, however, that where the amount of such credit exceeds a taxpayer's liability for such taxes in a taxable year, the excess may be taken as a credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 but not to exceed in any one taxable year the credit amounts in paragraphs (1) through (5) of this subsection for each new quality job when aggregated with the credit applied against taxes under this article. Each employee whose employer receives credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 shall receive a credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer. For each new quality job created, the credit established by this subsection may be taken for the first taxable year in which the new quality job is created and for the four immediately succeeding taxable years; provided, however, that such new quality jobs must be created within seven years from the close of the taxable year in which the taxpayer first becomes eligible for such credit. Credit shall not be allowed during a year if the net employment increase falls below the 50 new quality jobs required. Any credit received for years prior to the year in which the net employment increase falls below the 50 new quality jobs required shall not be affected except as provided in subsection (g) of this Code section. The state revenue commissioner shall adjust the credit allowed each year for net new employment fluctuations above the 50 new quality jobs required.

  3. Only a taxpayer that completes the creation of a qualified project in a taxable year beginning on or after January 1, 2017, shall be eligible to begin a subsequent seven-year job creation period for the qualified project, provided that the taxpayer creates 50 or more new quality jobs, at the site or sites of a qualified project or the facility or facilities resulting therefrom, above its single previous high yearly average number of new quality jobs during any prior seven-year job creation period. A subsequent seven-year job creation period is subject to all the requirements of this Code section. A taxpayer must notify the commissioner of their intent to begin a subsequent seven-year job creation period. The commissioner shall provide by regulation the time in which such notification shall occur. New quality jobs generated under previous seven-year job creation periods shall continue to be eligible for the credit as provided by this Code section. No new quality jobs may be generated under previous periods of eligibility after a subsequent period of eligibility has begun. New quality jobs created in a subsequent seven-year job creation period shall not be counted as additional new quality jobs under a previous seven-year job creation period; instead those new quality jobs shall count toward the subsequent period. For purposes of determining the number of new quality jobs in a particular year that are attributable to each seven-year job creation period, the taxpayer shall begin with the first seven-year job creation period and then attribute the remainder to each subsequent seven-year job creation period from the oldest to the newest. Such attributions shall be made up to the single high yearly average number of new quality jobs for each seven-year job creation period. A taxpayer may create more than one subsequent seven-year job creation period. If at the time a taxpayer begins a subsequent seven-year job creation period, the taxpayer had a year or years in the prior seven-year job creation period where the number of new quality jobs were below the single high yearly average number of new quality jobs, the taxpayer shall be allowed to make an irrevocable election to use the average number of new quality jobs for the completed years in the prior seven-year job creation period instead of the single high yearly average number of new quality jobs for all purposes of this subsection. If such election is made, the number of new quality jobs in the years subsequent to the completed years for the prior seven-year job creation period shall be deemed to not exceed the average number of new quality jobs for the completed years in the prior seven-year job creation period. New quality jobs over such average number shall be attributed to the subsequent seven-year job creation period as provided in this subsection.
  4. The number of new quality jobs to which this Code section shall be applicable shall be determined by comparing the monthly average of new quality jobs subject to Georgia income tax withholding for the taxable year with the corresponding average for the prior taxable year.
  5. Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the new quality jobs were established.
  6. Notwithstanding Code Section 48-2-35, any tax credit claimed under this Code section shall be claimed within one year of the earlier of the date the original return was filed or the date such return was due as prescribed in subsection (a) of Code Section 48-7-56, including any approved extensions.
  7. Taxpayers that initially claimed the credit under this Code section for any taxable year beginning before January 1, 2012, shall be governed, for purposes of all such credits claimed as well as any credits claimed in subsequent taxable years related to such initial claim, by this Code section as it was in effect for the taxable year in which the taxpayer made such initial claim.
  8. The state revenue commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-40.17 , enacted by Ga. L. 2000, p. 605, § 6; Ga. L. 2001, p. 984, § 9; Ga. L. 2003, p. 665, § 7; Ga. L. 2009, p. 654, § 6/HB 439; Ga. L. 2012, p. 1309, § 5/HB 868; Ga. L. 2016, p. 854, § 1/HB 922; Ga. L. 2017, p. 46, § 1/HB 265.)

The 2016 amendment, effective May 3, 2016, added paragraph (a)(3). See Editor's notes for applicability.

The 2017 amendment, effective April 25, 2017, added paragraphs (a)(3) through (a)(5); redesignated former paragraph (a)(3) as present paragraph (a)(6); added "; except that if the first date on which the taxpayer pursuant to the provisions of Code Section 48-7-101, withholds wages for employees in this state occurs in a taxable year beginning on or after January 1, 2017, the taxpayer has two years to employ at least 50 persons in new quality jobs in this state" in the introductory language of subsection (b); substituted "subsection (g)" for "subsection (f)" in the next to the last sentence of the ending undesignated paragraph of subsection (b); added subsection (c); and redesignated former subsections (c) through (g) as present subsections (d) through (h), respectively. See Editor's note for applicability.

Code Commission notes. - Ga. L. 2000, p. 605, § 6, Ga. L. 2000, p. 1090, § 2, and Ga. L. 2000, p. 1447, § 1 each enacted a Code Section 48-7-40.17. Pursuant to Code Section 28-9-5, in 2000, the Code section enacted by Ga. L. 2000, p. 1090, § 2 was redesignated as Code Section 48-7-40.19, and the Code section enacted by Ga. L. 2000, p. 1447, § 1 was redesignated as Code Section 48-7-40.20.

Editor's notes. - Ga. L. 2000, p. 605, § 7, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2001, p. 984, § 20, not codified by the General Assembly, provides that the 2001 amendment is applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(b), not codified by the General Assembly, provides that this Act shall apply to all taxable years beginning on or after January 1, 2003.

Ga. L. 2009, p. 654, § 7/HB 439, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable for all taxable years beginning on or after January 1, 2009.

Ga. L. 2012, p. 1309, § 7/HB 868, not codified by the General Assembly, provides, in part, that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Ga. L. 2016, p. 854, § 2/HB 922, not codified by the General Assembly, makes paragraph (a)(3) of this Code section applicable to all taxable years beginning on or after January 1, 2016.

Ga. L. 2017, p. 46, § 3/HB 265, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2017.

Directory language purports to amend subsection (a) only, but the whole Code section is amended.

Administrative Rules and Regulations. - Headquarters Job Tax Credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.14.

Law reviews. - For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

48-7-40.18. Tax credit for businesses headquartered in state; full-time jobs.

  1. Any business enterprise, as defined in Code Section 48-7-40, executing an agreement pursuant to subsection (a) of Code Section 48-7-31.1 for purposes of paragraph (1) of subsection (d) of Code Section 48-7-31 shall be allowed, beginning in the taxable year in which it establishes its headquarters in this state or relocates its headquarters to this state, a tax credit calculated in the same amounts and under the same principles as the credit established by Code Section 48-7-40.17. Except as otherwise provided in this Code section, the credit established by the Code section shall be subject to the same definitions, limitations, and carry-forward provisions as the credit established by Code Section 48-7-40.17; provided, however, that the term "headquarters" means the principal central administrative office of such business enterprise; and provided, further, that for the first taxable year in which it is claimed, all or part of the credit established by this Code section may be applied against taxes imposed under this article for the taxable year immediately preceding that taxable year by amendment to a return or returns for such year.
  2. The credit established by this Code section may be claimed by such business enterprise for new full-time jobs created in taxable years prior to the taxable year in which it establishes its headquarters in this state or relocates its headquarters to this state, where such jobs are in excess of those contained in such agreement and are located at such headquarters. Such jobs shall be deemed for purposes of such credit to have been created on the first day of the taxable year in which such business enterprise establishes its headquarters in this state or relocates its headquarters to this state. No credit in excess of $25 million may be claimed pursuant to the terms of this subsection.
  3. The number of new full-time jobs to which this Code section shall be applicable shall be determined by comparing the monthly average of full-time jobs subject to Georgia income tax withholding for the taxable year with the corresponding average for the prior taxable year. (Code 1981, § 48-7-40.18 , enacted by Ga. L. 2000, p. 1294, § 2; Ga. L. 2001, p. 4, § 48; Ga. L. 2002, p. 415, § 48; Ga. L. 2005, p. 60, § 48/HB 95.)

Editor's notes. - Ga. L. 2000, p. 1294, § 3, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2001.

Administrative Rules and Regulations. - Headquarters job tax credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.14.

48-7-40.19. (Repealed effective December 31, 2018) Diesel particulate emission reduction technology equipment; tax credit.

  1. As used in this Code section, the term:
    1. "Commercial motor vehicle" means a motor vehicle designed or used to transport property and having a gross vehicle weight rating of 26,001 or more pounds.
    2. "Diesel particulate emission reduction technology equipment" means any equipment which meets standards adopted by the Georgia Regional Transportation Authority and which provides for heat, air conditioning, light, and communications for the driver's compartment of a commercial motor vehicle which is parked at a truck stop, depot, or other facility the use of which results in the engine being turned off with a corresponding reduction of particulate emissions from such vehicle's diesel engine.
  2. A tax credit against the tax imposed under this article shall be granted to any person who installs diesel particulate emission reduction technology equipment at any truck stop, depot, or other facility. The amount of the tax credit shall be equal to 10 percent of the total of the cost of the diesel particulate emission reduction technology equipment and the cost of installation of such equipment. The tax credit provided under this Code section shall be allowed for the taxable year in which the taxpayer first places the equipment in use. Any credit which is not used in the year in which the equipment is first placed in use shall not be carried forward to any future year.
  3. For every year for which the taxpayer claims the credit authorized by this Code section, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return setting forth the following information:
    1. A description of the diesel particulate emission reduction technology equipment installed;
    2. The location at which such equipment was installed; and
    3. The cost of the equipment and the cost of installation of the equipment.
  4. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section.
  5. This Code section shall stand repealed on December 31, 2018. (Code 1981, § 48-7-40.19 , enacted by Ga. L. 2000, p. 1090, § 2; Ga. L. 2018, p. 113, § 4/SB 328.)

The 2018 amendment, effective March 27, 2018, added subsection (e). See Editor's notes for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, this Code section, enacted as Code Section 48-7-40.17, was redesignated as Code Section 48-7-40.19.

Editor's notes. - Ga. L. 2000, p. 1090, § 3, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2001.

Ga. L. 2018, p. 113, § 3/SB 328, provides for the repeal of this Code section effective December 31, 2018.

Ga. L. 2018, p. 113, § 5/SB 328, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall be applicable to all taxable years beginning on or after January 1, 2018.

48-7-40.20. Credit against taxes for businesses engaged in manufacturing cigarettes for exportation; amount; required information.

  1. As used in this Code section, the term:
    1. "Base year exportation volume" means the number of cigarettes manufactured and exported by a business enterprise during the calendar year 1999.
    2. "Business enterprise" means any business or the headquarters of any business which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, tourism, and research and development industries. Such term shall not include retail businesses.
    3. "Exportation" means the shipment of cigarettes manufactured in the United States to a foreign country sufficient to relieve the cigarettes in the shipment of the federal excise tax on cigarettes.
  2. A business enterprise engaged in the business of manufacturing cigarettes for exportation to a foreign country is allowed a credit against the taxes levied by this article. The amount of credit allowed under this Code section is determined by comparing the exportation volume of the corporation in the year for which the credit is claimed with the corporation's base year exportation volume, rounded to the nearest whole percentage. The amount of credit allowed is as follows:
  3. The credit allowed under this Code section may not exceed the lesser of $6 million or 50 percent of the amount of tax imposed by this article for the taxable year reduced by the sum of all other credits allowable, except tax payments made by or on behalf of the taxpayer. This limitation applies to the cumulative amount of the credit allowed in any tax year, including carry forwards claimed by the taxpayer under this Code section for previous tax years. Any unused portion of a credit allowed in this Code section may be carried forward for the next succeeding five years.
  4. A business enterprise that claims the credit under this Code section must include the following with its tax return:
    1. A statement of the base year exportation volume;
    2. A statement of the exportation volume on which the credit is based; and
    3. A list of the business enterprise's export volumes shown on its monthly reports to the Bureau of Alcohol, Tobacco, and Firearms of the United States Department of the Treasury for the months in the tax year for which the credit is claimed. (Code 1981, § 48-7-40.20 , enacted by Ga. L. 2000, p. 1447, § 1.)

Current Year's Exportation Amount of Credit Volume Compared to its per Thousand Base Year's Exportation Volume Cigarettes Exported 120 percent or more 40 › 119 percent - 100 percent 35 › 99 percent - 80 percent 30 › 79 percent - 60 percent 25 › 59 percent - 50 percent 20 › Less than 50 percent None

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2000, this Code section, enacted as Code Section 48-7-40.17, was redesignated as Code Section 48-7-40.20.

Editor's notes. - Ga. L. 2000, p. 1447, § 2, not codified by the General Assembly, provides that: "This Act shall be applicable to all taxable years beginning on or after January 1, 2000."

Ga. L. 2000, p. 1447, § 3, not codified by the General Assembly, provides that: "This Act shall be repealed for cigarettes exported on or after January 1, 2006."

48-7-40.21. Tax credits for existing business enterprises undergoing qualified business expansion; recapture; application of credit.

  1. As used in this Code section, the term:
    1. "Broadcasting" means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. "Broadcasting" is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries.
    2. "Existing business enterprise" means any business or the headquarters of any such business which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, broadcasting, tourism, or research and development industries that has been in operation in this state for at least five years. Such term shall not include retail businesses.
    3. "Qualified business expansion" means the creation of at least 500 new full-time jobs within a taxable year.
  2. An existing business enterprise undergoing a qualified business expansion shall be eligible to make application to the commissioner to take tax credits established by Code Section 48-7-40 against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 subject to the following limitations:
    1. Such application may be made only where the amount of such credit exceeds 50 percent of an existing business enterprise's liability for taxes imposed under this article in a taxable year. In such cases where the existing business enterprise has claimed and not used credits established by Code Section 48-7-40 prior to April 4, 2001, and such credits have been carried forward pursuant to subsection (h) of Code Section 48-7-40, the taxpayer may also include in the application a request to take such credits against such taxpayer's quarterly or monthly payment under Code Section 48-7-103;
    2. Following the commissioner's referral of the application to a panel composed of the commissioner of community affairs, the commissioner of economic development, and the director of the Office of Planning and Budget, said panel, after reviewing the application, certifies that the expansion will have a beneficial economic effect on the region for which it is planned;
    3. The credit shall apply to not more than five taxable years;
    4. Credit shall not be allowed during a year if the net employment increase falls below the 500 new full-time jobs required; and
    5. No credit in excess of $5 million may be claimed pursuant to the terms of this Code section.
  3. Notwithstanding any other provision of law to the contrary, any credit claimed pursuant to this Code section shall be subject to recapture if the minimum job requirement is not met.
  4. Each employee whose employer receives credit against such taxpayer's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this Code section. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this Code section shall not constitute income to the taxpayer. (Code 1981, § 48-7-40.21 , enacted by Ga. L. 2001, p. 105, § 2; Ga. L. 2002, p. 415, § 48; Ga. L. 2004, p. 690, § 19; Ga. L. 2008, p. 874, § 5/HB 1246; Ga. L. 2013, p. 141, § 48/HB 79.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2001, Code Section 48-7-40.21, as enacted by Ga. L. 2001, p. 984, § 10, was redesignated as Code Section 48-7-40.23.

Editor's notes. - Ga. L. 2001, p. 105, § 4, not codified by the General Assembly, provides that this Code section is applicable to all taxable years ending on or after January 1, 2001.

Ga. L. 2008, p. 874, § 9/HB 1246, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Law reviews. - For note on the 2001 enactment of this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

48-7-40.22. Credit to business enterprises for leased motor vehicles; daily ridership; implementation.

  1. As used in this Code section, the term:
    1. "Broadcasting" means the transmission or licensing of audio, video, text, or other programming content to the general public, subscribers, or to third parties via radio, television, cable, satellite, or the Internet or Internet Protocol and includes motion picture and sound recording, editing, production, postproduction, and distribution. "Broadcasting" is limited to establishments classified under the 2007 North American Industry Classification System Codes 515, broadcasting; 519, Internet publishing and broadcasting; 517, telecommunications; and 512, motion picture and sound recording industries.
    2. "Business enterprise" means any business or the headquarters of any such business which is engaged in manufacturing, warehousing and distribution, processing, telecommunications, broadcasting, tourism, research and development industries, child care businesses, or retail businesses.
    3. "Headquarters" means the principal central administrative office of a taxpayer.
    4. "Tier" means a tier as designated pursuant to Code Section 48-7-40, as amended.
  2. A business enterprise which is located in a tier 1 or tier 2 county which purchases or leases a new motor vehicle as defined in paragraph (34) of Code Section 40-1-1 in this state which is used for the exclusive purpose of providing transportation for its employees shall be allowed a credit for taxes imposed under this article as follows:
  3. In order to qualify for the tax credit under this Code section, a business enterprise must certify that each vehicle for which a credit is claimed carries an average daily ridership of not less than four employees for an entire taxable year.
  4. In no event shall the aggregate amount of the tax credit provided by this Code section exceed the income tax liability of the business enterprise. Any unused tax credit shall be allowed to be carried forward to apply to the succeeding years' tax liability of such business enterprise. No such credit shall be allowed the business enterprise against prior years' tax liability.
  5. No business enterprise shall be authorized to claim on a tax return the credit provided for in this Code section with respect to a vehicle if such business enterprise claims any of the credits authorized under subsection (b) of Code Section 48-7-40.16 with respect to such vehicle.
    1. If a business enterprise sells a new motor vehicle within three years of receiving the credit, the business enterprise shall recapture the credit as follows:
      1. If the motor vehicle is sold within one year of receiving the credit, the recapture amount will equal the lesser of the credit or the net profit from the sale;
      2. If the motor vehicle is sold within two years of receiving the credit, the recapture amount will equal the lesser of two-thirds of the credit or the net profit from the sale; and
      3. If the motor vehicle is sold within three years of receiving the credit, the recapture amount will equal the lesser of one-third of the credit or the net profit from the sale.
    2. The recapture provisions of this subsection shall not apply to:
      1. Any sale by reason of death;
      2. Any sale between spouses or incident to divorce;
      3. Any transaction to which Section 381(a) of the Internal Revenue Code of 1986 applies;
      4. Any change in the form of conducting the taxpayer's trade or business so long as the property is retained in such trade or business and the taxpayer retains a substantial interest in such trade or business; or
      5. Any accident or casualty.
  7. The commissioner shall promulgate any rules and regulations necessary to implement and administer the Code section. (Code 1981, § 48-7-40.22 , enacted by Ga. L. 2001, p. 105, § 3; Ga. L. 2002, p. 372, § 6; Ga. L. 2008, p. 874, § 6/HB 1246; Ga. L. 2013, p. 141, § 48/HB 79.)

Tier Credit amount per vehicle 1 ...............................................................$ 3,000.00 2 ..................................................................2000.00

Editor's notes. - Ga. L. 2001, p. 105, § 4, not codified by the General Assembly, provides that this Code section is applicable to all taxable years beginning on or after January 1, 2002.

Ga. L. 2002, p. 372, § 15(b), not codified by the General Assembly, provides that §§ 1-4, 6, and 8-14 of this Act shall be applicable to all taxable years beginning on or after January 1, 2002.

Ga. L. 2008, p. 874, § 9/HB 1246, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

48-7-40.23. Election to count new jobs on calendar year basis.

Notwithstanding any provision to the contrary of Code Sections 48-7-40 and 48-7-40.1, business enterprises may apply to the commissioner to make a one-time election to calculate new full-time jobs on a calendar year rather than a taxable year basis for all jobs created during calendar year 2001. Such one-time election may be made by claiming job tax credits calculated on the basis set forth in Code Sections 48-7-40 and 48-7-40.1 in connection with any 2002 state income tax return filed after the effective date of this Code section. Such election will not change the taxable year of the business enterprise.

(Code 1981, § 48-7-40.23 , enacted by Ga. L. 2001, p. 984, § 10.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2001, Code Section 48-7-40.21, as enacted by Ga. L. 2001, p. 984, § 10, was redesignated as Code Section 48-7-40.23.

48-7-40.24. Conditions for taking job tax credit by business enterprises; calculating credit.

  1. As used in this Code section, the term:

    (.1) "Affiliate" means the members of a business enterprise's affiliated group within the meaning of Section 1504(a) of the Internal Revenue Code and also means any entity, notwithstanding its form of organization, that would otherwise qualify as a member of such affiliated group.

    1. "Business enterprise" or "taxpayer" means any enterprise or organization, whether corporation, partnership, limited liability company, proprietorship, association, trust, business trust, real estate trust, or other form of organization, and its affiliates, which are registered and authorized to use the federal employment verification system known as "E-Verify" or any successor federal employment verification system and are engaged in or carrying on any business activities within this state, except that such term shall not include retail businesses.
    2. "Eligible full-time employee" means an individual holding a full-time employee job created by a qualified project who:
      1. Possesses a valid Georgia driver's license or identification card issued by the Department of Driver Services; or
      2. Submits a notarized affidavit swearing to be a United States citizen or lawfully present alien authorized to work in the United States.
    3. "Force majeure" means any:
      1. Explosions, implosions, fires, conflagrations, accidents, or contamination;
      2. Unusual and unforeseeable weather conditions such as floods, torrential rain, hail, tornadoes, hurricanes, lightning, or other natural calamities or acts of God;
      3. Acts of war (whether or not declared), carnage, blockade, or embargo;
      4. Acts of public enemy, acts or threats of terrorism or threats from terrorists, riot, public disorder, or violent demonstrations;
      5. Strikes or other labor disturbances; or
      6. Expropriation, requisition, confiscation, impoundment, seizure, nationalization, or compulsory acquisition of the site or sites of a qualified project or any part thereof;

        but such term shall not include any event or circumstance that could have been prevented, overcome, or remedied in whole or in part by the taxpayer through the exercise of reasonable diligence and due care, nor shall such term include the unavailability of funds.

      1. "Full-time employee job" and "full-time job" mean employment of an individual which:
        1. Is located in this state at the site or sites of a qualified project or the facility or facilities resulting therefrom;
        2. Involves a regular work week of 35 hours or more;
        3. Has no predetermined end date; and
        4. Pays at or above the average wage of the county with the lowest average wage in the state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor.
      2. For purposes of this paragraph:
        1. Leased employees shall be considered employees of the company using their services and such persons may be counted in determining the company's job tax credits under this Code section if their employment otherwise satisfies subparagraph (A) of this paragraph;
        2. An individual's employment shall not be deemed to have a predetermined end date solely by virtue of a mandatory retirement age set forth in a company policy of general application. The employment of any individual in a bona fide executive, administrative, or professional capacity, within the meaning of Section 13 of the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Section 213(a)(1), as such act existed on January 1, 2002, shall not be deemed to have a predetermined end date solely by virtue of the fact that such employment is pursuant to a fixed-term contract, provided that such contract is for a term of not less than one year; and
        3. When there is a merger or acquisition of another company by a business enterprise whose application for a qualified project has been approved, the existing jobs in this state shall not be counted in calculating the job creation requirement and the credit calculation necessary to qualify for the tax credit under this Code section. Only additional jobs added in this state that meet the requirements of this Code section shall be counted for purposes of calculating the job creation requirement and the credit calculation.
    5. "Job creation requirement" means the requirement that no later than the close of the sixth taxable year following the withholding start date, the business enterprise will have a minimum of 1,800 eligible full-time employees. If at the close of the sixth taxable year following the withholding start date a minimum of $600 million in qualified investment property has been purchased or acquired by the business enterprise to be used with respect to a qualified project, the job creation requirement shall be extended for an additional two-year period. If at the close of the eighth taxable year following the withholding start date a minimum of $800 million in qualified investment property has been purchased or acquired by the business enterprise to be used with respect to a qualified project, the job creation requirement shall be extended for an additional four-year period after the sixth taxable year following the withholding start date.
    6. "Job maintenance requirement" means the requirement that, with respect to each year in the recapture period, the monthly average number of eligible full-time employees employed by the business enterprise, determined as prescribed by subsection (l) of this Code section, must equal or exceed 1,800.
    7. "Payroll maintenance requirement" means the requirement that, with respect to each year in the recapture period, the total annual Georgia W-2 reported payroll with respect to a qualified project must equal or exceed $150 million.
    8. "Payroll requirement" means the requirement that no later than the close of the sixth taxable year following the withholding start date, the business enterprise will have a minimum of $150 million in total annual Georgia W-2 reported payroll with respect to a qualified project.
    9. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in a qualified project, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and any personal property to be used in the facility or facilities.
    10. "Qualified investment property requirement" means the requirement that by the close of the sixth taxable year following the withholding start date, a minimum of $450 million in qualified investment property will have been purchased or acquired by the business enterprise to be used with respect to a qualified project.
    11. "Qualified project" means a project which meets the job creation requirement and either the payroll requirement or qualified investment property requirement. If the taxpayer selects the qualified investment property requirement as one of the conditions for its project, the property shall involve the construction of one or more new facilities in this state or the expansion of one or more existing facilities in this state. For purposes of this paragraph, the term "facilities" means all facilities comprising a single project, including noncontiguous parcels of land, improvements to such land, buildings, building improvements, and any personal property that is used in the facility or facilities.
    12. "Recapture period" means the period of five consecutive taxable years that commences after the first taxable year in which a business enterprise has satisfied the job creation requirement and either the payroll requirement or the qualified investment property requirement, as selected by the taxpayer.
    13. "Withholding start date" means the date on which the business enterprise begins to withhold Georgia income tax from the wages of its employees located at the site or sites of a qualified project.
  2. A business enterprise that is planning a qualified project shall be allowed to take the job tax credit provided by this Code section under the following conditions:
    1. An application is filed with the commissioner that:
      1. Describes the qualified project to be undertaken by the business enterprise, including when such project will commence and the expected withholding start date;
      2. Certifies that such project will meet the job creation requirement and either the payroll requirement or the qualified investment property requirement prescribed by this Code section; and
      3. Certifies that during the recapture period applicable to such project the business enterprise will meet the job maintenance requirement and, if applicable, the payroll maintenance requirement prescribed by this Code section;
    2. Following the commissioner's referral of the application to a panel composed of the commissioner of community affairs, the commissioner of economic development, and the director of the Office of Planning and Budget, the panel, after reviewing the application, certifies that the new or expanded facility or facilities will have a significant beneficial economic effect on the region for which they are planned. The panel shall make its determination within 30 days after receipt from the commissioner of the taxpayer's application and any necessary supporting documentation. Although the panel's certification may be based upon other criteria, a project that meets the minimum job creation requirement and either the payroll requirement or qualified investment property requirement, as applicable, specified in paragraph (1) of this subsection will have a significant beneficial economic effect on the region for which it is planned if one of the following additional criteria is met:
      1. The project will create new full-time employee jobs with average wages that are, as determined by the Department of Labor, for all jobs for the county in question:
        1. Twenty percent above such average wage for projects located in tier 1 counties;
        2. Ten percent above such average wage for projects located in tier 2 counties; or
        3. Five percent above such average wage for projects located in tier 3 or tier 4 counties; or
      2. The project demonstrates high growth potential based upon the prior year's Georgia net taxable income growth of over 20 percent from the previous year, if the taxpayer's Georgia net taxable income in each of the two preceding years also grew by 20 percent or more.
  3. Any lease for a period of five years or longer of any real or personal property used in a new or expanded facility or facilities which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition thereof by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the year in which the lease becomes binding on the lessor and the taxpayer.
  4. A business enterprise whose application is approved shall be allowed a tax credit for taxes imposed under this article equal to $5,250.00 annually per new eligible full-time employee job for five years beginning with the year in which such job is created through year five after such creation; provided, however, that where the amount of such credit exceeds a business enterprise's liability for such taxes in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103. The taxpayer may file an election with the commissioner to take such credit against quarterly or monthly payments under Code Section 48-7-103 that become due before the due date of the income tax return on which such credit may be claimed. In the event of such an election, the commissioner shall confirm with the taxpayer a date, which shall not be later than 30 days after receipt of the taxpayer's election, when the taxpayer may begin to take the credit against such quarterly or monthly payments. For any one taxable year the amounts taken as a credit against taxes imposed under this article and against the business enterprise's quarterly or monthly payments under Code Section 48-7-103 may not in the aggregate exceed $5,250.00 per eligible full-time employee job. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive a credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer. To qualify for a credit under this subsection, the employer must make health insurance coverage available to the employee filling the new full-time job; provided, however, that nothing in this subsection shall be construed to require the employer to pay for all or any part of health insurance coverage for such an employee in order to claim the credit provided for in this subsection if such employer does not pay for all or any part of health insurance coverage for other employees.
  5. The number of new full-time jobs to which this Code section shall be applicable shall be determined by comparing the monthly average number of eligible full-time employees subject to Georgia income tax withholding for the taxable year with the corresponding period for the prior taxable year.
  6. Subject to the requirements of division (a)(4)(B)(iii) of this Code section, the sale, merger, acquisition, or bankruptcy of any business enterprise shall not create new eligibility in any succeeding business entity, but any unused job tax credit may be transferred and continued by any transferee of the business enterprise.
  7. To qualify for the credit provided by this Code section, a new full-time job must be created by the close of the seventh taxable year following the business enterprise's withholding start date, unless the purchase or acquisition of qualified investment property is made as provided in paragraph (5) of subsection (a) of this Code section, in which case a new full-time job must be created by the close of the eighth taxable year following the business enterprise's withholding start date based on a $600 million qualified investment or the end of the tenth taxable year based on an $800 million qualified investment. In no event may a credit be claimed under this Code section for more than 4,500 new full-time employee jobs created by any one project; provided, however, that the taxpayer may claim the credits provided by Code Sections 48-7-40 and 48-7-40.1 for any such additional jobs if the taxpayer meets the terms and conditions thereof.
  8. Any credit claimed under this Code section but not fully used in the manner prescribed in subsection (d) of this Code section may be carried forward for ten years from the close of the taxable year in which the qualified job was established.
  9. Except as provided in subsection (g) of this Code section, a taxpayer who is entitled to and takes credits provided by this Code section for a qualified project shall not be allowed to take any of the credits authorized by Code Section 48-7-40, 48-7-40.1, 48-7-40.2, 48-7-40.3, 48-7-40.4, 48-7-40.6, 48-7-40.7, 48-7-40.8, 48-7-40.9, 48-7-40.10, 48-7-40.11, 48-7-40.15, 48-7-40.17, or 48-7-40.18 for jobs, investments, child care, or ground-water usage shifts created by, arising from, related to, or connected in any way with the same project. Provided such taxpayer otherwise qualifies, such taxpayer may take any credit authorized by Code Section 48-7-40.5 for the costs of retraining an employee located at the site or sites of such project or the facility or facilities resulting therefrom, but only for costs incurred more than five years after the date the facility or facilities first become operational.
  10. Except under those circumstances described in subsection (k) of this Code section, the taxpayer shall, not more than 60 days after the close of the sixth taxable year following its withholding start date, file a report with the commissioner concerning the number of eligible full-time employee jobs created by such project; the wages of such jobs; the qualified investment property purchased or acquired by the taxpayer for the project; and any other information that the commissioner may reasonably require in order to determine whether the taxpayer has met the job creation requirement and either the payroll requirement or the qualified investment property requirement, as selected by the taxpayer, for such project. If the taxpayer has failed to meet any applicable job creation, payroll, or qualified investment property requirement, the taxpayer shall forfeit the right to claim any credits provided by this Code section for such project. A taxpayer that forfeits the right to claim such credits is liable for all past taxes imposed by this article and all past payments under Code Section 48-7-103 that were foregone by the state as a result of the credits, plus interest at the rate established by Code Section 48-2-40 computed from the date such taxes or payments would have been due if the credits had not been taken. No later than 90 days after notification from the commissioner that any applicable job creation, payroll, or qualified investment property requirement was not met, the taxpayer shall file amended income tax and withholding tax returns for all affected periods that recalculate those liabilities without regard to the forfeited credits and shall pay any additional amounts shown on such returns, with interest as provided by Code Section 48-2-40. On such amended returns the taxpayer may claim any credit to which it would have been entitled under this article but for having taken the credit provided by this Code section.
  11. If the recapture period applicable to a qualified project begins with or before the sixth taxable year following the taxpayer's withholding start date, or with or before the eighth taxable year following the taxpayer's withholding start date if the project falls within the $600 million in qualified investment property category, or within the tenth taxable year following the taxpayer's withholding start date if the project falls within the $800 million in qualified investment property category, the taxpayer shall, not later than 60 days after the close of the taxable year immediately preceding the recapture period, file a report with the commissioner concerning the number of eligible full-time employee jobs created by such project; the wages of such jobs; the qualified investment property purchased or acquired by the taxpayer for the project; and any other information that the commissioner may reasonably require in order to verify that the taxpayer met the job creation requirement and either the payroll requirement or the qualified investment property requirement in such preceding year.
  12. Not more than 60 days after the close of each taxable year within the recapture period, the taxpayer shall file a report, using such form and providing such information as the commissioner may reasonably require, concerning whether it met the job maintenance requirement and, if applicable, the payroll maintenance requirement for such year. For purposes of this subsection, whether such job maintenance requirement has been satisfied shall be determined by comparing the monthly average number of eligible full-time employees subject to Georgia income tax withholding for the taxable year with 1,800. For purposes of this subsection, whether such payroll maintenance requirement has been satisfied shall be determined by comparing the total annual Georgia W-2 reported payroll with respect to a qualified project for the taxable year with $150 million. If the taxpayer has failed to meet the job maintenance requirement or payroll maintenance requirement, or both, for such year, the taxpayer shall forfeit the right to 20 percent of all credits provided by this Code section for such project. A taxpayer that forfeits such right is liable for 20 percent of all past taxes imposed by this article and all past payments under Code Section 48-7-103 that were foregone by the state as a result of the credits provided by this Code section, plus interest at the rate established by Code Section 48-2-40 computed from the date such taxes or payments would have been due if the credits had not been taken. No later than 90 days after notification by the commissioner that the taxpayer has failed to meet the job maintenance requirement or payroll maintenance requirement, or both, for such year, the taxpayer shall file amended income tax and withholding tax returns for all affected periods that recalculate those liabilities without regard to the forfeited credits and shall pay any additional amounts shown on such returns, with interest as provided by Code Section 48-2-40.
  13. A taxpayer that fails to meet the job maintenance requirement or payroll maintenance requirement, or both, for any taxable year within the recapture period because of force majeure may petition the commissioner for relief from such requirement. Such a petition must be made with and at the same time as the report required by subsection (l) of this Code section. If the commissioner determines that force majeure materially affected the taxpayer's ability to meet the job maintenance requirement or payroll maintenance requirement, or both, for such year, but that the portion of the year so affected was six months or less, for purposes of the job maintenance requirement the commissioner shall calculate the taxpayer's monthly average number of eligible full-time employees for purposes of subsection (l) of this Code section by disregarding the affected months and for purposes of the payroll maintenance requirement the commissioner shall annualize the total Georgia W-2 reported payroll with respect to a qualified project for the portion of the year not so affected. If the commissioner determines that the affected portion of the year was more than six months, the taxable year shall be disregarded in its entirety for purposes of the job maintenance requirement or payroll maintenance requirement, or both, and the recapture period applicable to the qualified project shall be extended for an additional year.
  14. Unless more time is allowed therefor by Code Section 48-7-82 or 48-2-49, the commissioner may make any assessment attributable to the forfeiture of credits claimed under this Code section for the periods covered by any amended returns filed by a taxpayer pursuant to subsection (j) or (l) of this Code section within one year from the date such returns are filed. If the taxpayer fails to file the reports or any amended return required by subsection (j) or (l) of this Code section, the commissioner may assess additional tax or other amounts attributable to the forfeiture of credits claimed under this Code section at any time.
  15. Projects certified by the panel pursuant to paragraph (2) of subsection (b) of this Code section before January 1, 2009, shall be governed by this Code section as it was in effect for the taxable year the project was certified.
  16. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-40.24 , enacted by Ga. L. 2003, p. 665, § 8; Ga. L. 2004, p. 690, § 20; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2009, p. 806, § 1/HB 438; Ga. L. 2012, p. 976, § 1/HB 1027; Ga. L. 2012, p. 1309, § 6/HB 868; Ga. L. 2013, p. 141, § 48/HB 79.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(b), not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2003.

Ga. L. 2009, p. 806, § 2/HB 438, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2009.

Ga. L. 2012, p. 976, § 3(b)/HB 1027, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to all tax years beginning on or after January 1, 2012.

Ga. L. 2012, p. 1309, § 7/HB 868, not codified by the General Assembly, provides, in part, that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2013.

Law reviews. - For note on the 2003 enactment of this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

RESEARCH REFERENCES

ALR. - State income tax treatment of intangible holding companies, 11 A.L.R.6th 543.

48-7-40.25. Conditions for credit for business enterprises with existing manufacturing facilities; calculating credit.

  1. As used in this Code section, the term:
    1. "Business enterprise" means any business or the headquarters of any such business which is engaged in manufacturing. Such term shall not include retail businesses.
    2. "Force majeure" means any:
      1. Explosions, implosions, fire, conflagrations, accidents, or contamination;
      2. Unusual and unforeseeable weather conditions such as floods, torrential rain, hail, tornadoes, hurricanes, lightning, or other natural calamities or acts of God;
      3. Acts of war (whether or not declared), carnage, blockade, or embargo;
      4. Acts of public enemy, acts or threats of terrorism or threats from terrorists, riot, public disorder, or violent demonstrations;
      5. Strikes or other labor disturbances; or
      6. Expropriation, requisition, confiscation, impoundment, seizure, nationalization, or compulsory acquisition of the site of a qualified project or any part thereof;

        but such term shall not include any event or circumstance that could have been prevented, overcome, or remedied in whole or in part by the taxpayer through the exercise of reasonable diligence and due care, nor shall such term include the unavailability of funds.

    3. "Full-time employee" means an individual holding a full-time employee job.
    4. "Full-time employee job" and "full-time job" mean employment of an individual which:
      1. Is located in this state at the manufacturing facility resulting from a qualified project;
      2. Involves a regular work week of 35 hours or more;
      3. Has no predetermined end date; and
      4. Pays at or above the average wage of the county with the lowest average wage in the state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor.

        For purposes of this paragraph, leased employees will be considered employees of the company using their services, and such persons may be counted in determining the company's credits under this Code section if their employment otherwise meets the definition of full-time job contained herein. In addition, an individual's employment shall not be deemed to have a predetermined end date solely by virtue of a mandatory retirement age set forth in a company policy of general application. The employment of any individual in a bona fide executive, administrative, or professional capacity, within the meaning of Section 13 of the federal Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Section 213(a)(1), as such act existed on January 1, 2002, shall not be deemed to have a predetermined end date solely by virtue of the fact that such employment is pursuant to a fixed-term contract, provided that such contract is for a term of not less than one year.

    5. "Investment requirement" means the requirement that a minimum of $800 million in qualified investment property shall have been purchased or acquired for use in a qualified project and be in service.
    6. "Job maintenance requirement" means the requirement that the monthly average number of full-time employees employed by the business enterprise during the first 60 months of the recapture period must equal or exceed 90 percent of the job requirement.
    7. "Job requirement" means the requirement that the number of full-time employees must equal or exceed 1,800.
    8. "Qualified investment property" means all real and personal property purchased or acquired by a taxpayer for use in a qualified project, including, but not limited to, amounts expended on land acquisition, improvements, buildings, building improvements, and machinery and equipment to be used in the manufacturing facility.
    9. "Qualified project" means the construction of a new manufacturing facility in this state. For purposes of this paragraph, the term "manufacturing facility" means a single facility, including contiguous parcels of land, improvements to such land, buildings, building improvements, and any machinery or equipment that is used in the process of making, fabricating, constructing, forming, or assembling a product from components or from raw, unfinished, or semifinished materials, and any support facility. For purposes of this paragraph, the term "support facility" means any warehouses, distribution centers, storage facilities, research and development facilities, laboratories, repair and maintenance facilities, corporate offices, sales or marketing offices, computer operations facilities, or administrative offices that are contiguous to the manufacturing facility that results from a qualified project, constructed or expanded as part of the same such project, and designed primarily for activities supporting the manufacturing operations at such manufacturing facility.
    10. "Recapture period" means the period of ten consecutive taxable years that commences after the taxable year in which the taxpayer has met both the investment requirement and the job requirement.
  2. A business enterprise that has operated an existing manufacturing facility in this state for the immediately three preceding years and that is planning a qualified project shall be allowed to take the credit provided by this Code section under the following conditions:
    1. An application is filed with the commissioner that:
      1. Describes the qualified project to be undertaken by the business enterprise, including when such project will commence;
      2. Certifies that such project will meet the investment requirement and the job requirement prescribed by this Code section, stating when the business enterprise expects to meet such requirements; and
      3. Certifies that during the recapture period applicable to such project the business enterprise will meet the job maintenance requirement prescribed by this Code section; and
    2. Following the commissioner's referral of the application to a panel composed of the commissioner of community affairs, the commissioner of economic development, and the director of the Office of Planning and Budget, said panel, after reviewing the application, certifies that the new facility will have a significant beneficial economic effect on the region for which it is planned. The panel shall make its determination within 30 days after receipt from the commissioner of the taxpayer's application and any necessary supporting documentation. Although the panel's certification may be based upon other criteria, a project that meets the minimum job and investment requirements specified in paragraph (1) of this subsection will have a significant beneficial economic effect on the region for which it is planned if one of the following additional criteria is met:
      1. The full-time employee jobs that will be located at the manufacturing facility resulting from such project will pay average wages that are, as determined by the Georgia Department of Labor for all jobs for the county in question:
        1. Twenty percent above such average wage for projects located in tier 1 counties;
        2. Ten percent above such average wage for projects located in tier 2 counties; or
        3. Five percent above such average wage for projects located in tier 3 or tier 4 counties; or
          1. The monthly average number of full-time jobs during the taxable year;
      2. The project demonstrates high growth potential based upon the prior year's Georgia net taxable income growth of over 20 percent from the previous year, if the taxpayer's Georgia net taxable income in each of the two preceding years also grew by 20 percent or more.
  3. Any lease for a period of five years or longer of any real or personal property used in a new manufacturing facility which would otherwise constitute qualified investment property shall be treated as the purchase or acquisition thereof by the lessee. The taxpayer may treat the full value of the leased property as qualified investment property in the year in which the lease becomes binding on the lessor and the taxpayer.
  4. A business enterprise whose application is approved shall be allowed a credit against the tax imposed under this article in an amount equal to 6 percent of the cost of all qualified investment property purchased or acquired by the business enterprise in such year, subject to the conditions and limitations set forth in this Code section. Where the amount of such credit exceeds a business enterprise's liability for such taxes in a taxable year, the excess may be taken as a credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103. The taxpayer may file an election with the commissioner to take such credit against quarterly or monthly payments under Code Section 48-7-103 that become due before the due date of the income tax return on which such credit may be claimed. In the event of such an election, the commissioner shall confirm with the taxpayer a date, which shall not be later than 30 days after receipt of the taxpayer's election, when the taxpayer may begin to take the credit against such quarterly or monthly payments. Each employee whose employer receives credit against such business enterprise's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the taxpayer.
  5. The credit granted under subsection (d) of this Code section shall be subject to the following conditions and limitations:
    1. In order to qualify as a basis for the credit, the investment in qualified investment property must occur no sooner than April 1, 2003. The credit may be taken beginning with the taxable year in which the taxpayer has met both the investment requirement and the job requirement, and for such first year the credit may include qualified investment property purchased or acquired in prior years but after March 31, 2003. For each year in which a taxpayer claims the credit, the taxpayer shall attach a schedule to the taxpayer's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the qualified project;
      2. The amount of qualified investment property acquired during the taxable year;
      3. The amount of tax credit claimed for the taxable year;
      4. The amount of qualified investment property acquired in prior taxable years;
      5. Any tax credit previously taken by the taxpayer against Georgia income tax liabilities or the taxpayer's quarterly or monthly payments under Code Section 48-7-103;
      6. The amount of tax credit carried over from prior years;
      7. The amount of tax credit utilized by the taxpayer in the current taxable year;
      8. The amount of tax credit to be carried over to subsequent tax years; and
    2. Any credit claimed under this Code section but not fully used in the manner prescribed in subsection (d) of this Code section may be carried forward for 15 years from the close of the later of:
      1. The taxable year in which the qualified investment property was acquired; or
      2. The taxable year in which both the job requirement and investment requirement are satisfied.

        The sale, merger, acquisition, or bankruptcy of any business enterprise shall not create new eligibility in any succeeding business entity but any unused investment tax credit may be transferred and continued by any transferee of the business enterprise;

    3. In the initial year in which the taxpayer claims the credit granted in subsection (d) of this Code section, the taxpayer shall include in the description of the project required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the project includes the acquisition of qualified investment property having an aggregate cost equal to or exceeding $800 million and that the job requirement was satisfied during such year; and
    4. The utilization of the credit granted in subsection (d) of this Code section shall have no effect on the taxpayer's ability to claim depreciation for tax purposes on the assets acquired by the taxpayer, nor shall the credit have any effect on the taxpayer's basis in such assets for the purpose of depreciation.
  6. In no event may credits exceeding $50 million in the aggregate be claimed under this Code section with respect to any one project.
  7. A taxpayer who is entitled to and takes credits provided by this Code section with respect to a qualified project shall not be allowed to take any of the credits authorized by Code Section 48-7-40, 48-7-40.1, 48-7-40.2, 48-7-40.3, 48-7-40.4, 48-7-40.6, 48-7-40.7, 48-7-40.8, 48-7-40.9, 48-7-40.10, 48-7-40.11, 48-7-40.15, 48-7-40.17, 48-7-40.18, or 48-7-40.24 with respect to jobs, investments, child care, or ground-water usage shifts created by, arising from, related to, or connected in any way with the same project. Such taxpayer may take any credit authorized by Code Section 48-7-40.5 for the cost of retraining an employee located at the site of such project or the manufacturing facility resulting therefrom, but only with respect to costs incurred more than five years after the date the manufacturing facility first becomes operational.
  8. Not more than 60 days after the close of the fifth taxable year within the recapture period, the taxpayer shall file a report, using such form and providing such information as the commissioner may reasonably require, concerning whether it met the job maintenance requirement. If the taxpayer has failed to meet the job maintenance requirement, the taxpayer will forfeit the right to all credits provided by this Code section for such project. A taxpayer that forfeits such right is liable for all past taxes imposed by this article and all past payments under Code Section 48-7-103 that were forgone by the state as a result of the credits provided by this Code section, plus interest at the rate established by Code Section 48-2-40 computed from the date such taxes or payments would have been due if the credits had not been taken. No later than 90 days after notification by the commissioner that the taxpayer has failed to meet the job maintenance requirement, the taxpayer shall file amended income tax and withholding tax returns for all affected periods that recalculate those liabilities without regard to the forfeited credits and shall pay any additional amounts shown on such returns, with interest as provided herein.
  9. A taxpayer who fails to meet the job maintenance requirement because of force majeure may petition the commissioner for relief from such requirement. Such a petition must be made with and at the same time as the report required by subsection (h) of this Code section. If the commissioner determines that force majeure materially affected the taxpayer's ability to meet the job maintenance requirement, but that the portion of any year so affected was six months or less, the commissioner shall calculate the taxpayer's monthly average number of full-time employees for purposes of subsection (h) of this Code section by disregarding the affected months. If the commissioner determines that the affected portion of any such year was more than six months, the taxable year shall be disregarded in its entirety for purposes of the job maintenance requirement and the recapture period applicable to the qualified project shall be extended for an additional year.
  10. If the manufacturing facility resulting from a qualified project is abandoned at any time during the recapture period, the taxpayer will forfeit the right to all credits provided by this Code section for such project. A taxpayer that forfeits such right is liable for all past taxes imposed by this article and all past payments under Code Section 48-7-103 that were forgone by the state as a result of the credits provided by this Code section, plus interest at the rate established by Code Section 48-2-40 computed from the date such taxes or payments would have been due if the credits had not been taken. For purposes of this subsection, a manufacturing facility will be considered abandoned if there is, for any reason other than force majeure, a complete cessation of manufacturing operations for a period of 12 consecutive months or more during the recapture period. Not more than 60 days after the close of the recapture period, the taxpayer shall file a report, using such form and providing such information as the commissioner may require, concerning whether such an abandonment occurred. No later than 90 days after notification by the commissioner that an abandonment occurred, the taxpayer shall file amended income tax and withholding tax returns for all affected periods that recalculate those liabilities without regard to the forfeited credits and shall pay any additional amounts shown on such returns, with interest as provided herein.
  11. Unless more time is allowed therefor by Code Section 48-7-82 or 48-2-49, the commissioner may make any assessment attributable to the forfeiture of credits claimed under this Code section for the periods covered by any amended returns filed by a taxpayer pursuant to subsections (h) and (j) of this Code section within one year from the date such returns are filed. If the taxpayer fails to file the reports or any amended return required by subsections (h) and (j) of this Code section, the commissioner may assess additional tax or other amounts attributable to the forfeiture of credits claimed under this Code section at any time.
  12. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-40.25 , enacted by Ga. L. 2003, p. 665, § 8; Ga. L. 2004, p. 690, § 21; Ga. L. 2005, p. 60, § 48/HB 95.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(b), not codified by the General Assembly, provides that this Act shall be applicable to all taxable years beginning on or after January 1, 2003.

Law reviews. - For note on the 2003 enactment of this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

RESEARCH REFERENCES

ALR. - State income tax treatment of intangible holding companies, 11 A.L.R.6th 543.

48-7-40.26. Tax credit for film, gaming, video, or digital production in state.

  1. This Code section shall be known and may be cited as the "Georgia Entertainment Industry Investment Act."
  2. As used in this Code section, the term:
    1. "Affiliates" means those entities that are included in the production company's or qualified interactive entertainment production company's affiliated group as defined in Section 1504(a) of the Internal Revenue Code and all other entities that are directly or indirectly owned 50 percent or more by members of the affiliated group.
    2. "Base investment" means the aggregate funds actually invested and expended by a production company or qualified interactive entertainment production company as production expenditures incurred in this state that are directly used in a state certified production or productions.
    3. "Game platform" means the electronic delivery system used to launch or play an interactive game.
    4. "Game sequel" means an interactive game which builds upon the theme of a previously released interactive game, is distinguished by a new title, and features objectives or characters that are recognizably different from the original game.
    5. "Multimarket commercial distribution" means paid commercial distribution with media buys which extend to markets outside the State of Georgia.
    6. "Prereleased interactive game" means a new game, the offering of an existing game on a new game platform, or a game sequel that is in the developmental stages of production, which may be available to individuals for testing purposes but is not generally made available or distributed to consumers or to the general public.
    7. "Production company" means a company, other than a qualified interactive entertainment production company, primarily engaged in qualified production activities which have been approved by the Department of Economic Development. This term shall not mean or include any form of business owned, affiliated, or controlled, in whole or in part, by any company or person which is in default on any tax obligation of the state, or a loan made by the state or a loan guaranteed by the state.
    8. "Production expenditures" means preproduction, production, and postproduction expenditures incurred in this state that are directly used in a qualified production activity, including without limitation the following: set construction and operation; wardrobes, make-up, accessories, and related services; costs associated with photography and sound synchronization, expenditures excluding license fees incurred with Georgia companies for sound recordings and musical compositions, lighting, and related services and materials; editing and related services; rental of facilities and equipment; leasing of vehicles; costs of food and lodging; digital or tape editing, film processing, transfers of film to tape or digital format, sound mixing, computer graphics services, special effects services, and animation services; total aggregate payroll; airfare, if purchased through a Georgia travel agency or travel company; insurance costs and bonding, if purchased through a Georgia insurance agency; and other direct costs of producing the project in accordance with generally accepted entertainment industry practices. This term shall not include postproduction expenditures for footage shot outside the State of Georgia, marketing, story rights, or distribution, but shall not affect other qualified story rights. This term includes payments to a loan-out company by a production company or qualified interactive entertainment production company that has met its withholding tax obligations as set out below. The production company or qualified interactive entertainment production company shall withhold Georgia income tax at the rate of 6 percent on all payments to loan-out companies for services performed in Georgia. Any amounts so withheld shall be deemed to have been withheld by the loan-out company on wages paid to its employees for services performed in Georgia pursuant to Article 5 of this chapter notwithstanding the exclusion provided in subparagraph (K) of paragraph (10) of Code Section 48-7-100. The amounts so withheld shall be allocated to the loan-out company's employees based on the payments made to the loan-out company's employees for services performed in Georgia. For purposes of this chapter, loan-out company nonresident employees performing services in Georgia shall be considered taxable nonresidents and the loan-out company shall be subject to income taxation in the taxable year in which the loan-out company's employees perform services in Georgia, notwithstanding any other provisions in this chapter. Such withholding liability shall be subject to penalties and interest in the same manner as the employee withholding taxes imposed by Article 5 of this chapter and the commissioner shall provide by regulation the manner in which such liability shall be assessed and collected.
    9. "Qualified Georgia promotion" means a qualified promotion of this state approved by the Department of Economic Development consisting of a:
      1. Qualified movie production which includes a five-second long static or animated logo that promotes Georgia in the end credits before the below-the-line crew crawl for the life of the project and which includes a link to Georgia on the project's web page;
      2. Qualified TV production which includes an embedded five-second long Georgia promotion during each broadcast worldwide for the life of the project and which includes a link to Georgia on the project's web page;
      3. Qualified music video which includes the Georgia logo at the end of each video and within online promotions; or
      4. Qualified interactive game which includes a 15 second long Georgia advertisement in units sold and embedded in online promotions.
    10. "Qualified interactive entertainment production company" means a company that:
      1. Maintains a business location physically located in Georgia;
        1. Through December 31, 2017, in the calendar year directly preceding the start of the taxable year of the qualified interactive entertainment production company, had a total aggregate payroll of $500,000.00 or more for employees working within the state; or
        2. On or after January 1, 2018, had a total aggregate payroll of $250,000.00 or more for employees working within the state in the taxable year the qualified interactive entertainment production company claims the tax credits;
      3. Has gross income less than $100 million for the taxable year; and
      4. Is primarily engaged in qualified production activities related to interactive entertainment which have been approved by the Department of Economic Development.

        This term shall not mean or include any form of business owned, affiliated, or controlled, in whole or in part, by any company or person which is in default on any tax obligation of the state, or a loan made by the state or a loan guaranteed by the state.

    11. "Qualified production activities" means the production of new film, video, or digital projects produced in this state and approved by the Department of Economic Development, including only the following: feature films, series, pilots, movies for television, televised commercial advertisements, music videos, interactive entertainment, prereleased interactive games, or sound recording projects used in feature films, series, pilots, or movies for television. Such activities shall include projects recorded in this state, in whole or in part, in either short or long form, animation and music, fixed on a delivery system which includes without limitation film, videotape, computer disc, laser disc, and any element of the digital domain, from which the program is viewed or reproduced, and which is intended for multimarket commercial distribution via theaters, video on demand, direct to DVD, digital platforms designed for the distribution of interactive games, licensing for exhibition by individual television stations, groups of stations, networks, advertiser supported sites, cable television stations, or public broadcasting stations. Such term shall not include the coverage of news and athletic events, local interest programming, instructional videos, corporate videos, or projects not shot, recorded, or originally created in Georgia.
    12. "Resident" means an individual as designated pursuant to paragraph (10) of Code Section 48-7-1, as amended.
    13. "State certified production" means a production engaged in qualified production activities which have been approved by the Department of Economic Development in accordance with regulations promulgated pursuant to this Code section. In the instance of a "work for hire" in which one production company or qualified interactive entertainment production company hires another production company or qualified interactive entertainment production company to produce a project or contribute elements of a project for pay, the hired company shall be considered a service provider for the hiring company, and the hiring company shall be entitled to the film tax credit.
    14. "Total aggregate payroll" means the total sum expended by a production company or qualified interactive entertainment production company on salaries paid to employees working within this state in a state certified production or productions. For purposes of this paragraph:
      1. With respect to a single employee, the portion of any salary which exceeds $500,000.00 for a single production shall not be included when calculating total aggregate payroll; and
      2. All payments to a single employee and any legal entity in which the employee has any direct or indirect ownership interest shall be considered as having been paid to the employee and shall be aggregated regardless of the means of payment or distribution.
  3. For any production company or qualified interactive entertainment production company and its affiliates that invest in a state certified production approved by the Department of Economic Development and whose average annual total production expenditures in this state did not exceed $30 million for 2002, 2003, and 2004, there shall be allowed an income tax credit against the tax imposed under this article. The tax credit under this subsection shall be allowed if the base investment in this state equals or exceeds $500,000.00 for qualified production activities, except that any qualified interactive entertainment production company shall be allowed the tax credit under this subsection if the base investment in this state equals or exceeds $250,000.00 for qualified production activities on or after January 1, 2018, and shall be calculated as follows:
    1. The production company or qualified interactive entertainment production company shall be allowed a tax credit equal to 20 percent of the base investment in this state; and
      1. The production company or qualified interactive entertainment production company shall be allowed an additional tax credit equal to 10 percent of such base investment if the qualified production activity includes a qualified Georgia promotion. Such additional tax credit shall be allowed for any qualified production that includes a qualified Georgia promotion upon its release to the general public. In lieu of the inclusion of the Georgia promotional logo, the production company or qualified interactive entertainment production company may offer alternative marketing opportunities to be evaluated by the Department of Economic Development to ensure that they offer equal or greater promotional value to the State of Georgia.
      2. The Department of Economic Development shall prepare an annual report detailing the marketing opportunities it has approved under the provisions of subparagraph (A) of this paragraph. The report shall include, but not be limited to:
        1. The goals and strategy behind each marketing opportunity approved pursuant to the provisions of subparagraph (A) of this paragraph;
        2. The names of all production companies approved by the Department of Economic Development to provide alternative marketing opportunities;
        3. The estimated value to the state of each approved alternative marketing opportunity compared to the estimated value of the Georgia promotional logo; and
        4. The names of all production companies who chose to include the Georgia promotional logo in their final production instead of offering the state an alternative marketing proposal.

          The report required under this paragraph shall be completed no later than January 1 of each year and presented to each member of the House Committee on Ways and Means, the Senate Finance Committee, the Senate Economic Development and Tourism Committee, the House Committee on Economic Development and Tourism, and the Governor.

  4. For any production company or qualified interactive entertainment production company and its affiliates that invest in a state certified production approved by the Department of Economic Development and whose average annual total production expenditures in this state exceeded $30 million for 2002, 2003, and 2004, there shall be allowed an income tax credit against the tax imposed under this article. For purposes of this subsection, the excess base investment in this state is computed by taking the current year production expenditures in a state certified production and subtracting the average of the annual total production expenditures for 2002, 2003, and 2004. The tax credit shall be calculated as follows:
    1. If the excess base investment in this state equals or exceeds $500,000.00, or $250,000.00 for qualified interactive entertainment production activities on or after January 1, 2018, the production company or qualified interactive entertainment production company and its affiliates shall be allowed a tax credit of 20 percent of such excess base investment; and
      1. The production company or qualified interactive entertainment production company and its affiliates shall be allowed an additional tax credit equal to 10 percent of the excess base investment if the qualified production activities include a qualified Georgia promotion. Such additional tax credit shall be allowed for any qualified production that includes a qualified Georgia promotion upon its release to the general public. In lieu of the inclusion of the Georgia promotional logo, the production company or qualified interactive entertainment production company may offer marketing opportunities to be evaluated by the Department of Economic Development to ensure that they offer equal or greater promotional value to the State of Georgia.
      2. The Department of Economic Development shall prepare an annual report detailing the marketing opportunities it has approved under the provisions of subparagraph (A) of this paragraph. The report shall include, but not be limited to:
        1. The goals and strategy behind each marketing opportunity approved pursuant to the provisions of subparagraph (A) of this paragraph;
        2. The names of all production companies approved by the Department of Economic Development to provide alternative marketing opportunities;
        3. The estimated value to the state of each approved alternative marketing opportunity compared to the estimated value of the Georgia promotional logo; and
        4. The names of all production companies who chose to include the Georgia promotional logo in their final production instead of offering the state an alternative marketing proposal.

          The report required under this paragraph shall be completed no later than January 1 of each year and presented to each member of the House Committee on Ways and Means, the Senate Finance Committee, the Senate Economic Development and Tourism Committee, the House Committee on Economic Development and Tourism, and the Governor.

    1. In no event shall the aggregate amount of tax credits allowed under this Code section for qualified interactive entertainment production companies and affiliates exceed $25 million for taxable years beginning on or after January 1, 2013, and before January 1, 2014. The maximum credit for any qualified interactive entertainment production company and its affiliates shall be $5 million for such taxable year. When the $25 million cap is reached, the tax credit for qualified interactive entertainment production companies shall expire for such taxable years.
    2. For taxable years beginning on or after January 1, 2014, and before January 1, 2015, the amount of tax credits allowed under this Code section for qualified interactive entertainment production companies and affiliates shall not exceed $12.5 million.
    3. For taxable years beginning on or after January 1, 2015, and before January 1, 2016, the amount of tax credits allowed under this Code section for qualified interactive entertainment production companies and affiliates shall not exceed $12.5 million.
    4. For taxable years beginning on or after January 1, 2016, and before January 1, 2018, the amount of tax credits allowed under this Code section for qualified interactive entertainment production companies and affiliates shall not exceed $12.5 million for each taxable year.
      1. For taxable years beginning on or after January 1, 2018, the amount of tax credits allowed under this Code section for qualified interactive entertainment production companies and affiliates shall not exceed $12.5 million for each taxable year.
      2. Beginning on or after January 1, 2018, qualified interactive entertainment production companies are eligible for tax credits for prereleased interactive game production; provided, however, that such credits shall not be available for a period which exceeds three years.
    6. The maximum allowable credit claimed for any qualified interactive entertainment production company and its affiliates shall not exceed $1.5 million in any single year.
    7. Qualified interactive entertainment production companies seeking to claim a tax credit under the provisions of this Code section shall submit an application to the commissioner for preapproval of such tax credit. The commissioner shall be authorized to promulgate any rules and regulations and forms necessary to implement and administer the provisions of this Code section. The commissioner shall preapprove the tax credits based on the order in which properly completed applications were submitted. In the event that two or more applications were submitted on the same day and the amount of funds available will not be sufficient to fully fund the tax credits requested, the commissioner shall prorate the available funds between or among the applicants.
    8. No qualified interactive entertainment production company shall be allowed to claim an amount of tax credits under this Code section for any single year in excess of its total aggregate payroll expended to employees working within this state for the calendar year that the qualified interactive entertainment production company claims the tax credits. Any amount in excess of such limit shall not be eligible for carry forward to the succeeding years' tax liability, nor shall such excess amount be eligible for use against the qualified interactive entertainment production company's quarterly or monthly payment under Code Section 48-7-103, nor shall such excess amount be assigned, sold, or transferred to any other taxpayer.
    9. Before the Department of Economic Development issues its approval to the qualified interactive entertainment production company for the qualified production activities related to interactive entertainment, the qualified interactive entertainment production company must certify to the department that:
      1. The qualified interactive entertainment production company maintains a business location physically located in this state; and
      2. The qualified interactive entertainment production company had expended a total aggregate payroll of $500,000.00 or more, or $250,000.00 or more on or after January 1, 2018, for employees working within this state during the taxable year of the qualified interactive entertainment production company.

        The department shall issue a certification that the qualified interactive entertainment production company meets the requirements of this paragraph; provided, however, that the department shall not issue any certifications before July 1, 2014. The qualified interactive entertainment production company shall provide such certification to the Department of Economic Development. The Department of Economic Development shall not issue its approval until it receives such certification.

      1. For taxable years beginning on or after January 1, 2016, the qualified interactive entertainment production company shall report to the Department of Revenue on its Georgia income tax return the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year as provided in subparagraphs (B) and (C) of this paragraph. For purposes of this paragraph, a full-time employee shall mean a person who performs a job that requires a minimum of 35 hours a week, and pays at or above the average wage earned in the county with the lowest average wage earned in this state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor.
      2. For taxable years beginning on or after January 1, 2016, and before January 1, 2017, the qualified interactive entertainment production company shall report such number for such taxable year and separately for each of the prior two taxable years.
      3. For taxable years beginning on or after January 1, 2017, the qualified interactive entertainment production company shall report such number for each respective taxable year.
      4. Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, for such taxable years, the commissioner shall report yearly to the House Committee on Ways and Means and the Senate Finance Committee. The report shall include the name, tax year beginning, and monthly average number of full-time employees for each qualified interactive entertainment production company. The first report shall be submitted by June 30, 2016, and each year thereafter by June 30.
    1. Where the amount of such credit or credits exceeds the production company's or qualified interactive entertainment production company's liability for such taxes in a taxable year, the excess may be taken as a credit against such production company's or qualified interactive entertainment production company's quarterly or monthly payment under Code Section 48-7-103. Each employee whose employer receives credit against such production company's or qualified interactive entertainment production company's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the production company or qualified interactive entertainment production company.
    2. If a production company and its affiliates, or a qualified interactive entertainment production company and its affiliates, claim the credit authorized under Code Section 48-7-40, 48-7-40.1, 48-7-40.17, or 48-7-40.18, then the production company and its affiliates, or the qualified interactive entertainment production company and its affiliates, will only be allowed to claim the credit authorized under this Code section to the extent that the Georgia resident employees included in the credit calculation authorized under this Code section and taken by the production company and its affiliates, or the qualified interactive entertainment production company and its affiliates, on such tax return under this Code section have been permanently excluded from the credit authorized under Code Section 48-7-40, 48-7-40.1, 48-7-40.17, or 48-7-40.18.
  7. Any tax credits with respect to a state certified production earned by a production company or qualified interactive entertainment production company and previously claimed but not used by such production company or qualified interactive entertainment production company against its income tax may be transferred or sold in whole or in part by such production company or qualified interactive entertainment production company to another Georgia taxpayer, subject to the following conditions:
    1. Such production company or qualified interactive entertainment production company may make only a single transfer or sale of tax credits earned in a taxable year; however, the transfer or sale may involve one or more transferees;
    2. Such production company or qualified interactive entertainment production company shall submit to the Department of Economic Development and to the Department of Revenue a written notification of any transfer or sale of tax credits within 30 days after the transfer or sale of such tax credits. The notification shall include such production company's or qualified interactive entertainment production company's tax credit balance prior to transfer, the credit certificate number, the remaining balance after transfer, all tax identification numbers for each transferee, the date of transfer, the amount transferred, and any other information required by the Department of Economic Development or the Department of Revenue;
    3. Failure to comply with this subsection shall result in the disallowance of the tax credit until the production company or qualified interactive entertainment production company is in full compliance;
    4. The transfer or sale of this tax credit does not extend the time in which such tax credit can be used. The carry-forward period for a tax credit that is transferred or sold shall begin on the date on which the tax credit was originally earned;
    5. A transferee shall have only such rights to claim and use the tax credit that were available to such production company or qualified interactive entertainment production company at the time of the transfer, except for the use of the credit in paragraph (1) of subsection (f) of this Code section. To the extent that such production company or qualified interactive entertainment production company did not have rights to claim or use the tax credit at the time of the transfer, the Department of Revenue shall either disallow the tax credit claimed by the transferee or recapture the tax credit from the transferee. The transferee's recourse is against such production company or qualified interactive entertainment production company; and
    6. The transferee must acquire the tax credits in this Code section for a minimum of 60 percent of the amount of the tax credits so transferred.
  8. The credit granted under this Code section shall be subject to the following conditions and limitations:
    1. The credit may be taken beginning with the taxable year in which the production company or qualified interactive entertainment production company has met the investment requirement. For each year in which such production company or qualified interactive entertainment production company either claims or transfers the credit, the production company or qualified interactive entertainment production company shall attach a schedule to the production company's or qualified interactive entertainment production company's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the qualified production activities, along with the certification from the Department of Economic Development;
      2. A detailed listing of the employee names, social security numbers, and Georgia wages when salaries are included in the base investment;
      3. The amount of tax credit claimed for the taxable year;
      4. Any tax credit previously taken by the production company or qualified interactive entertainment production company against Georgia income tax liabilities or the production company's or qualified interactive entertainment production company's quarterly or monthly payments under Code Section 48-7-103;
      5. The amount of tax credit carried over from prior years;
      6. The amount of tax credit utilized by the production company or qualified interactive entertainment production company in the current taxable year; and
      7. The amount of tax credit to be carried over to subsequent tax years;
    2. In the initial year in which the production company or qualified interactive entertainment production company claims the credit granted in this Code section, the production company or qualified interactive entertainment production company shall include in the description of the qualified production activities required by subparagraph (A) of paragraph (1) of this subsection information which demonstrates that the activities included in the base investment or excess base investment equal or exceed $500,000.00 during such year, or $250,000.00 on or after January 1, 2018, for qualified interactive entertainment production companies; and
    3. In no event shall the amount of the tax credit under this Code section for a taxable year exceed the production company's or qualified interactive entertainment production company's income tax liability. Any unused credit amount shall be allowed to be carried forward for five years from the close of the taxable year in which the investment occurred. No such credit shall be allowed the production company or qualified interactive entertainment production company against prior years' tax liability.
  9. The Department of Economic Development shall determine through the promulgation of rules and regulations what projects qualify for the tax credits authorized under this Code section. Certification shall be submitted to the state revenue commissioner.
  10. The state revenue commissioner shall promulgate such rules and regulations as are necessary to implement and administer this Code section.
  11. Any production company or qualified interactive entertainment production company claiming, transferring, or selling the tax credit shall be required to reimburse the Department of Revenue for any department initiated audits relating to the tax credit. This subsection shall not apply to routine tax audits of a taxpayer which may include the review of the credit provided in this Code section. (Code 1981, § 48-7-40.26 , enacted by Ga. L. 2005, p. 1125, § 2/HB 539; Ga. L. 2006, p. 242, § 2/HB 194; Ga. L. 2008, p. 317, § 1/HB 1100; Ga. L. 2012, p. 976, § 2/HB 1027; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2014, p. 51, § 1/HB 958; Ga. L. 2015, p. 125, § 1/HB 339; Ga. L. 2017, p. 59, § 1/HB 199; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective April 30, 2015, rewrote paragraphs (e)(4) and (e)(6); and added paragraph (e)(9).

The 2017 amendments. The first 2017 amendment, effective July 1, 2017, rewrote this Code section. See Editor's notes for applicability. The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "this chapter" for "Chapter 7 of this title" in paragraph (b)(5), and substituted "Senate Economic Development and Tourism Committee" for "Senate Economic Development Committee" in the ending undesignated paragraph of subparagraphs (c)(2)(B) and (d)(2)(B).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, a semicolon was inserted in paragraph (c)(1).

Editor's notes. - Ga. L. 2005, p. 1125, § 3(a)/HB 539, not codified by the General Assembly, provides that this Code section shall apply to all taxable years beginning on or after January 1, 2005.

Ga. L. 2008, p. 317, § 2/HB 1100, not codified by the General Assembly, provides, in part, that the 2008 amendment shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2012, p. 976, § 3(c)/HB 1027, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to all tax years beginning on or after January 1, 2013.

Ga. L. 2014, p. 51, § 3(b)/HB 958, not codified by the General Assembly, provides, in part, that this Code section shall apply to all taxable years beginning on or after January 1, 2014.

Ga. L. 2015, p. 125, § 2/HB 339, not codified by the General Assembly, provides, in part, that the amendment by this Act shall be applicable to tax years beginning on or after January 1, 2016.

Ga. L. 2017, p. 59, § 3/HB 199, not codified by the General Assembly, provides, in part, that this Act shall apply to taxable years beginning on or after January 1, 2018.

U.S. Code. - Section 1504 of the Internal Revenue Code, referred to in this Code section, is codified as 26 U.S.C. § 1504.

Administrative Rules and Regulations. - Film tax credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.45.

48-7-40.26A. Tax credit for postproduction expenditures.

  1. This Code section shall be known and may be cited as the "Georgia Entertainment Industry Postproduction Investment Act."
  2. As used in this Code section, the term:
    1. "Affiliates" means those entities that are included in the postproduction company's affiliated group as defined in Section 1504(a) of the Internal Revenue Code and all other entities that are directly or indirectly owned 50 percent or more by members of the affiliated group.
    2. "Multimarket commercial distribution" means paid commercial distribution media buys which extend to markets outside the State of Georgia.
    3. "Postproduction company" means a company that:
      1. Maintains a business location physically located in this state;
      2. Has a total aggregate payroll of $250,000.00 or more for employees working within the state in the taxable year the postproduction company claims the tax credits;
      3. Is engaged in qualified postproduction activities; and
      4. Has been approved by the Department of Revenue.

        This term shall not mean or include any form of business owned, affiliated, or controlled, in whole or in part, by any company or person which is in default on any tax obligation of the state, or a loan made by the state or a loan guaranteed by the state. In the instance of a "work for hire" in which one postproduction company hires another postproduction company to engage in qualified postproduction activities for pay, the hired company shall be considered a service provider for the hiring company and the hiring company shall be entitled to the postproduction tax credit only if the Department of Revenue certifies that the hired company is a Georgia company employing workers in this state and that the work is done solely in this state.

    4. "Qualified postproduction activities" means the activities performed on a qualified production employing traditional, emerging, and new workflow techniques used in postproduction for picture, sound, and music editing, rerecording and mixing, visual effects, graphic design, original scoring, animation, musical composition, and other activities performed after initial production and including activities performed on previously produced and edited content.
    5. "Qualified postproduction expenditures" means expenditures incurred in this state directly in qualified postproduction activities, including without limitation the following:
      1. Costs associated with photography and sound synchronization;
      2. Expenditures, excluding license fees, incurred with Georgia companies for sound recordings and musical compositions, lighting, and related services and materials;
      3. Editing and related services;
      4. Rental of facilities and equipment;
      5. Leasing of vehicles;
      6. Costs of food and lodging;
      7. Digital or tape editing, film processing, transfers of film to tape or digital format, sound mixing, computer graphics services, special effects services, and animation services;
      8. Total aggregate payroll;
      9. Airfare, if purchased through a Georgia travel agency or travel company;
      10. Insurance costs and bonding, if purchased through a Georgia insurance agency; and
      11. Other direct postproduction costs for the project in accordance with generally accepted entertainment industry practices.

        This term includes expenditures incurred in this state for footage shot inside or outside this state.

    6. "Qualified production" means a film, video, or digital project, including only the following: feature films, series, pilots, movies for television, televised commercial advertisements, music videos, interactive entertainment, or sound recording projects used in feature films, series, pilots, or movies for television. This term shall include projects shot, recorded, or originally created in either short or long form, animation and music, fixed on a delivery system which includes without limitation film, videotape, computer disc, laser disc, and any element of the digital domain, from which the program is viewed or reproduced, and which is intended for multimarket commercial distribution via theaters, video on demand, direct to DVD, digital platforms designed for the distribution of interactive games, licensing for exhibition by individual television stations, groups of stations, networks, advertiser supported sites, cable television stations, or public broadcasting stations. Such term shall not include the coverage of news and athletic events, local interest programming, instructional videos, and corporate videos.
    7. "Total aggregate payroll" means the total sum expended by a postproduction company on salaries paid to employees working within this state on qualified postproduction activities.
    1. A postproduction company that has incurred qualified postproduction expenditures of at least $500,000.00 in a taxable year shall be allowed a tax credit against the tax imposed by this article, subject to the conditions and limitations set forth in this Code section.
      1. The tax credit allowed shall be equal to 20 percent of the qualified postproduction expenditures actually invested and expended by the postproduction company in a taxable year.
      2. An additional tax credit equal to 10 percent of the qualified postproduction expenditures shall be allowed if the qualified production expenditures, as defined in Code Section 48-7-40.26, were incurred in this state.
      3. An additional tax credit equal to 5 percent of the qualified production expenditures shall be allowed if the qualified production expenditures were incurred in a tier 1 or tier 2 county as designated by the commissioner of community affairs pursuant to Code Section 48-7-40.
    3. The amount of tax credits allowed to a postproduction company under this Code section for any single taxable year shall not exceed the postproduction company's total aggregate payroll expended to employees working within this state for the taxable year the postproduction company claims the tax credit.

      (2) The tax credit allowed shall be equal to 20 percent of the qualified postproduction expenditures actually invested and expended by the postproduction company in a taxable year.

      (3) The aggregate amount of tax credits allowed under this subsection for smaller postproduction companies shall not exceed $1 million per taxable year. This $1 million aggregate amount of tax credits is separate from, and shall not be included in, the aggregate amount of tax credits under subsection (d) of this Code section.

    (c.1) (1) A postproduction company that has incurred qualified postproduction expenditures of at least $100,000.00 but less than $500,000.00 and has a total aggregate payroll in this state of at least $100,000.00 but less than $500,000.00 in a taxable year shall be allowed a tax credit against the tax imposed by this article, subject to the additional limitations set forth in this subsection.

  4. The tax credits allowed under this Code section for all postproduction companies shall be subject to the following aggregate annual caps:
    1. For taxable years beginning on or after January 1, 2018, and before January 1, 2019, the aggregate amount of tax credits allowed under this Code section shall not exceed $10 million;
    2. For taxable years beginning on or after January 1, 2019, and before January 1, 2020, the aggregate amount of tax credits allowed under this Code section shall not exceed $10 million;
    3. For taxable years beginning on or after January 1, 2020, and before January 1, 2023, the aggregate amount of tax credits allowed under this Code section shall not exceed $10 million per year;
    4. The tax credits allowed under this Code section shall not be available for taxable years beginning on or after January 1, 2023; and
    5. If the aggregate amount of tax credits claimed by taxpayers under this Code section during a year is less than the aggregate annual cap applicable to such year, the unclaimed portion of the aggregate annual cap shall be added to the aggregate annual cap applicable to the next succeeding year or years until it is fully claimed.
    1. The maximum allowable tax credit under this Code section claimed by a single postproduction company and its affiliates shall not exceed, in any single taxable year, 20 percent of the aggregate amount of tax credits available for such taxable year under subsection (d) of this Code section, including the amount of any aggregate annual caps rolled over from prior years.
    2. Postproduction companies seeking to claim a tax credit under this Code section shall submit an application to the Department of Revenue for preapproval of such tax credit. The Department of Revenue shall preapprove the tax credits based on the order in which properly completed applications were submitted. In the event that two or more applications were submitted on the same day and the amount of funds available will not be sufficient to fully fund the tax credits requested, the Department of Revenue shall prorate the available funds between or among the applicants.
  6. For taxable years beginning on or after January 1, 2018, and before January 1, 2023, the postproduction company shall report to the Department of Revenue on its Georgia income tax return the monthly average number of full-time employees subject to Georgia income tax withholding for the taxable year. For purposes of this subsection, the term "full-time employee" shall mean a person who performs a job that requires a minimum of 35 hours a week, and pays at or above the average wage earned in the county with the lowest average wage earned in this state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor. Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, for such taxable years, the commissioner shall annually report to the House Committee on Ways and Means and the Senate Finance Committee. The report shall include the name, tax year beginning, and monthly average number of full-time employees for each postproduction company. The first report shall be submitted by June 30, 2018, and each year thereafter by June 30.
    1. Any qualified postproduction expenditures for which a production company claims a tax credit under Code Section 48-7-40.26 shall not be eligible for postproduction expenditures for purposes of the credit authorized under this Code section.
    2. If a postproduction company and its affiliates claim the credit authorized under Code Section 48-7-40, 48-7-40.1, 48-7-40.17, or 48-7-40.18, then the postproduction company and its affiliates will only be allowed to claim the credit authorized under this Code section to the extent that the Georgia resident employees included in the credit calculation authorized under this Code section and taken by the postproduction company and its affiliates on such tax return under this Code section have been permanently excluded from the credit authorized under Code Section 48-7-40, 48-7-40.1, 48-7-40.17, or 48-7-40.18.
  8. The credit granted under this Code section shall be subject to the following conditions and limitations:
    1. The credit may be taken beginning with the taxable year in which the postproduction company has incurred the qualified postproduction expenditures. For each year in which such postproduction company either claims or transfers the credit, the postproduction company shall attach a schedule to the postproduction company's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the qualified postproduction activities;
      2. A certification that the postproduction company maintains a business location physically located in this state;
      3. A certification that the postproduction company expended a total aggregate payroll of $250,000.00 or more for employees working within this state during the taxable year of the postproduction company;
      4. In the initial year in which the postproduction company claims the credit granted in this Code section only, information demonstrating that the qualified postproduction expenditures equal or exceed $500,000.00 during such year;
      5. A detailed listing of the employee names, social security numbers, and Georgia wages when salaries are included in the qualified postproduction expenditures;
      6. The amount of tax credit claimed for the taxable year;
      7. Any tax credit previously taken by the postproduction company against Georgia income tax liabilities or the postproduction company's quarterly or monthly payments under Code Section 48-7-103;
      8. The amount of tax credit carried over from prior years;
      9. The amount of tax credit utilized by the postproduction company in the current taxable year; and
      10. The amount of tax credit to be carried over to subsequent tax years.

        The postproduction company shall file a copy of the schedule with the Department of Economic Development within 30 days after the schedule is filed with its income tax return;

    2. Where the amount of tax credits under this Code section exceeds the postproduction company's income tax liability in a taxable year, any unused credit amount:
      1. May be carried forward for five years from the close of the taxable year in which the investment occurred; or
      2. May be taken as a credit against such postproduction company's quarterly or monthly payment under Code Section 48-7-103. Each employee whose employer receives credit against such postproduction company's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subparagraph. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subparagraph shall not constitute income to the postproduction company.

        No such credit shall be allowed the postproduction company against prior years' tax liability; and

    3. Any tax credits earned by a postproduction company under this Code section and previously claimed but not used by such postproduction company against its income tax or its monthly payment under Code Section 48-7-103 may be transferred or sold in whole or in part by such postproduction company to another Georgia taxpayer, subject to the following conditions:
      1. Such postproduction company may make only a single transfer or sale of tax credits earned in a taxable year; however, the transfer or sale may involve one or more transferees;
      2. Such postproduction company shall submit to the Department of Economic Development and to the Department of Revenue a written notification of any transfer or sale of tax credits within 30 days after the transfer or sale of such tax credits. The notification shall include such postproduction company's tax credit balance prior to transfer, the credit certificate number, the remaining balance after transfer, all tax identification numbers for each transferee, the date of transfer, the amount transferred, and any other information required by the Department of Economic Development or the Department of Revenue;
      3. Failure to comply with this paragraph shall result in the disallowance of the tax credit until the postproduction company is in full compliance;
      4. The transfer or sale of this tax credit does not extend the time in which such tax credit can be used. The carry-forward period for a tax credit that is transferred or sold shall begin on the date on which the tax credit was originally earned;
      5. A transferee shall have only such rights to claim and use the tax credit that was available to such postproduction company at the time of the transfer, except for the use of the credit in subparagraph (B) of paragraph (2) of this subsection. To the extent that such postproduction company did not have rights to claim or use the tax credit at the time of the transfer, the Department of Revenue shall either disallow the tax credit claimed by the transferee or recapture the tax credit from the transferee. The transferee's recourse is against such postproduction company; and
      6. Any postproduction company claiming, transferring, or selling the tax credit shall be required to reimburse the Department of Revenue for any department initiated audits relating to the tax credit. This subparagraph shall not apply to routine tax audits of a taxpayer that may include the review of the credit provided in this Code section.
  9. The Department of Revenue and the Department of Economic Development shall promulgate such rules and regulations as are necessary to implement and administer this Code section. (Code 1981, § 48-7-40.26 A, enacted by Ga. L. 2017, p. 59, § 2/HB 199.)

Effective date. - This Code section became effective July 1, 2017. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2017, p. 59, § 3/HB 199, not codified by the General Assembly, provides, in part, that this Act shall apply to taxable years beginning on or after January 1, 2018.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, "was" was substituted for "were" in subparagraph (h)(3)(E).

48-7-40.27. Tax credit for qualified investments.

  1. As used in this Code section, the term:
    1. "Credit" means a state income tax credit against the tax imposed pursuant to this article in an amount equal to 25 percent of the taxpayer's qualified investment.
    2. "Qualified investment" means a cash investment in the research fund that is not a cash investment made by the state or on behalf of the state.
    3. "Research fund" means a fund that is an investment entity pursuant to paragraph (7) of Code Section 10-10-1, the purpose of which is to provide early-stage financing for businesses formed as a result of the intellectual property resulting from the research conducted in the research universities in this state.
  2. A taxpayer shall be entitled to a credit for any qualified investment, subject to the conditions and limitations set forth in this Code section. Once the research fund reaches $30 million in total qualified investments, investors shall no longer be eligible for a credit pursuant to this subsection with respect to all subsequent qualified investments.
  3. The credit provided in subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In no event shall the credit for a taxable year exceed the taxpayer's income tax liability. Any unused portion of the credit shall be permitted to be carried forward and applied to the taxpayer's tax liability for the subsequent ten years. The credit shall not be applied against the taxpayer's prior years' tax liabilities;
    2. The utilization of the credit shall have no effect on the taxpayer's basis in its investment;
    3. A taxpayer shall only be allowed a credit for a qualified investment if the research fund issues to such taxpayer a certification that such investment meets the requirements of this Code section. Such certification shall include the taxpayer's name, address, the last four digits of the taxpayer's social security number or the employer identification number, as appropriate, the date, the amount of the qualified investment, and the amount of tax credit to which the taxpayer is entitled;
    4. If the taxpayer is a Georgia Subchapter "S" corporation, a partnership, or a limited liability company taxed as a partnership, the credit shall be claimed by the respective shareholders, partners, or members of such entities in the same manner as they would account for their proportionate shares of income or loss from such entities. For the purposes of this Code section, such shareholders, partners, or members shall be considered to have made the qualified investments attributable to their interest in such entities; and
    5. No taxpayer shall be eligible to claim the credit provided in subsection (b) of this Code section for a cash investment if they claim the tax credit provided in Code Section 48-7-40.28 for such cash investment.
  4. The research fund shall provide the department at least on an annual basis a report that includes the taxpayer's name, the last four digits of the taxpayer's social security number or the employer identification number, as appropriate, and the amount of the taxpayer's qualified investment for which the research fund has issued to such taxpayer the certification pursuant to paragraph (3) of subsection (c) of this Code section. The research fund shall file this report with the department no later than January 31 of the year following the end of the reporting year.
  5. In the event that the research fund liquidates prior to the investment of all of the cash received from taxpayers, the credit claimed with respect to such uninvested cash shall be recaptured. Such recapture shall be equal to the amount of the credit attributable to the qualified investment not invested by the research fund and returned to the taxpayer by the research fund. The recaptured amount shall be treated as taxes payable to the state for the taxable year in which such return of such investment occurs.
  6. The commissioner may require such reports, promulgate such regulations, and gather such relevant data deemed necessary and advisable for the implementation of this Code section. (Code 1981, § 48-7-40.27 , enacted by Ga. L. 2008, p. 938, § 1/HB 1196.)

Editor's notes. - Ga. L. 2008, p. 938, § 3/HB 1196, not codified by the General Assembly, provides, in part, that this Code section shall be applicable to investments made on or after July 1, 2008.

48-7-40.28. Limitation on credit for qualified investment tax credit.

  1. As used in this Code section, the term:
    1. "Credit" means a state income tax credit against the tax imposed pursuant to this article in an amount equal to 10 percent of the taxpayer's qualified investment.
    2. "Qualified investment" means a cash investment in a legal entity in which the research fund has invested; provided, however, that such investment has been made by the taxpayer at the invitation of the research fund with the express intention of permitting the taxpayer making such qualified investment to qualify for the credit.
    3. "Research fund" means a fund that is an investment entity pursuant to paragraph (7) of Code Section 10-10-1, the purpose of which is to provide early-stage financing for businesses formed as a result of the intellectual property resulting from the research conducted in the research universities in this state.
  2. A taxpayer shall be entitled to a credit for any qualified investment, subject to the conditions and limitations set forth in this Code section. Once the total amount of qualified investments reaches $75 million, investors shall no longer be eligible for a credit pursuant to this subsection with respect to all subsequent qualified investments.
  3. The credit provided in subsection (b) of this Code section shall be subject to the following conditions and limitations:
    1. In no event shall the credit for a taxable year exceed the taxpayer's income tax liability. Any unused portion of the credit shall be permitted to be carried forward and applied to the taxpayer's tax liability for the subsequent ten years. The credit shall not be applied against the taxpayer's prior years' tax liabilities;
    2. The utilization of the credit shall have no effect on the taxpayer's basis in its investment;
    3. A taxpayer shall only be allowed a credit for a qualified investment if the research fund issues to such taxpayer a certification that such investment meets the requirements of this Code section. Such certification shall include the taxpayer's name, address, the last four digits of the taxpayer's social security number or the employer identification number, as appropriate, the date, the amount of the qualified investment, and the amount of the credit to which the taxpayer is entitled;
    4. If the taxpayer is a Georgia Subchapter "S" corporation, a partnership, or a limited liability company taxed as a partnership, the credit shall be claimed by the respective shareholders, partners, or members of such entities in the same manner as they would account for their proportionate shares of income or loss from such entities. For the purposes of this Code section, such shareholders, partners, or members shall be considered to have made the qualified investments attributable to their interest in such entities; and
    5. A taxpayer shall not claim the credit provided in subsection (b) of this Code section for a cash investment into the research fund.
  4. The research fund shall provide the department at least on an annual basis a report that includes the taxpayer's name, the last four digits of the taxpayer's social security number or the employer identification number, as appropriate, and the amount of the taxpayer's qualified investment for which the research fund has issued to such taxpayer the certification pursuant to paragraph (3) of subsection (c) of this Code section. The research fund shall file this report with the department no later than January 31 of the year following the end of the reporting year.
  5. The commissioner may require such reports, promulgate such regulations, and gather such relevant data deemed necessary and advisable for the implementation of this Code section. (Code 1981, § 48-7-40.28 , enacted by Ga. L. 2008, p. 938, § 1/HB 1196.)

Editor's notes. - Ga. L. 2008, p. 938, § 3/HB 1196, not codified by the General Assembly, provides that this Code section shall be applicable to investments made on or after July 1, 2008.

48-7-40.29. (For effective date, see note.) Income tax credits for certain qualified equipment that reduces business or domestic energy or water usage.

  1. As used in this Code section, the term:
    1. "Cost" means the aggregate funds actually invested and expended by a taxpayer to put into service the qualified equipment.
    2. "Energy efficient equipment" means all machinery and equipment certified pursuant to rules and regulations promulgated for purposes of this Code section by the commissioner of natural resources, as effective in reducing business or domestic energy usage. Such certifications may include, by way of example and not limitation, any dishwasher, clothes washer, furnace, air conditioner, central heating and air conditioning system, ceiling fan, fluorescent light bulb, dehumidifier, programmable thermostat, refrigerator, energy efficient water heater, skylighting system, whole house fan, energy use meter, light-emitting diode lighting system, geothermal heating system, door, window, or window film which has been designated by the United States Environmental Protection Agency and the United States Department of Energy as meeting or exceeding each such agency's energy saving efficiency requirements or which have been designated as meeting or exceeding such requirements under each such agency's Energy Star program.
    3. "Qualified equipment" means energy efficient equipment or water efficient equipment.
    4. "Water efficient equipment" means all machinery and equipment certified pursuant to rules and regulations promulgated for purposes of this Code section by the commissioner of natural resources as effective in reducing business or domestic water usage. Such certifications shall include, by way of example and not limitation, water conservation systems capable of storing rain water or gray water for future use and reusing the collected water for the same residential or commercial property and other products used for the conservation or efficient use of water which have been designated by the United States Environmental Protection Agency as meeting or exceeding such agency's water saving efficiency requirements or which have been designated as meeting or exceeding such requirements under such agency's Water Sense program.
  2. Rules and regulations of the commissioner of natural resources shall establish classifications or categories of qualified equipment, and no item of such qualified equipment shall be included in more than one classification or category for purposes of claiming a tax credit under this Code section. The commissioner of natural resources may take all reasonable and necessary steps to identify qualified equipment and to bring such equipment to the attention of taxpayers in this state qualified to install such equipment.
  3. After the effective date of this Code section, any taxpayer who is the ultimate purchaser of an item of qualified equipment for installation as part of new construction or for retrofit in this state shall be allowed a credit against the tax imposed under this article in the taxable year in which such qualified equipment was placed in service. The amount of the credit allowed under this Code section shall be 25 percent of the cost of the qualified equipment or $2,500.00, whichever is less.
  4. The credit granted under subsection (c) of this Code section shall be subject to the following conditions and limitations:
    1. The aggregate amount of credit which shall be claimed and allowed by taxpayers in any taxable year under this Code section shall be limited solely and exclusively to the amount of federal funds granted to the state for purposes of this Code section. In any tax year in which no federal funds are available for such purposes, no credit shall be claimed and allowed under this Code section;
    2. A taxpayer that claims a credit allowed under this Code section shall not be eligible to claim such qualified equipment for the clean energy property credit provided in Code Section 48-7-29.14; and
    3. To claim a credit allowed by this Code section, the taxpayer shall provide any information required by the Department of Natural Resources or the department. Every taxpayer claiming a credit under this Code section shall maintain and make available for inspection by the Department of Natural Resources or the department any records that either entity considers necessary to determine and verify the amount of the credit to which the taxpayer is entitled. The burden of proving eligibility for a credit and the amount of the credit rests upon the taxpayer, and no credit may be allowed to a taxpayer that fails to maintain adequate records or to make them available for inspection.
  5. In no event shall the amount of the tax credit allowed by this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused credit amount shall be allowed to be carried forward for five years from the close of the taxable year in which the qualified equipment was placed in service. No such credit shall be allowed the taxpayer against prior years' tax liability.
  6. After the qualified equipment is placed in service, a taxpayer seeking to claim any tax credit provided for under this Code section must submit an application to the commissioner for tentative approval of such tax credit. The commissioner shall promulgate the rules and forms on which the application is to be submitted. The commissioner shall review such application and shall tentatively approve such application upon determining that it meets the requirements of this Code section within 60 days after receiving such application.
  7. The commissioner shall allow the tax credits on a first come, first served basis. In no event shall the aggregate amount of tax credits approved by the commissioner for all taxpayers under this Code section exceed the amount of federal funds granted to the state for purposes of this Code section.
  8. The Department of Natural Resources and the department shall be authorized to adopt rules and regulations to provide for the administration of the tax credit provided by this Code section. Specifically, the Department of Natural Resources and the department shall create a mechanism to track and report the status and availability of credits for the public to review at a minimum on a quarterly basis. (Code 1981, § 48-7-40.29 , enacted by Ga. L. 2010, p. 1163, § 1/HB 1069; Ga. L. 2013, p. 141, § 48/HB 79.)

Delayed effective date. - Ga. L. 2013, p. 141, § 55/HB 79, not codified by the General Assembly, provides, in part, that the 2013 amendment "becomes effective on January 1 of the year following the year in which federal funds are made available for the purpose of funding the credit provided by Ga. L. 2010, p. 1163, Section 1 and in which the state auditor certifies in writing to the commissioner of natural resources and the state revenue commissioner that such funds have been received, have been deposited in the general fund, and are available for purposes of Ga. L. 2010, p. 1163, Section 1". Such federal funds have not been made available as of May 2018.

Ga. L. 2010, p. 1163, § 7 provides that this Code section becomes effective on January 1 of the year following the year in which federal funds are made available for the purpose of funding the credit provided by this Code section and in which the state auditor certifies in writing to the commissioner of natural resources and the state revenue commissioner that such funds have been received, have been deposited in the general fund, and are available for purposes of this Code section. Such federal funds have not been made available as of May 2018.

The 2013 amendment, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (b) and paragraph (d)(1). For effective date of this amendment, see the delayed effective date note.

48-7-40.30. Income tax credit for certain qualified investments for limited period of time.

  1. The General Assembly finds that entrepreneurial businesses significantly contribute to the economy of this state. The intent of this Code section is to achieve the following:
    1. To encourage individual investors to invest in early stage, innovative, wealth-creating businesses;
    2. To enlarge the number of high quality, high paying jobs within this state both to attract qualified individuals to move to and work within this state and to retain young people educated in Georgia's universities and colleges;
    3. To expand the economy of Georgia by enlarging its base of wealth-creating businesses; and
    4. To support businesses seeking to commercialize technology invented in Georgia's universities and colleges.
  2. As used in this Code section, the term:
    1. "Allowable credit" means the credit as it may be reduced pursuant to paragraph (3) of subsection (i) of this Code section.
    2. "Headquarters" means the principal central administrative office of a business located in this state which conducts significant operations of such business.
    3. "Net income tax liability" means income tax liability reduced by all other credits allowed under this chapter.
    4. "Pass-through entity" means a partnership, an S-corporation, or a limited liability company taxed as a partnership.
    5. "Professional services" means those services specified in paragraph (2) of Code Section 14-7-2 or any service which requires as a condition precedent to the rendering of such service the obtaining of a license from a state licensing board pursuant to Title 43.
    6. "Qualified business" means a registered business that:
      1. Is either a corporation, limited liability company, or a general or limited partnership located in this state;
      2. Was organized no more than three years before the qualified investment was made;
      3. Has its headquarters located in this state at the time the investment was made and has maintained such headquarters for the entire time the qualified business benefited from the tax credit provided for pursuant to this Code section;
      4. Employs 20 or fewer people in this state at the time it is registered as a qualified business;
      5. Has had in any complete fiscal year before registration gross annual revenue as determined in accordance with the Internal Revenue Code of $500,000.00 or less on a consolidated basis;
      6. Has not obtained during its existence more than $1 million in aggregate gross cash proceeds from the issuance of its equity or debt investments, not including commercial loans from chartered banking or savings and loan institutions;
      7. Has not utilized the tax credit described in Code Section 48-7-40.26;
      8. Is primarily engaged in manufacturing, processing, online and digital warehousing, online and digital wholesaling, software development, information technology services, or research and development or is a business providing services other than those described in subparagraph (I) of this paragraph; and
    7. "Qualified investment" means an investment by a qualified investor of cash in a qualified business for common or preferred stock or an equity interest or a purchase for cash of qualified subordinated debt in a qualified business; provided, however, that funds constituting a qualified investment cannot have been raised or be raised as a result of other tax incentive programs. Furthermore, no investment of common or preferred stock or an equity interest or purchase of subordinated debt shall qualify as a qualified investment if a broker fee or commission or a similar remuneration is paid or given directly or indirectly for soliciting such investment or purchase.
    8. "Qualified investor" means an accredited investor as that term is defined by the United States Securities and Exchange Commission who is:
    9. "Qualified subordinated debt" means indebtedness that is not secured, that may or may not be convertible into common or preferred stock or other equity interest, and that is subordinated in payment to all other indebtedness of the qualified business issued or to be issued for money borrowed and no part of which has a maturity date less than five years after the date such indebtedness was purchased.
    10. "Registered" or "registration" means that a business has been certified by the commissioner as a qualified business at the time of application to the commissioner.
  3. A qualified business shall register with the commissioner for purposes of this Code section. Approval of such registration shall constitute certification by the commissioner for 12 months after being issued. A business shall be permitted to renew its registration with the commissioner so long as, at the time of renewal, the business remains a qualified business.
  4. Any individual person making a qualified investment directly in a qualified business in the 2011, 2012, 2013, 2014, 2015, 2016, 2017, or 2018 calendar year shall be allowed a tax credit of 35 percent of the amount invested against the tax imposed by this chapter commencing on January 1 of the second year following the year in which the qualified investment was made as provided in this Code section.
  5. Any pass-through entity making a qualified investment directly in a qualified business in the 2011, 2012, 2013, 2014, 2015, 2016, 2017, or 2018 calendar year shall be allowed a tax credit of 35 percent of the amount invested against the tax imposed by this chapter commencing on January 1 of the second year following the year in which the qualified investment was made as provided in this Code section. Each individual who is a shareholder, partner, or member of an entity shall be allocated the credit allowed the pass-through entity in an amount determined in the same manner as the proportionate shares of income or loss of such pass-through entity would be determined. If an individual's share of the pass-through entity's credit is limited due to the maximum allowable credit under this Code section for a taxable year, the pass-through entity and its owners may not reallocate the unused credit among the other owners.
  6. Tax credits claimed pursuant to this Code section shall be subject to the following conditions and limitations:
  7. The registration of a business as a qualified business shall be subject to the following conditions and limitations:
  8. Any credit claimed under this Code section shall be recaptured in the following situations and shall be subject to the following conditions and limitations:
    1. A qualified investor seeking to claim a tax credit provided for under this Code section shall submit an application to the commissioner for tentative approval of such tax credit between September 1 and October 31 of the year for which the tax credit is claimed or allowed. The commissioner shall promulgate the rules and forms on which the application is to be submitted. Amounts specified on such application shall not be changed by the qualified investor after the application is approved by the commissioner. The commissioner shall review such application and shall tentatively approve such application upon determining that it meets the requirements of this Code section.
    2. The commissioner shall provide tentative approval of the applications by the date provided in paragraph (3) of this subsection as follows:
    3. The commissioner shall notify each qualified investor of the tax credits tentatively approved and allocated to such qualified investor by December 31 of the year in which the application was submitted. In the event that the credit amounts on the tax credit applications filed with the commissioner exceed the maximum aggregate limit of tax credits under this subsection, then the tax credits shall be allocated among the qualified investors who filed a timely application on a pro rata basis based upon the amounts otherwise allowed by this Code section. Once the tax credit application has been approved and the amount approved has been communicated to the applicant, the qualified investor may then apply the amount of the approved tax credit to its tax liability for the tax year for which the approved application applies.
  10. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section.
  1. Does not engage substantially in:
    1. Retail sales;
    2. Real estate or construction;
    3. Professional services;
    4. Gambling;
    5. Natural resource extraction;
    6. Financial, brokerage, or investment activities or insurance; or
    7. Entertainment, amusement, recreation, or athletic or fitness activity for which an admission or membership is charged. A business shall be substantially engaged in one of the above activities if its gross revenue from such activity exceeds 25 percent of its gross revenues in any fiscal year or it is established pursuant to its articles of incorporation, articles of organization, operating agreement, or similar organizational documents to engage in such activity as one of its primary purposes.
      1. An individual person who is a resident of this state or a nonresident who is obligated to pay taxes imposed by this chapter; or
      2. A pass-through entity which is formed for investment purposes, has no business operations, has committed capital under management of equal to or less than $5 million, and is not capitalized with funds raised or pooled through private placement memoranda directed to institutional investors. A venture capital fund or commodity fund with institutional investors or a hedge fund shall not qualify as a qualified investor.
        1. The qualified investor shall not be eligible for the credit for the taxable year in which the qualified investment is made but shall be eligible for the credit for the second taxable year beginning after the qualified investment is made as provided in subsection (d) or (e) of this Code section;
        2. The aggregate amount of credit allowed an individual for one or more qualified investments in a single taxable year under this Code section, whether made directly or by a pass-through entity and allocated to such individual, shall not exceed $50,000.00;
        3. In no event shall the amount of the tax credit allowed an individual under this Code section for a taxable year exceed such individual's net income tax liability. Any unused credit amount shall be allowed to be carried forward for five years from the close of the taxable year in which the qualified investment was made. No such credit shall be allowed against prior years' tax liability;
        4. The qualified investor's basis in the common or preferred stock, equity interest, or subordinated debt acquired as a result of the qualified investment shall be reduced for purposes of this chapter by the amount of the allowable credit; and
        5. The credit shall not be transferrable by the qualified investor except to the heirs and legatees of the qualified investor upon his or her death and to his or her spouse or incident to divorce.
          1. If the commissioner finds that any of the information contained in an application of a business for registration under this Code section is false, the commissioner shall revoke the registration of such business. The commissioner shall not revoke the registration of a business solely because it ceases business operations for an indefinite period of time, as long as the business renews its registration;
          2. A registration as a qualified business may not be sold or otherwise transferred, except that, if a qualified business enters into a merger, conversion, consolidation, or other similar transaction with another business and the surviving company would otherwise meet the criteria for being a qualified business, the surviving company retains the registration for the 12 month registration period without further application to the commissioner. In such a case, the qualified business must provide the commissioner with written notice of the merger, conversion, consolidation, or similar transaction and such other information as required by the commissioner; and
          3. The commissioner shall report to the House Committee on Ways and Means and the Senate Finance Committee each year all of the businesses that have registered with the commissioner as a qualified business. The report shall include the name and address of each business, the location of its headquarters, a description of the types of business in which it engages, the number of jobs created by the business during the period covered by the report, and the average wages paid by these jobs.
            1. If within two years after the qualified investment was made, the qualified investor transfers any of the securities or subordinated debt received in the qualified investment to another person or entity, other than a transfer resulting from one of the following:
              1. The death of the qualified investor;
              2. A transfer to the spouse of the qualified investor or incident to divorce; or
              3. A merger, conversion, consolidation, sale of the qualified business's assets, or similar transaction requiring approval by the owners of the qualified business under applicable law, to the extent the qualified investor does not receive cash or tangible property in such merger, conversion, consolidation, sale, or other similar transaction;
            2. Except as provided in paragraph (1) of this subsection, if within five years after the qualified investment was made, the qualified business makes a redemption with respect to the securities received or pays any principal of the subordinated debt;
            3. If within two years after the qualified investment was made, the qualified investor participates in the operation of the qualified business. For the purpose of this paragraph, a qualified investor participates in the operation of a qualified business if the qualified investor, or the qualified investor's spouse, parent, sibling, or child, or a business controlled by any of these individuals, provides services of any nature to the qualified business for compensation, whether as an employee, a contractor, or otherwise. However, a person who provides uncompensated professional advice to a qualified business, whether as an officer, a member of the board of directors or managers or otherwise, or participates in a stock or membership option or stock or membership plan, or both, shall be eligible for the credit;
            4. The amount of the credit recaptured shall apply only to the qualified investment in the particular qualified business in which the investment was made;
            5. The amount of the recaptured tax credit determined under this subsection shall be added to the qualified investor's income tax liability for the taxable year in which the recapture occurs under this subsection; and
            6. In the event the credit is recaptured because the qualified business ceases business operations, dissolves, or liquidates, the qualified investor may claim either the credit authorized under this Code section or any capital loss the qualified investor otherwise would be able to claim regarding that qualified business, but shall not be authorized to claim and be allowed both.
              1. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2011 calendar year and claimed and allowed in the 2013 taxable year shall not exceed $10 million in such year;
              2. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2012 calendar year and claimed and allowed in the 2014 taxable year shall not exceed $10 million in such year;
              3. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2013 calendar year and claimed and allowed in the 2015 taxable year shall not exceed $10 million in such year;
              4. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2014 calendar year and claimed and allowed in the 2016 taxable year shall not exceed $5 million in such year;
              5. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2015 calendar year and claimed and allowed in the 2017 taxable year shall not exceed $5 million in such year;
              6. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2016 calendar year and claimed and allowed in the 2018 taxable year shall not exceed $5 million in such year;
              7. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2017 calendar year and claimed and allowed in the 2019 taxable year shall not exceed $5 million in such year; and
              8. The total aggregate amount of all tax credits allowed to qualified investors or pass-through entities for investments made in the 2018 calendar year and claimed and allowed in the 2020 taxable year shall not exceed $5 million in such year. (Code 1981, § 48-7-40.30 , enacted by Ga. L. 2010, p. 1163, § 2/HB 1069; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2013, p. 243, § 6/HB 318; Ga. L. 2015, p. 371, § 1/HB 237.)

The 2015 amendment, effective July 1, 2015, substituted "this state" for "the state" at the end of the first sentence in subsection (a) and near the beginning of paragraph (a)(2); substituted "paragraph (3)" for "subparagraph (3)" in the middle of paragraph (b)(1); substituted "or research and development or is a" for "research and development, or a" in subparagraph (b)(6)(H); substituted "2015, 2016, 2017, or 2018" for "or 2015" near the beginning of subsection (d) and near the beginning of the first sentence in subsection (e); inserted a comma after "business" and "otherwise" in the last sentence of paragraph (h)(3); and, in paragraph (i)(2), deleted "and" at the end of subparagraph (i)(2)(D), substituted a semicolon for a period at the end of subparagraph (i)(2)(E), and added subparagraphs (i)(2)(F) through (i)(2)(H).

Administrative Rules and Regulations. - Qualified investor tax credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.52.

48-7-40.31. Income tax credit for employing qualified parolee.

  1. As used in this Code section, the term:
    1. "Employer" means an enterprise or organization, whether corporation, partnership, limited liability company, proprietorship, association, trust, business trust, real estate trust, or other form of organization, and its affiliates, which is registered and authorized to use the federal employment verification system known as "E-Verify" or any successor federal employment verification system and is engaged in or carrying on any business activities within this state.
    2. "Full-time job" means employment which:
      1. Is located in this state;
      2. Involves a regular work week of 30 hours or more;
      3. Has no predetermined end date; and
      4. Pays at or above the average hourly wage of the county with the lowest average hourly wage in the state, as reported in the most recently available annual issue of the Georgia Employment and Wages Averages Report of the Department of Labor.
    3. "Qualified parolee" means an individual who has been granted parole in accordance with Code Section 42-9-45 within 12 months preceding his or her date of hire for a full-time job.
    1. For the period beginning on or after January 1, 2017, and before January 1, 2020, an employer that employs a qualified parolee in a full-time job for at least 40 weeks during a 12 month period shall be eligible for an income tax credit in the amount of $2,500.00 for each qualified parolee so employed against the tax imposed under this article during such 12 month period; provided, however, that a qualified parolee first employed in a full-time job by such employer before January 1, 2017, shall not qualify.
    2. An employer shall only be eligible to receive credits provided by this subsection in an amount up to $50,000.00 per taxable year.
    3. An employer shall only be eligible to receive the credit provided by this subsection once per individual.
  3. In no event shall the credit provided by subsection (b) of this Code section for a taxable year exceed the employer's income tax liability. Any unused portion of the credit provided by subsection (b) of this Code section shall be permitted to be carried forward and applied to the employer's tax liability for the subsequent three years. The credit provided by subsection (b) of this Code section shall not be applied against the employer's prior years' tax liabilities.
  4. On or before September 1 of 2018, 2019, and 2020, the commissioner shall issue a report to the chairpersons of the Senate Finance Committee and the House Committee on Ways and Means concerning the tax credit created by this Code section, which shall include the following statistics for the preceding taxable year:
    1. The total number of employers that claimed a credit provided by this Code section; and
    2. The number and total value of all credits earned and all credits applied during such tax year pursuant to this Code section.
  5. The commissioner shall promulgate rules and regulations and forms necessary to implement and administer the provisions of this Code section. (Code 1981, § 48-7-40.31 , enacted by Ga. L. 2016, p. 553, § 3/HB 936.)

Effective date. - This Code section became effective July 1, 2016. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 553, § 4(b)/HB 936, not codified by the General Assembly, provides that: "Section 3 of this Act shall be applicable to taxable years beginning on or after January 1, 2017."

Administrative Rules and Regulations. - Qualified parolee job tax credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.58.

48-7-40.32. Revitalization zone tax credits.

  1. As used in this Code section, the term:
    1. "Certified entity" means any eligible business which establishes a new location within a revitalization zone on or after January 1, 2018, or any existing eligible business located within a revitalization zone that expands its operations, and which:
      1. Has created at least two new full-time equivalent jobs in a taxable year; and
      2. Has been certified by the commissioner of community affairs as eligible to receive the revitalization zone tax credit based on established criteria in this Code section and promulgated in regulations by the commissioner of community affairs. Such certification shall be attached to the income tax return when the credit is claimed.
    2. "Certified investor" means an investor or investors who:
      1. Acquire and develop real estate within a designated revitalization zone; and
      2. Have been certified by the commissioner of community affairs as eligible to receive the revitalization zone tax credit based on criteria established in this Code section and promulgated in regulations by the commissioner of community affairs. Such certification shall be attached to the income tax return when the credit is claimed.
    3. "Eligible business" means any establishment that is primarily engaged in providing professional services or in retailing merchandise and rendering services incidental to the sale of merchandise, including but not limited to the North American Industry Classification System Codes 31, 44-45, 54, and 72.
    4. "Full-time equivalent" means an aggregate of employee hours worked totaling 40 hours per week, the equivalent of one full-time job.
    5. "Local government" means a county, municipality, or consolidated local government created pursuant to Article IX, Sections I, II, or III of the Constitution; applicable general state statutes; a local Act of the General Assembly; or such other method as was valid at the time of its creation.
    6. "Qualified rehabilitation expenditure" means labor and material costs associated with the rehabilitation of a certified investor property which:
      1. Complies with the state minimum standard codes and any applicable local codes; and
      2. Has been certified by the commissioner of community affairs as eligible to receive the revitalization zone tax credit based on established criteria in this Code section and promulgated in regulations by the commissioner of community affairs. Such certification shall be attached to the income tax return when the credit is claimed.
    7. "Revitalization zone" means a specified geographic region that meets all criteria provided by this Code section and has been designated by the commissioner of community affairs and the commissioner of economic development to be in need of economic revitalization.
  2. The commissioner of community affairs and the commissioner of economic development are authorized to designate a specified area as a revitalization zone, enabling new and established businesses and new business investments in the zone to qualify for revitalization zone tax credits. The commissioner of community affairs and the commissioner of economic development may designate up to ten revitalization zones in any given year; provided, however, that there shall not be more than 50 revitalization zones in existence at the same time. This designation shall last for five consecutive years upon approval of the commissioners. To be eligible to apply for revitalization zone status, local governments must have a population of fewer than 15,000 residents. In addition, local governments must prove economic distress based on poverty rate, vacancy of the downtown area, or blight and shall meet the three following characteristics:
    1. A concentration of historic commercial structures at least 50 years old within the targeted area;
    2. A feasibility study or market analysis identifying the business activities which can be supported in the targeted area; and
    3. A master plan or strategic plan designed to assist private and public investment.
    1. Certified entities shall receive the revitalization zone tax credit for five years beginning with the first taxable year in which new full-time equivalent jobs are created in a revitalization zone and for years two, three, four, and five of the taxable years immediately following, provided that the new full-time equivalent jobs are maintained for each year the tax credit is claimed.
    2. Each new full-time equivalent job created will be eligible for a $2,000.00 annual income tax credit. The amount of credit claimed by each certified entity shall not exceed $40,000.00 per taxable year.
    3. The number of new full-time equivalent jobs shall be determined by comparing the monthly average of full-time equivalent jobs subject to Georgia income tax withholding for a given taxable year with the corresponding period of the prior taxable year; provided, however, that a certified entity which begins operations during the taxable year may be certified by the commissioner of community affairs to base initial eligibility on a period of less than 12 months.
    4. This income tax credit shall not be allowed during a year if the net employment increase falls below the number required by subparagraph (a)(1)(A) of this Code section.
    5. Any credit generated and utilized in years prior to the year in which the net employment increase falls below the number required by subparagraph (a)(1)(A) of this Code section shall not be affected.
  4. Certified investors who acquire and develop property in a revitalization zone on or after January 1, 2018, shall receive the revitalization zone tax credit, subject to the following:
    1. Certified investors shall demonstrate a property's ongoing commercial benefit as follows:
      1. An eligible business is located in the investment property and qualifies to receive the tax credit pursuant to subsection (c) of this Code section; or
      2. An eligible business is located in the investment property and maintains a minimum of two full-time equivalent jobs for each year the tax credit is claimed;
    2. The amount of the tax credit per project shall be 25 percent of the purchase price and shall not exceed $125,000.00; provided, however, that the entire credit shall not be taken in the year in which the property is placed in commercial service but shall be prorated equally in five installments over five taxable years, beginning with the taxable year in which the property is placed in service; and
    3. A certified investor shall be allowed to preserve the revitalization zone tax credit for up to seven years from the date of initial eligibility in the event the commercial requirement in paragraph (1) of this subsection is not satisfied in consecutive years.
    1. A certified investor or certified entity with qualified rehabilitation expenditures on or after January 1, 2018, shall receive the revitalization zone tax credit for three years beginning with the year the property is placed in service. The amount of the tax credit per project shall be 30 percent of the qualified rehabilitation expenditures and shall not exceed $150,000.00; provided, however, that the entire credit shall not be taken in the year in which the property is placed in commercial service but shall be prorated equally in three installments over three taxable years, beginning with the taxable year in which the property is placed in service. The business shall maintain a minimum of two full-time equivalent jobs for each year the tax credit is claimed.
    2. A certified investor or certified entity shall meet minimum historic preservation standards in order to be qualified to receive the revitalization zone tax credit. The standards shall be identified with the assistance of the Department of Natural Resources' Historic Preservation Division.
    3. A taxpayer who is entitled to and takes credits provided by this Code section for a project shall not be allowed to utilize the same qualified rehabilitation expenditures to generate any additional state income tax credits, including, but not limited to, the state income tax credit for rehabilitated historic property administered by the Department of Natural Resources' Historic Preservation Division. Jobs created by, arising from, or connected in any way with the same project are not eligible to be used toward other job related tax credits.
  6. In no event shall the amount of the tax credits allowed by this Code section for a taxable year exceed a certified entity's or certified investor's state income tax liability. Any credit claimed under this Code section by a certified entity or certified investor but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the credit is claimed. No such credit shall be allowed by the taxpayer against prior years' tax liability.
  7. Any tax credits earned under this Code section are nontransferable.
  8. A certified entity shall report to the revenue commissioner the qualifying net job increases or decreases each year. A certified investor shall report to the revenue commissioner the investment amount in the initial qualifying year. The revenue commissioner and the commissioner of community affairs shall have the authority to require reports and promulgate regulations as needed in order to perform their duties under this Code section.
  9. This Code section shall stand automatically repealed on December 31, 2027, unless reauthorized by the General Assembly prior to such date. (Code 1981, § 48-7-40.32 , enacted by Ga. L. 2017, p. 526, § 1/HB 73; Ga. L. 2018, p. 1112, § 48/SB 365.)

Effective date. - This Code section became effective May 8, 2017. See Editor's notes for applicability.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "provided that the new full-time" for "provided the new full-time" near the end of paragraph (c)(1); substituted "provided, however, that a certified entity" for "provided, however, a certified entity" in the proviso of paragraph (c)(3); and substituted "provided, however, that the entire credit" for "provided, however, the entire credit" in the proviso of the second sentence of paragraph (e)(1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, Code Section 48-7-40.32, as enacted by Ga. L. 2017, p. 574, § 1/HB 155, was redesignated as Code Section 48-7-40.33.

Editor's notes. - Ga. L. 2017, p. 526, § 2/HB 73, not codified by the General Assembly, provides, in part, that this Code section "shall be applicable to all taxable years beginning on or after January 1, 2018."

48-7-40.33. (Repealed effective January 1, 2023) Tax credits for musical or theatrical performances.

  1. This Code section shall be known and may be cited as the "Georgia Musical Investment Act."
  2. As used in this Code section, the term:
    1. "Musical or theatrical performance" means a live performance of a concert, musical tour, ballet, dance, opera, live variety entertainment, or a series of any such performances occurring over the course of a 12 month period or longer that originates, is developed, and has its initial public performance before a live audience within this state or that prepares and rehearses a minimum of seven days within this state and has its United States debut within this state. Such term excludes a single musical performance that is not intended for touring, a music or cultural festival that is not intended for touring, an industry seminar, a trade show, or a market.
    2. "Production company" means a company primarily engaged in qualified production activities. Such term shall not mean or include any form of business owned, affiliated, or controlled, in whole or in part, by any company or person which is in default on any tax obligation of the state, or a loan made by the state or a loan guaranteed by the state.
    3. "Qualified production activities" means activities related to the preparation, planning, recording, or staging of a state certified production.
    4. "Qualified production expenditures" means expenditures incurred in this state on direct account of qualified production activities for which a tax credit has not been claimed pursuant to Code Section 48-7-40.26 and shall include, but are not limited to:
      1. Set construction and operation; wardrobe, make-up, accessories, and related services; costs associated with photography and sound synchronization, expenditures excluding license fees incurred with Georgia companies for sound recordings and musical compositions, lighting, and related services and materials; editing and related services; rental of facilities and equipment; leasing of vehicles; costs of food and lodging; total aggregate payroll; talent and producer fees; technical fees; crew fees; per diem costs paid to employees; airfare, if purchased through a Georgia travel agency or travel company; insurance costs and bonding, if purchased through a Georgia insurance agency; and other direct costs of producing the project in accordance with generally accepted entertainment industry practices; and
      2. Payments to a loan-out company by a production company.
    5. "Recorded musical performance" means a recording of a music composition affixed in a tangible medium, which includes but is not limited to the score and musical accompaniment of a motion picture, film, television, game, or interactive entertainment production.
    6. "Resident" shall have the same meaning as set forth in paragraph (10) of Code Section 48-7-1.
    7. "Spending threshold" means:
      1. For a musical or theatrical performance, $500,000.00 during a taxable year; and
      2. For a recorded musical performance which is incorporated into or synchronized with a movie, television, or interactive entertainment production, $250,000.00 during a taxable year, and for any other recorded musical performance, $100,000.00 during a taxable year.
    8. "State certified production" means a musical or theatrical performance or recorded musical performance that is approved by the Department of Economic Development in accordance with rules and regulations promulgated pursuant to this Code section.
    9. "Total aggregate payroll" means the total sum expended by a production company on salaries paid to employees working within this state in a state certified production or productions. For purposes of this paragraph:
      1. With respect to a single employee, the portion of any salary which exceeds $500,000.00 for a single production shall not be included when calculating total aggregate payroll; and
      2. All payments to a single employee and any legal entity in which the employee has any direct or indirect ownership interest shall be considered as having been paid to the employee and shall be aggregated regardless of the means of payment or distribution.
  3. A production company that invests in a state certified production shall be allowed an income tax credit against the tax imposed under this article if such production company's qualified production expenditures equal or exceed the spending threshold as follows:
    1. A production company shall be allowed a tax credit equal to 15 percent of such production company's qualified production expenditures; and
    2. A production company shall be allowed an additional tax credit equal to 5 percent for such production company's qualified production expenditures incurred in a county designated as tier 1 or tier 2 by the commissioner of community affairs pursuant to Code Section 48-7-40.
  4. The tax credits allowed under this Code section for all production companies shall be subject to the following aggregate annual caps:
    1. For taxable years beginning on or after January 1, 2018, and before January 1, 2019, the aggregate amount of tax credits allowed under this Code section shall not exceed $5 million;
    2. For taxable years beginning on or after January 1, 2019, and before January 1, 2020, the aggregate amount of tax credits allowed under this Code section shall not exceed $10 million;
    3. For taxable years beginning on or after January 1, 2020, and before January 1, 2023, the aggregate amount of tax credits allowed under this Code section shall not exceed $15 million per year; and
    4. The tax credits allowed under this Code section shall not be available for taxable years beginning on or after January 1, 2023.
    1. The maximum allowable tax credit under this Code section claimed by a single production company and its affiliates shall not exceed, in any single taxable year, 20 percent of the aggregate amount of tax credits available for such taxable year under subsection (d) of this Code section, including the amount of any aggregate annual caps rolled over from prior years.
    2. Production companies seeking to claim a tax credit under this Code section shall submit an application to the department for preapproval of such tax credit. The department shall preapprove the tax credits based on the order in which properly completed applications were submitted. In the event that two or more applications were submitted on the same day and the amount of funds available will not be sufficient to fully fund the tax credits requested, the department shall prorate the available funds between or among the applicants.
    1. Where the amount of such credit or credits exceeds the production company's liability for such taxes in a taxable year, the excess may be taken as a credit against such production company's quarterly or monthly payment under Code Section 48-7-103. Each employee whose employer receives credit against such production company's quarterly or monthly payment under Code Section 48-7-103 shall receive credit against his or her income tax liability under Code Section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of the credit provided for in this subsection. Credits against quarterly or monthly payments under Code Section 48-7-103 and credits against liability under Code Section 48-7-20 established by this subsection shall not constitute income to the production company.
    2. If a production company claims the credit authorized under Code Section 48-7-40, 48-7-40.1, 48-7-40.17, or 48-7-40.18, then the production company will only be allowed to claim the credit authorized under this Code section to the extent that the Georgia resident employees included in the credit calculation authorized under this Code section and taken by the production company on such tax return under this Code section have been permanently excluded from the credit authorized under Code Section 48-7-40, 48-7-40.1, 48-7-40.17, or 48-7-40.18.
  7. The credit granted under this Code section shall be subject to the following conditions and limitations:
    1. The credit may be taken beginning with the taxable year in which the production company has met the investment requirement. For each year in which such production company claims the credit, the production company shall attach a schedule to the production company's Georgia income tax return which will set forth the following information, as a minimum:
      1. A description of the qualified production expenditures showing categorized spending that meets or exceeds the spending threshold, along with the certification from the Department of Economic Development;
      2. A detailed listing of employees' names, social security numbers, and Georgia wages when salaries are included in the base investment;
      3. The amount of tax credit claimed for the taxable year;
      4. Any tax credit previously taken by the production company against Georgia income tax liabilities or the production company's quarterly or monthly payments under Code Section 48-7-103;
      5. The amount of tax credit carried over from prior years;
      6. The amount of tax credit utilized by the production company in the current taxable year; and
      7. The amount of tax credit to be carried over to subsequent tax years;
    2. In no event shall the amount of the tax credit under this Code section for a taxable year exceed the production company's income tax liability. Any unused credit amount shall be allowed to be carried forward for five years from the close of the taxable year in which the investment occurred. No such credit shall be allowed the production company against prior years' tax liability; and
    3. Tax credits claimed under this Code section shall not be refundable, transferable, or saleable.
  8. Any production company claiming the tax credit provided for by this Code section shall be required to reimburse the department for any department initiated audits relating to the tax credit. This subsection shall not apply to routine tax audits of a taxpayer which may include a review of the credit provided in this Code section.
  9. The Department of Economic Development shall determine through the promulgation of rules and regulations which projects qualify for the tax credits authorized under this Code section. Certification shall be submitted to the state revenue commissioner.
  10. The state revenue commissioner shall promulgate such rules and regulations as are necessary to implement and administer this Code section. (Code 1981, § 48-7-40.33 , enacted by Ga. L. 2017, p. 574, § 1/HB 155; Ga. L. 2018, p. 1112, § 48/SB 365.)

Effective date. - This Code section became effective January 1, 2018.

The 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, substituted "; and" for the period at the end of paragraph (g)(2).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, Code Section 48-7-40.32, as enacted by Ga. L. 2017, p. 574, § 1/HB 155, was redesignated as Code Section 48-7-40.33.

Editor's notes. - Ga. L. 2017, p. 574, § 2/HB 155 provides for the repeal of this Code section on January 1, 2023.

48-7-40.34. Tax credit for Class III railroads; reporting.

  1. As used in this Code section, the term:
    1. "Class III railroad" means a rail carrier classified as a Class III railroad by the United States Surface Transportation Board in accordance with Section 1-1 of 49 C.F.R. 1201, as it existed on January 1, 2018.
    2. "Qualified railroad track maintenance expenditures" means gross expenditures for maintaining railroad track, including roadbed, bridges, and related track structures, owned or leased as of January 1, 2018, by a Class III railroad.
  2. A Class III railroad shall be given a credit against the tax imposed under this article for a taxable year in the amount of 50 percent of the qualified railroad track maintenance expenditures paid or incurred by such Class III railroad during the taxable year, provided that such credit shall not exceed $3,500.00 multiplied by each mile of railroad track owned or leased in this state as of the close of the taxable year by such Class III railroad.
    1. The credit given under this Code section shall only be allowed once for each mile of railroad track in each taxable year.
    2. Such credit shall be given for each taxable year beginning on or after January 1, 2019, and ending on or before December 30, 2023, in which the conditions of this Code section have been met.
  4. If a credit is given under this Code section with respect to any railroad track, the basis of such railroad track shall be reduced by the amount of the credit so allowed.
  5. The tax credits given to a Class III railroad by this Code section that are not used by such Class III railroad shall be freely assignable one time between January 1, 2019, and January 1, 2024, by written agreement to a taxpayer subject to the tax imposed by this chapter.
  6. On or before September 1 of 2020 and annually thereafter until 2024, the commissioner shall issue a report to the chairpersons of the Senate Finance Committee and the House Committee on Ways and Means concerning the tax credit created by this Code section, which shall include the following statistics for the preceding taxable year:
    1. The total number of taxpayers that claimed a credit provided by this Code section; and
    2. The number and total value of all credits earned and all credits applied during such tax year pursuant to this Code section.
  7. The commissioner shall promulgate such forms, rules, and regulations as are necessary to implement and administer the provisions of this Code section.
  8. This Code section shall be automatically repealed on January 1, 2024. (Code 1981, § 48-7-40.34 , enacted by Ga. L. 2018, p. 944, § 2/HB 735.)

Effective date. - This Code section became effective May 8, 2018. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. 944, § 5(a)/HB 735, not codified by the General Assembly, provides, in part, that the enactment of this Code section by that Act "shall be applicable to taxable years beginning on or after January 1, 2019, and ending on or before December 31, 2023."

48-7-40.35. Credit for qualified employers; conditions and limitations to credit; requirements for being qualified employer.

  1. As used in this Code section, the term:
    1. "New full-time employee job" shall have the same meaning as provided in Code Section 48-7-40.
    2. "Qualified employer" means a taxpayer that:
      1. Operates a facility in this state that recycles post-consumer waste materials into polyester bulk continuous filament fibers;
      2. Certifies to the commissioner that between January 1, 2018, and December 31, 2020, such taxpayer will purchase or acquire $20 million of qualified investment property for use in this state; and
      3. Certifies to the commissioner that between January 1, 2018, and January 1, 2020, such taxpayer will create 25 new full-time employee jobs in this state.
    3. "Qualified investment property" shall have the same meaning as provided in Code Section 48-7-40.2.
  2. A qualified employer is allowed a credit against the tax imposed by this article in an amount equal to the value of credits provided for in Code Section 48-7-40.2 that the qualified employer claimed on original or amended returns on which such qualified employer also claimed the credit provided for in Code Section 48-7-40 for the same project.
  3. The credit allowed under subsection (b) of this Code section shall be subject to the following conditions and limitations:
      1. Any credit claimed under this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the credit was first claimed.
      2. The credit established by this Code section taken in any one taxable year shall be limited to an amount not greater than 50 percent of the qualified employer's state income tax liability which is attributable to income derived from operations in this state for that taxable year.
      3. The sale, merger, acquisition, or bankruptcy of any qualified employer shall not create new eligibility in any succeeding qualified employer, but any unused credit may be transferred and continued by any transferee of such qualified employer.
      1. The utilization of such credit shall not affect the qualified employer's ability to claim depreciation for tax purposes on the assets acquired by such qualified employer.
      2. Such credit shall not have any effect on the qualified employer's basis in such assets for the purpose of depreciation.
    3. Notwithstanding any other provision of this chapter to the contrary, a qualified employer is authorized to claim on a tax return for a given project both the credit provided for in this Code section and the credit provided for in Code section 48-7-40.2.
    1. When the amount of the credit granted under subsection (b) of this Code section exceeds 50 percent of the qualified employer's liability for taxes imposed under this article in a taxable year, such qualified employer may take the excess as a credit against such qualified employer's quarterly or monthly payments under Code section 48-7-103.
    2. Each employee whose qualified employer receives credit against such qualified employer's quarterly or monthly payment under Code section 48-7-103 shall receive credit against his or her income tax liability under Code section 48-7-20 for the corresponding taxable year for the full amount which would be credited against such liability prior to the application of this subsection.
    3. Credits against quarterly or monthly payments under Code section 48-7-103 and credits against income tax liability under Code section 48-7-20 established by this subsection shall not constitute income to the qualified employer or the employee.
  5. A qualified employer that fails to purchase or acquire $20 million of qualified investment property for use in this state between January 1, 2018, and December 31, 2020, or fails to create 25 new full-time employee jobs in this state between January 1, 2018, and January 1, 2020, shall not be a qualified employer and any tax imposed by this article upon such taxpayer shall be increased by any reduction in tax allowed to such taxpayer pursuant to the application of this Code section.
  6. After December 31, 2023, this Code section shall stand repealed in its entirety by operation of law. (Code 1981, § 48-7-40.35 , enacted by Ga. L. 2018, p. 944, § 3/HB 735.)

Effective date. - This Code section became effective May 8, 2018. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. 944, § 5(b)/HB 735, not codified by the General Assembly, provides, in part, that the enactment of this Code section by that Act "shall be applicable to taxable years beginning on or after January 1, 2018, and ending on or before December 31, 2023."

48-7-40.36. Income tax credits for timber producers incurring losses from Hurricane Michael.

    1. The General Assembly finds and determines that Hurricane Michael has had a catastrophic impact on the citizens and the economy of southwest Georgia, has particularly devastated the timber industry on which the citizens of southwest Georgia are heavily dependent for their livelihood, and has created both a public fire hazard and a danger of insect infestations due to the massive amounts of downed timber caused by the severity of this natural disaster.
    2. The General Assembly further finds and declares that it is appropriate and advisable to provide relief to the timber industry in the form of a tax credit targeted to those taxpayers that have suffered substantial economic losses and that will have to incur significant expenses for salvaging downed timber, site clearance, and reforestation of timber over the coming years.
  2. As used in this Code section, the term:
    1. "Disaster area" means the real property encompassed by the borders of the 28 counties included in the renewal of the State of Emergency pronounced in the Executive Order of the Governor dated November 6, 2018, and filed in the official records of the office of the Governor as Executive Order 11.06.18.01.
    2. "Eligible timber property" means timber which on October 8, 2018, was being grown by a taxpayer in a disaster area as part of a trade or business or a transaction entered into for profit.
    3. "Timber" means trees grown for the primary purpose of commercial production of food or wood or wood fiber products.
    4. "Timber casualty loss" means the amount of the diminution of value included in the computation of the casualty loss deduction for such casualty losses claimed and allowed pursuant to Section 165 of the Internal Revenue Code of 1986 as casualty losses incurred by a taxpayer between October 9, 2018, and December 31, 2018, as a result of damage to or destruction of eligible timber property caused by Hurricane Michael.
    1. A taxpayer shall be allowed tax credits against the tax imposed by this article in an amount equal to 100 percent of such taxpayer's timber casualty loss; provided, however, that the credit amount shall not exceed the number of the taxpayer's affected acres of eligible timber property in such disaster areas multiplied by $400.00.
    2. To claim such tax credits, a taxpayer shall submit an application for preapproval of such credits based on timber casualty losses incurred by such taxpayer. A taxpayer shall either submit its preapproval application between January 1, 2019, and May 31, 2019, for a first round of preapprovals or between July 1, 2019, and December 31, 2019, for a second round of preapprovals, if applicable.
    1. The commissioner shall require preapproval applications to contain such information as is necessary to substantiate a taxpayer's eligibility for tax credits allowed pursuant to this Code section.
    2. The commissioner is authorized to require electronic submission of preapproval applications in the manner specified by the commissioner.
    3. The commissioner shall review completed preapproval applications in the order in which such applications were submitted and shall provide notice to each taxpayer that submitted an application within 30 days of receipt stating whether such taxpayer's application is complete or incomplete.
    4. In no event shall the commissioner preapprove tax credits pursuant to this Code section in an amount that exceeds $200 million in aggregate.
    5. In the event that properly completed and timely submitted preapproval applications are submitted for an amount that exceeds the amount of funds available to fully fund the tax credits requested, the commissioner shall prorate the available funds between or among the applicants.
    6. The commissioner shall approve properly completed and timely submitted preapproval applications and issue a preapproval certificate to the taxpayer by June 30, 2019, certifying the amount of credits such taxpayer is eligible to claim if the taxpayer meets the conditions of this Code section.

      (2) In the event that properly completed and timely submitted preapproval applications are submitted during the second round for an amount that exceeds the amount of funds available to fully fund the tax credits requested, the commissioner shall prorate the available funds between or among the applicants.

      (3) The commissioner shall approve all properly completed and timely submitted preapproval applications during the second round and issue a preapproval certificate to the taxpayer by January 31, 2020, certifying the amount of credits such taxpayer is eligible to claim if the taxpayer meets the conditions of this Code section.

    (d.1) (1) If, on July 1, 2019, the commissioner has not preapproved tax credits in the amount of $200 million in aggregate pursuant to this Code section, a second round of preapproval applications shall be reviewed by the commissioner. Preapproval applications for the second round shall be submitted on or after July 1, 2019, and on or before December 31, 2019.

  5. In no event shall the amount of the tax credits allowed pursuant to this Code section exceed $200 million in aggregate.
    1. Tax credits allowed pursuant to this Code section shall be eligible to be claimed only by the taxpayer to which a preapproval certificate was issued by the commissioner. Such tax credits shall only be claimed in the taxable year in which the taxpayer first completes the replanting of timber in a quantity projected to yield at maturity at least 90 percent of the value of the timber casualty loss claimed. Such timber shall be planted within the same county in which the eligible timber property was being grown when the timber casualty loss was incurred. Timber market conditions as of October 8, 2018, shall be used for the purposes of establishing projected value.
    2. In order to claim such tax credits, a taxpayer shall attach to such taxpayer's state tax return certification from the taxpayer that the requirements of this Code section have been met and any other information required by the commissioner including information which demonstrates that it has completed the replanting of timber required pursuant to paragraph (1) of this subsection.
    3. Any tax credits allowed pursuant to this Code section shall be claimed on or before December 31, 2024.
    1. The total amount of the tax credits allowed pursuant to this Code section for a taxable year may exceed the taxpayer's income tax liability. Such tax credits allowed in excess of a taxpayer's income tax liability shall be refundable to such taxpayer.
    2. Tax credits claimed pursuant to this Code section but not used in any taxable year may be carried forward for ten years from the close of the taxable year in which the credits are claimed.
  8. Tax credits claimed pursuant to this Code section but not used by the taxpayer against its income tax or refunded may be transferred or sold one time to a single other Georgia taxpayer, subject to the following conditions:
    1. Only the taxpayer that claimed tax credits allowed pursuant to this Code section shall make the transfer or sale of such tax credits;
    2. The taxpayer that claimed the tax credits allowed pursuant to this Code section shall submit to the commissioner written notification of any transfer or sale of tax credits within 30 days after the transfer or sale of such tax credits. The notification shall include:
      1. Such taxpayer's credit balance prior to transfer;
      2. The credit certificate number;
      3. The remaining balance of credits after transfer;
      4. The tax identification numbers for the transferee;
      5. The date of transfer;
      6. The amount of credits transferred; and
      7. Other information as may be required by the department;
    3. Failure to comply with this subsection shall result in the disallowance of the tax credits allowed pursuant to this Code section until the taxpayer that claimed the credits is in full compliance;
    4. The transfer or sale of the tax credits does not extend the time during which such tax credits can be used. The carry-forward period for tax credits that are transferred or sold shall begin on the date on which such tax credits were originally claimed;
    5. A transferee shall have only such rights to claim and use the tax credits that were available to the transferor at the time of the transfer. To the extent that the transferor did not have rights to claim or use the tax credits at the time of the transfer, the commissioner shall disallow the tax credits claimed by the transferee or recapture the tax credits from the transferee or transferor. The transferee's recourse shall not be against the commissioner; and
    6. The transferee must acquire the tax credits allowed pursuant to this Code section for a minimum of 60 percent of the amount of the tax credits so transferred.
    1. A taxpayer claiming, transferring, or selling tax credits allowed pursuant to this Code section shall be required to reimburse the department for any department initiated audits relating to the tax credits, provided that such amount shall not exceed the value of the credits claimed by the taxpayer. This paragraph shall not apply to routine tax audits of such taxpayer that may include the review of the tax credits provided in this Code section.
    2. The commissioner shall have access to timber property for the purpose of determining eligibility for both the preapproval and claiming of tax credits allowed and conducting audits pursuant to this Code section, provided that prior notice is given to any taxpayer that submitted an application for the preapproval of tax credits or that transferred or claimed such tax credits and the owner of the underlying real property.
    3. The commissioner may pursue all remedies available by law as necessary to recapture tax credits wrongfully preapproved, allowed, or claimed by a taxpayer or a taxpayer's transferee.
    4. The commissioner shall be authorized to consult with the Georgia Forestry Commission as necessary to administer and enforce this Code section.
  10. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-7-40.36 , enacted by Ga. L. 2018, Ex. Sess., p. HB4EX, § 1/HB 4EX.)

Effective date. - This Code section became effective November 17, 2018.

Cross references. - Timber products, § 2-14-80 et seq.

48-7-41. (Effective until January 1, 2020) Basic skills education program credits.

  1. As used in this Code section, the term:
    1. "Adult basic skills education" means training that enhances reading, writing, or mathematical skills of adult employees.
    2. "Approved adult basic skills education program" means an employer provided or employer sponsored adult basic skills education program:
      1. That has agreed to operate under the standards for the delivery of adult education services as designated by the Technical College System of Georgia, Office of Adult Education; and
      2. For which the employer does not require the employee to make any payment, either directly or indirectly, through forfeiture of leave time, vacation time, or other compensable time.
    3. "Basic skills education test" means the test required to receive a GED diploma.
    4. "Employee" means any employee resident in this state who is employed for at least 24 hours per week and has been continuously employed by the employer for at least 16 consecutive weeks and who is eligible to take the GED test.
    5. "Employer" means any employer upon whom an income tax is imposed by this chapter.
    6. "Employer provided" refers to approved basic skills education offered on the premises of the employer or on premises approved by the Technical College System of Georgia by instructors hired by or employed by an employer.
    7. "Employer sponsored" refers to a contractual arrangement with a school, university, college, or other instructional facility which offers approved basic skills education that is paid for by the employer.
  2. A tax credit shall be granted to an employer who provides or sponsors an approved adult basic skills education program. The amount of the tax credit shall be:
    1. Four hundred dollars for each employee who passes the basic skills education test that was paid for by the employer in a taxable year; or
    2. Twelve hundred dollars for each employee who successfully completes an approved adult basic skills education program consisting of at least 40 hours of training while the employee is being compensated at his or her normal rate of pay, and passes the basic skills education test that was paid for by the employer in a taxable year.

      No employer shall receive a credit if the employer requires that the employee reimburse or pay the employer for the cost of attending the adult basic skills education program or taking the basic skills education test.

    1. An employer desiring to claim a tax credit under the provisions of this Code section shall submit an application to the commissioner for preapproval of such tax credit. The application for preapproval shall be developed and promulgated by the commissioner along with any rules or regulations necessary to aid in the administration of this income tax credit. The department shall have the authority to require electronic submission of such application in the manner specified by the department.
    2. Within 45 days of receipt of a properly completed application for preapproval, the commissioner shall preapprove the application if a sufficient amount of available tax credits remains. The commissioner shall provide notice of the preapproval or denial to the employer and the Office of Adult Education. The commissioner shall preapprove the tax credits based on the order in which properly completed applications were submitted. In the event that two or more applications were submitted on the same day and the amount of funds available will not be sufficient to fully fund the tax credits requested, the commissioner shall prorate the available funds between or among the applicants.
  4. In order to receive the income tax credit established under this Code section, the employer shall, after the successful completion by an employee of the requirements of paragraph (1) or (2) of subsection (b) of this Code section, and after receiving preapproval of the credit by the commissioner under subsection (c) of this Code section, certify to the Technical College System of Georgia, Office of Adult Education, the name of the employee, the name of the employer, the name of the approved adult basic skills education provider, and such other information as may be required by the Office of Adult Education. The Office of Adult Education shall issue a certification to the employer if the requirements of subsections (a), (b), and (c) of this Code section are satisfied. Such certification shall be attached to the taxpayer's income tax return when the credit is claimed. The Technical College System of Georgia shall adopt rules and regulations and forms necessary to implement and administer this income tax credit program. The department is expressly authorized and directed to work with the Technical College System of Georgia to ensure the proper granting of income tax credits pursuant to this Code section.
  5. In no event shall the aggregate amount of the income tax credits preapproved under this Code section exceed $1 million per calendar year. No single employer shall receive income tax credits pursuant to this Code section in excess of $100,000.00 per calendar year.
  6. The income tax credit granted to any employer pursuant to this Code section shall not exceed the amount of the employer's income tax liability for the taxable year as computed without regard to this Code section.
  7. The department shall provide an annual report to the General Assembly on the utilization of the tax credit established under this Code section.
  8. This Code section shall stand repealed on January 1, 2020. (Code 1981, § 48-7-41 , enacted by Ga. L. 2015, p. 214, § 2/HB 63.)

Effective date. - This Code section became effective May 1, 2015.

Editor's notes. - This Code section formerly pertained to basic skills education program credits. The former Code section was based on Code 1981, § 48-7-41 , enacted by Ga. L. 1991, p. 1709, § 1; Ga. L. 1995, p. 10, § 48; Ga. L. 2008, p. 335, § 9/SB 435 and was repealed by Ga. L. 2015, p. 214, § 2/HB 63, effective May 1, 2015.

Ga. L. 2015, p. 214, § 1/HB 63, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Employer GED Tax Credit Act of 2015.'"

Ga. L. 2015, p. 214, § 3/HB 63, not codified by the General Assembly, provides, in part, that this Act "shall be applicable to all taxable years beginning on or after January 1, 2016."

Administrative Rules and Regulations. - Basic skills education tax credit, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.55.

48-7-42. Affiliated entity defined; assignment of corporate income tax credit; carryover of unused credit; joint and severable liability.

  1. As used in this Code section, the term "affiliated entity" means:
    1. A corporation that is a member of the taxpayer's "affiliated group" within the meaning of Section 1504(a) of the Internal Revenue Code; or
    2. An entity affiliated with a corporation, business, partnership, or limited liability company taxpayer, which entity:
      1. Owns or leases the land on which a project is constructed;
      2. Provides capital for construction of the project; and
      3. Is the grantor or owner under a management agreement with a managing company of the project.
  2. In lieu of claiming any Georgia income tax credit for which a taxpayer otherwise is eligible for the taxable year (such eligibility being determined for this purpose without regard to any limitation imposed by reason of the taxpayer's precredit income tax liability), the taxpayer may elect to assign such credit in whole or in part to one or more affiliated entities for such taxable year by attaching a statement to the taxpayer's return for the taxable year; provided, however, that no carryover attributable to the unused portion of any previously claimed or assigned credit may be assigned or reassigned, except as provided in subsection (d) of this Code section. Such election must be made on or before the due date for filing the applicable income tax return, including any extensions which have been granted. In the case of any credit that must be claimed in installments in more than one taxable year, the election under this subsection may be made on an annual basis with respect to each such installment, provided that the taxpayer shall notify the commissioner with respect to the assignment of each such installment by filing a separate copy of the election statement for such installment no later than the due date for filing the applicable income tax return, including any extensions which have been granted. Once made, an election under this subsection shall be irrevocable.
  3. The recipient of a tax credit assigned under subsection (b) of this Code section shall attach a statement to its return identifying the assignor of the tax credit, in addition to providing any other information required to be provided by a claimant of the assigned tax credit. With the exception of the transferable credits in Code Sections 48-7-29.8, 48-7-29.12, 48-7-40.26, and 48-7-40.26A, the recipient of a tax credit assigned under subsection (b) of this Code section shall also be eligible to take any credit against payments due under Code Section 48-7-103, subject to the same requirements as the assignor of such credit at the time of the assignment.
  4. If the assignor and the recipient of a tax credit assigned under subsection (b) of this Code section cease to be affiliated entities, any carryover attributable to the unused portion of such credit shall be transferred back to the assignor of the credit. Such assignor shall be permitted to use any such carryover itself, and also shall be permitted to assign such carryover to one or more affiliated entities, as if such carryover were an income tax credit for which the assignor became eligible in the taxable year in which the carryover was transferred back to the assignor.
  5. The assignor and recipient of a tax credit assigned under subsection (b) of this Code section shall be jointly and severally liable for any tax (plus interest and penalties, if any) attributable to the disallowance or recapture of the assigned credit.
  6. Notwithstanding the subsequent occurrence of any transaction, corporations that were treated as affiliated entities on December 31, 2001, shall continue to be so treated with respect to each other for purposes of this Code section for the taxable year during which they otherwise would cease to be affiliated entities (but for the modification contained in this subsection) and for the succeeding ten taxable years, but only if either the assignor or the recipient of the credit in question is a corporation as described in subparagraph (d)(2.2)(B) of Code Section 48-7-31 as it existed on December 31, 2001.
  7. For the purposes of all credits provided for by this chapter, the sale, merger, acquisition, or bankruptcy of any taxpayer shall not create new eligibility for the succeeding transferee in such transaction or event, but any unused credit eligible to be applied against income tax liability under this article may be transferred and continued by such transferee and applied against the transferee's income tax liability under this article. (Code 1981, § 48-7-42 , enacted by Ga. L. 1999, p. 9, § 1; Ga. L. 2000, p. 1339, § 1; Ga. L. 2001, p. 4, § 48; Ga. L. 2001, p. 984, § 11; Ga. L. 2002, p. 954, § 2; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2005, p. 159, § 17/HB 488; Ga. L. 2018, p. 8, § 1-9/HB 918.)

The 2018 amendment, effective March 2, 2018, added the second sentence of subsection (c); and added subsection (g). See Editor's note for applicability.

Editor's notes. - The former provisions of this Code section, relating to tax credits for AFDC recipients, was based on Code 1981, § 48-7-42 , enacted by Ga. L. 1995, p. 1155, § 1 and was repealed by Ga. L. 1997, p. 1021, § 9, effective April 22, 1997.

Ga. L. 1999, p. 9, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 1999.

Ga. L. 2000, p. 1339, § 2, not codified by the General Assembly, makes this Code section applicable to all taxable years beginning on or after January 1, 2000.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2018, p. 8, § 3-1(e)/HB 918, not codified by the General Assembly, provides, in part, that this Act "shall become effective upon the approval of this Act by the Governor or upon this Act becoming law without such approval. The revisions to subsection (c) of Code Section 48-7-42 contained in Section 1-9 of this Act shall be applicable to tax credits that are assigned in taxable years beginning on or after January 1, 2018. New subsection (g) of Code Section 48-7-42 contained in Section 1-9 of this Act shall be applicable to sales, mergers, acquisitions, or bankruptcies occurring in taxable years beginning on or after January 1, 2018." This Act was signed by the Governor on March 2, 2018.

Law reviews. - For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

ARTICLE 3 RETURNS AND FURNISHING OF INFORMATION

RESEARCH REFERENCES

ALR. - Income tax: right to deduction in respect of obligations voluntarily assumed or paid, 79 A.L.R. 977 .

Right of taxpayer to relief from his own errors in assessing his income tax or making out his income tax return, 80 A.L.R. 377 .

Income tax: right of surviving spouse to make joint return where husband or wife dies during tax year, 99 A.L.R. 587 .

48-7-50. Persons required to file returns; filing of copies of all or part of taxpayers' federal tax returns.

  1. An income tax return with respect to the tax imposed by this chapter shall be filed with the commissioner by every:
    1. Resident who is required to file a federal income tax return for the taxable year;
    2. Nonresident who has federal gross income from sources within this state;
    3. Resident estate or trust that is required to file a federal income tax return;
    4. Nonresident estate or trust that has federal gross income from sources within this state; and
    5. Resident or nonresident who has taxable income subject to Georgia income tax for the taxable year who does not have taxable income subject to federal income tax for the same taxable year.
  2. The commissioner may require each taxpayer by regulation to file with the return required by this chapter a copy of all or any part of the taxpayer's federal income tax return for the corresponding period.

    (Code 1933, § 92-3201, enacted by Ga. L. 1971, p. 605, § 7; Code 1933, § 91A-3701, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 71; Ga. L. 1987, p. 191, § 3.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 463.

C.J.S. - 85 C.J.S., Taxation, § 1977 et seq.

48-7-51. Corporation returns; contents; consolidated returns of two or more corporations; returns by receivers, trustees, and assignees; collection.

Every corporation subject to taxation under this chapter shall make a return stating specifically the items of its gross income and the deductions and credits allowed by this chapter. The income of two or more corporations shall not be included in a single return except with the express consent of the commissioner. When a receiver, trustee in bankruptcy, or assignee is operating the property or business of a corporation, the receiver, trustee, or assignee shall make returns for the corporation in the same manner and form as the corporation is required to make returns. Any tax due on the basis of returns made by a receiver, trustee, or assignee shall be collected in the same manner as if collected from the corporation of whose business or property he has custody and control.

(Ga. L. 1931, Ex. Sess., p. 24, § 25; Code 1933, § 92-3202; Ga. L. 1941, p. 210, § 9; Ga. L. 1943, p. 109, § 1; Code 1933, § 91A-3702, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Intent of section. - This section is intended to authorize the commissioner to allow affiliated Georgia corporations to file a single or consolidated state income tax return. Gable Indus., Inc. v. Blackmon, 233 Ga. 542 , 212 S.E.2d 328 (1975).

Words "single" and "consolidated" refer to same kind of return in contrast to separate return. Gable Indus., Inc. v. Blackmon, 233 Ga. 542 , 212 S.E.2d 328 (1975).

Notice that consent to file consolidated return might be revoked. - If the commissioner intends to put the taxpayer on notice that permission to file consolidated returns might be retroactively revoked, the language used in the documents should express this intention in clear terms. Gable Indus., Inc. v. Blackmon, 233 Ga. 542 , 212 S.E.2d 328 (1975).

Inequitable to retroactively revoke permission after extensive period of reliance. - Attempt to retroactively revoke written permission to file single returns after the lapse of an extended period of time, during which the taxpayer is allowed to conduct the taxpayer's businesses in reliance thereon, creates an inequity. Gable Indus., Inc. v. Blackmon, 233 Ga. 542 , 212 S.E.2d 328 (1975).

Successor commissioner cannot retroactively revoke permission to file consolidated return to the detriment of the taxpayer after the taxpayer's reliance thereon. Gable Indus., Inc. v. Blackmon, 233 Ga. 542 , 212 S.E.2d 328 (1975).

OPINIONS OF THE ATTORNEY GENERAL

No right to file consolidated returns. - General Assembly does not give to corporate taxpayers, for Georgia income tax purposes, the right to file consolidated income tax returns. 1969 Op. Att'y Gen. No. 69-77.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1977, 2042 et seq., 2074, 2079.

48-7-52. Returns by corporations of information concerning dividend payments; oath; contents.

Every corporation subject to the tax imposed by this chapter shall render a correct return of its payments of dividends. The return shall be duly verified under oath and shall state with respect to each shareholder who is a resident of this state the name and address of each shareholder, the number of shares owned by the shareholder, and the amount of dividends paid to the shareholder.

(Ga. L. 1931, Ex. Sess., p. 24, § 29; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3206; Ga. L. 1935, p. 121, § 8; Code 1933, § 91A-3705, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1970 et seq., 2006 et seq., 2026 et seq., 2042 et seq.

48-7-53. Partnership returns; contents; oath; reporting of final federal adjustments; administrative adjustment request; rules and regulations.

  1. As used in this Code section, the term:
    1. "Administrative adjustment request" means the same as provided in Code Section 6227 of the Internal Revenue Code of 1986 and the regulations thereunder.
    2. "Audited partnership" means a partnership subject to a final federal adjustment resulting from a partnership level audit.
    3. "Corporate partner" means a C corporation partner that is subject to tax pursuant to Code Section 48-7-21.
    4. "Direct partner" means a person that holds an interest directly in an audited partnership.
    5. "Exempt partner" means a partner that is exempt from taxation pursuant to paragraph (1) of subsection (a) of Code Section 48-7-25.
    6. "Federal adjustment" means a change to an item or amount required to be determined under the Internal Revenue Code of 1986 and the regulations thereunder that is used by a partnership to compute state tax owed for the reviewed year where such change results from a partnership level audit. A federal adjustment is positive to the extent that it increases Georgia taxable net income as determined under this title and is negative to the extent that it decreases Georgia taxable net income as determined under this title.
    7. "Federal adjustments report" means an amended Georgia income tax return that arises directly or indirectly from a partnership level audit and for an audited partnership and tiered partner, identifies all partners that hold an interest directly in such audited partnership or tiered partner and provides the effect of the final federal adjustments on such partner's Georgia taxable net income. For the audited partnership, the federal adjustments report shall also contain information reasonably necessary to provide the commissioner with an understanding of all adjustments to the audited partnership's federal taxable income and the amount of such adjustments allocated to each of its partners. For the audited partnership, a copy of the report received from the Internal Revenue Service shall be sufficient if it provides such information. For all tiered partners, the federal adjustments report shall also contain information reasonably necessary to provide the commissioner with an understanding of all adjustments to a tiered partner's federal taxable income and the amount of such adjustments allocated to each of its partners.
    8. "Federal partnership representative" means the person the partnership designates for the taxable year as the partnership's representative, or the person the Internal Revenue Service has appointed to act as the federal partnership representative, pursuant to Section 6223(a) of the Internal Revenue Code of 1986 and the regulations thereunder.
    9. "Fiduciary partner" means a fiduciary that is subject to tax pursuant to Code Sections 48-7-20 and 48-7-22.
    10. "Final determination date" means the following:
      1. If the federal adjustment arises from a partnership level audit, the final determination date is the first day on which no federal adjustments arising from that audit remain to be finally determined, whether by agreement, or, if appealed or contested, by a final decision with respect to which all rights of appeal have been waived or exhausted. For agreements required to be signed by the Internal Revenue Service and the audited partnership, the final determination date is the date on which the last party signed the agreement; or
      2. If the adjustment results from filing an administrative adjustment request, the final determination date means the day on which the administrative adjustment request was filed.
    11. "Final federal adjustment" means a federal adjustment after the final determination date for that federal adjustment has passed.
    12. "Georgia income tax" means the tax imposed by Code Sections 48-7-20, 48-7-21, and 48-7-25, and as provided in subsection (c) of this Code section.
    13. "Indirect partner" means a partner in a partnership or pass-through entity where such partnership or pass-through entity itself holds an interest directly, or through another indirect partner, in a partnership or pass-through entity.
    14. "Individual partner" means a partner who is a natural person that is subject to tax pursuant to Code Section 48-7-20.
    15. "Internal Revenue Service" means the Internal Revenue Service of the United States Department of the Treasury.
    16. "Nonresident partner" means a partner that is not a resident as defined in this subsection.
    17. "Partner" means a person that holds an interest, directly or indirectly, in a partnership or pass-through entity.
    18. "Partnership" means an entity subject to taxation under Subchapter K of the Internal Revenue Code of 1986 and the regulations thereunder and includes, but is not limited to, a syndicate, group, pool, joint venture, or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on and which is not, within the meaning of this chapter, a trust, estate, or corporation.
    19. "Partnership level audit" means an examination or other review by the Internal Revenue Service for taxable years beginning on or after January 1, 2018, at the partnership level pursuant to the Internal Revenue Code of 1986 and the regulations thereunder either of which results in final federal adjustments initiated and made by the Internal Revenue Service.
    20. "Pass-through entity" means an entity, other than a partnership, that is not subject to tax under Code Section 48-7-21 for C corporations but excluding an exempt partner.
    21. "Reallocation adjustment" means a final federal adjustment that changes the shares of items of partnership income, gain, loss, expense, or credit allocated to a partner that holds an interest directly in a partnership or pass-through entity. A positive reallocation adjustment means a reallocation adjustment that would increase Georgia taxable net income for such partners, and a negative reallocation adjustment means a reallocation adjustment that would decrease Georgia taxable net income for such partners.
    22. "Resident partner" means for an individual or fiduciary partner, the same as provided in Code Section 48-7-1 and for all other partners means a partner whose headquarters or principal place of business is located inside this state.
    23. "Reviewed year" means the taxable year of a partnership that is subject to a partnership level audit from which final federal adjustments arise.
    24. "State partnership audit" means an examination by the commissioner at the partnership or pass-through entity level which results in adjustments to partnership or pass-through entity related items or reallocations of income, expenses, gains, losses, credits, and other attributes among such partners for the reviewed year.
    25. "Tiered partner" means any partner that is a partnership or pass-through entity.
    26. "Unrelated business income" means the income which is defined in Section 512 of the Internal Revenue Code of 1986 and the regulations thereunder.
    27. "Withholding partner" means a partner in a partnership for whom the partnership was required to withhold tax pursuant to Code Section 48-7-129 for the reviewed year.
  2. Every partnership, including but not limited to a foreign partnership, the individual members of which are subject to taxation under this chapter, shall make a return for each taxable year. The return shall state specifically the items of the partnership's gross income and the deductions allowed by this chapter, shall include the names and addresses of the individuals who would be entitled to share in the net income of the partnership if the net income were distributed, and shall specify the amount of the distributive share of each individual. The return shall be sworn to by any one of the partners.
  3. Partnerships and their direct partners and indirect partners shall report final federal adjustments, as provided in this subsection, and not as provided in subsection (e) of Code Section 48-7-82.
    1. State Partnership Representative.
      1. With respect to an action required or permitted to be taken by a partnership or pass-through entity under this Code section and a proceeding under Code Section 48-2-59 with respect to final federal adjustments arising from a partnership level audit, the state partnership representative for the reviewed year shall have the sole authority to act on behalf of the partnership or pass-through entity, and its direct partners and indirect partners shall be bound by those actions.
      2. The state partnership representative for the reviewed year for a partnership is a partnership's federal partnership representative unless the partnership designates in writing another person as its state partnership representative as provided in subparagraph (C) of this paragraph. The state partnership representative for the reviewed year for a pass-through entity is the person designated in subparagraph (C) of this paragraph.
      3. The commissioner may establish reasonable qualifications for a person to be the state partnership representative. If a partnership desires to designate a person other than their federal partnership representative, they shall designate such person by attaching a statement to the return filed pursuant to this chapter. A pass-through entity shall designate a person as their state partnership representative by attaching a statement to the return filed pursuant to this chapter. A partnership or pass-through entity shall be allowed to change such designation by notifying the commissioner at the time the change occurs.
    2. Reporting and payment requirements for audited partnerships subject to final federal adjustments and their partners.
      1. Unless an audited partnership makes the election in paragraph (3) of this subsection, then, for all final federal adjustments, the audited partnership shall no later than 90 days after the final determination date of the audited partnership:
        1. File a completed federal adjustments report;
        2. Notify each of its direct partners of their distributive share of the adjustments; and
        3. File an amended composite return under Code Section 48-7-129 if one was originally filed and for withholding partners, file an amended withholding report under Code Section 48-7-129, and pay the additional amount due under this title that would have been due had the final federal adjustments been reported properly as required.
      2. Unless an audited partnership paid an amount on behalf of its direct partners pursuant to paragraph (3) of this subsection, all direct partners of the audited partnership shall no later than 180 days after the final determination date of the audited partnership:
        1. File a completed federal adjustments report reporting their distributive share of the adjustments reported to them under subparagraph (A) of this paragraph;
        2. If the direct partner is a tiered partner, notify all of the partners, that hold an interest directly in such tiered partner, of their distributive share of the adjustments;
        3. If the direct partner is a tiered partner and subject to Code Section 48-7-129, file an amended composite return under Code Section 48-7-129 if such return was originally filed and if applicable for withholding partners file an amended withholding report under Code Section 48-7-129 if one was originally required to be filed; and
        4. Pay any additional amount due under this title, including any penalty and interest that would have been due had the final federal adjustments been reported properly as required and with respect to a composite return, less any withholding tax paid or withheld for such withholding partners pursuant to subparagraph (A) of this paragraph.
      3. Unless a partnership or tiered partner paid an amount on behalf of its partners pursuant to paragraph (3) of this subsection, each indirect partner, shall:
        1. Within 90 days after the time for filing and furnishing statements to tiered partners and their partners as established by Section 6226 of the Internal Revenue Code of 1986 and the regulations thereunder, file a completed federal adjustments report;
        2. If the indirect partner is a tiered partner, within 90 days after the time for filing and furnishing statements to tiered partners and their partners as established by Section 6226 of the Internal Revenue Code of 1986 and the regulations thereunder but within sufficient time for all indirect partners to also complete the requirements of this subsection, notify all of the partners, that hold an interest directly in such tiered partner, of their distributive share of the adjustments;
        3. Within 90 days after the time for filing and furnishing statements to tiered partners and their partners as established by Section 6226 of the Internal Revenue Code of 1986 and the regulations thereunder, if the indirect partner is a tiered partner and subject to Code Section 48-7-129, file an amended composite return under Code Section 48-7-129 if such return was originally filed and if applicable for withholding partners file an amended withholding report under Code Section 48-7-129 if one was originally required to be filed; and
        4. Within 90 days after the time for filing and furnishing statements to tiered partners and their partners as established by Section 6226 of the Internal Revenue Code of 1986 and the regulations thereunder, pay any additional amount due under this title, including any penalty and interest that would have been due had the final federal adjustments been reported properly as required and with respect to a composite return, less any withholding tax paid or withheld for such withholding partners pursuant to subparagraph (A) or (B) of this paragraph.
    3. Election for partnership or tiered partners to pay. If an audited partnership, or a tiered partner that would receive an amended schedule K-1 under paragraph (2) of this subsection, makes an election under this paragraph, it shall:
      1. File a completed federal adjustments report, notify the commissioner that it is making the election under this paragraph, and pay an amount as provided in this paragraph, including any penalty and interest, on behalf of its partners within one of the following time periods:
        1. For the audited partnership, no later than 90 days after the final determination date of the audited partnership;
        2. For a direct tiered partner, no later than 180 days after the final determination date of the audited partnership; or
        3. For an indirect tiered partner, within 90 days after the time for filing and furnishing statements to tiered partners and their partners as established by Section 6226 of the Internal Revenue Code of 1986 and the regulations thereunder;
      2. Exclude from final federal adjustments and any positive reallocation adjustments the distributive share of such adjustments made to an exempt partner, that holds an interest directly in the audited partnership if the audited partnership is making the election or that holds an interest directly in the tiered partner if the tiered partner is making the election, that is not unrelated business income;
      3. Determine the total distributive share of all final federal adjustments and positive reallocation adjustments as modified by this title and apportion and allocate such adjustments as provided in Code Section 48-7-31 for such electing partnership or such electing tiered partner and determine the total distributive share of such amounts that are allocated to all corporate partners, all tiered partners, all exempt partners and that is unrelated business income, all nonresident individual partners, and all nonresident fiduciary partners;
      4. Determine the total distributive share of all final federal adjustments and positive reallocation adjustments as modified by this title, but without the allocation and apportionment of such adjustments as provided by Code Section 48-7-31, that are allocated to all other partners, including but not limited to resident individual partners and resident fiduciary partners; and
      5. Total the amount computed pursuant to subparagraphs (C) and (D) of this paragraph and multiply by 6 percent.
    4. Effect of election by partnership or tiered partner and payment of amount due.
      1. The election made pursuant to paragraph (3) of this subsection is irrevocable.
      2. If properly reported and paid by the audited partnership or tiered partner, the amount determined in paragraph (3) of this subsection shall be treated as paid on behalf of such person's partners on the same final federal adjustments; provided, however, that no partner may take any deduction or credit for these amounts, claim a refund of these amounts, or include such amounts on such partner's return in any manner.
      3. Nothing in this subsection shall preclude a resident partner who is a natural person or a fiduciary and that holds an interest directly in the audited partnership if the audited partnership is making the election or that holds an interest directly in the tiered partner if the tiered partner is making the election, from claiming a credit against taxes paid to this state pursuant to Code Section 48-7-28 for any amounts paid by the audited partnership or tiered partner on such resident partner's behalf to another state or local tax jurisdiction provided the requirements of Code Section 48-7-28 are met.
    5. Failure of audited partnership or tiered partner to report or pay. Nothing in this subsection is intended to prevent the commissioner from assessing direct partners and indirect partners for taxes they owe in the event that an audited partnership or tiered partner fails to timely make any report or payment required by this subsection for any reason.
    6. Assessments of additional Georgia income tax, interest, and penalties arising from final federal adjustments. The commissioner will assess additional Georgia income tax, interest, and penalties arising from final federal adjustments as if it is a tax imposed by this chapter unless a different treatment is provided by this subsection. Since partnership adjustments are determined at the audited partnership level, any assessment issued to partners shall not be appealable by the partner. Any penalties or interest imposed on the partnership or its partners shall be as provided and at the rates in this title except that penalties and interest imposed on the audited partnership or tiered partners shall be from the day after the due date of the reviewed year return without extension. Such assessment shall be issued by the following dates:
      1. Timely reported final federal adjustments. If a partnership, tiered partner, or other partner files with the commissioner a federal adjustments report as required within the period specified in this subsection reporting all final federal adjustments, the commissioner may assess any taxes, including on-behalf taxes, interest, and penalties arising from those final federal adjustments if the commissioner issues a notice of assessment to the partnership, tiered partner, or partner, on or before the later of:
        1. The expiration of the limitations period specified in Code Section 48-7-82; or
        2. The expiration of the one-year period following the date of filing with the commissioner of the federal adjustments report by such person.
      2. Untimely reported final federal adjustments. If the partnership, tiered partner, or other partner fails to file the federal adjustments report within the period specified in this subsection, or the federal adjustments report filed by the partnership, tiered partner, or other partner omits final federal adjustments or understates the correct amount of Georgia income tax owed, the commissioner may assess any taxes, including on-behalf taxes, interest, and penalties arising from the final federal adjustments, if it issues a notice of assessment to the partnership, tiered partner, or other partner on or before the later of:
        1. The expiration of the limitations period specified in Code Section 48-7-82;
        2. The expiration of the one-year period following the date the federal adjustments report was filed with commissioner by such person; or
        3. Absent fraud, the expiration of the five-year period following the date on which the Internal Revenue Service notifies the commissioner of the federal adjustments.
    7. Claims for refund of Georgia income tax arising from final federal adjustments. Notwithstanding the reporting requirement contained in this subsection and except as otherwise prohibited by this title, a partnership, tiered partner, or other partner, as the case may be, may file a claim for refund of Georgia income tax arising directly or indirectly from final federal adjustments on or before the later of:
      1. The expiration of the last day for filing a claim for refund of Georgia income tax pursuant to Code Section 48-2-35 for such person; or
      2. One year from the date the federal adjustments report was required to be filed by this subsection for such person.
    8. Scope of adjustments and extensions of time.
      1. Unless otherwise agreed in writing by the partnership, tiered partner, or other partner and the commissioner, any adjustments by the commissioner after the expiration of the time provided in Code Section 48-7-82 or by the partnership, tiered partners, or other partners made after the expiration of the time provided in Code Section 48-2-35, are limited to changes to the partnership's, tiered partner's, or other partner's Georgia income tax liability arising directly or indirectly from final federal adjustments.
      2. Where, before the expiration of the time prescribed in this subsection for the assessment of Georgia income tax, both the commissioner and the person subject to assessment have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the agreed upon period. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the previously agreed upon period and the commissioner is authorized in any such agreement to extend similarly the period within which a claim for refund may be filed; provided, however, that the time periods provided in this subsection may be extended automatically by 60 days for an audited partnership which has 10,000 or more direct partners or a tiered partner which has 10,000 or more partners that hold an interest directly in such tiered partner, provided that such audited partnership or tiered partner attaches a statement to its federal adjustments report specifying that it has elected such automatic extension.
    9. Any income subtracted from federal taxable income for the adjustment year pursuant to Section 6225 of the Internal Revenue Code of 1986 and the regulations thereunder shall be added to the partnership's, tiered partner's, or other partner's Georgia taxable net income for the adjustment year.
  4. For taxable years beginning on or after January 1, 2017, any adjustment to a partnership's items of income, gain, loss, expense, or credit or an adjustment to such items allocated to a partner that holds an interest in a partnership for the reviewed year by the commissioner as a result of a state partnership audit shall be determined at the partnership level in the same manner as provided by subsection (a) of Section 6221 of the Internal Revenue Code of 1986 and the regulations thereunder unless a different treatment is specifically provided in this title. If the commissioner and the partnership agree, the provisions of this subsection may be applied to taxable years beginning before January 1, 2017. The provisions of Sections 6222, 6223, and 6227 of the Internal Revenue Code of 1986 and the regulations thereunder shall also apply in the same manner as provided in such sections unless a different treatment is specifically provided in this chapter. For purposes of applying such sections, due account shall be made for differences in federal and Georgia terminology such as substitution of "Secretary" with "Commissioner" and other obvious differences. The adjustment provided by subsection (a) of Section 6221 of the Internal Revenue Code of 1986 shall be determined as provided in such section but shall be based on the Georgia taxable net income or other tax attributes of the partnership as determined pursuant to this chapter for the reviewed year. The commissioner shall issue a notice of adjustment to the partnership. Such notice shall be treated as an assessment for purposes of Code Sections 48-2-59 and 48-7-82, and, as such, the notice shall be appealable pursuant to Code Section 48-2-59 and shall be issued within the time period provided by Code Section 48-7-82. Once the adjustments to partnership-related items or reallocations of income, expenses, gains, losses, credits, and other attributes among such partners for the reviewed year are finally determined, the partnership and any direct partners or indirect partners shall then be subject to the provisions of subsection (c) of this Code section in the same manner as if the state partnership audit were a partnership level audit.
  5. For purposes of this chapter, any adjustment to a pass-through entity's items of income, gain, loss, expense, or credit or an adjustment to such items allocated to a partner that holds an interest in a pass-through entity for the reviewed year by the commissioner shall be determined in the same manner as provided in subsection (d) of this Code section.
  6. An administrative adjustment request filed by the partnership with the Internal Revenue Service or the commissioner shall be treated in the reviewed year in the same manner as provided by subsection (c) of this Code section, except that:
    1. The period of limitations on claiming refunds for the partnership and partners shall be as provided by this title, notwithstanding subsection (c) of this Code section; and
    2. The period of limitations on making adjustments and assessments for the partnership and partners shall be on or before the later of:
      1. The expiration of the limitations period specified in Code Section 48-7-82; or
      2. The expiration of the one-year period following the date of the filing of the administrative adjustment request by the partnership or the amended Georgia income tax return by the partners, as the case may be.
  7. The commissioner shall be authorized to promulgate any rules and regulations necessary to implement and administer the provisions of this Code section.

    (Ga. L. 1931, Ex. Sess., p. 24, § 27; Code 1933, § 92-3204; Ga. L. 1935, p. 121, § 7; Code 1933, § 91A-3703, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2018, p. 319, § 3/HB 849.)

The 2018 amendment, effective May 3, 2018, added subsection (a); designated the existing provisions of this Code section as subsection (b); in subsection (b), in the first sentence, inserted a comma following "Every partnership", deleted a comma following "including", deleted a comma following "limited to", and deleted the former fourth and fifth sentences, which read: "The term 'partnership' includes, but is not limited to, a syndicate, group, pool, joint venture, or other unincorporated organization through or by means of which any business, financial operation, or venture is carried on and which is not, within the meaning of this chapter, a trust, estate, or corporation. The term 'partner' includes, but is not limited to, a member in such syndicate, group, pool, joint venture, or organization."; and added subsections (c) through (g).

Cross references. - Partnerships generally, T. 14, C. 8.

Law reviews. - For article, "Aggregate-Plus Theory of Partnership Taxation," see 43 Ga. L. Rev. 717 (2009).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 463.

C.J.S. - 85 C.J.S., Taxation, §§ 1977, 1989 et seq., 2042 et seq.

48-7-54. Electronic filing for nonindividual taxpayers.

The commissioner may require any nonindividual taxpayer and any return preparer who prepares any return, report, or other document required to be filed by this chapter to electronically file any return, report, or other document required to be filed by this chapter when the federal counterpart of such return, report, or other document is required to be filed electronically pursuant to the Internal Revenue Code of 1986 or Internal Revenue Service regulations. The commissioner shall be authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to effectuate this Code section.

(Code 1981, § 48-7-54 , as enacted by Ga. L. 2008, p. 898, § 9/HB 1151; Ga. L. 2010, p. 895, § 3/HB 1138.)

Editor's notes. - This Code section formerly pertained to returns of persons making payments to taxpayers and disallowance of unreported payments. The former Code section was based on Ga. L. 1931, Ex. Sess., p. 24, § 26; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3205; Ga. L. 1937, p. 109, § 13; Code 1933, § 91A-3704, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 19, and was repealed by Ga. L. 1988, p. 1380, § 1, effective April 11, 1988.

Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides, in part, that this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Administrative Rules and Regulations. - Electronic funds transfer, credit card payments, and electronic filing, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fiscal Operations Division, Substantive Regulations, § 560-3-2-.26.

48-7-55. Required questions on returns for individuals.

Reserved. Repealed by Ga. L. 2005, p. 529, § 1/HB 556, effective July 1, 2005.

Editor's notes. - This Code section was based on Ga. L. 1931, Ex. Sess., p. 24, § 56; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3208; Ga. L. 1969, p. 744, § 1; Code 1933, § 91A-3706, enacted by Ga. L. 1978, p. 309, § 2.

48-7-56. Time and place of filing returns; extensions; tentative returns; extensions for members of armed forces; estimated returns.

  1. Returns of taxpayers other than corporations and partnerships shall be filed with the commissioner on or before April 15 in each year except that, in the case of taxpayers using a fiscal year, the return shall be filed on or before the fifteenth day of the fourth month after the close of the fiscal year. However, in the case a taxpayer's return is allowed to be filed at a later date, pursuant to the Internal Revenue Code of 1986 as it existed on or after January 1, 2003, because the taxpayer has electronically filed returns, the date the return shall be filed shall be extended without interest and penalty to the date the return is allowed to be filed pursuant to the Internal Revenue Code of 1986 as it existed on or after January 1, 2003. Returns of corporations other than Georgia Subchapter "S" corporations made on the basis of a calendar year shall be filed on or before the fifteenth day of April following the close of the calendar year, and returns of corporations other than Georgia Subchapter "S" corporations made on the basis of a fiscal year shall be filed on or before the fifteenth day of the fourth month following the close of the fiscal year. Returns of Georgia Subchapter "S" corporations made on the basis of a calendar year shall be filed on or before the fifteenth day of March following the close of the calendar year, and returns of Georgia Subchapter "S" corporations made on the basis of a fiscal year shall be filed on or before the fifteenth day of the third month following the close of the fiscal year. Returns of partnerships made on the basis of a calendar year shall be filed on or before the fifteenth day of March following the close of the calendar year, and returns of partnerships made on the basis of a fiscal year shall be filed on or before the fifteenth day of the third month following the close of the fiscal year. Returns required for a taxable year relating to returns of domestic import sales corporations and former domestic import sales corporations and foreign sales corporations shall be filed on or before the fifteenth day of the ninth month following the close of the taxable year. The commissioner may allow further time for filing returns in the case of sickness or other disability or whenever in his or her judgment good cause exists for the extension. In case a taxpayer is granted an extension of time to file a return, the commissioner may require a tentative return to be filed on or before the due date of the return for which the extension is granted. A tentative return shall be made on the usual form, shall be plainly marked "tentative," shall state the estimated amount of the tax believed to be due, and shall be properly signed by the taxpayer.
  2. A member of the armed forces of the United States serving outside the continental United States may file his required return for a taxable year ending during such service, without prior application, at any time within a period of six months following the return of the serviceman to the continental United States. During the period of extension, no interest shall accrue and no penalties shall be imposed.
  3. Any taxpayer may file an estimated income tax return within the taxpayer's taxable year in compliance with rules and regulations promulgated by the commissioner. Estimated returns shall be plainly marked "estimated."

    (Ga. L. 1931, Ex. Sess., p. 24, § 32; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3210; Ga. L. 1937, p. 109, § 14; Ga. L. 1952, p. 230, § 1; Ga. L. 1952, p. 360, § 1; Ga. L. 1955, p. 193, § 1; Ga. L. 1955, Ex. Sess., p. 27, § 5; Code 1933, § 91A-3708, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1988, p. 1380, § 2; Ga. L. 1999, p. 81, § 48; Ga. L. 2003, p. 442, § 3; Ga. L. 2016, p. 1, § 2/HB 742.)

The 2016 amendment, effective February 23, 2016, in subsection (a), in the first sentence, inserted "and partnerships" near the beginning, substituted "except that," for "except that" and "using a fiscal year," for "using a fiscal year", rewrote the third sentence, which formerly read "Returns of corporations made on the basis of a calendar year shall be filed on or before the fifteenth day of March following the close of the calendar year, and returns of corporations made on the basis of a fiscal year shall be filed on or before the fifteenth day of the third month following the close of the fiscal year.", added the fourth and fifth sentences, and, in the present sixth sentence, substituted "his or her" for "his". See Editor's notes for applicability.

Editor's notes. - Ga. L. 1988, p. 1380, § 8, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, except that the state revenue commissioner, to the extent that he determines administratively necessary, may delay the implementation of any provision of this Act to no later than January 1, 1989." This Act became effective April 1, 1988.

Ga. L. 2016, p. 1, § 8/HB 742, not codified by the General Assembly, provides, in part, that Section 2 of this Act shall be applicable to all taxable years beginning on or after January 1, 2016.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1977.

ALR. - What constitutes "reasonable cause" under state statutes imposing penalty on taxpayer for failure to file timely tax return unless such failure was due to "reasonable cause", 29 A.L.R.4th 413.

JUDICIAL DECISIONS

Cited in Wellborn v. Ga. Dep't of Revenue (In re Wellborn), Bankr. (Bankr. N.D. Ga. Aug. 20, 2012).

48-7-57. Penalty for failure to file timely return; rate; maximum; failure due to reasonable cause; reduction of tax due by partial payment, credit, or other penalty; applicability of federal return extension to state return.

  1. In case of failure to file an income tax return on the date prescribed for the filing, such date to be determined with regard to any extension of time for filing, there shall be added to the amount of tax required to be shown on the return 5 percent of the amount of the tax if the failure is for not more than one month with an additional 5 percent for each additional month or fraction of a month during which the failure to file continues. No penalty shall be assessed pursuant to this Code section which exceeds in the aggregate 25 percent of the amount of the tax. No penalty shall be assessed pursuant to this Code section when it is shown that the failure is due to reasonable cause and not due to willful neglect.
  2. For the purposes of this Code section, the amount of tax required to be shown on the return shall be reduced by the amount of any part of the tax which is paid on or before the date prescribed for payment of the tax and by the amount of any credit against the tax which may be claimed on the return.
  3. With respect to any return, the amount of the addition under subsection (a) of this Code section shall be reduced by the amount of the addition under paragraph (1) of subsection (a) of Code Section 48-7-86 for any month to which an addition to tax applies under both subsection (a) of this Code section and paragraph (1) of subsection (a) of Code Section 48-7-86.
  4. No penalty due to late filing shall be incurred by a taxpayer if the taxpayer attaches to his return a copy of an approved extension of time within which to file his federal income tax return which has been granted by the Internal Revenue Service and also files his state return within the period of time specified in the extension. In such instances, the taxpayer need not apply to the commissioner for an extension of time within which to file his state return.

    (Ga. L. 1931, Ex. Sess., p. 24, § 34; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3211; Ga. L. 1937, p. 109, § 15; Ga. L. 1964, p. 453, § 1; Ga. L. 1969, p. 719, § 1; Ga. L. 1971, p. 671, § 1; Code 1933, § 91A-3709, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 714 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 1977, 2079.

ALR. - Constitutionality, construction, application and effect of specific provisions of state corporate income tax law in respect of tax evasion, 92 A.L.R. 1073 .

Time of mailing or time of receipt as determination of liability for penalty or additional amount for failure to pay tax or license fee within prescribed time, 158 A.L.R. 370 .

48-7-57.1. Filing of returns which are frivolous or desire to impede the administration of state income tax laws.

  1. A penalty of $1,000.00 may be assessed against any individual who files what purports to be a return of the tax imposed by Article 2 of this chapter if:
    1. The purported return:
      1. Does not contain information on which the substantial correctness of the amount of tax shown to be due may be judged; or
      2. Contains information that on its face indicates that the amount of tax shown to be due is substantially incorrect; and
    2. The conduct described in paragraph (1) of this subsection is due to:
      1. A position which is frivolous; or
      2. A desire which appears on the purported return to delay or impede the administration of state income tax laws.
  2. The penalty imposed by subsection (a) of this Code section shall be in addition to any other penalty provided by law. (Code 1981, § 48-7-57.1 , enacted by Ga. L. 1984, p. 357, § 1; Ga. L. 2004, p. 410, § 5.)

Editor's notes. - Ga. L. 1984, p. 357, § 2, not codified by the General Assembly, makes this Code section applicable with respect to returns filed after March 14, 1984.

Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004.'"

48-7-58. Taxpayer activities distorting true net income; proper computation by commissioner; determination of taxable income of corporations engaging in improper activities; consideration of potential reasonable profits.

  1. When the commissioner has reason to believe that any taxpayer conducts his or her trade or business so as to evade taxes, distort directly or indirectly his or her true net income, or distort directly or indirectly the net income properly attributable to this state, whether by the arbitrary shifting of income, through price fixing, charges for service, or otherwise, as a result of which the net income is arbitrarily assigned to a person related to the taxpayer, the commissioner may require the facts as he or she deems necessary for the proper computation of the entire net income and the net income properly attributable to this state. In determining the computation, the commissioner shall consider the fair profit which would normally arise from the conduct of the trade or business. The commissioner shall by regulation provide when to apply this subsection.
    1. Additionally, the commissioner may determine the amount of taxable income of any one or more corporations for a calendar or fiscal year when a corporation:
      1. Subject to taxation under this chapter conducts its business in such manner as to benefit either directly or indirectly the members or stockholders of the corporation or any person interested in the business of the corporation by selling its products or the goods or commodities in which it deals at less than the fair price which might be obtained for the goods or commodities;
      2. A substantial portion of whose capital stock is directly or indirectly owned by another corporation acquires and disposes of the products of the corporation so owning a substantial portion of its stock in such a manner as to create a loss or improper net income for either of the corporations; or
      3. Directly or indirectly owning a substantial portion of the stock of another corporation acquires and disposes of the products of the corporation of which it so owns a substantial portion of the stock in such a manner as to create a loss or improper net income for either of the corporations.
    2. In his or her determination, the commissioner shall consider the reasonable profits which, but for the arrangement or understanding, might or could have been obtained by the corporation or corporations subject to taxation under this chapter from dealing in such products, goods, or commodities.

      (Ga. L. 1931, Ex. Sess., p. 24, § 31; Code 1933, § 92-3209; Code 1933, § 91A-3707, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2005, p. 159, § 18/HB 488.)

Editor's notes. - Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

JUDICIAL DECISIONS

Construction with provisions of § 48-7-31 as to subsidiaries and affiliates. - Bifurcated accounting rule of former Code 1933, § 92-3113(6) (see now O.C.G.A. § 48-7-31 ) did not render former Code 1933, § 92-3209 (see now O.C.G.A. § 48-7-58 ) meaningless because the purpose of that section is much broader than specific accounting rules provided in former Code 1933, § 92-3113. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Scope of commissioner's authority. - Discretionary authority granted under this section may be applied to taxpayers who are shifting income, whether operating wholly within this state, or within and outside the state, but the statute contains no authority for combining the income of related corporations. Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

Transfer of goods and services for fixed percentages and performance of services for subsidiaries without specific charges do not necessarily reveal a distortion of true net income whether by the arbitrary shifting of income, through price-fixing, charges for service, or otherwise so that a fair profit is not shown, as contemplated under former subsection (a) of this section or manipulations to create a loss or improper net income so that reasonable profits are not shown, as contemplated under former subsection (b). Blackmon v. Campbell Sales Co., 125 Ga. App. 859 , 189 S.E.2d 474 (1972).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 2003, 2004, 2042 et seq.

48-7-59. Examination of federal income tax returns.

Whenever in the opinion of the commissioner it is necessary to examine any copy of the federal income tax returns of any taxpayer in order to audit properly the state returns of the taxpayer, the commissioner shall have the right to examine the federal returns and all statements, inventories, and schedules in support of the returns.

(Ga. L. 1931, Ex. Sess., p. 24, § 47; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3215; Code 1933, § 91A-3710, enacted by Ga. L. 1978, p. 309, § 2.)

48-7-60. Confidentiality of tax information; exceptions; authorized inspection by certain officials; conditions; furnishing information to local tax authorities; conditions; furnishing information to nonofficials; conditions; effect of Code section.

  1. Except in accordance with proper judicial order or as otherwise provided by law, it is unlawful for the commissioner, other officer, employee, or agent, or any former officer, employee, or agent to divulge or make known in any manner the amount of income or any particulars set forth or disclosed in any report or return required under the law of this state or any return or return information required by the Internal Revenue Code when the information or return is received from the Internal Revenue Service or submitted by the taxpayer as provided by the laws of this state. Nothing contained in this Code section shall be construed to prohibit the print or electronic publication of statistics so presented as to prevent the identification of particular reports or returns and the items thereof, or the inspection by the Attorney General or other legal representative of the state, or use as evidence, of the report or return of a taxpayer in the event of any action or proceeding involving any tax liability of the taxpayer. Reports and returns shall be preserved for three years and thereafter until the commissioner orders them to be destroyed.
  2. The commissioner may permit the commissioner of internal revenue of the United States, the proper officer of any state imposing an income tax similar to that imposed by this chapter, or the authorized representative of either such officer to inspect the income tax returns of any taxpayer, or may furnish to the officer or his authorized representative an abstract of the return of income of any taxpayer or supply him with information concerning any item of income contained in any return or disclosed by the report of any investigation of the income or return of income of any taxpayer. The permission shall be granted or the information shall be furnished to the officer or his representative only if:
    1. The request is only for state tax information including federal tax information required by the state to be filed by the taxpayer with his state return;
    2. The requested information will be used solely for tax purposes;
    3. The requesting state has a confidentiality statute which complies with the requirements of Section 6103(p)(8) of the Internal Revenue Code; and
    4. The statutes of the United States or of such other state, as the case may be, grant substantially similar privileges to the proper officer of this state charged with the administration of this chapter.
  3. The commissioner may permit the disclosure of inventories, depreciable assets, accumulated depreciation, and book value of depreciable assets to local tax authorities in this state to be used solely for ad valorem tax purposes, provided that the furnishing of the information is not prohibited by Section 6103 of the Internal Revenue Code; and provided, further, that the furnishing of the information to the local tax authorities shall not be deemed to change the confidential character of the information, and any persons receiving the information pursuant to this subsection shall be subject to Code Section 48-7-61, relating to the sanctions to be imposed for the unauthorized disclosure of confidential material.
  4. This Code section shall not be construed to prohibit persons or groups of persons other than employees of the department from having access to tax information where necessary to conduct research commissioned by the department or where necessary in connection with the processing, storage, transmission, and reproduction of such tax information; the programming, maintenance, repair, testing, and procurement of equipment; and the providing of other services for purposes of tax administration. Any such access shall be pursuant to a written agreement with the department providing for the handling, permitted uses, and destruction of such tax information, requiring security clearance checks for such persons or groups of persons similar to those required of employees of the department, and including such other terms and conditions as the department may require to protect the confidentiality of the tax information to be disclosed. Any person who divulges or makes known any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as those provided for divulgence of information by employees of the department.
  5. Notwithstanding any other law, this Code section shall remain in full force and effect unless specific reference is made in such other law to this Code section and to the disclosure of income tax information contained in any report or return required under this Code section.

    (Code 1933, § 91A-3711, enacted by Ga. L. 1979, p. 5, § 72; Ga. L. 1982, p. 3, § 48; Ga. L. 1987, p. 191, § 9; Ga. L. 2002, p. 372, § 7; Ga. L. 2010, p. 838, § 11/SB 388; Ga. L. 2011, p. 297, § 4/HB 346.)

Cross references. - Failure of Senators to file state income tax returns, § 28-1-8.1 .

Inspection of public records generally, § 50-18-70 et seq.

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Administrative Rules and Regulations. - Inspection of records, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Administrative Unit, Organization, § 560-1-1-.05.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 92-3216, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Legislative purpose. - Legislative purpose of this section is to encourage voluntary and truthful reporting of income by ensuring confidentiality. The strict language of the statute and the severe penalty for defaulting from the statute's mandates emphasize a clear policy favoring nondisclosure. Garrett v. State, 243 Ga. 322 , 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

Purpose of exceptions to confidentiality of tax information. - It is clear from the exceptions to the law that the confidentiality of tax returns was not absolute and that the social policy underlying the law providing for confidentiality of tax returns inured to the benefit of the state by encouraging the citizenry in voluntary reporting and assessment of income. Thus, the decision to produce the returns or appeal an order demanding the returns for use in a criminal prosecution lies with the Attorney General. Garrett v. State, 147 Ga. App. 666 , 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322 , 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

Open Records Act, O.C.G.A. § 50-18-70 , has not abrogated the mandate of O.C.G.A. § 48-7-60 that tax information be maintained inviolate. Bowers v. Shelton, 265 Ga. 247 , 453 S.E.2d 741 (1995).

Permissible grounds for release of tax information. - No "proper judicial order" can be made except in an event when the integrity of the report itself is attacked or defended as the main and not as a merely collateral issue. Garrett v. State, 243 Ga. 322 , 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

By "proper judicial order" a court may require employees of the department to produce income tax returns and reports only when such returns are directly in issue. Garrett v. State, 243 Ga. 322 , 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

Use of tax information in litigation. - While a court will afford the utmost deference to a claim of privacy raised by the Attorney General with respect to income tax returns, it cannot defeat the need for evidence in pending criminal proceedings based upon a generalized interest in confidentiality, and particularly in extraordinary cases, when the interest in criminal prosecution is as important as the release of privileged information to other governmental units for the purpose of collection of taxes, there exists a specific exception to the confidentiality of income tax returns. Garrett v. State, 147 Ga. App. 666 , 250 S.E.2d 1 (1978), aff'd, 243 Ga. 322 , 253 S.E.2d 741 (1979) (decided under former Code 1933, § 92-3216).

Income tax director's motion to quash a subpoena for the production of tax returns of the deceased for use in a probate court proceeding to determine the existence of a common law marriage should have been granted because the proceeding did not involve the integrity of the returns. Goolsby v. Estate of Williams, 243 Ga. App. 890 , 534 S.E.2d 559 (2000).

Real property ad valorem records subject to Open Records Law. - Real property ad valorem digest, returns, and related records, not having been made confidential by O.C.G.A. § 48-7-60 or other sections, are, prima facie, subject to the provisions of the Open Records Law, O.C.G.A. § 50-18-70 . Pensyl v. Peach County, 252 Ga. 450 , 314 S.E.2d 434 (1984).

Illegal to conduct audits solely to uncover criminal activity. - If the plaintiffs could show that Department of Revenue employees, acting for the commissioner, were engaged in a series of audits conducted solely to uncover criminal activity unrelated to tax improprieties on the part of the person audited, such conduct would be illegal and would constitute grounds for the issuance of an injunction against such employees. Willis v. Department of Revenue, 255 Ga. 649 , 340 S.E.2d 591 (1986).

Cited in Campaign for Accountability v. Consumer Credit Research Found., 303 Ga. 828 , 815 S.E.2d 841 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-3216, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Legislative purpose. - The purpose of former Code 1933, §§ 92-3216 and 91A-212 (see now O.C.G.A. §§ 48-7-60 and 48-2-15 , respectively) was to encourage taxpayers to fully disclose the taxpayers' income and to protect any confidential information with reference to the taxpayers' business which it was essential to divulge in an income tax return; it was also the intent of the General Assembly to relieve the department from furnishing information concerning a taxpayer's income tax return. 1960-61 Op. Att'y Gen. p. 538 (decided under former Code 1933, § 92-3216).

Construction with other provisions. - Former Code 1933, §§ 92-3216 and 91A-212 (see now O.C.G.A. §§ 48-7-60 and 48-2-15 , respectively) must be construed together. 1954-56 Op. Att'y Gen. p. 767 (decided under former Code 1933, § 92-3216).

Permissible grounds for release of tax information. - Former Code 1933, §§ 91A-212, 91A-9932.1, 92-3216 and 92-9914 (see now O.C.G.A. §§ 48-2-15 , 48-7-60 , and 48-7-61 ) did not authorize the release of tax information for use only in cases involving the integrity of the tax return itself as the main issue, and not merely as a collateral issue. 1971 Op. Att'y Gen. No. 71-184 (decided under former Code 1933, § 92-3216).

Disclosure of information which is neither secret nor confidential. - Prohibition contained in former Code 1933, § 92-3216 applied only to divulging the amount of income or particulars set forth or disclosed in an income tax report or return required by law. The listing of worthless checks, their amount, and the person issuing the same in an official audit of the department made by the state auditor did not come within the prohibition contained in former Code 1933, § 92-3216. Former Code 1933, § 40-1805 (see now O.C.G.A. § 50-6-24 ) made it mandatory upon the state auditor to list and call special attention to all irregularities found in an examination of a department of the state government and to make available for the information of the public, through the press, such transactions, and for the further information of the public officials of the state charged with the responsibility of instituting legal action for violations of state laws. 1950-51 Op. Att'y Gen. p. 358 (decided under former Code 1933, § 92-3216).

Release of tax information to public officers and agencies. - Records of the income tax unit of the department constitute confidential information and should not be divulged to local taxing authorities of this state. 1952-53 Op. Att'y Gen. p. 471 (decided under former Code 1933, § 92-3216).

Neither former Code 1933, §§ 92-3216 and 91A-212 (see now O.C.G.A. §§ 48-7-60 and 48-2-15 , respectively) made income tax returns privileged or confidential as to the commissioner, the commissioner's agents, or other persons who properly have access to the returns for use in the administration and the enforcement of any tax. 1965-66 Op. Att'y Gen. No. 66-225 (decided under former Code 1933, § 92-3216).

County board of tax assessors in the discharge of the boards' official duties are entitled to have access to the files of the commissioner, including the income tax files; any files furnished to county boards of tax assessors retain their privileged or confidential character in the hands of those officials. 1965-66 Op. Att'y Gen. No. 66-225 (decided under former Code 1933, § 92-3216).

Information contained in state income tax returns may not be furnished to city or municipal tax assessors. 1965-66 Op. Att'y Gen. No. 66-225 (decided under former Code 1933, § 92-3216).

Release of tax information to private firms and other groups. - It is not a violation of law for the department to deliver income tax returns to a private company for processing of the information onto punch cards if certain restrictions are followed. 1960-61 Op. Att'y Gen. p. 538 (decided under former Code 1933, § 92-3216).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 464.

ALR. - Constitutionality, construction, and application of statutory provisions regarding publicity or confidential and privileged character of income tax information or returns, 151 A.L.R. 1049 .

48-7-61. Unlawful divulging of confidential information concerning income taxes under Code Section 48-7-60; penalties.

  1. It shall be unlawful for any person to violate any provision of Code Section 48-7-60 when the violation involves the divulging of information concerning income taxes.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.
  3. In addition to the penalty provided in subsection (b) of this Code section, if the offender is an officer or employee of the state, he shall be dismissed from office and shall be incapable of holding any public office in this state for a period of five years after his dismissal.

    (Ga. L. 1931, Ex. Sess., p. 24, § 51; Code 1933, § 92-9914; Code 1933, § 91A-9932.1, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 112.)

JUDICIAL DECISIONS

Cited in Goolsby v. Estate of Williams, 243 Ga. App. 890 , 534 S.E.2d 559 (2000).

OPINIONS OF THE ATTORNEY GENERAL

Permissible grounds for release of tax information. - Former Code 1933, §§ 92-3216 and 92-9914 and Ga. L. 1937-38, Ex. Sess., p. 77 (see now O.C.G.A. §§ 48-7-60 , 48-7-61 , 48-1-6 , and 48-2-1 et seq.) did not authorize release of tax information for use in any manner other than a case involving the integrity of the tax return itself as the main issue, and not merely as a collateral issue. 1971 Op. Att'y Gen. No. 71-184.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 464, 465.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 283 et seq.

ALR. - Recovery of damages under § 7431(c)(1)(B) of Internal Revenue Code (26 USCA § 7431(c)(1)(B)) based on improper release of confidential tax return information, 154 A.L.R. Fed. 537.

48-7-62. Contributions to be Georgia National Guard Foundation.

  1. Each Georgia income tax return form for taxable years beginning on or after January 1, 2005, shall contain appropriate language, to be determined by the state revenue commissioner, offering the taxpayer the opportunity to contribute to the Georgia National Guard Foundation by donating either all or any part of any tax refund due, by authorizing a reduction in the refund check otherwise payable, or by contributing any amount over and above any amount of tax owed by adding that amount to the taxpayer's payment. The instructions accompanying the income tax return form shall contain a description of the purposes for which this fund was established and the intended use of moneys received from the contributions. Each taxpayer required to file a state income tax return who desires to contribute to the foundation may designate such contribution as provided in this Code section on the appropriate income tax return form.
  2. The Department of Revenue shall determine annually the total amount so contributed and shall transmit such amount to the Georgia National Guard Foundation. The Georgia National Guard Foundation is the nonprofit 501(c)(3) corporation whose purpose is to provide support to members of the Georgia Department of Defense. (Code 1981, § 48-7-62 , enacted by Ga. L. 2005, p. 157, § 3/HB 282.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2005, "donating either" was substituted for "either donating" in the first sentence of subsection (a).

Editor's notes. - Ga. L. 2005, p. 157, § 4/HB 282, not codified by the General Assembly, provides that this Code section shall be applicable to all taxable years beginning on or after January 1, 2005.

48-7-63. Taxpayer contributions to permitted stem cell research through income tax payment and refund process.

  1. Each Georgia income tax return form for taxable years beginning on or after January 1, 2007, shall contain appropriate language, to be determined by the commissioner, offering the taxpayer the opportunity to contribute to permitted stem cell research, as defined in Code Section 31-46-2, through the Georgia Commission for Saving the Cure by donating either all or any part of any tax refund due, by authorizing a reduction in the refund check otherwise payable, or by contributing any amount over and above any amount of tax owed by adding that amount to the taxpayer's payment. The instructions accompanying the income tax return form shall contain a description of the purposes for which the commission was established and the intended use of moneys received from the contributions. Each taxpayer required to file a state income tax return who desires to contribute to the commission may designate such contribution as provided in this Code section on the appropriate income tax return form.
  2. The Department of Revenue shall determine annually the total amount so contributed and shall transmit such amount to the Georgia Commission for Saving the Cure. (Code 1981, § 48-7-63 , enacted by Ga. L. 2007, p. 473, § 3/SB 148; Ga. L. 2009, p. 8, § 48/SB 46.)

Editor's notes. - Ga. L. 2007, p. 473, § 4(b)/SB 148, not codified by the General Assembly, provides that this Code section shall apply to all taxable years beginning on and after January 1, 2007.

Law reviews. - For note on enactment of this Code section, see 24 Georgia St. U.L. Rev. 81 (2007).

ARTICLE 4 PAYMENT: DEFICIENCIES, ASSESSMENT, AND COLLECTION

RESEARCH REFERENCES

ALR. - Income tax: right to deduction in respect of obligations voluntarily assumed or paid, 79 A.L.R. 977 .

Power to make additional tax levy necessitated by failure of some property owners to pay their proportions of original levy, 79 A.L.R. 1157 .

Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

48-7-80. Time and place of payment of tax on basis of calendar or fiscal year.

The total amount of tax imposed by this chapter on taxpayers other than corporations shall be paid to the commissioner on or before April 15 following the close of the calendar year. If the return of a taxpayer other than a corporation is made on the basis of a fiscal year, the tax shall be paid to the commissioner on or before the fifteenth day of the fourth month following the close of the fiscal year. However, in the case a taxpayer's return is allowed to be filed at a later date, pursuant to the Internal Revenue Code of 1986 as it existed on or after January 1, 2003, because the taxpayer has electronically filed returns, the date of payment shall be extended without interest and penalty to the date the return is allowed to be filed pursuant to the Internal Revenue Code of 1986 as it existed on or after January 1, 2003. The total amount of tax imposed by this chapter on corporations other than Georgia Subchapter "S" corporations shall be paid to the commissioner on or before April 15, following the close of the calendar year. If the return of a corporation other than a Georgia Subchapter "S" corporation is made on the basis of a fiscal year, the tax shall be paid to the commissioner on or before the fifteenth day of the fourth month following the close of the fiscal year. The total amount of tax imposed by this chapter on Georgia Subchapter "S" corporations shall be paid to the commissioner on or before March 15, following the close of the calendar year. If the return of a Georgia Subchapter "S" corporation is made on the basis of a fiscal year, the tax shall be paid to the commissioner on or before the fifteenth day of the third month following the close of the fiscal year.

(Ga. L. 1931, Ex. Sess., p. 24, § 33; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3301; Ga. L. 1952, p. 230, § 2; Ga. L. 1952, p. 360, § 2; Ga. L. 1955, p. 193, § 2; Code 1933, § 91A-3801, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1991, p. 368, § 1; Ga. L. 2003, p. 442, § 4; Ga. L. 2016, p. 1, § 3/HB 742.)

The 2016 amendment, effective February 23, 2016, twice inserted "other than a Georgia Subchapter 'S' corporation"; in the fourth sentence, substituted "April 15" for "March 15"; in the fifth sentence, substituted "fourth month" for "third month"; and added the last two sentences. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2016, p. 1, § 8/HB 742, not codified by the General Assembly, provides, in part, that Sections 2, 3, 6, and 7 of this Act shall be applicable to all taxable years beginning on or after January 1, 2016.

JUDICIAL DECISIONS

Payment of the tax imposed is not conditioned upon an assessment by the commissioner. State v. Fuller, 90 Ga. App. 349 , 83 S.E.2d 69 (1954).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 94.

C.J.S. - 85 C.J.S., Taxation, § 2074.

48-7-81. Interest on taxes not timely paid; rate; determination of due date; effect of tax reduction on computation of interest; assessment, collection, and payment of interest on penalties or additions; grace period; assessment and collection period.

  1. If any amount of tax imposed by this chapter is not paid on or before the last date prescribed for payment, interest on the payment at the rate specified in Code Section 48-2-40 shall be paid for the period from the last date prescribed for payment to the date paid.
  2. The last date prescribed for payment of the tax shall be determined without regard to any:
    1. Extension of time for payment; or
    2. Notice and demand for payment issued by reason of jeopardy prior to the last date otherwise prescribed for the payment.
  3. If the amount of any tax imposed by this chapter is reduced by reason of a carry back of a net operating loss, the reduction in tax shall not affect the computation of interest under this Code section for the period ending with the last day of the taxable year in which the net operating loss arises.
  4. Except as otherwise specifically provided by law:
    1. Interest prescribed under this Code section shall be paid upon notice and demand and shall be assessed, collected, and paid in the same manner as the tax. Any reference to the tax imposed by this chapter shall be deemed also to refer to interest imposed by this Code section on the tax;
    2. No interest under this Code section shall be imposed on the interest provided by this Code section;
    3. Interest shall be imposed under subsection (a) of this Code section on any assessable penalty, additional amount, or addition to the tax only if the assessable penalty, additional amount, or addition to the tax is not paid within ten days from the date of notice and demand for the payment. Interest shall be imposed only for the period from the date of the notice and demand to the date of payment;
    4. If notice and demand are made for the payment of any amount and if the amount is paid within ten days after the date of the notice and demand, interest under this Code section on the amount so paid shall not be imposed for the period after the date of the notice and demand.
  5. Interest prescribed under this Code section may be assessed and collected at any time during the period within which the tax to which the interest relates may be collected.

    (Ga. L. 1931, Ex. Sess., p. 24, § 37; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3304; Ga. L. 1971, p. 673, § 1; Ga. L. 1975, p. 156, § 1; Code 1933, § 91A-3803, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 20.)

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 714 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 1882, 1883, 1903, 1904, 1905, 2074.

48-7-82. Periods of limitation for assessment of taxes; collection by execution; change or correction of net income.

  1. Except as otherwise provided in this Code section, the amount of income tax imposed by this chapter shall be assessed within the time periods specified in Code Section 48-2-49.
    1. In the case of income received during the lifetime of a decedent, by the estate of a decedent during the period of administration, or by a corporation, the tax shall be assessed within three years after the return is filed, and any proceeding in court without assessment for the collection of the tax shall begin within 18 months after written request for the commencement of the proceeding (filed after the return is made) by the personal representative or other fiduciary representing the estate of the decedent or by the corporation. No such proceeding shall begin after the expiration of three years from the date the return is filed. This paragraph shall not apply in the case of a corporation unless:
      1. The written request notifies the commissioner that the corporation contemplates dissolution at or before the expiration of the 18 month period;
      2. The dissolution is begun in good faith before the expiration of the 18 month period; and
      3. The dissolution is completed.
    2. If the taxpayer omits from gross income an amount properly includable in gross income which exceeds 25 percent of the amount of gross income less business expenses stated in the return, the tax may be assessed or a proceeding in court for the collection of the tax may begin without assessment at any time within six years after the return is filed.
    3. If the taxpayer omits from gross income an amount properly includable in gross income as an amount distributed in liquidation of a corporation, the tax may be assessed or a proceeding in court for the collection of the tax may begin without assessment at any time within five years after the return is filed.
  3. When the assessment of any income tax has been made within the period of limitation properly applicable to the assessment, the tax may be collected by execution, provided that the commissioner may transmit such execution electronically. The general provisions for tax executions as contained in Chapter 3 of this title shall apply to executions pursuant to this subsection.
  4. Reserved.
    1. Except as provided in Code Section 48-7-53, when a taxpayer's amount of net income for any year under this chapter as returned to the United States Department of the Treasury is changed or corrected by the commissioner of internal revenue or other officer of the United States of competent authority, the taxpayer, within 180 days after the final determination date of the changed or corrected net income, shall make a return to the commissioner of the changed or corrected income, and the commissioner shall make assessment or the taxpayer shall claim a refund based on the change or correction within one year from the date the return required by this paragraph is filed. If the taxpayer does not make the return reflecting the changed or corrected net income and the commissioner receives from the United States government or one of its agents a report reflecting the changed or corrected net income, the commissioner shall make assessment for taxes due based on the change or correction within five years from the date the report from the United States government or its agent is actually received. If he or she chooses, the commissioner shall have the authority to establish a de minimis amount upon which a taxpayer shall not be required to comply with this subsection. For purposes of this subsection the final determination date shall be determined as follows:
      1. Except as provided in subparagraph (B) of this paragraph, the final determination date is the first day on which no changes or corrections for a particular audit remain to be finally determined, whether by agreement, or, if appealed or contested, by a final decision with respect to which all rights of appeal have been waived or exhausted. For agreements required to be signed by the commissioner of internal revenue and the taxpayer, the final determination date is the date on which the last party signed the agreement; or
      2. If the taxpayer filed as a member of a combined or consolidated group, the final determination date is the first day on which no related changes or corrections for a particular audit remain to be finally determined for the entire group.
    2. In the event the taxpayer fails to notify the commissioner of the final determination of his or her United States income taxes, the commissioner shall proceed to determine, upon evidence that the commissioner has brought to his or her attention or that he or she otherwise acquires, the corrected income of the taxpayer for the fiscal or calendar year. If additional tax is determined to be due, the tax shall be assessed and collected. If it is determined that there has been an overpayment of tax for the year, the taxpayer, by his or her failure to notify the commissioner as required in paragraph (1) of this subsection, shall forfeit his or her right to any refund due by reason of the change or correction. A taxpayer who so fails to notify the commissioner, however, shall be entitled to equitable recoupment of 90 percent of any overpayment so determined against any additional tax liability so determined, the remaining 10 percent of the overpayment being totally forfeited as a penalty for failure to make a return as required by paragraph (1) of this subsection.

      (Ga. L. 1931, Ex. Sess., p. 24, § 36; Code 1933, § 92-3303; Ga. L. 1937, p. 109, § 18; Ga. L. 1952, p. 405, § 5; Ga. L. 1953, Jan.-Feb. Sess., p. 279, § 6; Ga. L. 1965, p. 276, § 1; Ga. L. 1975, p. 862, § 1; Code 1933, § 91A-3802, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1350, § 2; Ga. L. 1986, p. 1480, § 2; Ga. L. 1997, p. 734, § 5; Ga. L. 2018, p. 319, § 4/HB 849.)

The 2018 amendment, effective May 3, 2018, in paragraph (e)(1), in the first sentence, substituted "Except as provided in Code Section 48-7-53, when" for "When" at the beginning, inserted "the" following "180 days after", inserted "date" in the middle, and added the third and fourth sentences; in paragraph (e)(2), inserted "or her" throughout, and inserted "or she" in the middle of the first sentence.

Editor's notes. - Ga. L. 1986, p. 1480, § 3, not codified by the General Assembly, provided effective dates for §§ 1 and 2 of that Act and provided that § 2 of that Act, which amended this Code section, would apply to taxable years beginning on or after January 1, 1987.

Law reviews. - For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986).

JUDICIAL DECISIONS

Section comports with equal protection requirements. - There is a rational basis for providing different statutes of limitations based on the different situations provided for in former Code 1933, § 92-3303(a) and (f). Therefore, former subsection (f) did not deny equal protection under the state and federal Constitutions. Blackmon v. Monroe, 233 Ga. 656 , 212 S.E.2d 827 (1975).

Period of limitations applies only to returns containing all required information. - Information may be applied improperly in calculating tax liability, but after three years, if all required information is included in the return, the commissioner is barred from maintaining an action against the taxpayer. However, when the return does not give full information which is required, the statute will not run. Redwine v. Arvaniti, 83 Ga. App. 203 , 63 S.E.2d 222 (1951).

Period of limitation inapplicable to examination of records. - Provision that deficiency assessment must be made within three years from the date of filing an income tax return is only applicable to the assessment and collection of taxes and not to the right of examination of records. Redwine v. Arvaniti, 83 Ga. App. 203 , 63 S.E.2d 222 (1951).

Taxpayer who missed three-year limitation period. - O.C.G.A. § 48-7-82(e) did not give a taxpayer who missed the three-year limitation period for filing amended state returns a second opportunity to file an amendment; the taxpayer was not authorized by subsection (e) to submit an amended state tax return, and the taxpayer's untimely request for a refund was properly denied. Graham v. McKesson Info. Solutions, LLC, 279 Ga. App. 364 , 631 S.E.2d 424 (2006).

Section does not bar the commissioner from collecting the amount admitted to be due when the return is filed, if that amount has not been paid. State v. Fuller, 90 Ga. App. 349 , 83 S.E.2d 69 (1954).

Administrative interpretation of waivers by former commissioner will not estop present commissioner from relying on waivers, which toll the statute of limitation for 30 days beyond a time fixed by an unambiguous statute. Hawes v. Nashville, Chattanooga & St. Louis Ry., 223 Ga. 527 , 156 S.E.2d 455 (1967).

No assessment proceeding is required when the return is accepted by the commissioner as correct. - Tax is due and payable as a personal debt without an assessment. An assessment is an action taken only with regard to the collection of an amount of tax exceeding that returned by the taxpayer. State v. Fuller, 90 Ga. App. 349 , 83 S.E.2d 69 (1954).

What constitutes a "report reflecting the changed or corrected net income." - Conference report showing an increase in the taxpayer's tax liability, but which is not a final determination of the changed or corrected net income, is a "report reflecting the changed or corrected net income" for purposes of the statute of limitations. Chilivis v. Levy, 240 Ga. 792 , 242 S.E.2d 594 (1978).

Conference report showing an increase in the taxpayer's tax is a report reflecting changed or corrected net income, notwithstanding the fact that the report does not show the changed or corrected net income itself. Chilivis v. Levy, 240 Ga. 792 , 242 S.E.2d 594 (1978).

Failure to amend after increase of income by IRS. - O.C.G.A. § 48-7-82(e)(1) required the debtor to provide an amended tax return because the IRS had reassessed the debtor's income upwards for the relevant tax years; because the debtor never filed an amended return for those years, the taxes were deemed nondischargeable pursuant to 11 U.S.C. § 523(a)(1)(B)(i). Loc Ngoc Pham v. Ga. Dep't of Revenue (In re Loc Ngoc Pham), Bankr. (Bankr. N.D. Ga. Mar. 1, 2005).

Non-dischargeability in bankruptcy. - Georgia Department of Revenue was not entitled to summary judgment on the department's nondischargeability claim under 11 U.S.C. § 523(a)(1)(B)(i) based on the debtor's alleged failure to file an amended return as required by O.C.G.A. § 48-7-82(e)(1) because the department failed to establish that an amended return was actually due; the debtor's tax liability could have been adjusted by the IRS without an adjustment to the net income (for example, the debtor could have made a mistake in computing the tax based on net income that did not change), thus failing to trigger the filing requirement of paragraph (e)(1). Patterson v. Ga. Dep't. of Revenue (In re Patterson), Bankr. (Bankr. N.D. Ga. Dec. 12, 2006).

When the debtors failed to file an amended state income tax return after the debtors' federal income tax was revised upward by the IRS as required by O.C.G.A. § 48-7-82(e)(1), the debtors' state income tax based on the upward revision was excepted from discharge under 11 U.S.C. § 523(a)(1)(B)(i). Thovongsa v. Ga. Dep't of Revenue (In re Thavongsa), Bankr. (Bankr. N.D. Ga. Feb. 7, 2012).

Cited in Jones v. Georgia Dep't of Revenue, 158 Bankr. 535 (Bankr. N.D. Ga. 1993).

OPINIONS OF THE ATTORNEY GENERAL

Commissioner has three years to make assessment after return is filed. - This section is a safeguard which gives the state an additional year in which to make the state's original audit and assessment. The General Assembly no doubt reasoned that if time permitted the commissioner to examine the return and make a proper assessment thereon within the two-year period, the commissioner should not be given additional time to reopen the assessment and correct the commissioner's own errors. If, however, the large volume of returns filed prevents the commissioner from completing work within the two-year period, the commissioner is granted an additional year in which to perform the duty. 1945-47 Op. Att'y Gen. p. 569.

When taxpayer makes full disclosure in an income tax return but the tax is erroneously computed, the period of limitation is three years. 1952-53 Op. Att'y Gen. p. 214.

Only material amendments to return change period of limitations. - Obvious legislative intent of this section is to give the department sufficient time to review returns of taxpayers, and when a deficiency is discovered, time to make an assessment. A reasonable interpretation of this section would be that when the taxpayer files an amended return which makes no material change, but makes changes of a minor nature, that the period of limitations should commence on the date of the original return. On the other hand, when the taxpayer files an amended return which makes a material change, a logical and reasonable interpretation would have the period of limitations commence as to the material change only at the time of the filing of the amended return. 1948-49 Op. Att'y Gen. p. 677.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 2003, 2042 et seq., 2075 et seq.

ALR. - Duress in obtaining waiver from taxpayer extending time for assessment of income tax, 78 A.L.R. 631 .

Liability on bond given as condition of extension of time for payment of income tax, 117 A.L.R. 452 .

When statute of limitation commences to run against action to recover tax, 131 A.L.R. 822 .

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Suspension of running of period of limitation, under 26 U.S.C.A. § 6503, for federal tax assessment or collection, 160 A.L.R. Fed. 1

48-7-83. Action for collection of tax out of assets of dissolved corporation; procedure.

Whenever any corporation has been dissolved or the assets of the corporation for any reason have passed entirely from the control of the corporation into the possession of its former stockholders or other persons without the payment of income taxes due the state, the commissioner shall have the right to bring action against any or all persons possessing the assets for the collection of any income taxes that may be due the state up to the value of the assets. If the assets have come into the possession of more than one person, each person shall have the right to prorate the amount of the tax according to the value of the assets coming into each person's possession.

(Code 1933, § 92-3315, enacted by Ga. L. 1937, p. 109, § 20; Code 1933, § 91A-3807, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Dissolution of business corporations generally, § 14-2-1401 et seq.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 695. 85 C.J.S., Taxation, § 1276 et seq.

48-7-84. Actions in restraint of assessment or collection of income tax.

No action for the purpose of restraining the assessment or collection of any tax under this chapter shall be maintained in any court.

(Ga. L. 1931, Ex. Sess., p. 24, § 40; Code 1933, § 92-3307; Code 1933, § 91A-3805, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1317, 1320, 1321, 2078.

48-7-85. Authority of commissioner to prorate tax of person moving into or out of state; requirement that taxpayer prorate exemptions; applicability of Code section subject to commissioner's discretion.

Whenever the commissioner in his discretion determines that a person is not liable for the tax for an entire year because of moving into the state or moving out of the state, he may prorate the amount of the tax due the state and also may require the taxpayer to prorate any exemptions on the basis of the time spent within the state. The commissioner in his reasonable discretion shall be the sole judge as to when this Code section shall apply.

(Code 1933, § 92-3316, enacted by Ga. L. 1937, p. 109, § 20; Code 1933, § 91A-3808, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Scope of commissioner's discretion. - Discretion given to the State Revenue Commission (now commissioner) does not mean that the commission has the discretion to determine what is the law, but simply that the commission can determine facts which are necessary to make applicable the commission's provisions. It is not empowered to exclude from the commission's provisions a person who manifestly comes within its terms. The commission cannot set aside the law, but must enforce the law. That the commission is the sole judge of the facts to apply in a particular case does not mean that the commission may act arbitrarily and withhold benefits to which a taxpayer is clearly entitled. Forrester v. Culpepper, 194 Ga. 744 , 22 S.E.2d 595 , answer conformed to, 68 Ga. App. 382 , 23 S.E.2d 106 (1942).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 540 et seq., 650.

ALR. - Protection of out-of-state sellers from state income tax by Public Law 86-272 (15 U.S.C.A. §§ 381 to 384), 182 A.L.R. Fed. 291.

48-7-86. Penalty for failure to pay or for underpayment of taxes; rate; reductions of tax by partial payments and credits; penalty for nonpayment after notice and demand; "underpayment" defined; penalties for underpayments; relief of liability on joint return.

    1. In case of failure to pay:
      1. The amount shown as tax on a return on or before the date prescribed for payment of the tax, such date to be determined with regard to any extension of time for payment, there shall be added to the amount of tax required to be shown on the return one-half of 1 percent of the amount of the tax if the failure is for not more than one month and with an additional one-half of 1 percent for each additional month or fraction of a month during which the failure continues. For the purposes of this subparagraph, the amount of tax shown on the return shall be reduced, for the purpose of computing the addition for any month, by the amount of any part of the tax which is paid on or before the beginning of the month and by the amount of any credit against the tax which is claimed on the return;
      2. Any amount in respect of any tax required to be shown on a return which is not so shown within ten days of the date of the notice and demand for the payment, the amount of tax stated in the notice and demand shall be increased by one-half of 1 percent of the amount of the tax if the failure is for not more than one month and by an additional one-half of 1 percent for each additional month or fraction of a month during which the failure continues. For the purposes of this subparagraph, the amount of tax stated in the notice and demand shall be reduced, for the purpose of computing the addition for any month, by the amount of any part of the tax which is paid before the beginning of the month.
    2. No penalty shall be assessed pursuant to this subsection which exceeds in the aggregate 25 percent of the amount of the tax or when it is shown that the failure is due to reasonable cause and not due to willful neglect.
  2. With respect to any return, the maximum amount of the addition permitted under subparagraph (a)(1)(B) of this Code section shall be reduced by the amount of the addition under subsection (a) of Code Section 48-7-57 which is attributable to the tax for which the notice and demand are made and which is not paid within ten days of such notice and demand.
  3. If the amount required to be shown as tax on a return is less than the amount shown as tax on the return, subparagraph (a)(1)(A) of this Code section shall be applied by substituting the lower amount.
  4. For purposes of subsections (e) and (f) of this Code section, the term "underpayment" means a deficiency as defined in Code Section 48-7-1.
  5. If any part of any underpayment of tax required to be shown on a return is due to a negligent or intentional disregard of rules and regulations, but without intent to defraud, an amount equal to 5 percent of the underpayment shall be added to the tax.
  6. If any part of any underpayment of tax required to be shown on a return is due to fraud, an amount equal to 50 percent of the underpayment shall be added to the tax. This amount shall be in lieu of any amount determined under subsection (e) of this Code section. If any penalty is assessed under this subsection for an underpayment of tax which is required to be shown on a return, no penalty under Code Section 48-7-57 or subsection (a) of this Code section shall be assessed with respect to the same underpayment.
    1. Notwithstanding any other provision of this Code section to the contrary, if:
        1. A joint return has been made for a taxable year;
        2. On such return there is an understatement of tax attributable to erroneous items of one individual filing the joint return;
        3. The other individual filing the joint return establishes that in signing the return he or she did not know, and had no reason to know, that there was such understatement; and
        4. Taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such taxable year attributable to such understatement; or
      2. The other individual has made the proper election pursuant to Section 6015 of the Internal Revenue Code, if applicable

        then the other individual shall be relieved of liability for tax, including interest, penalties, and other amounts, for such taxable year to the extent such liability is attributable to such understatement, if such other individual has been relieved of liability for federal income taxes pursuant to Section 6015 of the Internal Revenue Code, if applicable.

    2. The commissioner shall promulgate any rules and regulations necessary to implement and administer this subsection.

      (Ga. L. 1931, Ex. Sess., p. 24, § 38; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3305; Ga. L. 1952, p. 405, § 8; Ga. L. 1953, Jan.-Feb. Sess., p. 279, § 7; Ga. L. 1953, Jan.-Feb. Sess., p. 294, § 1; Code 1933, § 92-3305, enacted by Ga. L. 1971, p. 376, § 1; Code 1933, § 91A-3804, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1993, p. 1649, § 3; Ga. L. 1999, p. 483, § 2; Ga. L. 2001, p. 984, § 12; Ga. L. 2004, p. 410, § 6.)

Editor's notes. - Ga. L. 1993, p. 1649, § 4, not codified by the General Assembly, makes subsection (f) of this Code section applicable to all taxable years beginning on or after April 27, 1993.

Ga. L. 1999, p. 483, § 3, not codified by the General Assembly, provides that: "Provisions of the Internal Revenue Code of 1986 which were as of January 1, 1999, enacted into law but not yet effective shall become effective for purposes of Georgia taxation on the same dates upon which they become effective for federal tax purposes."

Ga. L. 1999, p. 483, § 3, not codified by the General Assembly, makes subsection (g) of this Code section applicable to all taxable years beginning on or after January 1, 1999.

Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004.'"

Law reviews. - For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1852 et seq., 1978, 2079.

ALR. - Constitutionality, construction, application and effect of specific provisions of state corporate income tax law in respect of tax evasion, 92 A.L.R. 1073 .

Construction and application of 26 USCA § 6015(b)(1)(C) requiring that spouse not know of understatement of tax arising from erroneous deduction, credit, or basis to obtain innocent spouse exemption from liability for tax, 154 A.L.R. Fed. 233, 161 A.L.R. Fed. 373.

ARTICLE 5 CURRENT INCOME TAX PAYMENT

Administrative Rules and Regulations. - Payment and withholding of reporting tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Returns and Collections, § 560-7-8-.33.

Law reviews. - For article examining Georgia Withholding Tax Act of 1960, see 23 Ga. B. J. 33 (1960).

RESEARCH REFERENCES

ALR. - Payment of tax in installments as affecting time for claiming refund under statute requiring claim to be made within specified time after payment of tax, 94 A.L.R. 978 .

48-7-100. Definitions.

As used in this article, the term:

  1. "Calendar quarter" means a period of three calendar months ending on March 31, June 30, September 30, or December 31.
  2. "Dependent exemption" means the withholding exemption status claimed in a withholding exemption certificate in effect under subsection (c) of Code Section 48-7-102.

    (2.1) "Distribution credited" means a recognition or assignment of interest in proceeds or property of a partnership, Subchapter "S" corporation, or limited liability company, including a net distributive share of income which is passed through to members and which may be subject to Georgia income tax.

    (2.2) "Distribution paid" means any disbursement of funds of a partnership, Subchapter "S" corporation, or limited liability company that is made to a member with respect to that member's interest in the entity and which may be subject to Georgia income tax.

    1. "Doing business in this state" means a person:
      1. Having or maintaining directly or indirectly an office, warehouse, stock of goods, or other established facility or place of business in this state;
      2. Performing services or owning, leasing, or operating tangible property in this state on a more or less permanent and not transitory basis; or
      3. Having an officer, employee, agent, or other representative who has or maintains an office or who regularly or systematically solicits or promotes the person's business in this state.
    2. "Office" as used in this paragraph includes, but is not limited to, the residence of any officer, employee, agent, or representative of a person if the residence is held out to be, or identified in the trade with, the person's business.
    3. "Business" as used in this paragraph includes, but is not limited to, any particular activity, occupation, or employment habitually engaged in whether for financial gain or not.
  4. "Employee" means:
    1. Any individual who is a domiciliary or resident of this state and who performs services either within or outside, or both within and outside, this state for an employer;
    2. Any individual not a domiciliary or resident of this state who performs services within this state for an employer;
    3. An officer, employee, or elected official of any body politic or of any agency or instrumentality of a body politic, and an officer of a corporation; or
    4. Any person to whom a payment of wages is made whether or not the person is an employee of the payer of the wages at the time of payment.
  5. "Employer" means any person for whom an individual who is a resident or domiciliary of this state performs or performed any service of whatever nature within or outside this state or for whom a nonresident individual performs or performed any service of whatever nature within this state as the employee of the person, except that:
    1. If the person for whom the individual performs or performed the services does not have control of the payment of the wages for the service, the term "employer" includes the person having control of the payment of the wages; and
    2. In the case of a person paying wages on behalf of a nonresident individual, foreign partnership, or foreign corporation not doing business within this state, the term "employer" includes the person paying the wages.
  6. "Marital exemption" means the withholding exemption status claimed in a withholding exemption certificate in effect under subsection (c) of Code Section 48-7-102.

    (6.1) "Member" shall mean partner, shareholder, or other person to whom the taxpaying obligation of the partnership, Subchapter "S" corporation, or limited liability company falls.

    (6.2) "Nonresident" shall mean an individual or fiduciary member who resides outside this state and all other members whose headquarters or principal place of business is located outside this state.

  7. "Number of dependent exemptions claimed" means the number of dependent exemptions claimed in a withholding exemption certificate in effect under subsection (c) of Code Section 48-7-102.
  8. "Payroll period" means a period for which a payment of wages is ordinarily made to the employee by an employer. The term "miscellaneous payroll period" means a payroll period other than a daily, weekly, biweekly, semimonthly, monthly, quarterly, semiannual, or annual payroll period.

    (8.1) "Periodic payment" means a designated distribution from a pension, annuity, or similar fund which is one of a series of substantially equal distributions made over:

    1. The life or life expectancy of the participant or the joint lives or joint life expectancies of the participant and his or her beneficiary; or
    2. A specified period of ten years or more.
  9. "Single exemption" means the withholding exemption status claimed in a withholding exemption certificate in effect under subsection (c) of Code Section 48-7-102.
  10. "Wages" means all remuneration paid including, but not limited to, the cash value of all remuneration paid in any medium other than cash, and shall be computed without any deduction of any amounts withheld by the employer for any reason and regardless of the terminology which the employer or employees may apply to the remuneration. The term does not include remuneration paid:
    1. For agricultural labor;
    2. For domestic service in a private home, local college club, or local chapter of a college fraternity or sorority;
    3. For services performed by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by the order;
    4. For services performed for a foreign government or an international organization;
    5. For service not in the course of the employer's trade or business performed by an employee in any calendar quarter unless the cash remuneration paid for the service is $50.00 or more and the service is performed by an individual who is regularly employed, as defined in the rules and regulations of the commissioner, by the employer to perform the services;
    6. For services performed by an individual under the age of 18 in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution, or for services performed by an individual in, and at the time of, the sale of newspapers or magazines to ultimate consumers under an arrangement by which the newspapers or magazines are to be sold by the individual at a fixed price, the individual's compensation being based on his retention of the excess of such price over the amount at which the newspaper or magazines are charged to him. This subparagraph shall apply whether or not the individual is guaranteed a minimum amount of compensation for the service or is entitled to be credited with the unsold newspapers or magazines returned;
    7. For services not in the course of the employer's trade or business to the extent paid in any medium other than cash;
    8. For services for an employer performed by a resident or domiciliary of this state in another state if at the time of the payment of the remuneration the employer is required by the law of the other state to withhold income tax from the remuneration;
    9. For services performed as a master, officer, or any other seaman who is a member of the crew on a vessel engaged in foreign, coastal, intercoastal, interstate, or contiguous trade to the extent withholding from the remuneration is prohibited by the laws of the United States;
    10. To, or on behalf of, any employee:
      1. From or to a trust described in Section 401(a) of the Internal Revenue Code of 1986 which is exempt under Code Section 48-7-25 at the time of the payment unless the payment is made to an employee of the trust as remuneration for services rendered as an employee and not as a beneficiary of the trust;
      2. Under or to an annuity plan which at the time of the payment meets the requirements of Section 401(a)(3), (4), (5), and (6) of the Internal Revenue Code of 1986;
    11. For services performed by a nonresident if the nonresident has been employed within this state for no more than 23 calendar days during the calendar quarter and the nonresident is not a taxable nonresident as defined in Code Section 48-7-1; or
    12. As fees to a public official for services employed by an employee for his employer.
  11. "Withholding agent" means any person required to deduct and withhold any tax under the provisions of Code Section 48-7-101.

    (Ga. L. 1960, p. 7, § 2; Ga. L. 1978, p. 982, § 1; Code 1933, § 91A-3901, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 74; Ga. L. 1987, p. 191, § 4; Ga. L. 1993, p. 597, §§ 1, 2; Ga. L. 1994, p. 595, § 1; Ga. L. 2005, p. 159, §§ 19, 20/HB 488; Ga. L. 2007, p. 271, § 5/SB 184; Ga. L. 2008, p. 898, § 10/HB 1151.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1988, "United States" was deleted preceding "Internal Revenue Code" in subdivision (10)(J)(i).

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1993, p. 597, § 4, not codified by the General Assembly, provides that paragraphs (2.1), (6.1), and (6.2) of this Code section are applicable with respect to any distribution paid or credited after January 1, 1994.

Ga. L. 1994, p. 595, § 3, not codified by the General Assembly, provides that paragraph (8.1) of this Code section is applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2005, p. 159, § 27(d)/HB 488, not codified by the General Assembly, provides that subparagraph (10)(K) of this Code section is applicable to all calendar quarters on and after July 1, 2005.

Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

U.S. Code. - Section 401 of the United States Internal Revenue Code, referred to in subparagraph (10)(J)(i), is codified as 26 U.S.C. § 401.

Law reviews. - For note on the 1993 amendment of this Code section, see 10 Georgia St. U.L. Rev. 218 (1993). For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Rev. 255 (1994).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-3316, which was subsequently repealed but was succeeded by provisions of this Code section, are included in the annotations for this Code section.

Amount to be withheld not affected by garnishment. - Computation of the amount to be withheld under Ga. L. 1960, p. 7 is not affected by a garnishment. 1960-61 Op. Att'y Gen. p. 511 (decided under former Code 1933, § 92-3316).

When unrestricted subsistence allowance constitutes wages. - Unrestricted subsistence allowance that was an allowance which was in no wise limited to expenditures incurred on account of the employee's business, was an allowance to defray the employee's personal living expenses and was, in substance, a form of compensation or remuneration within the scope of former Code 1933, § 92-3107 (see now O.C.G.A. § 48-7-27 ) and the definition of "wages" in Ga. L. 1960, p. 7, § 2 (see now O.C.G.A. §§ 48-7-100 and 48-7-110 ). To the extent that an employee incurred expenses on account of the business of an employer, and the employee was not otherwise reimbursed therefor, so that such expenses were a charge against this subsistence allowance, then the situation was one to be handled under regulations of the commissioner promulgated in accordance with Ga. L. 1960, p. 7. 1960-61 Op. Att'y Gen. p. 506.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 485, 486. 85 C.J.S., Taxation, § 1975 et seq.

ALR. - Tips as taxable income, 10 A.L.R.2d 191.

What constitutes trade or business under Internal Revenue Code (U.S.C.A. Title 26), 161 A.L.R. Fed. 245.

48-7-100.1. Withholding of income tax from retirement benefits of federal annuitants.

The commissioner shall, not later than July 1, 1996, enter into an agreement with the federal Office of Personnel Management pursuant to 5 U.S.C. Section 8345 and its implementing regulations, 5 C.F.R. Sections 1901 through 1907, for the withholding of state income tax from the retirement benefits of annuitants under the federal Civil Service Retirement and Disability Fund.

(Code 1981, § 48-7-100.1 , enacted by Ga. L. 1995, p. 1154, § 1.)

48-7-101. Collection of income tax at source; withholding.

  1. Wages subject to withholding. The amount of wages subject to withholding shall be the amount of each wage payment less the total withholding exemption allowance applicable to the wage payment as computed under subsection (b) of this Code section and less the standard deduction allowance applicable to the wage payment, determined according to the payroll period and marital status of the employee as follows:
  2. Withholding exemption allowance.
    1. The withholding exemption allowance applicable to a wage payment to an employee, determined according to the payroll period of the employee, shall be the amount shown in Column 1, below, or the amount shown in Column 2, below, as the withholding exemption status of the employee may be, plus the amount shown in Column 3, below, multiplied by the number of dependency exemptions claimed by the employee.
    2. If wages are paid for a miscellaneous payroll period or with respect to a period which is not a payroll period, the withholding exemption allowance with respect to each payment of wages shall be the exemption allowed for a daily payroll period multiplied by the number of days in the period including, but not limited to, Saturdays and Sundays, with respect to which the wages are paid.
    3. In any case in which wages are paid by an employer without regard to any payroll period or other period, the withholding exemption allowance with respect to each payment of wages shall be exemption allowance for a daily payroll period multiplied by the number of days, including but not limited to, Saturdays and Sundays, which have elapsed since the last payment of wages by the employer during the calendar year, since the date of commencement of employment with the employer during the year, or since January 1 of the year, whichever is later.
  3. Requirement of withholding. Every employer making payments of wages shall deduct and withhold from the wages a tax computed in such manner as to result, so far as practicable, in withholding from the employee's wages during each calendar year an amount substantially equivalent to the income tax reasonably estimated to be due for the calendar year as a result of including the employee's wages received during the calendar year in the employee's Georgia adjusted gross income. The method of determining the amount to be withheld shall be prescribed by regulations of the commissioner, with due regard for the withholding exemption allowances of the employee provided in this Code section and the sum of any credits allowable against his tax.
  4. Other employer plans. Upon application by an employer and under conditions the commissioner deems proper, the commissioner may approve any plan of withholding developed by an employer to produce, insofar as practicable, the tax required to be withheld under the regulations prescribed by the commissioner under subsection (c) of this Code section. Any plan authorized under this subsection shall be in lieu of the tax required to be deducted and withheld under the regulations prescribed by the commissioner.
  5. Included and excluded wages. If the remuneration paid by an employer to an employee for services performed during one-half or more of any payroll period of not more than 31 consecutive days constitutes wages, all the remuneration paid by the employer to the employee for the period shall be deemed to be wages. If the remuneration paid by an employer to an employee for services performed during more than one-half of any payroll period of not more than 31 consecutive days does not constitute wages, then none of the remuneration paid by the employer to the employee for the period shall be deemed to be wages.
  6. Unusual cases. The commissioner may promulgate regulations for withholding in unusual cases, including the following:
    1. To authorize an employer to estimate the wages which will be paid to an employee in any quarter of the calendar year and to determine the amount to be deducted and withheld upon each payment of wages to the employee during the quarter as if the appropriate average of the wages so estimated constituted the actual wages paid;
    2. To authorize the employer to deduct and withhold from any payment of wages to an employee during a quarter the amount necessary to adjust the amount actually deducted and withheld during the quarter to the amount required to be deducted and withheld during the quarter if the payroll period of the employee were quarterly;
    3. To authorize an employer to deduct and withhold an amount in addition to that otherwise required to be withheld under this article in cases in which the employer and the employee agree to the additional withholding. The additional withholding shall for all purposes be considered tax required to be deducted and withheld under this article;
    4. To authorize an employer to deduct from wages, before withholding and deducting tax, any amount attributable to travel and other necessary business expenses of employees who are not reimbursed by the employer for the expenses and whose duties require such expenditures, other than traveling to and from the employee's home and place of employment;
    5. To prescribe the manner and extent to which withholding tax shall apply to extra payments to employees for services rendered, including, but not limited to, bonuses, separation pay, and year-end Christmas, or birthday payments and to authorize, under such conditions as the commissioner deems proper, an employer to compute the tax to be withheld from the payments so as to make adjustments to the annual wages which the employer may pay to the employee. No withholding shall be required with respect to a Christmas payment or a birthday payment to an employee when the amount of the payment is not in excess of $100.00;
    6. To prescribe the manner and extent to which withholding tax shall apply to unusual payments of wages; and
    7. To prescribe the manner and extent to which withholding tax shall apply to the proceeds of any lottery prize of $5,000.00 or more awarded by the Georgia Lottery Corporation.
  7. Employees incurring no income tax liability.
    1. An employer is not required to deduct and withhold any tax under this article from a payment of wages to an employee if there is in effect with respect to the payment a withholding exemption certificate furnished to the employer by the employee certifying that the employee:
      1. Incurred no liability for income tax under this chapter for his preceding taxable year; and
      2. Anticipates that he will incur no liability under this chapter for income tax for his current taxable year.
    2. The withholding exemption certificate for use as provided in this subsection shall be in the form and shall contain such information as required by the commissioner.
  8. Withholding requirements for periodic payments.
    1. The payor of any periodic payment as defined in paragraph (8.1) of Code Section 48-7-100 shall withhold from such payment the amount which would be required to be withheld if such payment were a payment of wages by an employer to an employee for the appropriate payroll period.
    2. The payee of any periodic payment may elect to have paragraph (1) of this subsection not apply with respect to periodic payments made to such payee.  Such an election shall remain in effect until revoked by the payee.
    3. The commissioner is authorized to prescribe forms and to promulgate rules and regulations setting forth the requirements for withholding from such periodic payments and the requirements for making elections not to withhold.
  9. Form 1099 withholding and reporting.
    1. A withholding agent shall be required to withhold state income tax at the rate of 6 percent of the amount of compensation paid for labor services as defined in paragraph (3) of Code Section 48-7-21.1 to an individual, which compensation is reported on Form 1099 and with respect to which the individual has:
      1. Failed to provide a taxpayer identification number;
      2. Failed to provide a correct taxpayer identification number. Except as to the withholding rate specified in this paragraph, such failure shall be determined in the same manner as provided for in Section 3406 of the Internal Revenue Code and regulations thereunder; or
      3. Provided an Internal Revenue Service issued taxpayer identification number issued for nonresident aliens.
    2. Any withholding agent who fails to comply with the withholding requirements of this subsection shall be liable for the taxes required to have been withheld unless such withholding agent is exempt from federal withholding with respect to such individual pursuant to a properly filed Internal Revenue Service Form 8233 and has provided a copy of such form to the commissioner.
    1. The payee of any nonperiodic payment may elect to have withholding made on distributions from a pension, annuity, or similar fund. Such an election shall remain in effect until revoked by the payee.
    2. Upon such election by a payee as provided in paragraph (1) of this subsection, the payor of any nonperiodic payment shall withhold from such payment the amount specified by the payee, but in no event shall the amount withheld be less than the amount which would be required to be withheld if such payment were a payment of wages by an employer to an employee for the appropriate payroll period.
    3. The commissioner shall be authorized to prescribe forms and to promulgate rules and regulations setting forth the requirements for withholding from such nonperiodic payments and the requirements for making elections to withhold.

      (Ga. L. 1960, p. 7, § 3; Ga. L. 1972, p. 1195, § 1; Ga. L. 1979, p. 926, § 1; Code 1933, § 91A-3902, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 926, § 2; Ga. L. 1987, p. 191, § 5; Ga. L. 1988, p. 1390, §§ 1, 2; Ga. L. 1992, p. 1296, § 2; Ga. L. 1994, p. 361, § 1; Ga. L. 1994, p. 381, § 3; Ga. L. 1994, p. 595, § 2; Ga. L. 1998, p. 1, § 3; Ga. L. 2006, p. 105, § 8/SB 529; Ga. L. 2007, p. 271, § 6/SB 184; Ga. L. 2008, p. 898, § 11/HB 1151.)

Married Married Filing Filing Payroll Period Jointly Single Separately -------------- ------- ------ ---------- Weekly $ 57.50 $ 44.25 $ 28.75 Biweekly 115.00 88.50 57.50 Semimonthly 125.00 95.75 62.50 Monthly 250.00 191.50 125.00 Quarterly 750.00 575.00 375.00 Semiannual 1,500.00 1,150.00 750.00 Annual 3,000.00 2,300.00 1,500.00 Daily or Miscellaneous 8.20 6.30 4.10

Col. 1 Col. 2 Col. 3. Single Marital Each Dependent Payroll Period Exemption Exemption Exemption -------------- --------- --------- --------- Weekly $ 51.92 $ 103.85 $ 51.92 Biweekly 103.85 207.69 103.85 Semimonthly 112.50 225.00 112.50 Monthly 225.00 450.00 225.00 Quarterly 675.00 1,350.00 675.00 Semiannual 1,350.00 2,700.00 1,350.00 Annual 2,700.00 5,400.00 2,700.00 Daily or Miscellaneous 7.40 14.79 7.40

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1994, p. 361, § 2, not codified by the General Assembly, makes paragraph (f)(7) of this Code section applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 1994, p. 595, § 3, not codified by the General Assembly, makes subsection (h) of this Code section applicable to all taxable years beginning on or after January 1, 1994.

Ga. L. 1998, p. 1, § 4, not codified by the General Assembly, makes paragraph (b)(1) of this Code section applicable to all taxable years beginning on or after January 1, 1998.

Ga. L. 2006, p. 105, § 1/SB 529, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Security and Immigration Compliance Act.' All requirements of this Act concerning immigration or the classification of immigration status shall be construed in conformity with federal immigration law."

Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Administrative Rules and Regulations. - Returns and collections, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Chapter 560-7-8.

Law reviews. - For review of 1998 legislation relating to revenue and taxation, see 15 Georgia St. U.L. Rev. 217 (1998). For article, "The Georgia Security and Immigration Compliance Act: Comprehensive Immigration Reform in Georgia - 'Think Globally ... Act Locally'," see 13 Ga. St. B. J. 14 (2007). For note on the 1992 amendment of this Code section, see 9 Georgia St. U.L. Rev. 338 (1992). For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Rev. 255 (1994).

OPINIONS OF THE ATTORNEY GENERAL

Treatment of employee's unrestricted subsistence allowance. - Unrestricted subsistence allowance, that is, an allowance which is in no wise limited to expenditures incurred on account of the employee's business, is an allowance to defray the employee's personal living expenses and is, in substance, a form of compensation or remuneration within the scope of former Code 1933, § 92-3107 and the definition of "wages" in Ga. L. 1960, p. 7. To the extent that an employee incurs expenses on account of the business of the employer, and the employee is not otherwise reimbursed therefor, so that such expenses are a charge against this subsistence allowance, then the situation is one to be handled under regulations of the commissioner promulgated in accordance with Ga. L. 1960, p. 7. 1960-61 Op. Att'y Gen. p. 506.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 476.

C.J.S. - 85 C.J.S., Taxation, §§ 2075, 2076, 2077.

ALR. - Construction and application of state corporate income tax statutes allowing net operation loss deductions, 33 A.L.R.5th 509.

48-7-102. Withholding exemption status.

    1. A zero exemption status shall apply to any employee receiving wages who, on the withholding exemption certificate required under subsection (c) of this Code section, disclaims any exemption status or who fails to file with his employer the withholding exemption certificate required under subsection (c) of this Code section.
    2. A single exemption status shall be available to any employee receiving wages who at the time cannot qualify for a marital exemption or who disclaims a marital exemption, unless such employee is an individual who is eligible to be claimed as a dependent on another taxpayer's federal income tax return in which case a zero exemption status shall apply.
    3. A marital exemption status shall be available to any employee receiving wages who at the time is married and living with his spouse, but only if his spouse does not have in effect at that time a withholding exemption certificate claiming a single or marital exemption.
  2. An employee receiving wages shall be entitled on any day to one withholding dependency exemption for each individual with respect to whom he may reasonably be expected to be entitled to an exemption for the taxable year under Code Section 48-7-26.
    1. On or before the date of the commencement of employment with any employer, the employee shall furnish the employer with a signed withholding certificate in the form prescribed by the commissioner relating to his withholding exemption status and the number of dependency exemptions which the employee claims. No exemption may be claimed to which the employee is not entitled.  If the employee fails to furnish such completed certificate or furnishes erroneous information on such certificate to the employer, the employer will withhold as if the exemption status were single and zero until a withholding certificate is received which contains complete or corrected information, as necessary.
    2. Except as otherwise provided by rules or regulations of the commissioner, if an employee has filed with his employer an exemption certificate as required for federal withholding tax purposes, an employer may give effect to the exemption status and exemptions claimed on the federal exemption certificate when the certificate contains sufficient information to enable the employer to give effect to the withholding exemptions allowable under this Code section.
    3. Whenever during a calendar year the withholding exemption status of an employee or the number of dependency exemptions to which an employee is entitled changes or whenever an employee reasonably expects such a change before the end of the calendar year which would entitle the employee to different withholding exemptions than those shown on the exemption certificate in effect for the employee, the employee shall file with his employer within ten days of the change or, for the next calendar year, on or before December 20 a new certificate indicating the change. In no event shall the withholding exemption status or the number of dependency exemptions claimed on a certificate exceed the number to which the employee is entitled.
      1. A withholding exemption certificate furnished the employer when no previous certificate is in effect shall take effect as of the beginning of the first payroll period ending, or as of the first payment of wages made without regard to a payroll period, on or after the date on which the certificate is so furnished.
      2. A withholding exemption certificate furnished the employer when a previous certificate is in effect shall take effect with respect to the first payment of wages made on or after the first status determination date which occurs at least 30 days from the date on which the certificate is so furnished. At the election of the employer, the certificate may be made effective with respect to any payment of wages made on or after the date on which the certificate is so furnished. For purposes of this subparagraph, the term "status determination date" means January 1 and July 1 of each year.
    5. A withholding exemption certificate which takes effect under this subsection shall continue in effect with respect to the employer until another certificate takes effect under this subsection. Each withholding exemption certificate which is in effect is, at the time of the receipt of any wages, a present representation of fact subject to the criminal penalties of Code Section 48-7-127.

      (Ga. L. 1960, p. 7, § 4; Code 1933, § 91A-3903, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1987, p. 191, § 6; Ga. L. 1992, p. 1296, § 3.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Law reviews. - For note on the 1992 amendment of this Code section, see 9 Georgia St. U.L. Rev. 338 (1992).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 476.

C.J.S. - 85 C.J.S., Taxation, §§ 2023, 2024.

ALR. - Tax exemptions and the contract clause, 173 A.L.R. 15 .

48-7-102.1. Withholding exemptions; rules and regulations; submission of certificates to commissioner.

  1. The commissioner shall have the power to make and publish reasonable rules and regulations:
    1. Setting forth circumstances under which an employer shall be required to submit to the commissioner copies of withholding exemption certificates furnished to the employer by his employees;
    2. Establishing a procedure by which the commissioner may notify an employer and employee that any withholding exemption certificate which has been submitted to the commissioner shall be considered defective for purposes of computing amounts of withholding under this article;
    3. Establishing a procedure by which the commissioner may, after a withholding exemption certificate submitted to him has been determined to be defective, specify to an employer the basis upon which amounts of withholding under this article are to be computed; and
    4. Governing any and all other matters reasonably considered by the commissioner to be appropriate in addressing those matters set forth in paragraphs (1) through (3) of this subsection.
  2. For purposes of rules and regulations promulgated under the authority of subsection (a) of this Code section, the term "employer" may be defined by the commissioner to include an individual authorized by an employer to receive withholding exemption certificates, to make withholding computations, or to make payroll distributions.
  3. Nothing in this Code section shall be construed to deny additional withholding allowances to an employee who can show that he will have additional deductions because he or his spouse has attained age 65 or is blind, large itemized deductions, deductible alimony payments, moving expenses, employee business expenses, retirement contributions, net losses, or tax credits. (Code 1981, § 48-7-102.1 , enacted by Ga. L. 1985, p. 1411, § 1; Ga. L. 1987, p. 191, § 6.)

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Administrative Rules and Regulations. - Net taxable income, individual, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Chapter 560-7-4.

48-7-103. Quarterly, monthly, and jeopardy returns; tax payments; forms.

  1. Every employer whose tax withheld or required to be withheld is $200.00 or less per month is required to file and remit payment to the department on or before the last day of the month following the end of the quarter.
    1. Except as otherwise provided in subsection (a) of this Code section, every employer whose tax withheld or required to be withheld is $50,000.00 or less in the aggregate for the lookback period is required to file and remit payment to the department on or before the fifteenth day of the following month; provided, however, that the commissioner shall be authorized to promulgate rules and regulations to permit the filing of such returns on a quarterly basis.
    2. Every employer whose tax withheld or required to be withheld exceeds $50,000.00 in the aggregate for the lookback period must remit the withheld taxes pursuant to paragraph (3) of subsection (f) of Code Section 48-2-32 and shall file returns pursuant to paragraph (1) of this subsection.
    3. Notwithstanding any provision of this subsection to the contrary, for employers whose tax withheld or required to be withheld exceeds $100,000.00 for the payday, the taxes must be remitted by the next banking day.
    4. For purposes of this subsection, the lookback period for each calendar year shall be the 12 month period which ended the preceding June 30.
  3. If the commissioner has reason to believe that the collection of the tax required to be paid under this article is in jeopardy for any reason, he or she may require the employer to make a return and pay the required tax at any time.
  4. The commissioner is authorized to prescribe forms and to promulgate rules and regulations which the commissioner deems necessary in order to effectuate this Code section and shall be authorized to permit the filing of returns or the remitting of payments thereunder on an annual basis if agreed to by the taxpayer.

    (Ga. L. 1960, p. 7, § 5; Ga. L. 1964, p. 451, § 1; Ga. L. 1967, p. 780, §§ 1, 2; Ga. L. 1970, p. 107, § 1; Ga. L. 1972, p. 6, §§ 1, 2; Ga. L. 1973, p. 227, §§ 1, 2; Code 1933, § 91A-3904, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 1178, §§ 1, 2; Ga. L. 1991, p. 739, § 1; Ga. L. 1997, p. 734, § 6; Ga. L. 2002, p. 415, § 48; Ga. L. 2003, p. 665, § 9; Ga. L. 2005, p. 60, § 48/HB 95.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2003, p. 665, § 47(c), not codified by the General Assembly, provides that this Act shall be applicable to all taxable quarters beginning on or after April 1, 2004.

Law reviews. - For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1977, 2042 et seq., 2074.

48-7-104. Period adjustments for incorrect withholdings or payments.

  1. In general. If for any reason during any period of the calendar year more or less than the correct amount of the tax is withheld or more or less than the correct amount of the tax is paid to the commissioner, proper adjustment without interest may be made in any subsequent period of the same calendar year. No adjustment under this Code section shall be made with respect to an underpayment for any period after receipt from the commissioner of notice and demand for payment of the amount of the underpayment based upon an assessment. The amount of the underpayment shall be paid in accordance with the notice and demand. No adjustment under this Code section shall be made with respect to an erroneous payment or overpayment for any period after the filing of a claim for refund of the payment.
  2. Less than correct amount of tax withheld.
    1. If no tax or less than the correct amount of the tax is deducted from any wage payment and the error is ascertained prior to the filing of the return for the period in which the wages are paid, the employer shall report on the return and pay to the commissioner the correct amount of the tax required to be withheld. If the error is not ascertained until after the filing of the return for the period in which the wages are paid, the undercollection may be corrected by an adjustment on the return for any subsequent period of the same calendar year subject to the limitations noted in subsection (a) of this Code section. The amount of any undercollection adjusted in accordance with this paragraph shall be paid to the commissioner without interest at the time prescribed for payment of the tax for the period in which the adjustment is made.
    2. If no tax or less than the correct amount of the tax is withheld from any wage payment, the employer may correct the error by deducting the amount of the undercollection from any remuneration of the employee under the employer's control after the employer ascertains the error. The deduction may be made even though the remuneration, for any reason, does not constitute wages.
  3. More than correct amount of tax withheld.
    1. If in any period more than the correct amount of tax is deducted from any wage payment, the overcollection may be paid to the employee in any period of the same calendar year. If the amount of the overcollection is so paid, the employer shall obtain and keep as part of his records the endorsed canceled check or written receipt of the employee showing the date and amount of the payment.
    2. If any overcollection in any period is paid to and receipted for by the employee prior to the time the return for the period is filed with the commissioner, the amount of the overcollection shall not be included in the return for that period.
    3. Subject to the limitations provided in subsection (a) of this Code section, if an overcollection in any period is paid to and receipted for by the employee after the return for the period is filed and the tax is paid to the commissioner, the overcollection may be corrected by an adjustment on the return for any subsequent period of the same calendar year.
    4. Every overcollection not paid to and receipted for by the employee as provided in this subsection must be reported and paid to the commissioner with the return for the period in which the overcollection is made.

      (Ga. L. 1960, p. 7, § 6; Code 1933, § 91A-3905, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1991, p. 739, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 2051, 2052, 2053.

48-7-105. Statements of wages paid and taxes withheld to employees; time; extensions.

  1. Not later than January 31 in each year and at such other dates as required by the commissioner, each person required to withhold taxes as provided in this article shall furnish each employee for whom taxes have been withheld or to whom remuneration has been paid in that year or other period a statement of wages paid and taxes withheld. The commissioner shall provide by rule for the enforcement and implementation of this Code section. This Code section shall also apply with respect to Form 1099s where Georgia withholding occurred.
  2. The commissioner may grant a reasonable extension of time, not exceeding 30 days, for furnishing the statement required by this Code section.

    (Ga. L. 1960, p. 7, § 7; Code 1933, § 91A-3906, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 75; Ga. L. 2016, p. 1, § 4/HB 742.)

The 2016 amendment, effective February 23, 2016, added the last sentence in subsection (a).

48-7-106. Annual and final returns; time; extensions; return to be filed upon sale of business; withholding unpaid withholding taxes from purchase prices; penalties for violations.

  1. For calendar years beginning on or before December 18, 2015, on or before February 28 of each year for the preceding calendar year or on or before the thirtieth day after the date on which the final payment of wages is made by an employer who has ceased to pay wages, an employer shall file with the commissioner an annual or a final return, as the case may be, on a form prescribed by the commissioner. The employer shall attach to the return copies of the statements required to be furnished under Code Section 48-7-105 for the period covered by the return, provided that in lieu of attaching copies, the commissioner may authorize the reporting of such information by electronic or magnetic media. This subsection shall continue to apply for calendar years beginning after December 18, 2015, with respect to Form 1099s where Georgia withholding occurred and which are required to be filed for any reason other than to report nonemployee compensation.
  2. For calendar years beginning after December 18, 2015, on or before January 31 of each year for the preceding calendar year or on or before the thirtieth day after the date on which the final payment of wages is made by an employer who has ceased to pay wages, an employer shall file with the commissioner an annual or a final return, as the case may be, on a form prescribed by the commissioner. The employer shall attach to the return copies of the statements required to be furnished under Code Section 48-7-105 for the period covered by the return, provided that in lieu of attaching copies, the commissioner may authorize the reporting of such information by electronic or magnetic media. This subsection shall also apply with respect to Form 1099s where Georgia withholding occurred and which are required to be filed to report nonemployee compensation.
  3. The commissioner may grant a reasonable extension of time, not exceeding 30 days, for filing the annual or final return required by this Code section.
  4. If an employer liable for any withholding tax, interest, or penalty levied pursuant to this chapter sells out his or her business or stock of goods or equipment or quits the business, he or she shall file the final return as required in subsection (a) or (b) of this Code section. The employer's successor or assigns, if any, shall withhold a sufficient amount of the purchase money to cover the amount of the withholding taxes, interest, and penalties due and unpaid until the former owner provides a receipt from the commissioner showing that the taxes, interest, and penalties have been paid or a certificate from the commissioner stating that no withholding taxes, interest, or penalties are due.
  5. If the purchaser of a business or stock of goods or equipment fails to withhold the purchase money as required by this Code section, he or she shall be personally liable for the payment of the withholding tax, interest, and penalties accruing and unpaid by any former owner or assignor. The personal liability of the purchaser in such a case shall not exceed the amount of the total purchase money, but the property being transferred shall in all cases be subject to the full amount of the tax lien arising from the delinquencies of the former owner.

    (Ga. L. 1960, p. 7, § 8; Code 1933, § 91A-3907, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 21; Ga. L. 1983, p. 1834, § 9; Ga. L. 1988, p. 1380, § 3; Ga. L. 1997, p. 734, § 7; Ga. L. 2016, p. 1, § 5/HB 742.)

The 2016 amendment, effective February 23, 2016, in subsection (a), substituted "For calendar years beginning on or before December 18, 2015, on or before" for "On or before" at the beginning, and added the last sentence; added present subsection (b) and redesignated former subsections (b) through (d) as present subsections (c) through (e), respectively; in the first sentence of subsection (d), inserted "or her", inserted "or she", and inserted "or (b)"; and, in the first sentence of subsection (e), inserted "or she".

Editor's notes. - Ga. L. 1988, p. 1380, § 8, not codified by the General Assembly, provides: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, except that the state revenue commissioner, to the extent that he determines administratively necessary, may delay the implementation of any provision of this Act to no later than January 1, 1989."

Law reviews. - For article, "Common State Tax Pitfalls in the Acquisition or Disposition of Businesses in Georgia," see 22 Ga. St. B. J. 82 (1985).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1977.

48-7-107. Filing of returns; persons authorized to sign; verification; furnishing of required forms by commissioner; effect of failure to furnish forms.

  1. Each return shall be signed by or for the employer required to deduct and withhold the tax under this article and shall contain or be verified by a written declaration that the return is made under the penalties for false swearing. The return shall be signed and verified by the employer, by a person having control of the payment of wages for the employer, or by a person authorized to make the return for the employer. The fact that a name appears to be signed to a return shall be prima-facie evidence that the name was actually signed by the person named. The fact that a person appears to have signed for an employer shall be prima-facie evidence that the person was authorized to sign for the employer.
  2. The commissioner, as far as possible, shall furnish employers, regularly and without application, copies of the prescribed forms required to be used under this article. No employer is excused from making a return or furnishing a receipt by the fact that no forms had been furnished to the employer.

    (Ga. L. 1960, p. 7, § 9; Code 1933, § 91A-3908, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1977, 2074.

48-7-108. Employer's liability.

  1. In general. The employer shall be liable for the payment of the tax required to be deducted and withheld under this article whether or not the employer has deducted and withheld the tax as required under this article.
  2. Withheld tax. The amount of tax deducted and withheld by an employer from an employee's wages under this article shall be held to be a special fund in trust for the state; and the employer's liability for the tax shall be discharged only by payment of the tax to the commissioner. To the extent that the tax is deducted and withheld, the employer shall not be liable to any other person for the amount of the tax and shall be indemnified against the claims and demands of any person for the payment of any amounts made to the commissioner in accordance with this article.
  3. Assessment, collection, and payment. Except as otherwise provided by law, the liability of an employer under subsection (a) of this Code section and the amount of the fund described in subsection (b) of this Code section shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations including, but not limited to, penalties as are income taxes. In the event any employer is delinquent in payment of the tax imposed by this article, the commissioner may give notice of the amount of the delinquency by registered or certified mail or statutory overnight delivery to all persons having in their possession or under their control any credits or other personal property belonging to the employer and to all persons owing any debts to the employer at the time of receipt by them of the notice. In lieu of registered or certified mail or statutory overnight delivery, the notice may be served and the recipient may acknowledge service thereof by telephonic facsimile transmission or by other means of instantaneous electronic transmission. Thereafter, no person so notified shall transfer or make any other disposition of the credits, other personal property, or debts until the commissioner has consented to a transfer or disposition or until 30 days have elapsed after receipt of the notice. Each person so notified must advise the commissioner, within five days after receipt of the notice, of any and all credits, other personal property, or debts in such person's possession, under such person's control, or owing by such person as provided in this Code section.
  4. Amount due on face of return. The filing of any return by an employer in compliance with this article which shows on its face an amount due shall by operation of law constitute an assessment of the amount shown to be due on the return against the employer filing the return as of the date the return is filed. For the purposes of this Code section, an entry on a return showing the date of receipt by the department shall be prima-facie evidence that the return was actually received and filed on the date indicated. If payment is not made either with the return or on or before the due date of the return, whichever is later, the amount shown to be due shall be in default and the commissioner may issue an execution for the collection of the amount due.
  5. Protest of proposed assessment. Each protest of a proposed assessment of taxes due under this article shall be filed within ten days of the notice of the proposed assessment unless the commissioner authorizes additional time. The filing of a protest and the filing of a request for additional time for the filing of a protest shall toll the period of limitations for making an assessment until the protest or request is withdrawn by the employer or denied by the commissioner.

    (Ga. L. 1960, p. 7, § 11; Code 1933, § 91A-3909, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 37; Ga. L. 1996, p. 780, § 2; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section shall apply with respect to notices delivered on or after July 1, 2000.

JUDICIAL DECISIONS

Tax lien rendered choate. - For purposes of determining the priority between competing tax liens held by the State of Georgia and the United States, the Georgia statute which provides that a return filed by a taxpayer constitutes an assessment for the unpaid amount as shown on that return rendered Georgia's lien choate, the return sufficiently identifying the lienor, the property, and the amount. In re Alliance Transp., Inc., 47 Bankr. 743 (Bankr. N.D. Ga. 1985).

Cited in Transamerican Ins. Co. v. State, 158 Ga. App. 45 , 279 S.E.2d 238 (1981).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1977, 2003, 2042 et seq.

48-7-109. Effect as to employer's liability of employee's payment of tax not deducted and withheld; effect on employee's income tax liability resulting from employer's failure to withhold tax.

  1. If the employer fails to deduct and withhold the required tax in violation of this article and thereafter the income tax liability of the employee under Code Section 48-7-20, against which the amount, if withheld, would have been a credit, is paid by the employee, the tax required to be deducted and withheld shall not be collected from the employer. This Code section in no way shall relieve the employer from the liability for any penalties or additions to the tax otherwise applicable with respect to such failure.
  2. The income tax liability of an employee shall in no way be affected by the failure of his employer to withhold the tax required under this article.

    (Ga. L. 1960, p. 7, § 14; Code 1933, § 91A-3912, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 39.)

48-7-109.1. Special accounting for withheld tax by employer who fails to deduct, withhold, collect, account for, or pay over taxes as required by article.

  1. Whenever an employer required to deduct and withhold taxes as required under this article fails, at the time and in the manner prescribed by law or regulation, to deduct and withhold, collect, account truthfully for, or pay over to the commissioner the amount of taxes due as required by this article, upon being notified of the failure by the commissioner by notice served upon him, personally or by registered or certified mail or statutory overnight delivery addressed to his last known address, he shall comply with the requirement of special accounting as set forth in subsection (b) of this Code section.
  2. Beginning at the time of service upon him of the notice provided for in subsection (a) of this Code section, the employer shall deduct and withhold the tax required under this article and, not later than the second banking day after any amount of such tax is deducted and withheld, shall:
    1. Deposit the tax in a special and separate account in any state or national bank designated as a state depository and keep the amount of such taxes in such account until payment over to the commissioner or to the department. Each such account shall be a special fund in trust for the state payable only to the commissioner or the department; or
    2. Purchase a postal money order or other certified or bankable paper for such amount, payable only to the commissioner or the department. The order or paper shall be handled and dealt with under such rules and regulations as the commissioner may prescribe.
  3. Whenever the commissioner is satisfied that the special accounting prescribed under subsections (a) and (b) of this Code section is no longer necessary to effect future compliance with law or regulations, he may cancel the notice requiring compliance with subsection (b) of this Code section at such time and under such conditions as he may specify.

    (Code 1933, § 91A-3911.1, enacted by Ga. L. 1981, p. 1857, § 38; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to this Code section shall apply with respect to notices delivered on or after July 1, 2000.

48-7-110. Effect of employer's voluntary compliance with requirements of article as to admission of doing business in state.

The fact of an employer's voluntary compliance with the requirements of this article shall not of itself constitute any admission that the employer is doing business within this state for any other purpose, but it shall be taken as conferring jurisdiction upon this state for purposes of collecting amounts withheld under this article.

(Ga. L. 1960, p. 7, § 2; Code 1933, § 91A-3910, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 163 et seq., 213, 214.

48-7-111. Employer's records; contents; period of preservation.

  1. Each employer required to deduct and withhold taxes under this article shall keep accurate records of all remuneration paid to his employees, including, but not limited to, remuneration paid in forms other than cash. The records shall contain the information required by rules issued by the commissioner.
  2. The records required to be kept pursuant to subsection (a) of this Code section and records relating to refunds shall be preserved and maintained for a period of at least four years after the date the tax to which they relate becomes due or the date the tax is paid, whichever is later.

    (Ga. L. 1960, p. 7, § 12; Code 1933, § 91A-3911, enacted by Ga. L. 1978, p. 309, § 2.)

Administrative Rules and Regulations. - Electronic record keeping and retention, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Administrative Unit, Organization, § 560-1-1-.19.

48-7-112. Employee refunds and credits; procedures.

  1. Credit. The amount of tax deducted or withheld during any calendar year with respect to an employee shall be allowed as a credit to the employee against his income tax liability under Code Section 48-7-20 for the taxable year beginning in the calendar year.
  2. Overpayment.
    1. To the extent that the credit provided in subsection (a) of this Code section together with other credits allowed by law is in excess of the employee's income tax liability for the taxable year as shown on an income tax return filed by the employee for that year, the overpayment shall be considered as taxes erroneously paid and shall be credited or refunded as provided in this Code section. An overpayment shall be credited to the person's estimated income tax liability for the succeeding taxable year unless the person claims a refund for the overpayment. The commissioner may consider any final return showing an overpayment as a claim for refund per se. An overpayment shall bear no interest if credit is given for the overpayment. Amounts refunded as overpayments shall bear interest at the rate provided in Code Section 48-2-35 but only after 90 days from the filing date of the final return showing the overpayment or from the due date of the final return, whichever is later.
    2. A refund shall be deemed to have been made when the commissioner issues a check for the refund payable to the claimant. The record in the office of the commissioner as to the time of issuance of the refund shall be prima-facie evidence of the time the refund is made. Whenever a check is issued for a refund claimed or shown due on a final return and no separate claim has been filed for the refund, the check shall be sent by first-class mail to the claimant at the address shown on the return in an envelope instructing return of the envelope if not delivered in ten days. The commissioner shall publish in print or electronically the names of claimants whose checks are returned. If a refund check is not claimed in accordance with the commissioner's instructions within 90 days after the publication, the refund claim covered by the check shall be deemed to have been abandoned. Any refund check which is not presented for payment within 180 days after the date of the check shall be void and the refund claim covered by the check shall be deemed to have been abandoned. When any claim for refund has been abandoned, any funds which may have been designated or set aside for its payment shall be returned to the Office of the State Treasurer and the claimant's right to the refund shall be barred. This subsection shall not apply to a claim for refund filed with, but separately from, a final return under general law and shall not affect the period of limitations allowed by general law applicable to a claim for refund when filed separately from a final return.
  3. Limitation on refund or credit. No refund or credit shall be allowed unless the employee attaches to and files with his final income tax return a copy of the employer's receipt as provided for in Code Section 48-7-105 for the amount of tax deducted and withheld from his wages for that taxable year. If an employee submits satisfactory proof that his employer deducted and withheld taxes from his wages and that the employer failed or refused to furnish the employee with the prescribed receipt, the proof so furnished may be taken to establish a credit or refund under this Code section.
  4. Setoffs. Notwithstanding any other provision of this subsection, a refund or a portion thereof may be transferred to a claimant agency to set off a debt due and owing to the claimant agency as provided in Article 7 of this chapter. When any action pursuant to Article 7 of this chapter is taken, that article shall govern all aspects of right and entitlement to refunds covered thereunder. Funds transferred to claimant agencies shall not bear interest. If there is a final determination that the taxpayer alleged to be a debtor is entitled to receive all or part of the funds transferred to a claimant agency, the amount to which the taxpayer is entitled shall bear interest at the rate provided in Code Section 48-2-35 beginning 30 days after the final determination.

    (Ga. L. 1960, p. 7, § 15; Ga. L. 1961, p. 53, § 1; Ga. L. 1975, p. 156, § 2; Code 1933, § 91A-3913, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1555, § 2; Ga. L. 1993, p. 1402, § 18; Ga. L. 2000, p. 777, § 2; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2010, p. 863, § 2/SB 296.)

OPINIONS OF THE ATTORNEY GENERAL

No recovery of excess withholdings when return not filed within three years. - Overpayment of income taxes resulting from excess withholdings may not be recovered under normal circumstances by filing a claim for refund or by obtaining credit against liability of different years, when the taxpayer does not file an income tax return until more than three years after the date of payment. 1976 Op. Att'y Gen. No. 76-54.

Rules and regulations as to refund checks not presented within 180 days. - In the absence of statutory authority to the contrary, rules and regulations providing for stop payments to be issued after 180 days and the return of funds to the general treasury would be deemed reasonable. 1973 Op. Att'y Gen. No. 73-103.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 2026 et seq.

ALR. - Right to interest on tax refund or credit in absence of specific controlling statute, 76 A.L.R. 1012 ; 112 A.L.R. 1183 ; 88 A.L.R.2d 823.

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

48-7-113. Employer refunds and credits; procedure; claim for abatement of overassessment.

If more than the correct amount of tax, penalty, or interest is paid to the commissioner by an employer, the employer may file a claim for refund of the overpayment or may take credit for the overpayment against the tax reported on any quarterly return which the employer subsequently files. A refund or credit of the overpayment, however, shall be made only to the extent that the amount of overpayment exceeds the tax actually withheld and the penalty and interest on the tax. If more than the correct amount of tax, penalty, or interest is assessed and is not paid to the commissioner, the employer against whom the assessment is made may file a claim for abatement of the overassessment.

(Ga. L. 1960, p. 7, § 16; Code 1933, § 91A-3914, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 2074 et seq.

ALR. - Right to interest on tax refund or credit in absence of specific controlling statute, 76 A.L.R. 1012 ; 112 A.L.R. 1183 ; 88 A.L.R.2d 823.

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

48-7-114. Estimated income tax by individuals; procedures.

  1. "Estimated tax" defined. For purposes of this Code section, the term "estimated tax" means the amount which the individual estimates as the amount of income tax imposed by Code Section 48-7-20 less the amount which the individual estimates as the sum of credits allowable by law against the tax.
  2. Requirement of estimated tax. Except as otherwise provided in subsection (d) of this Code section, every resident individual and every taxable nonresident individual shall file his or her estimated tax for the current taxable year if he or she can be reasonably expected to be required to file a Georgia income tax return for the current taxable year and his or her gross income can reasonably be expected to:
    1. Include more than $1,000.00 from sources other than wages as defined in paragraph (10) of Code Section 48-7-100; and
    2. Exceed:
      1. One thousand five hundred dollars if the individual is single or the individual is married and not living with his or her spouse or the individual is married and expects to claim only $1,500.00 of the marital exemption; or
      2. Three thousand dollars if the individual is married and living with his or her spouse and expects to claim the full marital exemption.
  3. Return as estimated tax. If on or before January 31 of the succeeding taxable year or, in the case of an individual referred to in subsection (b) of Code Section 48-7-115, relating to income from farming and fishing, on or before March 1 of the succeeding taxable year, the taxpayer files a return for the taxable year for which the estimated tax is required and pays in full the amount computed on the return as payable and the estimate is not required to be filed during the taxable year but is required to be filed on or before January 15, then the return shall be considered as the estimate.
  4. Exemptions. This Code section shall not apply to an individual in a given tax year if:
    1. The sum of the allowable credits shown on the individual's income tax return for the tax year exceeds the individual's tax liability shown on the return before the tax liability is reduced by the amount of the allowable credits; and
    2. The individual reasonably expected at the time estimated tax was otherwise required to be filed with respect to the tax year that the conditions of paragraph (1) of this subsection would be met for the tax year.
    1. Applicability to fiduciaries. With respect to taxable years beginning on or after January 1, 1988, fiduciaries shall be subject to all requirements of this article in the same manner as individuals, except as provided in paragraph (2) of this subsection.
    2. This Code section shall not apply with respect to any taxable year ending before the date two years after the date of the decedent's death in the case of:
      1. The estate of such decedent; or
      2. A testamentary trust as defined in IRC Section 6654(l)(2)(B).

        (Ga. L. 1960, p. 7, § 18; Code 1933, § 91A-3915, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 76; Ga. L. 1980, p. 459, §§ 1, 2; Ga. L. 1987, p. 191, § 7; Ga. L. 1988, p. 1380, § 4; Ga. L. 1988, p. 1389, § 1; Ga. L. 2012, p. 796, § 1/HB 965.)

Code Commission notes. - Two 1988 Acts amended this Code section and pursuant to Code Section 28-9-5, subsections (a) - (d) are set out as designated by Ga. L. 1988, p. 1380, and subsection (f), as added by Ga. L. 1988, p. 1389, is redesignated as subsection (e).

Editor's notes. - Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1988, p. 1389, § 2, not codified by the General Assembly, provided that no civil or criminal liability under that Act shall be incurred with respect to any act or failure to act occurring on or before July 1, 1988.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1977 et seq.

48-7-115. Time for filing estimated income tax by individuals.

  1. In general. Estimated tax required by Code Section 48-7-114 from an individual not regarded as a farmer or fisherman shall be filed with the commissioner on or before April 15 of the taxable year, except that if the requirements of subsection (b) of Code Section 48-7-114 are first met:
    1. On or after April 1 and before June 1 of the taxable year, the estimated tax shall be filed on or before June 15 of the taxable year;
    2. On or after June 1 and before September 1 of the taxable year, the estimated tax shall be filed on or before September 15 of the taxable year; or
    3. On or after September 1 of the taxable year, the estimated tax shall be filed on or before January 15 of the succeeding year.
  2. Farmers and fishermen. Estimated tax required by Code Section 48-7-114 from individuals whose estimated gross income from farming or fishing for the taxable year is at least two-thirds of the total estimated gross income from all sources for the taxable year may be filed, in lieu of the time prescribed in subsection (a) of this Code section, at any time on or before January 15 of the succeeding taxable year.
  3. Short taxable years. In the application of this Code section to a taxable year beginning on any date other than January 1, there shall be substituted for the months specified in this Code section the months which correspond to the months specified in this Code section.

    (Ga. L. 1960, p. 7, § 19; Code 1933, § 91A-3917, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 77; Ga. L. 1988, p. 1380, § 4.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 2027 et seq.

48-7-116. Installment payments of estimated tax by individuals.

  1. In general. The amount of estimated tax required to be paid by an individual shall be paid as follows:
    1. If the estimate is filed on or before April 15 of the taxable year, the estimated tax shall be paid in four equal installments. The first installment shall be paid on or before April 15. The second and third installments shall be paid on or before June 15 and September 15, respectively, of the taxable year. The fourth installment shall be paid on January 15 of the succeeding year;
    2. If the estimate is filed after April 15 and not after June 15 of the taxable year and is not required by subsection (a) of Code Section 48-7-115 to be filed on or before April 15 of the taxable year, the estimated tax shall be paid in three equal installments. The first installment shall be paid at the time of the filing of the estimate, the second installment shall be paid on September 15 of the taxable year, and the third installment shall be paid on January 15 of the succeeding year;
    3. If the estimate is filed after June 15 and not after September 15 of the taxable year and is not required by subsection (a) of Code Section 48-7-115 to be filed on or before June 15 of the taxable year, the estimated tax shall be paid in two equal installments. The first installment shall be paid at the time of the filing of the estimate and the second installment shall be paid on January 15 of the succeeding year;
    4. If the estimate is filed after September 15 of the taxable year and is not required by subsection (a) of Code Section 48-7-115 to be filed on or before September 15 of the taxable year, the estimated tax shall be paid in full at the time of the filing of the estimate; or
    5. If the estimate is filed after the time prescribed in subsection (a) of Code Section 48-7-115 including, but not limited to, cases in which an extension of time for filing has been granted, paragraphs (2), (3), and (4) of this subsection shall not apply, and all installments of estimated tax which would have been payable on or before such time if the estimate had been filed within the time prescribed in subsection (a) of Code Section 48-7-115 shall be paid at the time of the filing. The remaining installments shall be paid at the times at which, and in the amounts in which, they would have been payable if the estimate had been so filed.
  2. Farmers and fishermen. If an individual referred to in subsection (b) of Code Section 48-7-115, relating to income from farming and fishing, files estimated tax after September 15 of the taxable year and on or before January 15 of the succeeding year, the estimated tax shall be paid in full at the time of the filing.
  3. Fiscal years. In the application of this Code section to a taxable year beginning on any date other than January 1, there shall be substituted for the months specified in this Code section the months which correspond to the months specified in this Code section.
  4. Installments paid in advance. At the election of the individual, any installment of the estimated tax may be paid prior to the date prescribed for its payment.

    (Ga. L. 1960, p. 7, § 20; Code 1933, § 91A-3919, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 78; Ga. L. 1988, p. 1380, § 4.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 2074.

48-7-117. Estimated income tax by corporations.

  1. "Estimated tax" defined. For purposes of this Code section, the term "estimated tax" means the amount which the corporation estimates as the amount of income tax imposed by Code Section 48-7-21 less the amount which the corporation estimates as the sum of credits allowable by law against the tax.
  2. In general. Every domestic and foreign corporation subject to taxation under Code Section 48-7-21 shall pay estimated tax for the taxable year if its net income for the taxable year as defined in Code Section 48-7-31 can reasonably be expected to exceed $25,000.00.

    (Ga. L. 1963, p. 18, § 1; Code 1933, § 91A-3916, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1380, § 4.)

RESEARCH REFERENCES

ALR. - Income of subsidiary as taxable to it or to parent corporation, 10 A.L.R.2d 576.

48-7-118. Time for filing declarations of estimated income tax by corporations.

Reserved. Repealed by Ga. L. 1988, p. 1380, § 4, effective April 11, 1988.

48-7-119. Installment payments of estimated tax by corporations.

If the requirements of Code Section 48-7-117 are first met as shown in the left-hand column of the following table, then the estimated tax shall be due as shown in the remaining columns:

The following percentages of the estimated tax shall be paid on the fifteenth day of the: fourth sixth ninth twelfth month month month month of the of the of the of the taxable taxable taxable taxable year year year year Before the first day of the fourth month of the taxable year 25 25 25 25 After the last day of the third month and before the first day of the sixth month of the taxable year 33 1/3 33 1/3 33 1/3 After the last day of the fifth month and before the first day of the ninth month of the taxable year 50 50 After the last day of the eighth month and before the first day of the twelfth month of the taxable year 100

(Ga. L. 1963, p. 18, § 3; Code 1933, § 91A-3920, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1988, p. 1380, § 4; Ga. L. 1989, p. 1110, § 1.)

Editor's notes. - Ga. L. 1989, p. 1110, § 2, not codified by the General Assembly, provides that the amendments to this Code section by the Act shall apply to taxable years beginning on or after January 1 of the calendar year in which the Act takes effect.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 2075.

48-7-120. Failure by taxpayer to pay estimated income tax.

  1. Addition to the tax. In case of any underpayment of estimated tax by a taxpayer, except as provided in subsection (d) of this Code section, an amount computed at the rate of 9 percent per annum upon the amount of the underpayment, determined under subsection (b) of this Code section, for the period of the underpayment, determined under subsection (c) of this Code section, shall be added to the tax under Code Section 48-7-21 for the taxable year.
  2. Amount of underpayment. For purposes of subsection (a) of this Code section, the amount of the underpayment shall be the lesser of the excess of paragraph (1) or paragraph (2) of this subsection over paragraph (3) of this subsection when those paragraphs are as follows:
    1. The amount of the installment required to be paid if the estimated tax were equal to 70 percent (66 2/3 percent in the case of individuals referred to in subsection (b) of Code Section 48-7-115, relating to income from farming and fishing) of the tax shown on the return for the taxable year or, if no return was filed, 70 percent (66 2/3 percent in the case of individuals referred to in subsection (b) of Code Section 48-7-115, relating to income from farming and fishing) of the tax for the year;
    2. The amount of the installment required to be paid if the estimated tax were equal to 100 percent of the tax shown on the return for the preceding taxable year, as long as the preceding taxable year was a taxable year of 12 months, and a tax return was filed for such preceding taxable year; and
    3. Any amount of the installment paid on or before the last date prescribed for payment.
  3. Period of underpayment. The period of the underpayment shall run from the date the installment was required to be paid to whichever of the following dates is the earlier:
    1. The fifteenth day of the fourth month following the close of the taxable year; or
    2. With respect to any portion of the underpayment, the date on which the portion is paid. For the purposes of this paragraph, a payment of estimated tax on the installment date or, in the case of a corporation, on the fifteenth day of the first month of the succeeding taxable year shall be considered a payment of any previous underpayment only to the extent the payment exceeds the amount of the installment determined under paragraph (1) of subsection (b) of this Code section for the installment date or, in the case of a corporation, for the fifteenth day of the first month of the succeeding taxable year.
  4. Exception. Notwithstanding subsections (a) through (c) of this Code section, the addition to the tax with respect to any underpayment of any installment shall not be imposed if the total amount of all payments of estimated tax made on or before the last date prescribed for the payment of the installment equals or exceeds the amount which would have been required to be paid on or before the last date prescribed for the payment if the estimated tax were the least of the following:
    1. The tax shown on the return for the preceding taxable year, if a return showing a liability for tax was filed by the taxpayer for the preceding taxable year and the preceding year was a taxable year of 12 months;
    2. An amount equal to the tax computed at the rates applicable to the taxable year on the basis of the taxpayer's status with respect to Code Section 48-7-26 for the taxable year, but otherwise on the basis of the facts shown on the return of the taxpayer for, and under the law applicable to, the preceding taxable year; or
    3. An amount equal to 70 percent, or 66 2/3 percent in the case of individuals referred to in subsection (b) of Code Section 48-7-115, relating to income from farming and fishing, of the tax for the taxable year computed by placing on an annualized basis the taxable income for the months in the taxable year ending before the month in which the installment is required to be paid. For purposes of this paragraph, the taxable income shall be placed on an annualized basis by:
      1. Multiplying by 12 or, in the case of a taxable year of less than 12 months, by the number of months in the taxable year the taxable income (computed without deduction of personal exemptions) for the months in the taxable year ending before the month in which the installment is required to be paid;
      2. Dividing the resulting amount by the number of months in the taxable year ending before the month in which the installment date falls; and
      3. Deducting from the amount the deductions for any personal exemptions allowable for the taxable year, such personal exemptions to be determined as of the last date prescribed for payment of the installment.
    4. In the case of an individual, an amount equal to 90 percent of the tax computed at the rates applicable to the taxable year on the basis of the actual taxable income for the months in the taxable year ending before the month in which the installment is required to be paid.
  5. Application to individual. For purposes of applying this Code section in the case of an individual:
    1. The estimated tax shall be computed without any reduction for the amount which the individual estimates as his credit under subsection (a) of Code Section 48-7-112; and
    2. The amount of the credit allowed under subsection (a) of Code Section 48-7-112 for the taxable year shall be deemed a payment of estimated tax, and an equal part of the amount shall be deemed paid on each installment date as determined under Code Section 48-7-116 for the taxable year. If the taxpayer establishes the dates on which all amounts were actually withheld, the amounts so withheld shall be deemed payments of estimated tax on the dates on which the amounts were actually withheld.
  6. "Tax" defined. For purposes of subsections (b) and (d) of this Code section, the term "tax" means the tax imposed by Code Section 48-7-20 reduced by the credits against the tax allowed by law other than the credit against tax provided by subsection (a) of Code Section 48-7-112, relating to tax withheld on wages.

    (Ga. L. 1960, p. 7, § 22; Ga. L. 1963, p. 18, § 5; Ga. L. 1975, p. 156, §§ 3, 4; Code 1933, § 91A-3921, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 79, 80; Ga. L. 2003, p. 428, § 1.)

Editor's notes. - Ga. L. 2003, p. 428, § 2, not codified by the General Assembly, provides that this Act "shall be applicable to all taxable years beginning on or after January 1, 2003."

OPINIONS OF THE ATTORNEY GENERAL

Basis for computation of addition to tax. - When a taxpayer has filed a return, the addition to the tax imposed by this section should be computed on the basis of the tax shown on the taxpayer's return and not with reference to any deficiency assessed against the taxpayer. 1967 Op. Att'y Gen. No. 67-401.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 2026 et seq., 2075 et seq.

48-7-121. Credit of estimated tax payment; credit or refund of estimated tax overpayment; rate of interest on refund; time.

  1. As used in this Code section, the term:
    1. "Final return" means the original income tax return filed by the taxpayer for the tax year or an amended return filed on or before the due date of the return without extensions. Such term does not include any other amended income tax return for the period or an estimated tax return.
    2. "Income tax liability for a taxable year" means the taxpayer's income tax liability as calculated under Code Section 48-7-20 or 48-7-21 for the taxable year reduced (but not below zero) by all nonrefundable credits to which the taxpayer is entitled. Nonrefundable credits include any credit that is limited by the taxpayer's income tax liability or some percentage thereof.
    3. "Other credits allowed by law" means only those income tax credits that are refundable, such as the credit for income tax withholding and the credit allowed by Code Section 48-7-28.1. Refundable credits do not include any credit that is limited by the taxpayer's income tax liability or some percentage thereof.
  2. The amount of estimated tax paid under this article for any taxable year shall be allowed as a credit to the taxpayer against the taxpayer's income tax liability under Code Section 48-7-20 or 48-7-21 for the taxable year.
  3. To the extent that the estimated tax credit, together with other credits allowed by law, is in excess of the taxpayer's income tax liability for a taxable year as shown on a final return filed by the taxpayer for that year, the overpayment shall be considered as taxes erroneously paid and shall be credited or refunded as provided in this subsection. The overpayment shall be credited to the taxpayer's estimated income tax liability for the succeeding taxable year unless the taxpayer claims a refund for the overpayment. The commissioner may consider any final return showing an overpayment as a claim for refund per se. An overpayment shall bear no interest if credit is given for the overpayment. Amounts refunded as overpayments shall bear interest at the rate provided in Code Section 48-2-35 but only after 90 days from the filing date of the final return showing the overpayment or 90 days from the due date of the final return, whichever is later.

    (Ga. L. 1960, p. 7, § 23; Ga. L. 1963, p. 18, § 6; Ga. L. 1975, p. 156, § 5; Code 1933, § 91A-3922, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 777, § 3; Ga. L. 2005, p. 159, § 21/HB 488.)

Editor's notes. - Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 419 et seq., 488 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 2026 et seq., 2055, 2056, 2074.

ALR. - Retrospective operation of statute enlarging or shortening period of claim of tax refund, 163 A.L.R. 778 .

Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437.

48-7-122. Nondeductibility to employer of tax deducted and withheld.

The tax deducted and withheld under this article shall not be allowed as a deduction to the employer.

(Ga. L. 1960, p. 7, § 28; Code 1933, § 91A-3924, enacted by Ga. L. 1978, p. 309, § 4; Ga. L. 1988, p. 1380, § 5.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 404 et seq.

48-7-123. Disregard of fractional parts of dollar in allowance of credits or refunds or in assessment or collection of deficiencies or underpayments.

The commissioner may disregard a fractional part of a dollar in the allowance of any amount as a credit or refund or in the assessment or collection of any amount as a deficiency or underpayment.

(Ga. L. 1960, p. 7, § 24; Code 1933, § 91A-3927, enacted by Ga. L. 1978, p. 309, § 2.)

48-7-124. Reciprocal arrangements for relief of taxpayers from operation of income tax payment laws of more than one jurisdiction.

In the administration and enforcement of this article with respect to a taxpayer whose income may be subject to the current income tax payment laws of two or more tax jurisdictions, including this state, the commissioner may make reciprocal arrangements with the tax authorities of the other jurisdictions for the relief of the taxpayer from the multiple burden imposed by the operation of several current income tax payment laws.

(Ga. L. 1960, p. 7, § 29; Code 1933, § 91A-3925, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

ALR. - Reciprocity provision of income tax law, 152 A.L.R. 748 .

48-7-125. Application of article to short taxable years.

The application of this article to taxable years of less than 12 months shall be in accordance with regulations prescribed by the commissioner.

(Ga. L. 1960, p. 7, § 20; Code 1933, § 91A-3923, enacted by Ga. L. 1978, p. 309, § 2.)

48-7-126. Assessable penalties and interest.

  1. Assessable as tax. The liabilities specified in this Code section shall be paid upon notice and demand by the commissioner and shall be assessed and collected in the same manner as are income taxes. Except as otherwise provided by law, any reference to "tax" imposed under this article shall be deemed also to refer to the liabilities specified in this Code section.
  2. Failure to withhold tax. Any person required to deduct and withhold the tax imposed by Code Section 48-7-101 who, with respect to each wage payment to each employee, fails to deduct and withhold the required tax shall pay a penalty of $10.00 unless it is shown that the failure is due to reasonable cause and not to willful neglect. The penalty shall not exceed $10.00 quarterly for each employee with respect to whose wages the failure occurred.
  3. Failure to file employer return or pay tax. If an employer fails to file within the prescribed time a return required under this article or fails to pay when due the tax required under this article, or both, unless it is shown that the failure is due to reasonable cause and not to willful neglect, there shall be assessed a penalty of $25.00 against any employer for each such failure plus 5 percent of the amount of the tax if the failure is for not more than one month and an additional 5 percent for each additional month or fraction of a month during which the failure continues. The penalty shall not exceed $25.00 plus 25 percent in the aggregate of the tax and in no event shall the penalty be less than $25.00. If any check or money order in payment of any amount is not paid when duly presented for payment, it shall constitute a failure to pay under this subsection.
  4. Fraudulent withholding receipt. Any person required to furnish an employee with a withholding receipt required by Code Section 48-7-105 who willfully furnishes a false or fraudulent receipt shall for each such receipt be subject to a penalty of $50.00.
  5. Interest. If the tax imposed by this article on employers is not paid on the date prescribed for payment in Code Section 48-7-103 and is not adjusted as authorized in Code Section 48-7-104, interest on the unpaid amount at the rate specified in Code Section 48-2-40 shall be paid for the period from the due date of the tax, irrespective of any extension of time for payment, until the date of payment. The interest shall be assessed and collected as part of the tax.
  6. Failure of corporation to pay estimated tax. If a corporation fails to timely pay estimated tax, a penalty shall be assessed against the corporation in an amount equal to 5 percent of the Georgia income tax imposed on the corporation for the taxable year.

    (Ga. L. 1960, p. 7, § 30; Ga. L. 1963, p. 18, § 7; Ga. L. 1975, p. 156, § 6; Code 1933, § 91A-3926, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 23; Ga. L. 1988, p. 1380, § 6; Ga. L. 1991, p. 739, § 3.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 484 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 1977, 2075 et seq.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

48-7-127. Other violations of article; penalties.

  1. Willful failure to withhold tax.
    1. It shall be unlawful for any person who is required to deduct and withhold the tax imposed by Code Section 48-7-101 willfully to fail, in making payments of wages for any payroll period, to deduct and withhold the required tax from the wages paid to any employee.
    2. In addition to any other penalties provided by law, any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor for each such payroll period.
  2. Willful failure to pay over withheld tax.
    1. It shall be unlawful for any person who has deducted and withheld any amount from an employee's wages as a tax required under Code Section 48-7-101 willfully to fail, within the prescribed time, to pay the amount over to the commissioner as required under Code Section 48-7-103.
    2. In addition to any other penalties provided by law, any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor.
    3. For purposes of this subsection, a lack of funds existing immediately after the payment of wages, whether or not created by the payment of the wages, shall not negate willfulness.
  3. Willful failure to file return or pay estimated tax.
    1. It shall be unlawful for any person who is required under this article or regulations pursuant to this article to file any return of any tax or pay estimated tax or to keep any record, willfully to fail to file the return or pay the tax or to keep the records at the time or times required by law or regulation.
    2. In addition to any other penalties provided by law, any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor.
  4. False exemption certificate or failure to supply information.
    1. It shall be unlawful for any individual who is required to supply information to his employer under Code Section 48-7-102 willfully to supply false or fraudulent information or willfully to fail to supply information under Code Section 48-7-102 which would require an increase in the tax to be withheld under Code Section 48-7-102.
    2. In lieu of any penalty otherwise provided, any individual who violates paragraph (1) of this subsection shall be guilty of a misdemeanor.
  5. False withholding receipts or failure to furnish receipts.
    1. It shall be unlawful for any person who is required to furnish to an employee the receipt prescribed in Code Section 48-7-105 willfully to furnish a false or fraudulent receipt or willfully to fail to furnish the receipt at the time, in the manner, and showing the information required by law or regulation.
    2. In lieu of any other penalty provided by law, except the penalty provided in subsection (d) of Code Section 48-7-126, any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor for each such receipt or failure.
  6. Attempts to evade or defeat tax.
    1. It shall be unlawful for any person willfully to attempt in any manner to evade or defeat any tax imposed under this article or the payment of any tax imposed under this article.
    2. In addition to any other penalties provided by law, any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor.
  7. Willful failure to pay corporate estimated tax.
    1. It shall be unlawful for any officer, director, or employee of a corporation required under this article or regulations pursuant to this article to file estimated tax willfully to be responsible for the failure of the corporation to pay any installment of estimated tax due.
    2. In addition to any other penalties provided by law, any individual who violates any provision of paragraph (1) of this subsection shall be guilty of a misdemeanor for each such failure.
  8. Violation of notice of delinquency.
    1. It shall be unlawful for any person to violate the provisions of subsection (c) of Code Section 48-7-108 with respect to notice of delinquency.
    2. Any person who violates paragraph (1) of this subsection with respect to notice of delinquency shall be guilty of a misdemeanor.
  9. Failure to comply with notice of special accounting.
    1. It shall be unlawful for any person to fail to comply with a notice of the commissioner requiring compliance with subsection (b) of Code Section 48-7-109.1, providing for special accounting under the current income tax payment law.
    2. In addition to other penalties provided by law, any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor unless there was a reasonable doubt as to whether the law required collection of the tax or as to who was required by law to collect the tax or the failure to comply was due to circumstances beyond his control.
    3. For the purposes of this subsection, a lack of funds existing immediately after the payment of wages, whether or not created by the payment of such wages, shall not be considered to be circumstances beyond the control of a person.

      (Ga. L. 1960, p. 7, § 31; Ga. L. 1963, p. 18, § 8; Code 1933, § 91A-9933, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 10; Ga. L. 1988, p. 1380, § 7; Ga. L. 2004, p. 416, § 1; Ga. L. 2004, p. 487, § 1.)

Editor's notes. - Ga. L. 2004, p. 487, § 3, not codified by the General Assembly, deleted former subsection (j), effective July 1, 2014.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 484 et seq.

C.J.S. - 37 C.J.S., Fraud, §§ 12 et seq., 115, 123 et seq. 84 C.J.S., Taxation, §§ 623, 628. 85 C.J.S., Taxation, §§ 1854, 1855, 1865 et seq., 1932.

48-7-128. Withholding tax on sale or transfer of real property and associated tangible personal property by nonresidents.

  1. As used in this Code section, the term "nonresident of Georgia" shall include individuals, trusts, partnerships, corporations, and unincorporated organizations.  Any seller or transferor who meets all of the following conditions and who provides the buyer or transferee with an affidavit signed under oath swearing or affirming that the following conditions are met will be deemed a resident for purposes of this Code section:
    1. The seller or transferor has filed Georgia income tax returns or appropriate extensions have been received for the two income tax years immediately preceding the year of sale;
    2. The seller or transferor is in business in Georgia and will continue substantially the same business in Georgia after the sale or the seller or transferor has real property remaining in the state at the time of closing of equal or greater value than the withholding tax liability as measured by the 100 percent property tax assessment of such remaining property;
    3. The seller or transferor will report the sale on a Georgia income tax return for the current year and file it by its due date; and
    4. If the seller or transferor is a corporation or limited partnership, it is registered to do business in Georgia.
    1. Except as otherwise provided in this Code section, in the case of any sale or transfer of real property and related tangible personal property located in Georgia by a nonresident of Georgia, the buyer or transferee shall be required to withhold and remit to the commissioner on forms provided by the commissioner a withholding tax equal to 3 percent of the purchase price or consideration paid for the sale or transfer; provided, however, that if the amount required to be withheld pursuant to this subsection exceeds the net proceeds payable to the seller or transferor, the buyer or transferee shall withhold and pay over to the commissioner only the net proceeds otherwise payable to the seller or transferor.  Any buyer or transferee who fails to withhold such amount shall be personally liable for the amount of such tax.
    2. The liability imposed by this subsection shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as all other withholding taxes imposed by this article.
    3. The person or entity identified as the seller on the settlement statement shall be considered the seller for all purposes regarding this Code section, including, but not limited to, executing and delivering to the buyer or transferee all forms or other documents incident to determining the appropriate amount of tax to be withheld or the appropriate amount exempt from withholding requirements.
  3. If the seller or transferor determines that the amount required to be withheld pursuant to paragraph (1) of subsection (b) of this Code section will result in excess withholding on any gain required to be recognized from the sale, the seller or transferor may provide the buyer or transferee with an affidavit signed under oath swearing or affirming to the amount of the gain required to be recognized from the sale, and the buyer or transferee shall withhold 3 percent of the amount of the gain required to be recognized, if any, stated in the affidavit rather than as provided in paragraph (1) of subsection (b) of this Code section.  If, however, the amount required to be withheld pursuant to this subsection exceeds the net proceeds payable to the seller or transferor, the buyer or transferee shall withhold and pay over to the commissioner only the net proceeds otherwise payable to the seller or transferor.
  4. Subsection (b) of this Code section shall not apply where:
    1. The real property being sold or transferred is a principal residence of the seller or transferor within the meaning of Section 1034 of the Internal Revenue Code;
    2. The seller or transferor is a mortgagor conveying the mortgaged property to a mortgagee in foreclosure or in a transfer in lieu of foreclosure with no additional consideration; or
    3. The transferor or transferee is an agency or authority of the United States of America, an agency or authority of the State of Georgia, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or the Government National Mortgage Association, or a private mortgage insurance company.

      The commissioner may by regulation set a purchase price amount below which no withholding is required.

    1. Unless otherwise provided, if the seller or transferor is a partnership or Subchapter "S" corporation or other unincorporated organization which certifies to the buyer or transferee that a composite return is being filed on behalf of the nonresident partners, shareholders, or members and that the partnership, Subchapter "S" corporation, or unincorporated organization remits the tax on the gain on behalf of the nonresident partners, shareholders, or members, the buyer or transferee shall not be required to withhold as provided in this Code section.  Any nonresident partner, shareholder, or member who falsely certifies that a composite return is being filed on behalf of such partner, shareholder, or member shall be liable for a penalty in the amount of $500.00 or 10 percent of the amount required to be withheld, whichever is greater.
    2. The penalty imposed by this subsection shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as the withholding tax imposed by this article.
  6. Every buyer or transferee of real property located in Georgia who is required to deduct and withhold the withholding tax imposed by subsection (b) of this Code section shall file the required return and remit payment to the department on or before the last day of the calendar month following the calendar month within which the sale or transfer giving rise to the withholding tax occurred. (Code 1981, § 48-7-128 , enacted by Ga. L. 1993, p. 768, § 2; Ga. L. 2011, p. 674, § 2-1/HB 117.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, the Code Section 48-7-128 enacted by Ga. L. 1993, p. 597, § 3, was redesignated as Code Section 48-7-129, since Ga. L. 1993, p. 768, § 2, also enacted a Code Section 48-7-128.

Editor's notes. - Ga. L. 1993, p. 768, § 3, not codified by the General Assembly, makes this Code section applicable with respect to any sale or transfer occurring on or after January 1, 1994.

Administrative Rules and Regulations. - Returns and collections, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Chapter 560-7-8.

Law reviews. - For note on the 1993 enactment of this Code section, see 10 Georgia St. U.L. Rev. 218 (1993).

48-7-129. Withholding tax on distributions to nonresident members of partnerships, Subchapter "S" corporations, and limited liability companies.

    1. Any partnership, Subchapter "S" corporation, or limited liability company which owns property or does business within this state shall be subject to a withholding tax. Such tax shall be withheld from a nonresident member's share of taxable income sourced to this state, whether distributed or not, except as provided in subsection (c) of Code Section 48-7-24. For purposes of this Code section, the term "taxable income sourced to this state" means the entity's income allocated or apportioned to Georgia pursuant to Code Section 48-7-31 or as otherwise provided by law.
    2. The amount of tax to be withheld for each nonresident member shall be determined by multiplying the nonresident member's share of the taxable income sourced to this state by a rate of 4 percent. To the extent that the partnership, Subchapter "S" corporation, or limited liability company remits withholding tax during the course of the tax year which exceeds the Georgia income tax liability of a nonresident member, that member shall be entitled to a refund of the excess withholding at the end of the taxable year.
    3. Any partnership, Subchapter "S" corporation, or limited liability company which fails to withhold and pay over to the commissioner any amount required to be withheld under this Code section may be liable for a penalty equal to 25 percent of the amount not withheld and paid over. Any penalty imposed under this subsection shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as the withholding taxes imposed by this article.
    4. The partnership, Subchapter "S" corporation, or limited liability company and its members shall be jointly and severally liable for the withholding tax liability imposed under this subsection and shall be assessed accordingly.
    1. As an alternative to the withholding requirement imposed by subsection (a) of this Code section, the commissioner may allow the filing of composite returns by partnerships, Subchapter "S" corporations, or limited liability companies on behalf of their nonresident members and may provide for the requirements of filing composite returns by regulation. For purposes of this subsection, the term "composite return" means a return filed by a partnership, Subchapter "S" corporation, or limited liability company on behalf of all of its nonresident members which reports and remits the Georgia income tax of the nonresident members.
    2. Where a partnership, Subchapter "S" corporation, or limited liability company chooses to file a composite return and meets all the requirements of filing such composite return, such partnership, Subchapter "S" corporation, or limited liability company shall be exempt from the withholding requirements imposed under subsection (a) of this Code section.
    3. The liability imposed by this subsection shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as all other withholding taxes imposed by this article.
    1. If a partnership, Subchapter "S" corporation, or limited liability company fails to remit withholding for a nonresident member and the commissioner determines that such failure is due to a false representation that the member is a resident of Georgia, there shall be imposed in addition to the tax a penalty of the greater of $250.00 or 5 percent of the amount which should have been withheld. The partnership, Subchapter "S" corporation, or limited liability company and the nonresident member shall be jointly and severally liable for any such penalty imposed.
    2. The penalty imposed by this subsection shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as withholding tax imposed by this article.
    1. Every partnership, Subchapter "S" corporation, or limited liability company which is required to deduct and withhold the withholding tax imposed by subsection (a) of this Code section shall remit such tax and file the required return on a form approved by the commissioner. Taxes withheld on a nonresident member's share of the taxable income sourced to this state shall be due on or before the due date for filing the income tax return for the partnership, Subchapter "S" corporation, or limited liability company as prescribed in subsection (a) of Code Section 48-7-56 without regard to any extension of time for filing such income tax return.
    2. Every partnership, Subchapter "S" corporation, or limited liability company required to deduct and withhold tax under this article shall furnish a written statement or form approved by the commissioner to each nonresident member. Such statement or form shall include the name and federal tax identification number of the partnership, Subchapter "S" corporation, or limited liability company, the member's name and federal tax identification number, the total amount of the nonresident member's share of the taxable income sourced to this state during the taxable year, the total amount of tax deducted and withheld with respect to such member during the year, and such other information as the commissioner shall prescribe. Such statement or form shall be furnished to the nonresident member and filed in duplicate with the commissioner on or before the earlier of the date the income tax return is filed or the due date for filing the income tax return of such partnership, Subchapter "S" corporation, or limited liability company as prescribed in subsection (a) of Code Section 48-7-56 without regard to any extension of time for filing such income tax return.
    3. Any partnership, Subchapter "S" corporation, or limited liability company required to furnish a nonresident member with the written statement required by this subsection which furnishes a false or fraudulent statement or which fails to furnish the statement shall be subject to the penalty contained in subsection (d) of Code Section 48-7-126. The penalty imposed by this subsection shall be paid upon notice and demand by the commissioner or the commissioner's delegate and shall be assessed and collected in the same manner as the withholding tax imposed by this article.
    1. Notwithstanding subsection (a) of this Code section, a partnership, Subchapter "S" corporation, or limited liability company shall not be required to deduct and withhold tax for a nonresident member if:
      1. A composite return is filed on behalf of nonresident members pursuant to the requirements of filing such composite returns as set by the commissioner;
      2. The aggregate amount of a nonresident member's share of the taxable income sourced to this state is less than $1,000.00;
      3. A federally chartered Subchapter "S" corporation fails to meet the requirements of subparagraph (b)(7)(B) of Code Section 48-7-21 and is therefore required to remit corporate income tax;
      4. Compliance will cause undue hardship on the partnership, Subchapter "S" corporation, or limited liability company, provided that no partnership, Subchapter "S" corporation, or limited liability company shall be exempt from complying with the withholding requirements imposed under subsection (a) of this Code section unless the commissioner approves in writing a written petition for exemption from the withholding requirements based on undue hardship. The commissioner may prescribe the form and contents of such a petition and specify standards for when a partnership, Subchapter "S" corporation, or limited liability company shall not be required to comply with the withholding requirements due to undue hardship;
      5. The partnership is a publicly traded partnership as defined in Section 7704 of the Internal Revenue Code of 1986; or
      6. The member meets one of the exceptions as set forth in the rules and regulations promulgated by the commissioner.
    2. Where a nonresident member's share of the taxable income sourced to this state is subject to withholding under other provisions of Georgia law, such amount shall not be subject to withholding under subsection (a) of this Code section.
  6. The commissioner shall be authorized to prescribe forms and to promulgate rules and regulations which the commissioner deems necessary in order to effectuate this Code section. (Code 1981, § 48-7-129 , enacted by Ga. L. 1993, p. 597, § 3; Ga. L. 1997, p. 450, § 3; Ga. L. 2008, p. 898, § 12/HB 1151; Ga. L. 2012, p. 796, § 2/HB 965.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, the Code Section 48-7-128 enacted by Ga. L. 1993, p. 597, § 3, was redesignated as Code Section 48-7-129, since Ga. L. 1993, p. 768, § 2, also enacted a Code Section 48-7-128.

Editor's notes. - Ga. L. 1993, p. 597, § 4, not codified by the General Assembly, makes this Code section applicable with respect to any distribution paid or credited after January 1, 1994.

Ga. L. 1997, p. 450, § 4, not codified by the General Assembly, makes the 1997 amendment to this Code section applicable to all taxable years beginning on or after January 1, 1997.

Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008.

Ga. L. 2012, p. 796, § 3/HB 965, not codified by the General Assembly, provides that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2012.

Law reviews. - For article commenting on the 1997 amendment of this Code section, see 14 Georgia St. U.L. Rev. 271 (1997). For article, "Post-Creation Checklist for Georgia Business Entities," see 9 Ga. St. B. J. 24 (2004). For note on the 1993 enactment of this Code section, see 10 Georgia St. U.L. Rev. 218 (1993).

RESEARCH REFERENCES

ALR. - State income tax treatment of S corporations and their shareholders, 118 A.L.R.5th 597.

ARTICLE 6 LOCAL INCOME TAXES

Editor's notes. - Ga. L. 2010, p. 156, § 1/HB 984, effective May 20, 2010, repealed the Code sections formerly codified at this article and enacted the current article. The former article consisted of Code Sections 48-7-140 through 48-7-149, relating to local income taxes, and was based on Code 1933, §§ 91A-4001 - 91A-4010, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1974, p. 506, §§ 1-5, 7-9, 11; Ga. L. 1995, p. 714, § 3.

Ga. L. 2010, p. 156, § 3(b)/HB 984, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of this Act." This Act became effective May 20, 2010.

Ga. L. 2010, p. 156, § 3(c)/HB 984, not codified by the General Assembly, provides that: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of this Act." This Act became effective May 20, 2010.

48-7-140. Prohibition of local income taxes.

On or after May 20, 2010, there shall be no local income taxes whatsoever levied or collected by any political subdivision of this state, and no local income tax returns shall be required.

(Code 1981, § 48-7-140 , enacted by Ga. L. 2010, p. 156, § 2/HB 984.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, "On or after May 20, 2010," was substituted for "On or after the effective date of this Code section" at the beginning of this Code section.

RESEARCH REFERENCES

ALR. - Validity of municipal ordinance imposing income tax or license upon nonresident in taxing jurisdiction (commuter tax), 48 A.L.R.3d 343.

ARTICLE 7 SETOFF DEBT COLLECTION

48-7-160. Purposes.

The purpose of this article is to establish a policy and to provide a system whereby all claimant agencies and courts of this state in conjunction with the department shall cooperate in identifying debtors who owe money to the state through its various claimant agencies or courts and who qualify for refunds from the department. It is also the purpose of this article to establish procedures for setting off against any such refund the sum of any debt owed to the claimant agencies or courts. It is the intent of the General Assembly that this article be liberally construed to effectuate these purposes.

(Code 1933, § 91A-4101, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

OPINIONS OF THE ATTORNEY GENERAL

Statute of limitations for recovering overpayments of unemployment benefits pursuant to O.C.G.A. § 34-8-159 , either by an independent action or by intercepting state income tax refunds pursuant to O.C.G.A. § 48-7-160 , is four years, and the statute begins to run from the date the money is due. 1989 Op. Att'y Gen. 89-36.

48-7-161. Definitions.

As used in this article, the term:

(.1) "Administrative Office of the Courts" means entity created pursuant to Code Section 15-5-22.

  1. "Claimant agency" means and includes, in the order of priority set forth below:
    1. The Department of Human Services and the Department of Behavioral Health and Developmental Disabilities with respect to collection of debts under Article 1 of Chapter 11 of Title 19, Code Section 49-4-15, and Chapter 9 of Title 37;
    2. The Georgia Student Finance Authority with respect to the collection of debts arising under Part 3 of Article 7 of Chapter 3 of Title 20;
    3. The Georgia Higher Education Assistance Corporation with respect to the collection of debts arising under Part 2 of Article 7 of Chapter 3 of Title 20;
    4. The Georgia Board for Physician Workforce with respect to the collection of debts arising under Part 6 of Article 7 of Chapter 3 of Title 20;
    5. The Department of Labor with respect to the collection of debts arising under Code Sections 34-8-254 and 34-8-255 and Article 5 of Chapter 8 of Title 34, with the exception of Code Sections 34-8-158 through 34-8-161; provided, however, that the Department of Labor establishes that the debtor has been afforded required due process rights by such Department of Labor with respect to the debt and all reasonable collection efforts have been exhausted;
    6. The Department of Community Supervision with respect to probation fees arising under Code Section 42-8-34 and restitution or reparation ordered by a court as a part of the sentence imposed on a person convicted of a crime who is in the legal custody of the Department of Corrections or the Department of Community Supervision;
    7. The Department of Juvenile Justice with respect to restitution imposed on a juvenile for a delinquent act which would constitute a crime if committed by an adult;
    8. The Georgia Lottery Corporation with respect to proceeds arising under Code Section 50-27-21; and
  2. "Court" means all trial courts in this state, including but not limited to the superior, state, juvenile, magistrate, probate, and municipal courts, whether called mayor's courts, recorder's courts, police courts, civil courts, or traffic courts, and miscellaneous and special courts.
  3. "Debt" means:
  4. "Debtor" means any individual owing money to or having a delinquent account with any claimant agency or court, which obligation has not been adjudicated as satisfied by court order, set aside by court order, or discharged in bankruptcy.
  5. "Refund" means the Georgia income tax refund which the department determines to be due any individual taxpayer.
  1. The State Road and Tollway Authority with respect to collection of amounts determined by the Office of State Administrative Hearings as due and payable for violations of subsection (c) of Code Section 32-10-64.
    1. Any liquidated sum due and owing any claimant agency, which sum has accrued through contract, subrogation, tort, or operation of law regardless of whether there is an outstanding judgment for the sum, any sum which is due and owing any person and is enforceable by the Department of Human Services pursuant to subsection (b) of Code Section 19-11-8, or any sum of restitution or reparation due pursuant to a sentence imposed on a person convicted of a crime and sentenced to restitution or reparation and probation; or
    2. Any liquidated sum that constitutes any and all court costs, surcharges, and fines for which there is an outstanding court judgment.

      (Code 1933, § 91A-4102, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 1985, p. 785, § 10; Ga. L. 1986, p. 825, § 1; Ga. L. 1988, p. 937, § 1; Ga. L. 1991, p. 139, § 2; Ga. L. 2000, p. 136, § 48; Ga. L. 2004, p. 148, § 1; Ga. L. 2005, p. 88, § 7/HB 172; Ga. L. 2009, p. 453, § 2-21/HB 228; Ga. L. 2011, p. 459, § 5/HB 509; Ga. L. 2014, p. 56, § 1/HB 1000; Ga. L. 2015, p. 422, § 5-99/HB 310; Ga. L. 2015, p. 909, § 1/HB 275; Ga. L. 2018, p. 152, § 2/HB 150.)

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, in subparagraph (1)(F), substituted "Department of Community Supervision" for "Department of Corrections" and substituted "Department of Corrections or Department of Community Supervision; and" for "department;" at the end; deleted former subparagraph (1)(G), which read: "The State Board of Pardons and Paroles with respect to restitution imposed on a person convicted of a crime and subject to the jurisdiction of the board; and"; and redesignated former subparagraph (1)(H) as present subparagraph (1)(G). See Editor's notes for applicability. The second 2015 amendment, effective May 6, 2015, deleted "and" at the end of subparagraph (1)(G); substituted "; and" for a period at the end of subparagraph (1)(H); and added subparagraph (1)(I).

The 2018 amendment, effective July 1, 2018, deleted "and" at the end of subparagraph (1)(G), substituted "; and" for a period at the end of subparagraph (1)(H), and added subparagraph (1)(I).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, "and" was deleted at the end of subparagraph (1)(F).

Editor's notes. - Ga. L. 2005, p. 88, § 1/HB 172, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Crime Victims Restitution Act of 2005.'"

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.

Law reviews. - For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 231 (2015).

48-7-162. Collection remedy additional.

The collection remedy authorized by this article is in addition to and not in substitution for any other remedy available by law.

(Code 1933, § 91A-4103, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

Editor's notes. - Ga. L. 2014, p. 56, § 1/HB 1000, effective January 1, 2015, reenacted this Code section without change.

48-7-162.1. Submission of debts through Administrative Office of the Courts.

  1. Submission of debts through the Administrative Office of the Courts shall be the sole manner through which debts owed to courts may be submitted to the department for collection under this article. The Administrative Office of the Courts shall be authorized to enter into written contracts for the performance of administrative functions and duties under this article by one or more administrative entities consisting of nonprofit Georgia corporations, except for a public utility, in existence on or before January 1, 2012, whose income is exempt from federal income taxation pursuant to Section 115 of the Internal Revenue Code of 1986, or third party vendors approved by the department.
  2. Any claim submitted by a court through the Administrative Office of the Courts shall be subordinate to all claims submitted by claimant agencies. (Code 1981, § 48-7-162.1 , enacted by Ga. L. 2014, p. 56, § 1/HB 1000.)

Effective date. - This Code section became effective January 1, 2015.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, "Internal Revenue" was substituted for "Internet Revenue" in the second sentence of subsection (a).

48-7-163. Collection of debts through setoff; minimum debt; procedure; exceptions; request for setoff; administrative collection assistance fee.

  1. A claimant agency or the Administrative Office of the Courts may submit any debt or debts when each such debt is in excess of $25.00 to the department for collection through setoff under the procedures established by this article, except in cases where the validity of the debt is legitimately in dispute, an alternate means of collection is pending and believed to be adequate, or such collection would result in a loss of federal funds or federal assistance.
  2. Upon request of a claimant agency or the Administrative Office of the Courts, the department shall set off any refund against the debt certified by the claimant agency or the Administrative Office of the Courts as provided in this article.
  3. An administrative collection assistance fee shall be imposed on each such debt submitted by the Administrative Office of the Courts to the department to recover the costs incurred by the Administrative Office of the Courts and the department in collecting debts under this article. The fee shall be in addition to the debt to be set off and shall be fixed such that the proceeds of the fee shall not exceed the total direct and indirect costs to the Administrative Office of the Courts and the department for administering such debt setoff collection. In no event shall the amount of such fee exceed $20.00 per debt. The Administrative Office of the Courts shall reimburse the department from the proceeds of such fee based upon the actual costs incurred by the department. Such proceeds shall be retained and expended pursuant to Code Section 45-12-92.1.

    (Code 1933, § 91A-4104, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2004, p. 148, § 2; Ga. L. 2014, p. 56, § 1/HB 1000.)

48-7-164. Procedure for setoffs and notification of taxpayers; certification of debts; transfer of refunds to claimant agency; notice to taxpayers; transferred funds in escrow account; costs borne by claimant agency.

    1. Within a time frame specified by the department, a claimant agency seeking to collect a debt through setoff shall supply the information necessary to identify each debtor whose refund is sought to be set off, including but not limited to such debtor's social security number, and shall certify the amount of the debt or debts owed by each debtor.
    2. The Administrative Office of the Courts shall supply the information necessary to identify each debtor whose refund is sought to be set off, including but not limited to such debtor's social security number, and shall certify the amount of the debt or debts owed by each debtor.
    3. The department may rely upon the certification by a claimant agency or the Administrative Office of the Courts that the debt is valid and owed by the debtor and that such debt may be validly collected by the department under this article. No employee or agent of the department shall be liable to any person for collecting any such debt that was not valid and owed by the debtor.
    1. If a debtor identified by a claimant agency or the Administrative Office of the Courts is determined by the department to be entitled to a refund of at least $25.00, the department shall transfer an amount equal to the refund owed, not to exceed the amount of the claimed debt certified, to the claimant agency or the Administrative Office of the Courts. When the refund owed exceeds the claimed debt and administrative collection assistance fee, the department shall send the excess amount to the debtor within a reasonable time after the excess is determined.
    2. When the amount of the setoff available for claims is insufficient for the combined total of the claims filed by courts, distribution of the available setoff funds shall be made in the order of the date each court claim is received by the Administrative Office of the Courts. Such claim shall remain active until sufficient additional setoff funds become available to set off the remainder of the debt or until the claims themselves expire by law.
    3. If the department is able to collect only part of a debt through setoff under this article, the administrative collection assistance fees shall have priority over the remainder of the debt.
  3. At the time of the transfer of funds to a claimant agency or the Administrative Office of the Courts pursuant to this Code section, the department shall notify the taxpayer or taxpayers whose refund is sought to be set off and the claimant agency or the Administrative Office of the Courts that the transfer has been made. The notice shall clearly set forth the name of the debtor, the manner in which the debt arose, the amount of the claimed debt, the transfer of funds to the claimant agency or the Administrative Office of the Courts pursuant to this Code section and the intention to set off the refund against the debt, the amount of the refund in excess of the claimed debt, the taxpayer's opportunity to give written notice to contest the setoff within 30 days of the date of mailing of the notice, the name and mailing address of the claimant agency or the Administrative Office of the Courts to which the application for a hearing must be sent, and the fact that failure to apply for a hearing in writing within the 30 day period will be deemed a waiver of the opportunity to contest the setoff. In the case of a joint return, the notice shall also state the name of any taxpayer named in the return against whom no debt is claimed, the fact that a debt is not claimed against such taxpayer, the fact that such taxpayer is entitled to receive a refund if it is due him or her regardless of the debt asserted against his or her spouse, and that in order to obtain a refund due him or her such taxpayer must apply in writing for a hearing with the claimant agency or the Administrative Office of the Courts named in the notice within 30 days of the date of the mailing of the notice. If a taxpayer fails to apply in writing for a hearing within 30 days of the mailing of the notice, he or she will have waived his or her opportunity to contest the setoff.
  4. Upon receipt of funds transferred from the department pursuant to this Code section, the claimant agency or the Administrative Office of the Courts shall deposit and hold the funds in an escrow account until a final determination of the validity of the debt. Any interest accruing on proceeds in such escrow account shall not constitute any part of the setoff funds being held in escrow and shall be retained by the claimant agency or the Administrative Office of the Courts to cover administrative costs.
  5. The claimant agency shall pay the department for all costs incurred by the department in setting off debts in the manner provided in this article.

    (Code 1933, § 91A-4105, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

48-7-165. Hearing procedure; adjustments of incorrect debts; nonavailability of hearings before department; issues previously litigated; appeals.

    1. If the claimant agency receives written application contesting the setoff or the sum upon which the setoff is based, it shall grant a hearing to the taxpayer to determine whether the setoff is proper or the sum is valid according to the procedures established under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." If the sum asserted as due and owing is not correct, an adjustment of the claimed debt shall be made.
    2. A request for a hearing pursuant to the Internal Revenue Code to contest the collection of past-due support may be consolidated with a request for a hearing under paragraph (1) of this subsection. If the sum asserted as due and owing is not correct, an adjustment of the claimed debt shall be made.
  2. The hearing established by subsection (a) of this Code section shall be in lieu of a hearing before the department to determine the validity of the debt or the propriety of the setoff.
  3. No issues which have been previously litigated shall be considered at the hearing.
  4. Appeals from actions taken at the hearing allowed under this Code section shall be in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."

    (Code 1933, § 91A-4106, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 1985, p. 785, § 11; Ga. L. 1986, p. 10, § 48; Ga. L. 2012, p. 318, § 11/HB 100; Ga. L. 2014, p. 56, § 1/HB 1000.)

Editor's notes. - Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case.

Ga. L. 2014, p. 56, § 1/HB 1000, effective January 1, 2015, reenacted this Code section without change.

Law reviews. - For article on the 2012 amendment of this Code section, see 29 Georgia St. U.L. Rev. 70 (2012).

48-7-165.1. Hearing; final determination of debt.

    1. Except as otherwise provided in subsection (d) of this Code section, if the Administrative Office of the Courts receives written notice from the debtor contesting the setoff or the sum upon which the setoff is based within 30 days of the debtor being notified of the debt setoff, the Administrative Office of the Courts shall notify the court to whom the debt is owed that the sum due and owing shall not be disbursed pursuant to this article until the court to whom the debt is owed has granted a hearing to the debtor and obtained a final determination on the debt under this Code section and provided evidence of such final determination to the Administrative Office of the Courts. Such sum due and owing shall not be disbursed to the debtor or the court to whom the debt is owed prior to such final determination.
    2. The hearing required under this Code section shall be conducted after notice of such hearing is provided to the debtor by certified mail or personal service. When personal service is utilized, such personal service shall be made by the officers of the court designated by the judges of that court or any other officers authorized by law to serve process.
    1. The officers of the court designated by the judges of that court submitting debts to the Administrative Office of the Courts shall appoint a hearing officer for the purpose of conducting hearings under this Code section. The officers of the court shall adopt appropriate procedures to govern the conducting of hearings by the hearing officer. A written or electronic copy of such procedures shall be provided to a debtor immediately upon the receipt of notice from a debtor under subsection (a) of this Code section.
    2. Issues that have been previously litigated shall not be considered at a hearing. The hearing officer shall determine whether the debt is owed to the court and the amount of the debt. Such determination shall be in writing and shall be provided to the debtor and the Administrative Office of the Courts within five days after the date the hearing is conducted.
    3. If the debtor or the court disagrees with the determination of the hearing officer, either party may appeal that determination by filing a petition in the superior court not later than ten days following the date of the hearing officer's written determination. The superior court judge shall conduct a hearing and shall render a final determination in writing and shall transmit a copy to the hearing officer, the debtor, and the Administrative Office of the Courts not later than ten days after the date of that hearing.
    4. The losing party to such proceeding as provided for in paragraph (3) of this subsection shall pay any filing fees and costs of service, except that the officers of the court designated by the judges of that court shall be authorized to waive such fees and costs. The court submitting the debt to the Administrative Office of the Courts shall be responsible for attorneys' fees of the debtor who is contesting the setoff in cases where the superior court finds in favor of the debtor.
  3. If a court submits a debt for collection under this article following final determination of the debt in accordance with this Code section and the Administrative Office of the Courts is notified by the department that no refund proceeds are available or sufficient for setoff of the entire debt, such claim shall remain valid until sufficient refund proceeds are available for setoff as provided in subsection (b) of Code Section 48-7-164 and are not subject to further appeal. (Code 1981, § 48-7-165.1 , enacted by Ga. L. 2014, p. 56, § 1/HB 1000.)

Effective date. - This Code section became effective January 1, 2015.

48-7-166. Final determination of debt due; transfer from escrow account to credit of debtor's account of debt due; notice of setoff; contents; refund of excess; disbursement of funds.

    1. Upon final determination of the amount of the debt due and owing by means of the hearing provided by Code Section 48-7-165 or by the taxpayer's default through failure to comply with subsection (c) of Code Section 48-7-164, the claimant agency shall remove the amount of the debt due and owing from the escrow account established pursuant to Code Section 48-7-164 and shall credit the amount to the debtor's obligation.
    2. Upon final determination of the amount of the debt due and owing as provided by Code Section 48-7-165.1, or by the taxpayer's default through failure to comply with subsection (c) of Code Section 48-7-164, the Administrative Office of the Courts shall remove the amount of the debt due and owing from the escrow account established pursuant to Code Section 48-7-164 and shall credit the amount to the debtor's obligation.
  2. Upon transfer of the debt due and owing from the escrow account to the credit of the debtor's account, the claimant agency or the Administrative Office of the Courts shall notify the debtor in writing of the finalization of the setoff. The department shall prepare a notice for use by the claimant agency or the Administrative Office of the Courts. Such notice shall include a final accounting of the refund which was set off, including the amount of the refund to which the debtor was entitled prior to setoff, the amount of the debt due and owing, the amount of the refund in excess of the debt which has been returned to the debtor by the department pursuant to Code Section 48-7-164, and the amount of the funds transferred to the claimant agency or the Administrative Office of the Courts pursuant to Code Section 48-7-164 in excess of the debt finally determined to be due and owing at a hearing held pursuant to Code Section 48-7-165 or 48-7-165.1, if such a hearing was held or the amount of the funds transferred to the Administrative Office of the Courts pursuant to Code Section 48-7-164 is in excess of the debt finally determined to be due and owing pursuant to Code Section 48-7-165.1 as determined in the filing of an appeal. At such time, the claimant agency or the Administrative Office of the Courts shall refund to the debtor the amount of the claimed debt originally certified and transferred to it by the department in excess of the amount of debt finally found to be due and owing.
  3. Following finalization of the setoff pursuant to subsection (b) of this Code section, the Administrative Office of the Courts shall transfer the funds to the court. Any funds so transferred by the Administrative Office of the Courts shall be disbursed by the court in the same manner as if such funds had been originally collected by such court without having resorted to collection under this article.

    (Code 1933, § 91A-4107, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

48-7-167. Effect of setoff on refund.

When the setoff authorized by this article is exercised, the refund which is set off shall be deemed granted.

(Code 1933, § 91A-4111, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

Editor's notes. - Ga. L. 2014, p. 56, § 1/HB 1000, effective January 1, 2015, reenacted this Code section without change.

48-7-168. Priority of department over claimant agencies for collection by setoff.

The department has priority pursuant to subsection (c) of Code Section 48-2-35 over every claimant agency and the Administrative Office of the Courts for collection by setoff under this article.

(Code 1933, § 91A-4108, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

48-7-169. Authorization of commissioner to prescribe forms and promulgate rules and regulations.

The commissioner is authorized to prescribe forms and to promulgate rules and regulations which he or she deems necessary in order to effectuate this article.

(Code 1933, § 91A-4109, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

48-7-170. Confidentiality exemption; providing of necessary information by commissioner to claimant agencies; nondisclosure of information by employees or prior employees of agencies; penalties.

  1. Notwithstanding Code Section 48-7-60, which prohibits disclosure by the department of the contents of taxpayer records or information, and notwithstanding any other confidentiality statute, the commissioner may provide to a claimant agency or the Administrative Office of the Courts all information necessary to accomplish and effectuate the intent of this article.
  2. The information obtained by a claimant agency or the Administrative Office of the Courts from the department in accordance with this article shall retain its confidentiality and shall only be used by a claimant agency or the Administrative Office of the Courts in the pursuit of its debt collection duties and practices. Any employee or prior employee of any claimant agency or the Administrative Office of the Courts who unlawfully discloses any such information for any other purpose, except as otherwise specifically authorized by law, shall be subject to the same penalties specified by law for unauthorized disclosure of confidential information by an agent or employee of the department.

    (Code 1933, § 91A-4110, enacted by Ga. L. 1980, p. 1555, § 1; Ga. L. 2014, p. 56, § 1/HB 1000.)

CHAPTER 7A TAX CREDITS

Sec.

Editor's notes. - Ga. L. 1991, p. 87, § 5(b), not codified by the General Assembly, provides that this chapter is applicable to all taxable years beginning on or after January 1, 1992.

Law reviews. - For note on the 1991 enactment of this chapter, see 8 Georgia St. U.L. Rev. 190 (1992).

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 2186 et seq.

48-7A-1. Legislative findings and purposes.

Reserved. Repealed by Ga. L. 2010, p. 1163, § 4/HB 1069, effective June 4, 2010.

Editor's notes. - This Code section was based on Ga. L. 1991, p. 87, § 1.

Ga. L. 2010, p. 1163, § 7/HB 1069, not codified by the General Assembly, provides that the repeal and reservation of this Code section shall be applicable to all taxable years beginning on or after January 1, 2010.

48-7A-2. "Dependent" defined.

As used in this chapter, the term "dependent" means:

  1. The taxpayer;
  2. The spouse of the taxpayer; and
  3. A natural or legally adopted child of the taxpayer. (Code 1981, § 48-7A-2 , enacted by Ga. L. 1991, p. 87, § 1; Ga. L. 1992, p. 6, § 48.)

48-7A-3. Persons entitled to claim tax credit; tax credits schedule; tax credit claimed against tax liability; period for filing claims for credit; applicability to food stamp recipients; authority of commissioner.

  1. Except as otherwise provided in subsection (e) of this Code section, each resident taxpayer who files an individual income tax return for a taxable year and who is not claimed or is not otherwise eligible to be claimed as a dependent by another taxpayer for federal or Georgia individual income tax purposes may claim a tax credit against the resident taxpayer's individual income tax liability for the taxable year for which the individual income tax return is being filed; provided that:
    1. A husband and wife filing a joint return shall each be deemed a dependent for purposes of such joint return; and
    2. A husband and wife filing separate returns for a taxable year for which a joint return could have been filed by them shall claim only the tax credit to which they would have been entitled had a joint return been filed.
  2. Each taxpayer may claim a tax credit in the amount indicated for each adjusted gross income bracket as shown in the schedule below multiplied by the number of dependents which the taxpayer is entitled to claim. Each taxpayer 65 years of age or over may claim double the tax credit.
  3. The tax credit claimed by a resident taxpayer pursuant to this Code section shall be deductible from the resident taxpayer's individual income tax liability, if any, for the tax year in which it is properly claimed; provided, however, that in no event shall the total amount of the tax credit under this Code section for a taxable year exceed the taxpayer's income tax liability. Any unused credit amount shall not be allowed to be carried forward to the taxpayer's succeeding years' tax liability. No such credit shall be allowed the taxpayer against prior years' tax liability.
  4. All claims for a tax credit under this Code section, including any amended claims, must be filed on or before the end of the twelfth month following the close of the taxable year for which the credit may be claimed. Failure to comply with this subsection shall constitute a waiver of the right to claim the credit.
  5. Any individual who receives a food stamp allotment for all or any part of a taxable year shall not be entitled to claim a credit under this Code section for that taxable year.

    (e.1) Any individual incarcerated or confined in any city, county, municipal, state, or federal penal or correctional institution for all or any part of a taxable year shall not be entitled to claim a credit under this Code section for that taxable year.

  6. The commissioner shall be authorized by rule and regulation to provide for the proper administration of this Code section. (Code 1981, § 48-7A-3 , enacted by Ga. L. 1991, p. 87, § 1; Ga. L. 1995, p. 10, § 48; Ga. L. 2004, p. 410, § 7; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 1163, § 5/HB 1069.)

TAX CREDIT SCHEDULE

Adjusted Gross Income Tax Credit Under $6,000.00 .............................................$ 26.00 6,000.00 but not more than 7,999.00 ..........................20.00 8,000.00 but not more than 9,999.00 ...........................14.00 10,000.00 but not more than 14,999.00 ..........................8.00 15,000.00 but not more than 19,999.00 ..........................5.00

Editor's notes. - Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004.'"

Ga. L. 2010, p. 1163, § 7/HB 1069, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2010.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

CHAPTER 8 SALES AND USE TAXES

Article 1

State Sales and Use Tax.

Part 1

G ENERAL PROVISIONS .

Part 2

Imposition, Rate, Collection,

and Assessment.

Article 2

Joint County and Municipal Sales

and Use Tax (LOST).

Article 2A

Homestead Option Sales and Use Tax (HOST).

Part 1

H OMESTEAD OPTION SALES AND USE TAX .

Part 2

E QUALIZED HOMESTEAD OPTION SALES TAX .

Article 3

County Sales and Use Taxes.

Part 1

County Special Purpose Local Option Sales Tax (SPLOST).

Part 2

S ALES TAX FOR EDUCATIONAL PURPOSES (ESPLOST) .

Article 3A

Uniform Sales and Use Tax Administration.

Article 4

Water and Sewer Projects and Costs Tax (MOST).

Article 5

Special District Transportation Sales and Use Tax (TSPLOST).

Part 1

I N GENERAL .

Part 2

E LECTION, IMPOSITION, AND PROCEDURES .

Article 5A

Special District Mass Transportation Sales and Use Tax.

Part 1

G ENERAL PROVISIONS .

Part 2

M ETROPOLITAN COUNTY SPECIAL DISTRICTS .

Part 3

M ETROPOLITAN MUNICIPALITY SPECIAL DISTRICTS .

Article 5B

Special Districts for Transit

Purposes (Transit SPLOST).

Part 1

G ENERAL PROVISIONS .

Part 2

N EIGHBORING COUNTIES AND SPECIAL DISTRICTS OUTSIDE NONATTAINMENT AREAS .

Part 3

S PECIAL DISTRICTS WITHIN NONATTAINMENT AREAS .

Part 4

P ROCEDURES FOR LEVY OF A TAX FOR TRANSIT PROJECTS .

Article 6

Georgia Tourism Development.

Cross references. - Excise taxes for importation, and manufacture of distilled spirits, § 3-4-60 et seq.

Editor's notes. - Ga. L. 2008, p. 889, § 1, sought to enact Article 5 of Chapter 8 of this title, consisting of Code Sections 48-8-220 and 48-8-221, regarding additional funding sources for transportation. Section 3 of that Act provided that Article 5 would have become effective January 1, 2009, but only upon ratification at the November, 2008, state-wide general election of a resolution amending the Constitution authorizing such funding. No such resolution was adopted by the General Assembly and, consequently, the referendum did not occur and Article 5 was not given effect.

Law reviews. - For annual survey article on local government law, see 50 Mercer L. Rev. 263 (1998). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004). For article, "Curing the Structural Defect in State Tax Systems: Expanding the Tax Base to Include Services," see 61 Mercer L. Rev. 491 (2010).

RESEARCH REFERENCES

ALR. - Retailer's or buyer's defenses against exaction of penalties for failure to file, or deficiency in, state or local sales tax return, 20 A.L.R.4th 952.

State or local sales, use, or privilege tax on sales of, or revenues from sales of, advertising space or services, 40 A.L.R.4th 1114.

ARTICLE 1 STATE SALES AND USE TAX

Administrative Rules and Regulations. - Administrative rules and regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Chapter 560-12-1.

Forms (Forms applicable to sales and use tax), Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Chapter 560-12-3.

Special county tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Chapter 560-12-6.

Law reviews. - For article, "The Scope and Effect of the Georgia Retail Sales and Use Tax, Its Weaknesses and Needed Changes," see 17 Ga. B. J. 319 (1955). For article, "Georgia Retailers' and Consumers' Sales and Use Tax Act," see 9 Ga. St. B. J. 37 (1972). For article, "Georgia Sales and Use Tax From Viewpoint of Practicing Attorney," see 9 Ga. St. B. J. 45 (1972). For note, "The State Retail Sales Tax: A Critical Re-Examination of Underlying Policy," see 1 Ga. L. Rev. 503 (1967). For comment on Colonial Stores v. Undercofler, 223 Ga. 105 , 153 S.E.2d 549 (1967), see 4 Ga. St. B. J. 132 (1967).

JUDICIAL DECISIONS

Distinction between sales within and outside state comports with equal protection requirements. - Distinction made by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) as to sales for resale or for shipment out of the state and those made other than for resale and for delivery within the state for storage are valid classifications and do not violate the equal protection provisions of the federal and state constitutions. Orkin Exterminating Co. v. Blackmon, 229 Ga. 146 , 190 S.E.2d 43 (1972).

No intent to differentiate between legal and illegal sales. - Nothing in Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) indicates any intention on the part of the legislature to differentiate between legal and illegal sales, and the law's general language should not be limited to legal sales only merely because the law does not specifically tax illegal sales by referring to those sales as such. Undercofler v. VFW Post 4625, 110 Ga. App. 711 , 139 S.E.2d 776 (1964), later appeal, 112 Ga. App. 27 , 143 S.E.2d 684 (1965).

Georgia's sales tax collection procedures do not amount to a denial of due process of law although a hearing is not provided for the taxpayer prior to the taxpayer either having to post a bond or pay the tax. Gainesville-Hall County Economic Opportunity Org., Inc. v. Blackmon, 233 Ga. 507 , 212 S.E.2d 341 (1975).

Seizure of property before issuance of fi. fa. comports with due process. - Failure to give notice and an opportunity to be heard prior to issuance of a tax fi. fa. and a subsequent levy on back accounts does not violate the due process clause of the Fourteenth Amendment because seizure of property by the government for the collection of taxes constitutes one of those extraordinary situations justifying postponement of notice and hearing until after the property has been seized. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 (1979), cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Purpose. - Purpose of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is to bring about payment of taxes to and receipt of taxes by the State of Georgia. Drake v. Thyer Mfg. Corp., 105 Ga. App. 20 , 123 S.E.2d 457 (1961).

Scope of article. - Ga. L. 1978, p. 309 deals only with retail sales and with means to preclude avoidance of the tax by provisions for a use tax when enforcement directly against the retail sale is not practicable. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

"User" and "consumer" synonymous. - In the context of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), the words "user" and "consumer" are synonymous. J.W. Meadors & Co. v. State, 89 Ga. App. 583 , 80 S.E.2d 86 (1954).

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is designed to tax sales at retail. Superior Type, Inc. v. Williams, 98 Ga. App. 89 , 105 S.E.2d 14 (1958).

Tax is for privilege of doing retail business. - Tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is on the retailer for the privilege and license of engaging in the retail business in this state. Oxford v. J.D. Jewell, Inc., 215 Ga. 616 , 112 S.E.2d 601 (1960).

Intent is to levy tax against dealers. - Intent and purpose of the General Assembly in Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) taken as a whole is to levy the tax against the dealer. The responsibility of collecting the tax on each sale from the purchaser and remitting to the commissioner is solely upon the dealer; if the dealer fails to collect the tax from the purchaser the dealer has to pay the tax. Williams v. Bear's Den, Inc., 214 Ga. 240 , 104 S.E.2d 230 (1958).

Whose liability extends beyond that of agent for collection. - When a retail dealer has collected the tax from the customers under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), the dealer's duty or obligation to the state is not that of an agent, liable only for the use of ordinary care in the safeguarding and remittance of such taxes; the dealer is liable as a taxpayer since under the statute, the tax is levied upon the dealer and not against the customer. Williams v. Bear's Den, Inc., 214 Ga. 240 , 104 S.E.2d 230 (1958).

Retailer is required to pay the tax upon all nonexempt retail sales. - Retail sales are used solely as a measure of the retailer's liability. Oxford v. J.D. Jewell, Inc., 215 Ga. 616 , 112 S.E.2d 601 (1960).

Retailer not relieved of tax liability by failure or inability to collect. - While the retailer is required as far as practicable to collect the tax from the consumer, the retailer's failure or inability to collect does not relieve the retailer from paying the tax. Oxford v. J.D. Jewell, Inc., 215 Ga. 616 , 112 S.E.2d 601 (1960).

Tax is all-inclusive; exemptions are rare exception. - Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is noted for the fact that the law is all-inclusive, covering everything from the cradle to the grave. Exemptions are the rare exception. Oxford v. J.D. Jewell, Inc., 215 Ga. 616 , 112 S.E.2d 601 (1960).

Uniformity in taxation does not mean universality. Blackmon v. Cobb County-Marietta Water Auth., 126 Ga. App. 459 , 191 S.E.2d 128 (1972).

Property in the hands of a trustee in bankruptcy is not thereby exempt from state and local taxes, absent a clear expression from Congress to the contrary. Blackmon v. Nichols, 494 F.2d 1179 (5th Cir. 1974).

Cited in Wheeler v. Strickland, 248 Ga. 85 , 281 S.E.2d 556 (1981).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

In General

Tax applies to all consensual or contractual agreements for consideration. - Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is designed to reach consensual or contractual agreements, however effected, for the transfer of property for a consideration. 1971 Op. Att'y Gen. No. 71-145.

There is no sales or use tax on a gift of tangible personal property. However, if there is consideration, whether in the form of money or not, for the transfer of title or possession of tangible personal property, the transaction is taxable. 1963-65 Op. Att'y Gen. p. 62.

When one commodity is traded in on another commodity, the sales are separate and distinct and thus a tax upon both, unless one is for resale. 1950-51 Op. Att'y Gen. p. 418.

When old equipment is traded in on new equipment of like kind, the sales tax applies on the difference. 1950-51 Op. Att'y Gen. p. 418.

What uses taxable. - Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is not a tax on the use and consumption of tangible personal property in this state, but is a tax on the transaction which constitutes a retail sale, with a supplementary tax on the first use within this state of tangible personal property purchased elsewhere in a transaction which would have been taxable if the transaction had occurred in this state. 1958-59 Op. Att'y Gen. p. 381.

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) does not tax any bona fide interstate commerce. 1950-51 Op. Att'y Gen. p. 400; 1960-61 Op. Att'y Gen. p. 542.

In interstate commerce, "delivery" means transfer of possession. - Relating to the applicability of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) to sales in interstate commerce, the use of the term "delivery" is generally used in the sense of a transfer of possession. 1963-65 Op. Att'y Gen. p. 67.

Transfer of possession or title in this state is taxable. - Regardless of where or when the parties intend title to pass, a taxable event takes place when possession or title is transferred in this state. Of course, if both title and possession are transferred outside the state, no taxable event occurs in Georgia to which the tax would apply. 1963-65 Op. Att'y Gen. p. 67.

Obligations imposed on sellers and purchasers. - Reading of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) as a whole shows that the law contemplates the imposition of two separate and distinct obligations: (1) an obligation to collect the tax imposed upon sellers regularly engaged in selling tangible personal property as an occupational and privilege tax; and (2) an obligation upon the purchaser, user, or consumer to pay the tax. 1954-56 Op. Att'y Gen. p. 855.

Casual and isolated sales exempt. - One who makes a casual and isolated sale and who is not engaged in the business of selling tangible personal property is not responsible to collect the sales tax thereon. 1954-56 Op. Att'y Gen. p. 837.

Once taxpayer is adjudicated a bankrupt, penalties otherwise due under sales and use tax are not collectible by state. - 1962 Op. Att'y Gen. p. 542.

For discussion of exemptions to Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), see 1952-53 Op. Att'y Gen. p. 232.

Taxation of Particular Persons and Entities

.

Exemption of purchases necessary to operation and maintenance of Jekyll Island's facilities. - Since the purchase of tangible personal property is an activity necessary to the operation and maintenance of the authority's buildings, sales of such property to the authority are exempt to the extent that the sales are made for the purposes of carrying on the operation and maintenance of its buildings. 1963-65 Op. Att'y Gen. p. 287.

Georgia Ports Authority is not exempt from paying sales tax on the purchase of supplies and equipment. 1950-51 Op. Att'y Gen. p. 409.

Georgia Ports Authority must collect and remit taxes when due. - If the Georgia Ports Authority sells tangible personal property or services, then the authority must register, collect, and remit to the commissioner taxes due under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1950-51 Op. Att'y Gen. p. 409.

American National Red Cross is not liable for the payment of sales tax. 1950-51 Op. Att'y Gen. p. 419.

Federal Savings and Loan Associations created under Title 12 of the United States Code are not exempt. 1950-51 Op. Att'y Gen. p. 399.

National Farm Loan Associations created under Title 12 of the United States Code are exempt. 1950-51 Op. Att'y Gen. p. 398.

Exemption of credit unions. - Ga. L. 1974, p. 705, § 1, being later in time than Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), will exempt purchases of credit unions from the taxes imposed by the law. 1974 Op. Att'y Gen. No. 74-136.

Nonprofit organizations are not, because of their status as such, exempt from sales and use taxes. - When the organization is not registered with the commissioner as a dealer, one who sells to the organization must collect the tax. 1971 Op. Att'y Gen. No. U71-143.

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) does not exempt sales by nonprofit corporations. 1972 Op. Att'y Gen. No. U72-109.

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) contains no exemption as to purchases by churches. 1971 Op. Att'y Gen. No. U71-67.

Imposition of sales and use tax on military personnel. - Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App. § 501 et seq., does not prohibit a general sales and use tax charged against military personnel. 1969 Op. Att'y Gen. No. 69-284.

Tax liability not determined by residence or domicile in state. - Fact that a service personnel is in this state because of military duty and maintains no residence here is immaterial in the determination of liability. The tax is not determined by residence or domicile in this state, but applies to residents and nonresidents alike, and to civilians and service personnel alike. 1958-59 Op. Att'y Gen. p. 385.

Taxation of Particular Sales and Uses

.

Warehousing is a service not taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1950-51 Op. Att'y Gen. p. 409.

Contractors on state construction jobs are required to pay sales tax on all materials used. 1950-51 Op. Att'y Gen. p. 409.

Consumer of fuel oil and kerosene used for curing tobacco must pay sales tax. 1950-51 Op. Att'y Gen. p. 411.

Sale of materials used in church construction is subject to the tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1972 Op. Att'y Gen. No. U72-96.

Charges for a meal served by a church is subject to sales tax. 1950-51 Op. Att'y Gen. p. 420.

State sales tax should be computed upon the sale of liquor or beer before the application of state and city excise taxes. 1952-53 Op. Att'y Gen. p. 231.

Imposition of tax on that portion of the purchase price of gasoline which is for federal gas tax and state motor fuel tax is not a tax on a tax. 1969 Op. Att'y Gen. No. 69-234.

Sales tax must be collected on the service of mixing concrete since it is one of fabrication. 1950-51 Op. Att'y Gen. p. 418.

Sales tax applies to sheriff's sales and other forced sales, including condemnation. 1950-51 Op. Att'y Gen. p. 422.

Sheriffs who purchase food for prisoners out of their own funds are required to pay sales tax. 1950-51 Op. Att'y Gen. p. 422.

Sales tax applies to the acquisition of equipment and furniture to be used in hotel rooms. 1950-51 Op. Att'y Gen. p. 421.

Hotels, restaurants, and motor courts must pay tax on linens. - Hotels, restaurants, and motor courts sell services and are themselves consumers of linens. Such linens are not purchased by them for resale, and they should pay the sales tax thereon. 1950-51 Op. Att'y Gen. p. 421.

Hotel operators in this state should pay sales tax on linens rented to them by out-of-state linen service companies. 1950-51 Op. Att'y Gen. p. 421.

Sale of soft drinks through vending machines is taxable. 1950-51 Op. Att'y Gen. p. 421.

Taxicabs. - Rental charge made by a concern renting automobiles to individuals to be operated as taxicabs is taxable. 1950-51 Op. Att'y Gen. p. 423.

Taxicab fares and sales of tangible personal property on military reservations are subject to sales tax. 1954-56 Op. Att'y Gen. p. 857.

Operators of rental car services must pay sales tax on gasoline, tires, and other items used in their operation. 1950-51 Op. Att'y Gen. p. 423.

No sales tax on compensation paid to gasoline dealers for loss of stock in storage. 1950-51 Op. Att'y Gen. p. 405.

Common carrier does not have to pay a sales tax based on the compensation paid for loss or damage of property in the carrier's possession. 1950-51 Op. Att'y Gen. p. 405.

Retail sale of antique motor vehicles is taxable. 1969 Op. Att'y Gen. No. 69-386.

Foreclosure sales conducted by the Small Business Administration through an auctioneer are subject to Georgia sales tax. 1976 Op. Att'y Gen. No. 76-39.

Vending machine companies operating on federal areas are liable for collection of the state sales tax. 1952-53 Op. Att'y Gen. p. 243.

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is applicable to sale of admission tickets to ball games sponsored by Georgia schools. 1960-61 Op. Att'y Gen. p. 544.

Electrical energy and fuel oil used for producing high temperatures in the operation of brick kilns and molding machinery are taxable. 1950-51 Op. Att'y Gen. p. 416.

Charge by a city for the installation of a water meter is not taxable, if the city retains title to the meter. 1950-51 Op. Att'y Gen. p. 407.

Sale of surplus property by a city is taxable, unless to a branch of government or for resale. 1950-51 Op. Att'y Gen. p. 407.

Taxation of Medicaid transactions. - Although the statutory foundation for the state Medicaid program refers to a "cost" incurred for medical assistance to an individual for which payments are made "on his behalf," 42 U.S.C. §§ 1396, 1396d, the terms do not purport to establish a contractual relationship within the scope of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) between the recipient and pharmacist, or the recipient and the state. Rather, the terms are meant to fix the conditions on which the state will act. Thus, there is no contractual transfer of property for a consideration within the meaning of the tax statute. 1971 Op. Att'y Gen. No. 71-145.

Under the Medicaid programs the relationship between the pharmacist and the state, and whatever state "obligation" to pay that may result therefrom, simply does not fit into the concepts underlying the sales tax. 1971 Op. Att'y Gen. No. 71-145.

Persons admitted to swimming pools, golf courses, and furnished rooms in a hotel are purchasers within the contemplation of Ga. L. 1951, p. 360. 1963-65 Op. Att'y Gen. p. 745.

When teachers collect voluntary contributions from pupils for the purchase of educational supplies, such purchases, although made by an agency of the state and the local political subdivisions in which it is located, are subject to sales tax. 1963-65 Op. Att'y Gen. p. 23.

Exemption of Council of State Governments. - Ga. L. 1937, p. 708, § 10 and the obvious relationship of the Council of State Governments to the Georgia Commission on Interstate Cooperation and its work, indicate the legislative intent that the council's work be viewed as governmental at the state level. Accordingly, its property is in the nature of public property, and its purchases of tangible personal property and services under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) are the equivalent of purchases by the state. 1972 Op. Att'y Gen. No. 72-20.

RESEARCH REFERENCES

ALR. - Validity of so-called "sales tax," 89 A.L.R. 1432 ; 110 A.L.R. 1485 ; 117 A.L.R. 486 ; 128 A.L.R. 893 .

Rights as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 93 A.L.R. 1485 ; 119 A.L.R. 542 .

Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597 .

Constitutionality, construction, and application of general use tax or other compensating tax designed to complement state sales tax, 129 A.L.R. 222 ; 153 A.L.R. 609 .

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011 .

Deductibility of other taxes or fees in computing excise or license taxes, 148 A.L.R. 263 ; 174 A.L.R. 1263 .

Municipality as subject to state license or excise taxes, 159 A.L.R. 365 .

Sale of building materials, supplies, or fixtures to contractor, or his use thereof in construction or repairs, as sale at retail within tax statute or ordinance, 163 A.L.R. 276 ; 171 A.L.R. 697 .

Sales tax on parts, repairs, or constituents used in repair of article, 11 A.L.R.2d 926.

Use tax on property purchased by nonresident in another state, 41 A.L.R.2d 535.

Federal retail luxury or other excise tax as includable in amount on which state sales or use tax is computed, 43 A.L.R.2d 862.

Redemption of trading stamps or the like for merchandise as sale at retail within taxing statute, 80 A.L.R.2d 1221.

Retailer's or buyer's defenses against exaction of penalties for failure to file, or deficiency in, state or local sales tax return, 20 A.L.R.4th 952.

State or local sales, use, or privilege tax on sales of, or revenues from sales of, advertising space or services, 40 A.L.R.4th 1114.

PART 1 G ENERAL PROVISIONS

48-8-1. Intent of article with respect to taxation of tangible personal property and services; constitutional and other exemptions.

It is the intention of the General Assembly in enacting this article to exercise its full and complete power to tax the retail purchase, retail sale, rental, storage, use, and consumption of tangible personal property and the services described in this article except to the extent prohibited by the Constitutions of the United States and of this state and except to the extent of specific exemptions provided in this article.

(Ga. L. 1951, p. 360, § 4; Ga. L. 1965, p. 13, § 2; Code 1933, § 91A-4506, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 93.)

Law reviews. - For article, "Clarification Needed in Georgia Retail Sales and Use Tax Statute," see 41 Mercer L. Rev. 1 (1989).

JUDICIAL DECISIONS

Tax on receipts derived from use of leased vehicle in interstate commerce. - Imposition of sales tax on that part of lease receipts derived from use of a leased vehicle in interstate commerce does not constitute a burden on interstate commerce and is therefore not within the exemption created by this section, which provides that it is not the intention of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) to levy a tax on bona fide interstate commerce. Oxford v. Blankenship, 106 Ga. App. 546 , 127 S.E.2d 706 (1962).

OPINIONS OF THE ATTORNEY GENERAL

Taxation of trucks leased in state. - Any person or company engaged in the business of leasing trucks in this state has an obligation under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) to pay tax on the gross proceeds to the commissioner and to pass the tax on to the lessee as an additional charge. The fact that the lessee may use a leased truck partially or exclusively in interstate hauls is immaterial so long as the first use under the rental contract is within this state. 1957 Op. Att'y Gen. p. 321.

Exemption of property used, consumed exclusively outside state. - Construing Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), purchases made in this state of tangible personal property to be used or consumed or stored exclusively outside this state are not subject to the tax imposed by Ga. L. 1951, p. 360, and dealers are not required to collect the tax from such purchasers. 1954-56 Op. Att'y Gen. p. 865.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 62, 134.

ALR. - Eyeglasses or other optical accessories as subject to sales or use tax, 14 A.L.R.4th 1370.

48-8-2. Definitions.

As used in this article, the term:

  1. "Alcoholic beverages" means beverages that are suitable for human consumption and contain one-half of one percent or more of alcohol by volume.
  2. "Ancillary services" means services that are associated with or incidental to the provision of telecommunications services, including but not limited to detailed telecommunications billing service, directory assistance, vertical service, and voice mail services.
    1. "Bundled transaction" means the retail sale of two or more products, except real property and services to real property, where the products are otherwise distinct and identifiable and the products are sold for one nonitemized price.  A bundled transaction does not include the sale of any products in which the sales price varies, or is negotiable, based on the selection by the purchaser of the products included in the transaction.
    2. As used in this paragraph, the term "distinct and identifiable products" shall not include:
      1. Packaging such as containers, boxes, sacks, bags, and bottles or other materials such as wrapping, labels, tags, and instruction guides, that accompanies the retail sale of the products and are incidental or immaterial to the retail sale thereof.  Examples of packaging that are incidental or immaterial include grocery sacks, shoe boxes, dry cleaning garment bags, and express delivery envelopes and boxes;
      2. A product provided free of charge with the required purchase of another product.  A product is provided free of charge if the sales price of the product purchased does not vary depending on the inclusion of the product provided free of charge; or
      3. Items included in the sales price.
    3. As used in this paragraph, the term "one nonitemized price" shall not include a price that is separately identified by product on binding sales or other supporting sales related documentation made available to the customer in paper or electronic form including, but not limited to, an invoice, bill of sale, receipt, contract, service agreement, lease agreement, periodic notice of rates and services, rate card, or price list.
    4. A transaction that otherwise meets the definition of a bundled transaction as provided under this paragraph shall not be a bundled transaction if such transaction is:
      1. The retail sale of tangible personal property and a service where the tangible personal property is essential to the use of the service, is provided exclusively in connection with the service, and the true object of the transaction is the service;
      2. The retail sale of services where one service is provided that is essential to the use or receipt of a second service, the first service is provided exclusively in connection with the second service, and the true object of the transaction is the second service;
      3. (I) A transaction that includes taxable products and nontaxable products and the purchase price or sales price of the taxable products is de minimis.  As used in this subparagraph, the term "de minimis" means the seller's purchase price or sales price of the taxable product is 10 percent or less of the total purchase price or sales price of the bundled products.

        (II) Sellers shall use either the purchase price or the sales price of the products to determine if the taxable products are de minimis. Sellers may not use a combination of the purchase price and sales price of the products to determine if the taxable products are de minimis.

        (III) Sellers shall use the full term of a service contract to determine if the taxable products are de minimis; or

      4. The retail sale of exempt tangible personal property and taxable tangible personal property where:
        1. The transaction includes food and food ingredients, drugs, durable medical equipment, mobility enhancing equipment, over-the-counter drugs, or prosthetic devices; and
        2. The seller's purchase price or sales price of the taxable tangible personal property is 50 percent or less of the total purchase price or sales price of the bundled tangible personal property.  Sellers may not use a combination of the purchase price and sales price of the tangible personal property when making the 50 percent determination for a transaction.
  4. "Business" means any activity engaged in by any person or caused to be engaged in by any person with the object of direct or indirect gain, benefit, or advantage.
  5. "Coin operated telephone service" means a telecommunications service paid for by inserting money into a telephone accepting direct deposits of money to operate.
  6. "Computer software" means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.
  7. "Conference bridging service" means an ancillary service that links two or more participants of an audio or video conference call and may include the provision of a telephone number. Conference bridging service shall not include the telecommunications services used to reach the conference bridge.
  8. "Dealer" means every person who:
    1. Has sold at retail, used, consumed, distributed, or stored for use or consumption in this state tangible personal property and who cannot prove that the tax levied by this article has been paid on the sale at retail or on the use, consumption, distribution, or storage of the tangible personal property;
    2. Imports or causes to be imported tangible personal property from any state or foreign country for sale at retail, or for use, consumption, distribution, or storage for use or consumption in this state;
    3. Is the lessee or renter of tangible personal property and who pays to the owner of the property a consideration for the use or possession of the property in this state without acquiring title to the property;
    4. Leases or rents tangible personal property for a consideration, permitting the use or possession of the property in this state without transferring title to the property;
    5. Maintains or utilizes within this state an office, distribution center, salesroom or sales office, warehouse, service enterprise, or any other place of business, whether owned by such person or any other person, other than a common carrier acting in its capacity as such;
    6. Manufactures or produces tangible personal property for sale at retail or for use, consumption, distribution, or storage for use or consumption in this state;
    7. Sells at retail, offers for sale at retail, or has in his possession for sale at retail, or for use, consumption, distribution, or storage for use or consumption in this state tangible personal property;
    8. Solicits business by an agent, employee, representative, or any other person;
    9. Engages in the regular or systematic solicitation of a consumer market in this state, unless the dealer's only activity in this state is:
      1. Advertising or solicitation by:
        1. Direct mail, catalogs, periodicals, or advertising fliers;
        2. Means of print, radio, or television media; or
        3. Telephone, computer, the Internet, cable, microwave, or other communication system;
      2. The delivery of tangible personal property within this state solely by common carrier or United States mail; or
      3. To engage in convention and trade show activities as described in Section 513(d)(3)(A) of the Internal Revenue Code, so long as such activities are the dealer's sole physical presence in this state and the dealer, including any of its representatives, agents, salespersons, canvassers, independent contractors, or solicitors, does not engage in those convention and trade show activities for more than five days, in whole or in part, in this state during any 12 month period and did not derive more than $100,000.00 of net income from those activities in this state during the prior calendar year. A retailer engaging in convention and trade show activities, as described in Section 513(d)(3)(A) of the Internal Revenue Code, is a retailer engaged in business in this state and liable for collection of the applicable sales or use tax with respect to any sale of tangible personal property occurring at the convention and trade show activities and with respect to any sale of tangible personal property made pursuant to an order taken at or during those convention and trade show activities.

        The exceptions provided in divisions (i), (ii), and (iii) of this subparagraph shall not apply to any requirements under Code Section 48-8-14;

    10. Is an affiliate that sells at retail, offers for sale at retail in this state, or engages in the regular or systematic solicitation of a consumer market in this state through a related dealer located in this state unless:
      1. The in-state dealer to which the affiliate is related does not engage in any of the following activities on behalf of the affiliate:
        1. Advertising;
        2. Marketing;
        3. Sales; or
        4. Other services; and
      2. The in-state dealer to which the affiliate is related accepts the return of tangible personal property sold by the affiliate and also accepts the return of tangible personal property sold by any person or dealer that is not an affiliate on the same terms and conditions as an affiliate's return;

        As used in this subparagraph, the term "affiliate" means any person that is related directly or indirectly through one or more intermediaries, controls, is controlled by, is under common control with, or is subject to the control of a dealer described in subparagraphs (A) through (I) of this paragraph or in this subparagraph;

      1. Makes sales of tangible personal property or services that are taxable under this chapter if a related member, as defined in Code Section 48-7-28.3, other than a common carrier acting in its capacity as such, that has substantial nexus in this state:
        1. Sells a similar line of products as the person and does so under the same or a similar business name; or
        2. Uses trademarks, service marks, or trade names in this state that are the same or substantially similar to those used by the person.
      2. The presumption that a person described in this subparagraph qualifies as a dealer in this state may be rebutted by showing that the person does not have a physical presence in this state and that any in-state activities conducted on its behalf are not significantly associated with the person's ability to establish and maintain a market in this state;
      1. Makes sales of tangible personal property or services that are taxable under this chapter if any other person, other than a common carrier acting in its capacity as such, who has a substantial nexus in this state:
        1. Delivers, installs, assembles, or performs maintenance services for the person's customers within this state;
        2. Facilitates the person's delivery of property to customers in this state by allowing the person's customers to pick up property sold by the person at an office, distribution facility, warehouse, storage place, or similar place of business maintained by the person in this state; or
        3. Conducts any other activities in this state that are significantly associated with the person's ability to establish and maintain a market in this state for the person's sales.
      2. The presumption that a person described in this subparagraph qualifies as a dealer in this state may be rebutted by showing that the person does not have a physical presence in this state and that any in-state activities conducted on its behalf are not significantly associated with the person's ability to establish and maintain a market in this state;
      1. Enters into an agreement with one or more other persons who are residents of this state under which the resident, for a commission or other consideration, based on completed sales, directly or indirectly refers potential customers, whether by a link on an Internet website, an in-person oral presentation, telemarketing, or otherwise, to the person, if the cumulative gross receipts from sales by the person to customers in this state who are referred to the person by all residents with this type of an agreement with the person is in excess of $50,000.00 during the preceding 12 months.
      2. The presumption that a person described in this subparagraph is a dealer in this state may be rebutted by submitting proof that the residents with whom the person has an agreement did not engage in any activity within this state that was significantly associated with the person's ability to establish or maintain the person's market in the state during the preceding 12 months. Such proof may consist of sworn written statements from all of the residents with whom the person has an agreement stating that they did not engage in any solicitation in this state on behalf of the person during the preceding year, provided that such statements were provided and obtained in good faith. This subparagraph shall take effect December 31, 2012, and shall apply to sales made, uses occurring, and services rendered on or after December 31, 2012, without regard to the date the person and the resident entered into the agreement described in this subparagraph;

      (M.1) Obtains gross revenue, in an amount exceeding $250,000.00 in the previous or current calendar year, from retail sales of tangible personal property to be delivered electronically or physically to a location within this state to be used, consumed, distributed, or stored for use or consumption in this state;

      (M.2) Conducts 200 or more separate retail sales of tangible personal property in the previous or current calendar year to be delivered electronically or physically to a location within this state to be used, consumed, distributed, or stored for use or consumption in this state;

    14. Notwithstanding any of the provisions contained in this paragraph, with respect to a person that is not a resident or domiciliary of Georgia, that does not engage in any other business or activity in Georgia, and that has contracted with a commercial printer for printing to be conducted in Georgia, such person shall not be deemed a dealer in Georgia merely because such person:
      1. Owns tangible or intangible property which is located at the Georgia premises of a commercial printer for use by such printer in performing services for the owner;
      2. Makes sales and distributions of printed material produced at and shipped or distributed from the Georgia premises of the commercial printer;
      3. Performs activities of any kind at the Georgia premises of the commercial printer which are directly related to the services provided by the commercial printer; or
      4. Has printing, including any printing related activities, and distribution related activities performed by the commercial printer in Georgia for or on its behalf,

        nor shall such person, absent any contact with Georgia other than with or through the use of the commercial printer or the use of the United States Postal Service or a common carrier, have an obligation to collect sales or use tax from any of its customers located in Georgia based upon the activities described in divisions (i) through (iv) of this subparagraph. In no event described in this subparagraph shall such person be considered to have a fixed place of business in Georgia at either the commercial printer's premises or at any place where the commercial printer performs services on behalf of that person;

    15. Any ruling, agreement, or contract, whether written or oral and whether express or implied, between a person and this state's executive branch or any other state agency or department stating, agreeing, or ruling that such person is not a dealer required to collect sales and use tax in this state despite the presence of a warehouse, distribution center, or fulfillment center in this state that is owned or operated by the person or a related member shall be null and void unless it is specifically approved by a majority vote of each body of the General Assembly. For purposes of this subparagraph, the term "related member" has the same meaning as in Code Section 48-7-28.3;
    16. Each dealer shall collect the tax imposed by this article from the purchaser, lessee, or renter, as applicable, and no action seeking either legal or equitable relief on a sale, lease, rental, or other transaction may be had in this state by the dealer unless the dealer has fully complied with this article; or
    17. The commissioner shall promulgate such rules and regulations necessary to administer this paragraph, including other such information, applications, forms, or statements as the commissioner may reasonably require.
  9. "Delivered electronically" means delivered to the purchaser by means other than tangible storage media.
  10. "Delivery charges" means charges by the seller of personal property or services for preparation and delivery to a location designated by the purchaser of personal property or services, including, but not limited to, transportation, shipping, postage, handling, crating, and packing. Delivery charges shall not include postage charges for the delivery of direct mail when the postage charge is passed on dollar-for-dollar without being marked up to the purchaser of the direct mail and separately stated on an invoice or other similar billing document given to the purchaser.
  11. "Detailed telecommunications billing service" means an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement.

    (11.1) "Dietary supplement" means any product, other than tobacco, intended to supplement the diet that:

    1. Contains one or more of the following dietary ingredients:
      1. A vitamin;
      2. A mineral;
      3. An herb or other botanical;
      4. An amino acid;
      5. A dietary substance for use by humans to supplement the diet by increasing the total dietary intake; or
      6. A concentrate, metabolite, constituent, extract, or combination of any ingredient described in this subparagraph;
    2. Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or if not intended for ingestion in such a form, is not represented as conventional food and is not represented for use as a sole item of a meal or of the diet; and
    3. Is required to be labeled as a dietary supplement, identifiable by the "Supplements Facts" box found on the label as required pursuant to 21 C.F.R. Section 101.36.
  12. "Direct mail" means printed material delivered or distributed by United States mail or other delivery service to a mass audience or to addressees on a mailing list provided by the purchaser or at the direction of the purchaser when the costs of the items are not billed directly to the recipients. Direct mail includes tangible personal property supplied directly or indirectly by the purchaser to the direct mail seller for inclusion in the package containing the printed material. Direct mail does not include multiple items of printed material delivered to a single address.
  13. "Directory assistance" means an ancillary service of providing telephone number information or address information, or both.
  14. "Drug" means a compound, substance, or preparation, and any component of a compound, substance, or preparation, other than food and food ingredients, dietary supplements, or alcoholic beverages:
    1. Recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or supplement to any of them;
    2. Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease; or
    3. Intended to affect the structure or any function of the body.
  15. "Durable medical equipment" means equipment including repair and replacement parts for the same, but does not include mobility enhancing equipment, which:
    1. Can withstand repeated use;
    2. Is primarily and customarily used to serve a medical purpose;
    3. Generally is not useful to a person in the absence of illness or injury; and
    4. Is not worn in or on the body.
  16. "Food and food ingredients" means substances, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value. Food and food ingredients shall not include alcoholic beverages, dietary supplements, or tobacco.

    (16.1) "Jet fuel" means any form of fuel that is designed for or used in the operation of aircraft powered by jet turbine or turboprop engines, including but not limited to Jet-A, and excludes aviation gasoline designed for or used in piston engines, including but not limited to avgas.

  17. "Lease or rental" means any transfer of possession or control of tangible personal property for a fixed or indeterminate term for consideration. A lease or rental may include future options to purchase or extend. Lease or rental includes agreements covering motor vehicles and trailers where the amount of consideration may be increased or decreased by reference to the amount realized upon sale or disposition of the property as defined in 26 U.S.C. Section 7701(h)(1). Lease or rental shall not include:
    1. A transfer of possession or control of property under a security agreement or deferred payment plan that requires the transfer of title upon completion of the required payments;
    2. A transfer of possession or control of property under an agreement that requires the transfer of title upon completion of required payments and payment of an option price does not exceed the greater of $100.00 or 1 percent of the total required payments; or
    3. Providing tangible personal property along with an operator for a fixed or indeterminate period of time. A condition of this exclusion is that the operator is necessary for the equipment to perform as designed. For the purpose of this subparagraph, an operator must do more than maintain, inspect, or install the tangible personal property.
  18. "Load and leave" means delivery to the purchaser by use of a tangible storage media where the tangible storage media is not physically transferred to the purchaser.
  19. "Mobile wireless service" means a telecommunications service that is transmitted, conveyed, or routed regardless of the technology used, by which the origination or termination points, or both, of the transmission, conveyance, or routing are not fixed, including, by way of example only, telecommunications services that are provided by a commercial mobile radio service provider.
  20. "Mobility enhancing equipment" means equipment including repair and replacement parts to the same, but does not include durable medical equipment, which:
    1. Is primarily and customarily used to provide or increase the ability to move from one place to another and which is appropriate for use either in a home or a motor vehicle;
    2. Is not generally used by persons with normal mobility; and
    3. Does not include any motor vehicle or equipment on a motor vehicle normally provided by a motor vehicle manufacturer.
      1. A "Drug Facts" panel; or
      2. A statement of the "active ingredient(s)" with a list of those ingredients contained in the compound, substance, or preparation.

    (20.1) "Over-the-counter drug" means a drug that contains a label that identifies the product as a drug as required by 21 C.F.R. Section 201.66. The over-the-counter drug label includes:

  21. "Place of primary use" means the street address representative of where the customer's use of the telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. In the case of mobile telecommunications services, place of primary use must be within the licensed service area of the home service provider.
  22. "Prepaid calling service" means the right to access exclusively telecommunications services, which must be paid for in advance and which enables the origination of calls using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units or dollars of which the number declines with use in a known amount.
  23. "Prepaid local tax" means any local sales and use tax which is levied on the sale or use of motor fuel and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, known as the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; or by or pursuant to Article 2, 2A, 3, or 4 of this chapter. Such tax is based on the same average retail sales price as compiled by the Energy Information Agency of the United States Department of Energy, the Oil Pricing Information Service, or a similar reliable published index less taxes imposed under Code Section 48-9-3 and all local sales and use or excise taxes levied on motor fuel. Such price shall be used to compute the prepaid sales tax rate for local jurisdictions by multiplying such retail price by the applicable rate imposed by the jurisdiction. The person collecting and reporting the prepaid local tax for the local jurisdiction shall provide a schedule as to which jurisdiction these collections relate. This determination shall be based upon the shipping papers of the conveyance that delivered the motor fuel to the dealer or consumer in the local jurisdiction. A seller may rely upon the representation made by the purchaser as to which jurisdiction the shipment is bound and prepare shipping papers in accordance with those instructions.
  24. Reserved.
  25. "Prepaid wireless calling service" means a telecommunications service that provides the right to utilize mobile wireless service as well as other nontelecommunications services including the download of digital products delivered electronically, content, and ancillary services, which must be paid for in advance that is sold in predetermined units or dollars of which the number declines with use in a known amount.
  26. Reserved.
  27. "Prepared food" means:
    1. Food:
      1. Sold in a heated state or heated by the seller;
      2. With two or more food ingredients mixed or combined by the seller for sale as a single item; or
      3. Sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used to transport the food; and
    2. Prepared food shall not include food:
      1. That is only cut, repackaged, or pasteurized by the seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as in Chapter 3, part 401.11 of the United States Food and Drug Administration Food Code so as to prevent food borne illnesses;
      2. Sold by a seller whose proper primary North American Industrial Classification System code is subsector 311, food manufacturing, except for industry group 3118, bakeries and tortilla manufacturing, if sold without eating utensils provided by the seller; or
      3. Sold by a seller whose proper primary North American Industrial Classification System code is industry group 3121, beverage manufacturing.
  28. "Prescription" means an order, formula, or recipe issued in any form of oral, written, electronic, or other means of transmission by a duly licensed practitioner authorized by the laws of this state.

    (28.1) "Prewritten computer software" means computer software, including prewritten upgrades, which is not designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of two or more prewritten computer software programs or prewritten portions thereof does not cause the combination to be other than prewritten computer software. Prewritten computer software includes software designed and developed by the author or other creator to the specifications of a specific purchaser when it is sold to a person other than the specific purchaser. Where a person modifies or enhances computer software of which the person is not the author or creator, the person shall be deemed to be the author or creator only of such person's modifications or enhancements. Prewritten computer software or a prewritten portion thereof that is modified or enhanced to any degree, where such modification or enhancement is designed and developed to the specifications of a specific purchaser, remains prewritten computer software; provided, however, that where there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for such modification or enhancement, such modification or enhancement shall not constitute prewritten computer software.

  29. "Prosthetic device" means a replacement, corrective, or supportive device including repair and replacement parts for the same worn on or in the body to:
    1. Artificially replace a missing portion of the body;
    2. Prevent or correct physical deformity or malfunction; or
    3. Support a weak or deformed portion of the body.

      Prosthetic device shall not include hearing aids.

  30. "Purchase price" applies to the measure subject to use tax and has the same meaning as sales price.
  31. "Retail sale" or a "sale at retail" means any sale, lease, or rental for any purpose other than for resale, sublease, or subrent. Sales for resale must be made in strict compliance with the commissioner's rules and regulations. Any dealer making a sale for resale which is not in strict compliance with the commissioner's rules and regulations shall be liable for and shall pay the tax. The terms "retail sale" or "sale at retail" include but are not limited to the following:
    1. Except as otherwise provided in this chapter, the sale of natural or artificial gas, oil, electricity, solid fuel, transportation, local telephone services, alcoholic beverages, and tobacco products, when made to any purchaser for purposes other than resale;
    2. The sale or charges for any room, lodging, or accommodation furnished to transients by any hotel, inn, tourist camp, tourist cabin, or any other place in which rooms, lodgings, or accommodations are regularly furnished to transients for a consideration. This tax shall not apply to rooms, lodgings, or accommodations supplied for a period of 90 continuous days or more;
    3. Sales of tickets, fees, or charges made for admission to places of amusement, sports, or entertainment, including, but not limited to:
      1. Billiard and pool rooms;
      2. Bowling alleys;
      3. Amusement devices;
      4. Musical devices;
      5. Theaters;
      6. Opera houses;
      7. Moving picture shows;
      8. Vaudeville;
      9. Amusement parks;
      10. Athletic contests, including, but not limited to, wrestling matches, prize fights, boxing and wrestling exhibitions, football games, and baseball games;
      11. Skating rinks;
      12. Race tracks;
      13. Public bathing places;
      14. Public dance halls; and
      15. Any other place at which any exhibition, display, amusement, or entertainment is offered to the public or any other place where an admission fee is charged;
    4. Charges made for participation in games and amusement activities;
    5. Sales of tangible personal property to persons for resale when there is a likelihood that the state will lose tax funds due to the difficulty of policing the business operations because:
      1. Of the operation of the business;
      2. Of the very nature of the business;
      3. Of the turnover of so-called independent contractors;
      4. Of the lack of a place of business in which to display a certificate of registration;
      5. Of the lack of a place of business in which to keep records;
      6. Of the lack of adequate records;
      7. The persons are minors or transients;
      8. The persons are engaged in essentially service businesses; or
      9. Of any other reasonable reason.

        The commissioner may promulgate rules and regulations requiring vendors of persons described in this subparagraph to collect the tax imposed by this article on the retail price of the tangible personal property. The commissioner shall refuse to issue certificates of registration and may revoke certificates of registration issued in violation of his rules and regulations;

    6. Charges, which applied to sales of telephone service, made for local exchange telephone service, except coin operated telephone service, except as otherwise provided in subparagraph (G) of this paragraph; or
    7. If the price is attributable to products that are taxable and products that are nontaxable, the portion of the price attributable to the nontaxable products may be subject to tax unless the provider can identify by reasonable and verifiable standards such portion from its books and records that are kept in the regular course of business for other purposes, including, but not limited to, nontax purposes. If the price is attributable to products that are subject to tax at different tax rates, the total price may be treated as attributable to the products subject to tax at the highest tax rate unless the provider can identify by reasonable and verifiable standards the portion of the price attributable to the products subject to tax at the lower rate from the provider's books and records that are kept in the regular course of business for other purposes, including, but not limited to, nontax purposes.
  32. "Retailer" means every person making sales at retail or for distribution, use, consumption, or storage for use or consumption in this state and has the same meaning as "seller" in Code Section 48-8-161.
    1. "Sale" means any transfer of title or possession, transfer of title and possession, exchange, barter, lease, or rental, conditional or otherwise, in any manner or by any means of any kind of tangible personal property for a consideration except as otherwise provided in subparagraph (B) of this paragraph and includes, but is not limited to:
      1. The fabrication of tangible personal property for consumers who directly or indirectly furnish the materials used in such fabrication;
      2. The furnishing, repairing, or serving for a consideration of any tangible personal property consumed on the premises of the person furnishing, repairing, or serving the tangible personal property; or
      3. A transaction by which the possession of property is transferred but the seller retains title as security for the payment of the price.
    2. Notwithstanding a dealer's physical presence, in the case of a motor vehicle retail sale, excluding lease or rental, the taxable situs of the transaction for the purposes of collecting local sales and use taxes shall be the county of motor vehicle registration of the purchaser.
    1. "Sales price" applies to the measure subject to sales tax and means the total amount of consideration, including cash, credit, property, and services, for which personal property or services are sold, leased, or rented, valued in money, whether received in money or otherwise without any deduction for the following:
      1. The seller's cost of the property sold;
      2. The cost of materials used, labor, or service cost, interest, losses, all costs of transportation to the seller, all taxes imposed on the seller, and any other expense of the seller;
      3. Charges by the seller for any services necessary to complete the sale; and
      4. Delivery charges.
    2. Sales price shall not include:
      1. Discounts, including cash, term, or coupons that are not reimbursed by a third party that are allowed by a seller and taken by a purchaser on a sale;
      2. Interest, financing, and carrying charges from credit extended on the sale of personal property or services, if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser;
      3. Any taxes legally imposed directly on the consumer that are separately stated on the invoice, bill of sale, or similar document given to the purchaser;
      4. Installation charges if they are separately stated on the invoice, billing, or similar document given to the purchaser;
      5. Telecommunications nonrecurring charges if they are separately stated on the invoice, billing, or similar document; and
      6. Credit for any trade-in.
    3. Sales price shall include consideration received by the seller from third parties if:
      1. The seller actually receives consideration from a party other than the purchaser and the consideration is directly related to a price reduction or discount on the sale;
      2. The seller has an obligation to pass the price reduction or discount through to the purchaser;
      3. The amount of the consideration attributable to the sale is fixed and determinable by the seller at the time of the sale of the item to the purchaser; and
      4. One of the following criteria is met:
        1. The purchaser presents a coupon, certificate, or other documentation to the seller to claim a price reduction or discount where the coupon, certificate, or documentation is authorized, distributed, or granted by a third party with the understanding that the third party will reimburse any seller to whom the coupon, certificate, or documentation is presented;
        2. The purchaser identifies himself or herself to the seller as a member of a group or organization entitled to a price reduction or discount; provided, however, that a preferred customer card that is available to any patron shall not constitute membership in such a group; or
        3. The price reduction or discount is identified as a third-party price reduction or discount on the invoice received by the purchaser or on a coupon, certificate, or other documentation presented by the purchaser.
  35. "Storage" means any keeping or retention in this state of tangible personal property for use or consumption in this state or for any purpose other than sale at retail in the regular course of business.
  36. "Streamlined sales tax agreement" means the Streamlined Sales and Use Tax Agreement under Code Section 48-8-162.
  37. "Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched or that is in any other manner perceptible to the senses. Tangible personal property includes electricity, water, gas, steam, and prewritten computer software. Tangible personal property does not mean stocks, bonds, notes, insurance, or other obligations or securities.
  38. "Telecommunications nonrecurring charges" means an amount billed for the installation, connection, change, or initiation of telecommunications service received by the customer.
  39. "Telecommunications service" means the electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points. The term telecommunications service includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice over Internet protocol services or is classified by the Federal Communications Commission as enhanced or value added. Telecommunications service shall not include:
    1. Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a purchaser where such purchaser's primary purpose for the underlying transaction is the processed data or information;
    2. Installation or maintenance of wiring or equipment on a customer's premises;
    3. Tangible personal property;
    4. Advertising, including but not limited to directory advertising;
    5. Billing and collection services provided to third parties;
    6. Internet access service;
    7. Radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance, and routing of such services by the programming service provider. Radio and television audio and video programming services shall include but not be limited to cable service as defined in 47 U.S.C. Section 522(6) and audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 C.F.R. Section 20.3;
    8. Ancillary services; or
    9. Digital products delivered electronically, including but not limited to software, music, video, reading materials, or ring tones.

    (39.1) "Tobacco" means cigarettes, cigars, chewing or pipe tobacco, or any other item that includes tobacco.

  40. "Use" means the exercise of any right or power over tangible personal property incident to the ownership of the property including, but not limited to, the sale at retail of the property in the regular course of business.
  41. "Use tax" includes the use, consumption, distribution, and storage of tangible personal property as defined in this article.
  42. "Vertical service" means an ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and to manage multiple calls and call connections, including conference bridging services.
  43. "Voice mail service" means an ancillary service that enables the customer to store, send, or receive recorded messages. Voice mail service does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.

    (Ga. L. 1951, p. 360, §§ 3, 4; Ga. L. 1960, p. 153, § 3; Ga. L. 1971, p. 85, § 1; Ga. L. 1978, p. 1664, § 1; Code 1933, § 91A-4501, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, §§ 81-84; Ga. L. 1980, p. 10, § 22; Ga. L. 1982, p. 3, § 48; Ga. L. 1990, p. 1243, § 1; Ga. L. 1992, p. 1521, § 1; Ga. L. 1994, p. 928, § 4A; Ga. L. 1995, p. 10, § 48; Ga. L. 1996, p. 220, § 7; Ga. L. 1998, p. 124, § 3; Ga. L. 2002, p. 415, § 48; Ga. L. 2002, p. 975, § 1; Ga. L. 2003, p. 355, § 3; Ga. L. 2003, p. 665, § 10; Ga. L. 2005, p. 788, § 1/HB 22; Ga. L. 2006, p. 59, § 1/HB 111; Ga. L. 2007, p. 309, § 1/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 1/HB 1221; Ga. L. 2011, p. 38, §§ 2, 3/HB 168; Ga. L. 2011, p. 674, §§ 1-2, 1-3/HB 117; Ga. L. 2012, p. 257, § 6-1/HB 386; Ga. L. 2012, p. 694, § 3/HB 729; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2014, p. 700, § 1/HB 816; Ga. L. 2014, p. 866, § 48/SB 340; Ga. L. 2015, p. 5, § 48/HB 90; Ga. L. 2015, p. 236, § 5-2/HB 170; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 154, § 1/HB 117; Ga. L. 2018, p. 259, § 1/HB 61; Ga. L. 2018, p. 1112, § 48/SB 365; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-1/HB 5EX.)

The 2015 amendments. The first 2015 amendment, effective March 13, 2015, part of an Act to revise, modernize, and correct the Code, deleted paragraph (30.1) which was repealed and revised punctuation in paragraphs (37), (39), and (43). The second 2015 amendment, effective July 1, 2015, substituted "as compiled by the Energy Information Agency of the United States Department of Energy, the Oil Pricing Information Service, or a similar reliable published index less taxes imposed under Code Section 48-9-3 and all local sales and use or excise taxes levied on motor fuel" for "as set forth in subparagraph (b)(2)(B) of Code Section 48-9-14" in the second sentence of paragraph (23); and substituted "Reserved." for the former provisions of paragraph (24), which read: " 'Prepaid state tax' means the tax levied under Code Section 48-8-30 in conjunction with Code Section 48-8-3.1 and Code Section 48-9-14 on the retail sale of motor fuels for highway use and collected prior to that retail sale. This tax is based upon the average retail sales price as set forth in Code Section 48-9-14." See Editor's notes for applicability.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, revised language and punctuation in this Code section.

The 2017 amendment, effective May 1, 2017, substituted "places of" for ", or voluntary contributions made to places of," in subparagraph (31)(C). See Editor's notes for applicability.

The 2018 amendments. The first 2018 amendment, effective January 1, 2019, added subparagraphs (8)(M.1) and (8)(M.2). The second 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentences of paragraph (10), subparagraph (31)(C), and division (31)(C)(x).

The 2018 Ex. Sess. amendment, effective December 1, 2018, added paragraph (16.1).

Cross references. - Limitations on contracting with state agencies by dealers refusing to pay sales tax, § 50-5-82 .

Code Commission notes. - The amendment of this Code section by Ga. L. 2003, p. 355, § 3, irreconcilably conflicted with and was treated as superseded by Ga. L. 2003, p. 665, § 10. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Pursuant to Code Section 28-9-5, in 2012, "This subparagraph shall take effect December 31, 2012, and shall apply to sales made, uses occurring, and services rendered on or after December 31, 2012, without regard to the date" was substituted for "This subparagraph shall take effect 90 days after the effective date of this Act and shall apply to sales made, uses occurring, and services rendered on or after the effective date of this subparagraph without regard to the date" in subparagraph (8)(M)(ii).

Editor's notes. - Ga. L. 1992, p. 1521, § 4, not codified by the General Assembly, provides: "This Act [which amended this Code section] shall stand repealed in its entirety on January 1, 1996, and shall be void and of no effect and the provisions affected by this Act shall be specifically revived as such provisions stood before the enactment of this Act, as amended by laws other than this Act."

Ga. L. 1994, p. 834, § 4, not codified by the General Assembly, repeals Ga. L. 1992, p. 1521, § 4, which had provided for the repeal of this Code section as affected by that 1992 Act effective January 1, 1996.

Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994.'"

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2011, p. 674 provided for the automatic repeal of subparagraph (31)(H) and paragraphs (30.1) and (34.1), effective June 30, 2014.

Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act." This Act became effective October 1, 2012.

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act." This Act became effective October 1, 2012.

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2017, p. 154, § 2/HB 117, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all sales made on or after July 1, 2017.

Ga. L. 2018, p. 259, § 3/HB 61, not codified by the General Assembly, provides that the addition of subparagraphs (8)(M.1) and (8)(M.2) shall apply to all sales made on or after January 1, 2019.

Law reviews. - For article, "Clarification Needed in Georgia Retail Sales and Use Tax Statute," see 41 Mercer L. Rev. 1 (1989). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2012 amendment of this Code section, see 29 Georgia St. U.L. Rev. 112 (2012). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Rev. 249 (1994). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003). For comment on Colonial Stores v. Undercofler, 223 Ga. 105 , 153 S.E.2d 549 (1967), see 4 Ga. St. B. J. 132 (1967).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Cited in International Computer Group, Inc. v. Data Gen. Corp., 159 Ga. App. 169 , 283 S.E.2d 12 (1981); Strickland v. W.E. Ross & Sons, 251 Ga. 324 , 304 S.E.2d 719 (1983).

Business

Intent is to tax sales carried on as a business or occupation. - From Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), taken as a whole, the intention is clear that it is the gross proceeds from retail sales carried on as a business or occupation which is designed to be taxed. Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954).

No definitive distinction can be drawn between the definition of "business" and the term's common and accepted meaning. Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954).

Definition of "business" is closely identifiable with the definition of that word given by Black's Law Dictionary, which defines business as "that which occupies the time, attention, and labor of men for the purpose of a livelihood or profit," and which is the commonly accepted meaning of the term. Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954).

Words "engaged in business" imply an element of continuity or habitual practice. Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954).

Definition of "business" does not say "any act engaged in for gain," but rather, "any activity." Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954).

Whether activity amounts to business is to be construed in taxpayer's favor. - Since revenue statutes are to be construed strictly so as to resolve doubt in favor of the taxpayer, and since their meaning is not to be extended by implication, and under this rule, any doubt as to whether the definition of "business" as "any activity engaged in" was meant to narrow the word down to include a single transaction, instead of the word's ordinary meaning of continuity of transactions, should be resolved in favor of the taxpayer. Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954).

Exemption of casual and isolated sales. - Casual and isolated sale made by one not engaged in the business of selling tangible personal property at retail is not taxable. Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954); State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

Term "casual sales" is from case law and revenue regulations. - Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) does not define or even mention "casual sales." The term comes from case law and revenue regulations. Newscopters, Inc. v. Blackmon, 125 Ga. App. 130 , 186 S.E.2d 759 (1971).

Disposal of business fixtures after ceasing to be engaged in that business. - Sale of business fixtures and equipment, after an owner has ceased to do business, is not a transaction by one engaged in the business of buying and selling such business fixtures and equipment, and is not taxable. Novak v. Redwine, 89 Ga. App. 755 , 81 S.E.2d 222 (1954).

Cost Price

"Cost price" may be taken as synonymous with the term "sales price," insofar as "sales price" relates to the sale of tangible personal property rather than to the sale of services. Colonial Pipeline Co. v. Undercofler, 115 Ga. App. 58 , 153 S.E.2d 592 (1967).

Services incident to sale of tangible personal property. - When the vendor furnishes services incidental to the sale of tangible personal property, such as delivery to the purchaser, and no additional charge is made for the services so as to constitute a separate sale of services, the services are included in the sale price or cost price of the property for the purpose of computing the applicable sales or use tax. Colonial Pipeline Co. v. Undercofler, 115 Ga. App. 58 , 153 S.E.2d 592 (1967).

Dealer

Person who is president and treasurer of a corporation which sells at retail is a dealer. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

Contractor not a dealer as to building materials used by contractor in construction. - Contractor who buys building material is not one who buys and sells - a trader. The contractor is not a dealer, or one who habitually and constantly, as in business, deals in and sells any given commodity. The contractor is a user and consumer of such materials and is liable for sales and use tax, even though title to materials finally vests in the customer. J.W. Meadors & Co. v. State, 89 Ga. App. 583 , 80 S.E.2d 86 (1954).

Lease or Rental

"Rental" is the equivalent of "resale." Undercofler v. Macon Linen Serv., Inc., 114 Ga. App. 231 , 150 S.E.2d 703 (1966).

What included in charges for rooms, lodgings, and accomodations. - Sale or charges for any room or rooms, lodgings, or accommodations furnished to transients encompasses whatever is rented, whether one room or several, whether bare or elaborately appointed. Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295 , 149 S.E.2d 691 (1966).

Lease of advertising signs is taxable. Register Mobile Adv., Inc. v. Strickland, 242 Ga. 604 , 250 S.E.2d 468 (1978).

Leases of tangible personal property are to be treated the same as sales under sales and use tax laws. Strickland v. Sperry Rand Corp., 248 Ga. 535 , 285 S.E.2d 1 (1981).

Retail Sale

All retail sales except those specifically exempted are taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). Undercofler v. VFW Post 4625, 110 Ga. App. 711 , 139 S.E.2d 776 (1964).

Test is whether sale is last sale. - Definition of a retail sale as a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property does not confine retail sales to sales made to consumers only. The chief element of the definition is that such a sale shall not be followed by a resale, or another retail sale, but shall be the last of a possible series of sales. Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 , 73 S.E.2d 749 (1952).

Not all items reflected in price charged are deemed held for resale or rental. - Although all costs of a company's operations are reflected in the rental or contract price charged the company's customers, including the costs of the equipment used by the company for storage, this circumstance does not in itself operate to show a resale or rental of these items so as to render the items' sale to the company other than a taxable transaction. Undercofler v. Macon Linen Serv., Inc., 114 Ga. App. 231 , 150 S.E.2d 703 (1966).

When sale deemed completed in this state. - Sale is completed in this state when the customer acquires the right to the property even though the delivery of the property is delayed and even though actual delivery does not take place in the state. Meade Corp. v. Blackmon, 129 Ga. App. 526 , 199 S.E.2d 839 (1973).

Sports or entertainment events held or sponsored by charitable organizations. - Horse show is an event of sports or of entertainment, and that it was held by or sponsored by a charitable organization with tax-exempt status does not relieve it from the payment of the tax. Atlanta Hunter-Jumper Classic, Inc. v. Blackmon, 125 Ga. App. 38 , 186 S.E.2d 434 (1971).

Admission price taxable even if otherwise partially tax deductible. - There is no authority in Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) to exempt portions of amounts required to be paid to reserve admissions to a sporting event simply because a portion of the amount is designated by the sponsor in the sponsor's advertisements as "tax deductible." Atlanta Hunter-Jumper Classic, Inc. v. Blackmon, 125 Ga. App. 38 , 186 S.E.2d 434 (1971).

Sale of steel dies to a manufacturer is not a personal service transaction when such dies are used by the manufacturer until disposed of. Mead Corp. v. Strickland, 247 Ga. 495 , 276 S.E.2d 586 (1981).

Sale or purchase of chances or plays in a lottery. - Term "retail sale" applies to the sale and purchase of chances or plays in a lottery known as the numbers game, which tickets or chances are taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). Chilivis v. Fleming, 139 Ga. App. 295 , 228 S.E.2d 178 (1976).

Operation of slot machines and one-armed bandits is taxable. - Operation of coin operated gaming devices known as slot machines or one-armed bandits by depositing a coin therein is a transaction amounting to a taxable sale. Undercofler v. VFW Post 4625, 110 Ga. App. 711 , 139 S.E.2d 776 (1964).

Slot machines are not excluded from this section merely because it amounts to an illegal transaction. Undercofler v. American Legion Post 69, 112 Ga. App. 27 , 143 S.E.2d 684 (1965).

Treatment of wholesale transactions as retail sales. - Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) authorizes the commissioner to treat some wholesale transactions as retail sales and to make regulations requiring certain sellers to collect sales tax on wholesale transactions. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

Purchase of merchandise to be given in exchange for trading stamps. - Transactions between merchant and customers with reference to trading stamps and premium merchandise are sales since stamps issued to customers in consideration of purchases represent right to premium merchandise. The purchase of premium merchandise by the merchant is a purchase for purposes of resale, and is therefore not taxable. Colonial Stores v. Undercofler, 223 Ga. 105 , 153 S.E.2d 549 (1967), commented on in 4 Ga. St. B.J. 132 (1967).

Transfer of advertising materials to distributors together with product. - Brewing company must pay use tax on advertising materials that accompany malt liquor transferred to distributors because the absence of a separate charge for the advertising indicates that the advertising does not fall within the resale exemption and because the advertising materials will in fact never be sold at any time during the distribution chain. Carling Brewing Co. v. Blackmon, 131 Ga. App. 211 , 205 S.E.2d 492 (1974).

Taxation of airline meals. - Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) imposes a tax on the sale of airline meals included in the in-state sale of a ticket to a passenger, but not on the purchase of the meals from a supplier by the airline since such purchases are held for resale to passengers. Undercofler v. Eastern Air Lines, 221 Ga. 824 , 147 S.E.2d 436 (1966).

Sales tax refund dismissed for failure to comply with regulation. - Grant of the Georgia Department of Revenue's motion to dismiss the appellants' complaint seeking a refund under O.C.G.A. § 48-2-35 of state sales tax paid was affirmed because the appellants failed to comply with a regulation that, before seeking a refund on behalf of the appellants' customers under § 48-2-35 , the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded by the appellants to their customers, which the appellants admittedly had not done. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 340 Ga. App. 316 , 797 S.E.2d 190 (2017).

Sale

Tax is on total consideration, regardless of number of sources. - It is the consideration for the transfer of personal property which is taxed. The consideration may come from more than one source, but the total consideration is the total of all amounts. The total amount, or gross sales price, is taxable. Davis v. Chilivis, 142 Ga. App. 679 , 237 S.E.2d 2 (1977).

"First use" means first use in this state. - When Ga. L. 1951, p. 360, § 8 is read in pari materia with Ga. L. 1951, p. 360, § 3 it is apparent that the first use referred to in Ga. L. 1951, p. 360, § 8 means the first use in this state. Ingalls Iron Works Co. v. Chilivis, 237 Ga. 479 , 228 S.E.2d 866 (1976), appeal dismissed, 429 U.S. 1081, 97 S. Ct. 1086 , 51 L. Ed. 2 d 528 (1977).

Construction of "holding for resale." - Phrase "holding for resale" must be construed to cover those situations when the seller is engaged in the business of selling or leasing property on a continual and habitual basis. Chilivis v. Bradley, 142 Ga. App. 793 , 237 S.E.2d 200 (1977).

Judicial sale is not exempt from the tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). Hopkins v. West Publishing Co., 106 Ga. App. 596 , 127 S.E.2d 849 (1962).

For examples of what constitutes furnishing by consumer of materials used in fabrication see Superior Type, Inc. v. Williams, 98 Ga. App. 89 , 105 S.E.2d 14 (1958).

Passage of title required. - When a company is denominated as the seller in the company's sales contracts, there must be a sale within the meaning of O.C.G.A. § 48-8-2(8) from the manufacturer to the company so that the company can pass the title to the purchaser, even though the company contends the company is only the sales representative for the manufacturer. Adrian Hous. Corp. v. Collins, 253 Ga. 263 , 319 S.E.2d 852 (1984).

Sales Price

Gross sales price of a new product is subject to a sales tax. Southwire Co. v. Chilivis, 139 Ga. App. 329 , 228 S.E.2d 295 (1976).

What constitutes remodeling or repairing property sold. - Charges by a taxpayer to its customers for modifications in equipment sold by the taxpayer to its customers, but retained and used by the taxpayer to manufacture products for the customers, such charges representing the costs to the taxpayer of tax-free services generally obtained from a third party, without any specific charge for the negligible use of materials, are charges for services rendered in remodeling or repairing property sold and are therefore properly excluded from the sales price for tax purposes. Undercofler v. Thompson Indus., Inc., 114 Ga. App. 497 , 151 S.E.2d 844 (1966).

Inclusion of other taxes in sales price for purposes of calculating sales tax. - If the imposition of other taxes, such as those on cigarettes, falls upon the consumer or the incident of the sale by the retailer to the consumer they are not included as part of the retail sale price for calculating the sales and use tax. If, however, the tax is imposed at a time prior to the point of retail sale or other consumer transaction, it is an element of the cost of the property sold and must be included as part of the retail sale price for purposes of calculating the sales and use tax. Blackmon v. Coastal Serv., Inc., 125 Ga. App. 28 , 186 S.E.2d 441 (1971), aff'd, 229 Ga. 471 , 192 S.E.2d 372 (1972).

State cigarette tax imposed by former Code 1933, Ch. 92-22 is not an element of the cost of the property sold and is not, therefore, included in "gross sales" and "sales price" upon which the sales and use tax is calculated. Blackmon v. Coastal Serv., Inc., 125 Ga. App. 28 , 186 S.E.2d 441 (1971), aff'd, 229 Ga. 471 , 192 S.E.2d 372 (1972).

Federal cigarette tax imposed by Subtitle E, Ch. 52 of the Internal Revenue Code of 1954 is an element of the cost of property sold and is therefore included in "gross sales" and "sales price." Blackmon v. Coastal Serv., Inc., 125 Ga. App. 28 , 186 S.E.2d 441 (1971), aff'd, 229 Ga. 471 , 192 S.E.2d 372 (1972).

Federal manufacturer's excise tax imposed by § 4061 of the Internal Revenue Code of 1954 is an element of the cost of property sold and is therefore included in gross sales and sale price. Undercofler v. Capital Auto. Co., 111 Ga. App. 709 , 143 S.E.2d 206 (1965).

Federal excise tax on gasoline is properly includable as a part of the retail sales price on which the sales and use tax is to be calculated. State v. Thoni Oil Magic Benzol Gas Stations, Inc., 121 Ga. App. 454 , 174 S.E.2d 224 , aff'd, 226 Ga. 883 , 178 S.E.2d 173 (1970).

State motor fuel tax is not taxable. - Motor fuel taxes imposed by former Code 1933, Ch. 92-14 are levied upon the incident of the sale to the consumer and should not be included as a part of the retail sales price for calculating the sales and use tax. State v. Thoni Oil Magic Benzol Gas Stations, Inc., 121 Ga. App. 454 , 174 S.E.2d 224 , aff'd, 226 Ga. 883 , 178 S.E.2d 173 (1970).

Discounts to employees on meals. - Discounts to employees on the price of meals, subsequently paid to cafeteria management by the employer, are subject to Ga. L. 1951, p. 360 (see now O.C.G.A. Art 1, Ch. 8, T. 48). Davis v. Chilivis, 142 Ga. App. 679 , 237 S.E.2d 2 (1977).

Tangible Personal Property

Fixtures which pass by conveyance of realty are exempt. - All fixtures which would pass by a conveyance of an interest in realty as a part thereof, in the absence of provisions in the sales contract to the contrary, are exempt from the tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

Video tape is tangible personal property. - Video tape can be seen and is perceptible to the senses and thereby satisfies the definition of tangible property. Turner Communications Corp. v. Chilivis, 239 Ga. 91 , 236 S.E.2d 251 (1977).

Telephone system is not tangible personal property. - Sale of a complete, operating telephone system, including rights-of-way to which other equipment is attached, is not a sale of tangible personal property such as would be subject to sales tax. State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

Architectural plans. - Architectural plan, in its physical form, is obviously tangible, its finite mass lending weight and sensory perception. State Farm Fire & Cas. Ins. Co. v. White, 777 F. Supp. 952 (N.D. Ga. 1991).

Modular homes. - Although modular homes may become realty when those modular homes are affixed to the purchaser's lot, when those modular homes are transferred as partial units on trailers those modular homes are properly considered tangible personal property within the meaning of O.C.G.A. § 48-8-2(11) . Adrian Hous. Corp. v. Collins, 253 Ga. 263 , 319 S.E.2d 852 (1984).

Use Tax

Purchase outside state of tangible personal property to be transferred incident to service contract. - If a purchase is made outside the state and a transfer is then made incidental to performing a service within the state, the purchase is subject to a use tax. L.M. Berry & Co. v. Blackmon, 231 Ga. 659 , 203 S.E.2d 520 (1974).

Direct mail advertising materials purchased by a corporation outside the state for distribution to residents within the state were subject to use tax. Collins v. J.C. Penney Co., 218 Ga. App. 405 , 461 S.E.2d 582 (1995).

Preprinted newspaper advertising inserts purchased by a corporation did not become a component or integral part of the newspaper through which the inserts were distributed and were subject to use tax. Collins v. J.C. Penney Co., 218 Ga. App. 405 , 461 S.E.2d 582 (1995).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Constitutionality. - Imposition of use tax upon "cost price," as defined by O.C.G.A. § 48-8-2(2) , does not violate the commerce clause (U.S. Const., Art. 1, Sec. 8, Cl. 3) as it treats taxpayers printing own material out-of-state and taxpayers printing own material within the state equally. 1981 Op. Att'y Gen. No. 81-93.

Purchase of material from out-of-state printers for distribution in Georgia constitutes "use." - Purchase by department stores within Georgia of advertising materials from out-of-state printers, shipped by printers to designated in-state direct mailing services, and distributed by such services to the stores' customers in Georgia constitutes "use" in Georgia by the stores within the meaning of O.C.G.A. § 48-8-2(12) . 1981 Op. Att'y Gen. No. 81-93.

Dealer

.

Dual operator liable for tax on property consumed in performance of contract. - Since a dual operator, or person who, as a retail dealer, sells tangible personal property in performing contracts, is a consumer of the property used in performing contracts, irrespective of where the contracts may be performed, the person would owe sales tax in this state with respect to the purchase of such property in this state and would owe this state a use tax with respect to such property purchased outside this state and then brought to rest in this state. 1968 Op. Att'y Gen. No. 68-96.

Nonresident subsidiary not made liable by resident subsidiary of same parent. - Resident subsidiary does not cause a nonresident mail order subsidiary of the same parent corporation to be subject to Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1969 Op. Att'y Gen. No. 69-132.

Lease or Rental

.

Legislative intent as to distinction between services and leases or rentals. - Analytically, if inquiry be pursued to the limit of its logic, it might be said that every lease or rental involves some element of service, while every service involves some utilization of personal property; but here as in all cases, the law does not deal in absolutes for the General Assembly has, by employing two concepts differing in their consequences, manifested the General Assembly's intention that a line is to be drawn somewhere separating the areas of taxability and nontaxability. 1963-65 Op. Att'y Gen. p. 172.

What constitutes rental charge. - Rental charges mean the actual charges made for the leasing of tangible personal property without any deductions on account of the cost of materials used, service cost, or any other expenses, even though separately stated. 1970 Op. Att'y Gen. No. U70-47.

Sales tax is only based upon gross proceeds from rentals and is not to be imposed upon payment of royalties. 1954-56 Op. Att'y Gen. p. 845.

Control is test as to whether property deemed leased. - Use of bank computers by customers for consideration, when customers have complete control over operation for an allotted time, is a lease or rental of computers and is subject to sales and use tax. 1969 Op. Att'y Gen. No. 69-128.

Bulldozer operator rendering personal services. - When the owner of a bulldozer furnishing earth-moving services is at all times in complete control and direction of the machine, such transaction constitutes merely the rendition of personal services and is not a leasing of the property so as to be subject to payment of the state sales tax. 1952-53 Op. Att'y Gen. p. 236.

Rental contracts which are completed fully within this state are subject to Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), notwithstanding the fact that physical possession of the rented property is delivered outside this state. 1969 Op. Att'y Gen. No. 69-146.

Lease or rental of vehicles not considered as rendering of transportation services. - Leasing or renting of trucks by lumber companies is subject to payment of the state sales tax, notwithstanding the fact that the goods transported are in interstate commerce, since it cannot be considered the rendering of transportation services, but is, in effect, a lease. 1952-53 Op. Att'y Gen. p. 242.

Retail Sale

.

Property bought for purposes of leasing or renting is bought for resale and the transaction is excluded as a sale subject to sales and use tax. 1960-61 Op. Att'y Gen. p. 551.

Personal service transactions in which no sales are involved are not "retail sales" or "sales at retail." 1952-53 Op. Att'y Gen. p. 236.

Taxation of sales to out-of-state locations. - When property is delivered pursuant to sales to out-of-state locations by a means of transportation which is leased or rented by the buyer, the sales occur in this state and are taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1969 Op. Att'y Gen. No. 69-146.

Automobile parts and accessories purchased by rental agency are held for purpose of resale. - Taxpayer engaged in the business of renting automobiles is exempt from the payment of sales tax upon automobiles, automobile accessories, tires and parts purchased by the taxpayer, since such property is purchased for the purpose of resale. 1952-53 Op. Att'y Gen. p. 482.

Sheriff making a sale of inventory and fixtures under fi. fa. is required to collect sales tax thereon unless the purchaser of such goods intends to resell the property purchased, in which case the purchaser should present a resale certificate. 1952-53 Op. Att'y Gen. p. 241.

Municipal corporation engaged in business of buying and distributing natural gas to customers in municipality is not exempt from paying sales and use tax. 1954-56 Op. Att'y Gen. p. 860.

Meals sold by restaurants and hotels to employees are taxable. 1950-51 Op. Att'y Gen. p. 420.

Admission charges to educational concerts are subject to state sales tax. 1952-53 Op. Att'y Gen. p. 228.

Schools must collect sales tax on admissions to school-sponsored functions. 1954-56 Op. Att'y Gen. p. 868.

State sales tax is imposed upon all sums deposited in pinball and music box machines, and is not limited to the share of receipts due either the owner of the vending machine or the party owning the premises where located. 1952-53 Op. Att'y Gen. p. 483.

Admission on basis of membership tantamount to purchase of tickets. - Membership in a theatrical corporation, members of which are entitled to admission to all productions, is tantamount to the purchasing of tickets and is therefore subject to payment of the state sales tax. 1952-53 Op. Att'y Gen. p. 228.

Admission fees charged by carnivals are subject to payment of the state sales tax, including charges for any rides or shows within the carnival. 1952-53 Op. Att'y Gen. p. 228.

Green fees or admission fees to golf courses are subject to sales tax, although no ticket or item of tangible personal property is issued. 1954-56 Op. Att'y Gen. p. 830.

Decision as to whether county-wide buying club constitutes a retail outlet for food stamp purposes. - Whether a county-wide buying club constitutes a retail outlet so as to qualify as a retail food store for the purpose of redeeming federal food stamps is a decision for the United States Secretary of Agriculture to make. 1970 Op. Att'y Gen. No. U70-81.

Sale

.

Sales tax applies to any transfer of title or possession, including that accomplished by barter. 1954-56 Op. Att'y Gen. p. 835.

Exemption is unavailable when otherwise exempt party furnishes materials to contractor for own benefit. - When the party contracting for construction enjoys exemption or immunity from sales and use taxes and purchases tangible personal property for the party's own use, the sale and use are exempt from the tax, but when such party purchases tangible personal property for the use of the party's contractor in the performance of the contract, even though the completed construction will be for the benefit of such party, it is not purchasing for the party's own use, and the exemption or immunity, otherwise available, does not apply. 1957 Op. Att'y Gen. p. 322.

Sales tax applies to purchase of machinery by an out-of-state purchaser if title passes in this state, even if the property is immediately removed from the state. 1971 Op. Att'y Gen. No. U71-92.

Sales of equipment delivered to purchasers outside state by common carrier. - Sales of equipment which is delivered by common carriers procured by the seller to the out-of-state residences of the buyers are taxable. 1969 Op. Att'y Gen. No. 69-147.

Sales Price

.

Transportation costs as element of sales price. - Transportation costs are properly included in the total amount for which the property is sold as services which are part of the sale. The exemption provided for in Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) applies solely to those charges made for transportation services by a carrier, not incident to a sale of goods by the carrier. 1970 Op. Att'y Gen. No. 70-94.

Tangible Personal Property

.

Water is tangible personal property and the sale of water at retail is subject to sales tax, unless specifically exempted. 1963-65 Op. Att'y Gen. p. 294.

Use Tax

.

Tax on use of machinery belonging to nonresident corporation. - Use of machinery by a Georgia corporation, which machinery belongs to a nonresident corporation and for which the Georgia corporation pays a royalty, is subject to use tax. 1954-56 Op. Att'y Gen. p. 846.

Use tax on advertising materials purchased outside state. - Manufacturer who buys advertising materials outside state, ships those materials directly to dealers, at no cost to dealers, with dealers using the materials to promote local sales, is liable for use tax on such materials. 1962 Op. Att'y Gen. p. 556.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 50 et seq., 123.

C.J.S. - 84 C.J.S., Taxation, §§ 159 et seq., 171 et seq.

ALR. - What amounts to "sale at retail" within Sales Tax Act, 98 A.L.R. 837 ; 111 A.L.R. 943 ; 115 A.L.R. 491 ; 139 A.L.R. 372 ; 163 A.L.R. 276 , 171 A.L.R. 697 .

Deductibility of freight charges in determining amount of gross sales or receipts for purposes of statutes making gross sales or receipts the subject or measure of a tax, 102 A.L.R. 768 .

Computation of sales tax, 150 A.L.R. 1311 .

Sale of building materials, supplies, or fixtures to contractor, or his use thereof in construction or repairs, as sale at retail within tax statute or ordinance, 163 A.L.R. 276 ; 171 A.L.R. 697 .

Sale of building materials, supplies, or fixtures to contractor, or his use thereof in construction or repair, as sale at retail within tax statute or ordinance, 171 A.L.R. 697 .

What transactions constitute a "sale" within operation of sales tax law provision defining a sale as including a transfer of possession, license to use, or words to that effect, 172 A.L.R. 1317 .

Federal retail luxury or other excise tax as includable in amount on which state sales or use tax is computed, 43 A.L.R.2d 862.

Sale by wholly owned subsidiary to parent corporation, or vice versa, as within retail sales tax, or similar, statute, 64 A.L.R.2d 769.

Redemption of trading stamps or the like for merchandise as sale at retail within taxing statute, 80 A.L.R.2d 1221.

Sales or use tax: deduction or exemption of discount or premium in computing amount of sales, 90 A.L.R.2d 338.

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

Applicability of sales tax to "tips" or service charges added in lieu of tips, 73 A.L.R.3d 1226.

Reusable soft drink bottles as subject to sales or use taxes, 97 A.L.R.3d 1205.

Applicability of sales or use taxes to motion pictures and video tapes, 10 A.L.R.4th 1209.

Cable television equipment or services as subject to sales or use tax, 23 A.L.R.6th 165.

48-8-3. Exemptions.

The sales and use taxes levied or imposed by this article shall not apply to:

  1. Sales to the United States government, this state, any county or municipality of this state, fire districts which have elected governing bodies and are supported by, in whole or in part, ad valorem taxes, or any bona fide department of such governments when paid for directly to the seller by warrant on appropriated government funds;
  2. Transactions in which tangible personal property is furnished by the United States government or by a county or municipality of this state to any person who contracts to perform services for the governmental entity for the installation, repair, or extension of any public water, gas, or sewage system of the governmental entity when the tangible personal property is installed for general distribution purposes, notwithstanding Code Section 48-8-63 or any other provision of this article. No exemption is granted with respect to tangible personal property installed to serve a particular property site;
  3. The federal retailers' excise tax if the tax is billed to the consumer separately from the selling price of the product or from the tax imposed by Article 1 of Chapter 9 of this title relating to motor fuel taxes;
  4. Sales by counties and municipalities arising out of their operation of any public transit facility and sales by public transit authorities or charges by counties, municipalities, or public transit authorities for the transportation of passengers upon their conveyances;
    1. Fares and charges, except charges for charter and sightseeing service, collected by an urban transit system for the transportation of passengers.
    2. As used in this paragraph, the term:
      1. "Public transit system primarily urban in character" shall include a transit system operated by any entity which provides passenger transportation services by means of motor vehicles having passenger-carrying capacity within or between standard metropolitan areas and urban areas, as those terms are defined in Code Section 32-2-3, of this state.
      2. "Urban transit system" means a public transit system primarily urban in character which is operated by a street railroad company or a motor carrier, is subject to the jurisdiction of the Department of Public Safety, and whose fares and charges are regulated by the Department of Public Safety, or is operated pursuant to a franchise contract with a municipality of this state so that its fares and charges are regulated by or are subject to the approval of the municipality. An urban transit system certificate shall be issued by the Department of Public Safety, or by the municipality which has regulatory authority, upon an affirmative showing that the applicant operates an urban transit system. The certificate shall be obtained and filed with the commissioner and shall continue in effect so long as the holder of such certificate qualifies as an urban transit system. Any urban transit system certificate granted prior to January 1, 2002, shall be deemed valid as of the date it was issued;
  6. Sales to any hospital authority created by Article 4 of Chapter 7 of Title 31;

    (6.1) Sales to any housing authority created by Article 1 of Chapter 3 of Title 8, the "Housing Authorities Law";

    (6.2) Sales to any local government authority created on or after January 1, 1980, by local law, which authority has as its principal purpose or one of its principal purposes the construction, ownership, or operation of a coliseum and related facilities to be used for athletic contests, games, meetings, trade fairs, expositions, political conventions, agricultural events, theatrical and musical performances, conventions, or other public entertainments or any combination of such purposes;

    (6.3) Sales to any agricultural commodities commission created by and regulated pursuant to Chapter 8 of Title 2;

  7. Sales of tangible personal property and services to a nonprofit licensed nursing home, nonprofit licensed in-patient hospice, or a nonprofit general or mental hospital used exclusively by such nursing home, in-patient hospice, or hospital in performing a general nursing home, in-patient hospice, hospital, or mental hospital treatment function in this state when such nursing home, in-patient hospice, or hospital is a tax exempt organization under the Internal Revenue Code and obtains an exemption determination letter from the commissioner;

    (7.05) (A) For the period commencing on July 1, 2015, and ending on June 30, 2019, sales of tangible personal property to a nonprofit health center in this state which has been established under the authority of and is receiving funds pursuant to the United States Public Health Service Act, 42 U.S.C. Section 254b if such health clinic obtains an exemption determination letter from the commissioner.

    (7.1) Sales of tangible personal property and services to a nonprofit organization, the primary function of which is the provision of services to intellectually disabled persons, when such organization is a tax exempt organization under the Internal Revenue Code and obtains an exemption determination letter from the commissioner;

    (7.2) Sales of tangible personal property or services to any chapter of the Georgia State Society of the Daughters of the American Revolution which is tax exempt under Section 501(c)(3) of the Internal Revenue Code and obtains an exemption determination letter from the commissioner;

    (7.3) (A) For the period commencing July 1, 2015, and ending June 30, 2019, sales of tangible personal property and services to a nonprofit volunteer health clinic which primarily treats indigent persons with incomes below 200 percent of the federal poverty level and which property and services are used exclusively by such volunteer health clinic in performing a general treatment function in this state when such volunteer health clinic is a tax exempt organization under the Internal Revenue Code and obtains an exemption determination letter from the commissioner.

    (B) (i) For the purposes of this paragraph, the term "local sales and use tax" shall mean any sales tax, use tax, or local sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; by or pursuant to Article 2, 2A, 3, or 4 of this chapter.

    (ii) The exemption provided for in subparagraph (A) of this paragraph shall not apply to any local sales and use tax levied or imposed at any time.

    (C) Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, any taxpayer seeking to claim the exemption provided for within subparagraph (A) of this paragraph shall electronically submit to the department, at the time of application for the exemption and any such annual renewal, the total number of patients treated in the previous calendar year, the average monthly number of full-time employees, and the total amount of exempt purchases made by the taxpayer in the preceding calendar year. The department shall then issue a report to the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee detailing the total number of patients treated, average monthly number of full-time employees, and the total amount of sales and use tax exempted sales for the previous calendar year, by June 30 each year;

    (B) Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, any taxpayer seeking to claim the exemption provided for within subparagraph (A) of this paragraph shall electronically submit to the department, at the time of application for the exemption and any such annual renewal, the total number of patients treated in the previous calendar year, the average monthly number of full-time employees, and the total amount of exempt purchases made by the taxpayer in the preceding calendar year. The department shall then issue a report to the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee detailing the total number of patients treated, average monthly number of full-time employees, and the total amount of sales and use tax exempted sales for the previous calendar year, by June 30 each year;

  8. Sales of tangible personal property and services to the University System of Georgia and its educational units;
  9. Sales of tangible personal property and services to be used exclusively for educational purposes by those private colleges and universities in this state whose academic credits are accepted as equivalents by the University System of Georgia and its educational units;
  10. Sales of tangible personal property and services to be used exclusively for educational purposes by those bona fide private elementary and secondary schools which have been approved by the commissioner as organizations eligible to receive tax deductible contributions if application for exemption is made to the department and proof of the exemption is established;
  11. Sales of tangible personal property or services to, and the purchase of tangible personal property or services by, any educational or cultural institute which:
    1. Is tax exempt under Section 501(c)(3) of the Internal Revenue Code;
    2. Furnishes at least 50 percent of its programs through universities and other institutions of higher education in support of their educational programs;
    3. Is paid for by government funds of a foreign country; and
    4. Is an instrumentality, agency, department, or branch of a foreign government operating through a permanent location in this state;
  12. Food and food ingredients and prepared food sold and served to pupils and employees of public schools as part of a school lunch program;
  13. Sales of prepared food and food and food ingredients consumed by pupils and employees of bona fide private elementary and secondary schools which have been approved by the commissioner as organizations eligible to receive tax deductible contributions when application for exemption is made to the department and proof of the exemption is established;
  14. Sales of objects of art and of anthropological, archeological, geological, horticultural, or zoological objects or artifacts and other similar tangible personal property to or for the use by any museum or organization which is tax exempt under Section 501(c)(3) of the Internal Revenue Code of such tangible personal property for display or exhibition in a museum within this state when the museum is open to the public and has been approved by the commissioner as an organization eligible to receive tax deductible contributions;
  15. Sales:
    1. Of any religious paper in this state when the paper is owned and operated by religious institutions or denominations and no part of the net profit from the operation of the institution or denomination inures to the benefit of any private person;
    2. By religious institutions or denominations when:
      1. The sale results from a specific charitable fundraising activity;
      2. The number of days upon which the fundraising activity occurs does not exceed 30 in any calendar year;
      3. No part of the gross sales or net profits from the sales inures to the benefit of any private person; and
      4. The gross sales or net profits from the sales are used for the purely charitable purposes of:
        1. Relief to the aged;
        2. Church related youth activities;
        3. Religious instruction or worship; or
        4. Construction or repair of church buildings or facilities;

    (15.1) Sales of pipe organs or steeple bells to any church which is qualified as an exempt religious organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended;

  16. The sale or use of Holy Bibles, testaments, and similar books commonly recognized as being Holy Scripture regardless of by or to whom sold;
  17. The sale of fuel and supplies for use or consumption aboard ships plying the high seas either in intercoastal trade between ports in this state and ports in other states of the United States or its possessions or in foreign commerce between ports in this state and ports of foreign countries;
  18. Charges made for the transportation of tangible personal property except delivery charges by the seller associated with the sale of taxable tangible personal property, including, but not limited to, charges for accessorial services such as refrigeration, switching, storage, and demurrage made in connection with interstate and intrastate transportation of the property;
  19. All tangible personal property purchased outside of this state by persons who at the time of purchase are not domiciled in this state but who subsequently become domiciled in this state and bring the property into this state for the first time as a result of the change of domicile, if the property is not brought into this state for use in a trade, business, or profession;
  20. The sale of water delivered to consumers through water mains, lines, or pipes;
  21. Sales, transfers, or exchanges of tangible personal property made as a result of a business reorganization when the owners, partners, or stockholders of the business being reorganized maintain the same proportionate interest or share in the newly formed business reorganization;
  22. Professional, insurance, or personal service transactions which involve sales as inconsequential elements for which no separate charges are made;
  23. Fees or charges for services rendered by repairmen for which a separate charge is made;
  24. The rental of videotape or motion picture film to any person who charges an admission fee to view such film or videotape;
  25. Reserved;
  26. Reserved;
  27. Reserved;
  28. Reserved;
  29. Reserved;
  30. The sale of a vehicle to a service connected disabled veteran when the veteran received a grant from the United States Department of Veterans Affairs to purchase and specially adapt the vehicle to his disability;
  31. The sale of tangible personal property manufactured or assembled in this state for export when delivery is taken outside this state;
  32. Aircraft, watercraft, motor vehicles, and other transportation equipment manufactured or assembled in this state when sold by the manufacturer or assembler for use exclusively outside this state and when possession is taken from the manufacturer or assembler by the purchaser within this state for the sole purpose of removing the property from this state under its own power when the equipment does not lend itself more reasonably to removal by other means;
    1. The sale of aircraft, watercraft, railroad locomotives and rolling stock, motor vehicles, and major components of each, which will be used principally to cross the borders of this state in the service of transporting passengers or cargo by common carriers and by carriers who hold common carrier and contract carrier authority in interstate or foreign commerce under authority granted by the United States government. Replacement parts installed by carriers in such aircraft, watercraft, railroad locomotives and rolling stock, and motor vehicles which become an integral part of the craft, equipment, or vehicle shall also be exempt from all taxes under this article;
    2. In lieu of any tax under this article which would apply to the purchase, sale, use, storage, or consumption of the tangible personal property described in this paragraph but for this exemption, the tax under this article shall apply with respect to all fuel purchased and delivered within this state by or to any common carrier and with respect to all fuel purchased outside this state and stored in this state irrespective, in either case, of the place of its subsequent use;

    (33.1) Reserved;

  34. Reserved;

    (34.1) (A) The sale of primary material handling equipment which is used for the handling and movement of tangible personal property and racking systems used for the conveyance and storage of tangible personal property in a warehouse or distribution facility located in this state when such equipment is either part of an expansion worth $5 million or more of an existing warehouse or distribution facility or part of the construction of a new warehouse or distribution facility where the total value of all real and personal property purchased or acquired by the taxpayer for use in the warehouse or distribution facility is worth $5 million or more.

    (34.2) (A) The sale or use of machinery or equipment, or both, which is used in the remanufacture of aircraft engines or aircraft engine parts or components in a remanufacturing facility located in this state. For purposes of this paragraph, "remanufacture of aircraft engines or aircraft engine parts or components" means the substantial overhauling or rebuilding of aircraft engines or aircraft engine parts or components.

    (34.3) Reserved;

    (34.4) (A) Notwithstanding any provision of Code Section 48-8-63 to the contrary, sales of tangible personal property to, or used in or for the construction of, an alternative fuel facility primarily dedicated to the production and processing of ethanol, biodiesel, butanol, and their by-products, when such fuels are derived from biomass materials such as agricultural products, or from animal fats, or the wastes of such products or fats.

    (B) In order to qualify for the exemption provided for in subparagraph (A) of this paragraph, a warehouse or distribution facility may not make retail sales from such facility to the general public if the total of the retail sales equals or exceeds 15 percent of the total revenues of the warehouse or distribution facility. If retail sales are made to the general public by a warehouse or distribution facility and at any time the total of the retail sales equals or exceeds 15 percent of the total revenues of the facility, the taxpayer will be disqualified from receiving such exemption as of the date such 15 percent limitation is met or exceeded. The taxpayer may be required to repay any tax benefits received under subparagraph (A) of this paragraph on or after that date plus penalty and interest as may be allowed by law;

    (B) Any person making a sale of machinery or equipment, or both, for the remanufacture of aircraft engines or aircraft engine parts or components shall collect the tax imposed on the sale by this article unless the purchaser furnishes a certificate issued by the commissioner certifying that the purchaser is entitled to purchase the machinery or equipment without paying the tax;

    (B) As used in this paragraph, the term:

    1. "Alternative fuel facility" means any facility located in this state which is primarily dedicated to the production and processing of ethanol, biodiesel, butanol, and their by-products for sale.
    2. "Used in or for the construction" means any tangible personal property incorporated into a new alternative fuel facility that loses its character of tangible personal property. Such term does not mean tangible personal property that is temporary in nature, leased or rented, tools, or other items not incorporated into the facility.

      (C) Any person making a sale of tangible personal property for the purpose specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes an exemption certificate issued by the commissioner certifying that the purchaser is entitled to purchase the tangible personal property without payment of tax.

      (D) Any corporation, partnership, limited liability company, or any other entity or person that qualifies for this exemption must conduct at least a majority of its business with entities or persons with which it has no affiliation.

      (E) The exemption provided for under subparagraph (A) of this paragraph shall not apply to sales of tangible personal property that occur after the production and processing of biodiesel, ethanol, butanol, and their by-products have begun at the alternative fuel facility.

      (F) The exemption provided for under subparagraph (A) of this paragraph shall apply only to sales occurring during the period July 1, 2007, through June 30, 2012.

      (G) The commissioner shall promulgate any rules and regulations necessary to implement and administer this paragraph;

  35. Reserved;
    1. The sale of machinery and equipment and any repair, replacement, or component parts for such machinery and equipment which is used for the primary purpose of reducing or eliminating air or water pollution;
    2. Any person making a sale of machinery and equipment or repair, replacement, or component parts for such machinery and equipment for the purposes specified in this paragraph shall collect the tax imposed on the sale by this article unless the purchaser furnishes him with a certificate issued by the commissioner certifying that the purchaser is entitled to purchase the machinery and equipment or repair, replacement, or component parts for such machinery and equipment without paying the tax;

      (B) As used in this paragraph, the term:

      1. "Qualified water conservation facility" means any facility, including buildings, and any machinery and equipment used in the water conservation process resulting in a minimum 10 percent reduction in permit by relinquishment or transfer of annual permitted water usage from existing permitted ground-water sources. In addition, such facility shall have been certified pursuant to rules and regulations promulgated by the Department of Natural Resources as necessary to promote its ground-water management efforts for areas with a multiyear record of consumption at, near, or above sustainable use signaled by declines in ground-water pressure, threats of salt-water intrusion, need to develop alternate sources to accommodate economic growth and development, or any other indication of growing inadequacy of the existing resource.
      2. "Water conservation" means a minimum 10 percent reduction resulting in the relinquishment of transfer of annual permitted water usage from existing ground-water sources due to increased manufacturing process efficiencies or recycling of manufacturing process water which results in reduced ground-water usage, or a change from a ground-water source to a surface-water source or an alternate source.

        (C) Any person making a sale of machinery and equipment for the purposes specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes such person with a certificate issued by the commissioner certifying that the purchaser is entitled to purchase the machinery and equipment without paying the tax;

    (36.1) (A) The sale of machinery and equipment which is incorporated into any qualified water conservation facility and used for water conservation.

  37. Reserved;
  38. Sales of tangible personal property and fees and charges for services by the Rock Eagle 4-H Center;
  39. Sales by any public or private school containing any combination of grades kindergarten through 12 of tangible personal property, concessions, or tickets for admission to a school event or function, provided that the net proceeds from such sales are used solely for the benefit of such public or private school or its students;

    (39.1) The use of cargo containers and their related chassis which are owned by or leased to persons engaged in the international shipment of cargo by ocean-going vessels which containers and chassis are directly used for the storage and shipment of tangible personal property in or through this state in intrastate or interstate commerce;

  40. The sale of major components and repair parts installed in military craft, vehicles, and missiles;
    1. Sales of tangible personal property and services to a child-caring institution as defined in paragraph (1) of Code Section 49-5-3, as amended; a child-placing agency as defined in paragraph (2) of Code Section 49-5-3, as amended; or a maternity home as defined in paragraph (14) of Code Section 49-5-3, as amended, when such institution, agency, or home is engaged primarily in providing child services and is a nonprofit, tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code and obtains an exemption determination letter from the commissioner; and
    2. Sales by an institution, agency, or home as described in subparagraph (A) of this paragraph when:
      1. The sale results from a specific charitable fundraising activity;
      2. The number of days upon which the fundraising activity occurs does not exceed 30 in any calendar year;
      3. No part of the gross sales or net profits from the sales inures to the benefit of any private person; and
      4. The gross sales or net profits from the sales are used purely for charitable purposes in providing child services;
  42. The use by, or lease or rental of tangible personal property to, a person who acquires the property from another person where both persons are under 100 percent common ownership and where the person who furnishes, leases, or rents the property has:
    1. Previously paid sales or use tax on the property; or
    2. Been credited under Code Section 48-8-42 with paying a sales or use tax on the property so furnished, leased, or rented, and the tax credited is based upon the fair rental or lease value of the property;
  43. Gross revenues generated from all bona fide coin operated amusement machines which vend or dispense music or are operated for skill, amusement, entertainment, or pleasure which are in commercial use and are provided to the public for play which will require a permit fee under Chapter 27 of Title 50;
  44. Sales of motor vehicles, as defined in Code Section 48-5-440, to nonresident purchasers for immediate transportation to and use in another state in which the vehicles are required to be registered, provided the seller obtains from the purchaser and retains an affidavit stating the name and address of the purchaser, the state in which the vehicle will be registered and operated, the make, model, and serial number of the vehicle, and such other information as the commissioner may require;
  45. The sale, use, storage, or consumption of paper stock which is manufactured in this state into catalogs intended to be delivered outside this state for use outside this state;
  46. Sales to blood banks having a nonprofit status pursuant to Section 501(c)(3) of the Internal Revenue Code;
      1. The sale or use of drugs which are lawfully dispensable only by prescription for the treatment of natural persons, the sale or use of insulin regardless of whether the insulin is dispensable only by prescription, and the sale or use of prescription eyeglasses and contact lenses including, without limitation, prescription contact lenses distributed by the manufacturer to licensed dispensers as free samples not intended for resale and labeled as such; and
      2. The sale or use of drugs lawfully dispensable by prescription for the treatment of natural persons which are dispensed or distributed without charge to physicians, dentists, clinics, hospitals, or any other person or entity located in Georgia by a pharmaceutical manufacturer or distributor; and the use of drugs and durable medical equipment lawfully dispensed or distributed without charge solely for the purposes of a clinical trial approved by either the United States Food and Drug Administration or by an institutional review board.
    2. For purposes of this paragraph, the term:
      1. "Drug" means the same as provided in Code Section 48-8-2 but shall not include over-the-counter drugs or tobacco.
      2. "Institutional review board" means an institutional review board as provided in 21 C.F.R. Section 56.
    3. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this paragraph;
  48. Sales to licensed commercial fishermen of bait for taking crabs and the use by licensed commercial fishermen of bait for taking crabs;
  49. Reserved;

    (49.1) (A) From July 1, 2008, until June 30, 2010, the sale or use of liquefied petroleum gas or other fuel used in a structure in which swine are raised.

    (B) (i) For the purposes of this paragraph, the term "local sales and use tax" shall mean any sales tax, use tax, or local sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; by or pursuant to Article 2 of this chapter; by or pursuant to Article 2A of this chapter; by or pursuant to Part 1 of Article 3 of this chapter; by or pursuant to Part 2 of Article 3 of this chapter; and by or pursuant to Article 4 of this chapter.

    (ii) The exemption provided for in subparagraph (A) of this paragraph shall not apply to any local sales and use tax levied or imposed at any time;

  50. Sales of insulin syringes and blood glucose level measuring strips dispensed without a prescription;
  51. Sales of oxygen prescribed by a licensed physician;
  52. The sale or use of hearing aids;
  53. Sales transactions for which food stamps or WIC coupons are used as the medium of exchange;
  54. The sale or use of any durable medical equipment that is sold or used pursuant to a prescription or prosthetic device that is sold or used pursuant to a prescription;
  55. The sale of lottery tickets authorized by Chapter 27 of Title 50;
  56. Sales by any parent-teacher organization qualified as a tax exempt organization under Section 501(c)(3) of the Internal Revenue Code;
    1. The sale of food and food ingredients to an individual consumer for off-premises human consumption, to the extent provided in this paragraph.
    2. For the purposes of this paragraph, the term "food and food ingredients" as defined in Code Section 48-8-2 shall not include prepared food, drugs, or over-the-counter drugs.
    3. The exemption provided for in this paragraph shall not apply to the sale or use of food and food ingredients when purchased for any use in the operation of a business.
      1. Except in counties in which a tax authorized under Part 1 of Article 3 of this chapter in connection with an equalized homestead option sales tax pursuant to Part 2 of Article 2A of this chapter is imposed, the exemption provided for in this paragraph shall not apply to any local sales and use tax levied or imposed at any time.
      2. For the purposes of this subparagraph, the term "local sales and use tax" shall mean any sales tax, use tax, or local sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; or by or pursuant to any article of this chapter but shall not mean a tax authorized under Part 1 of Article 3 of this chapter in connection with an equalized homestead option sales tax pursuant to Part 2 of Article 2A of this chapter.
    5. The commissioner shall adopt rules and regulations to carry out the provisions of this paragraph;

      (B) As used in this paragraph, the term "qualified food bank" means any food bank which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code and which is operated primarily for the purpose of providing hunger relief to low income persons residing in this state.

      (C) Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, any taxpayer seeking to claim the exemption provided for within subparagraph (A) of this paragraph shall electronically submit to the department, at the time of application for the exemption and any such annual renewal, the total number of clients served in the previous calendar year, total pounds of food donated by retailers, and total amount of exempt purchases made in the preceding year. The department shall then issue a report to the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee detailing the total number of clients served, total pounds of food donated by retailers, and total amount of sales and use tax exempted sales for the previous calendar year, by June 30 each year.

      (D) The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this paragraph;

      (B) As used in this paragraph, the term "qualified nonprofit agency" means any entity which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code and which provides hunger relief.

      (C) For the purposes of this paragraph, the term "food and food ingredients" as defined in Code Section 48-8-2 shall not include drugs or over-the-counter drugs.

      (D) The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this paragraph;

      (B) For the purposes of this paragraph, the term "food and food ingredients" as defined in Code Section 48-8-2 shall not include drugs or over-the-counter drugs.

      (C) The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this paragraph;

    (57.1) (A) From July 1, 2014, until June 30, 2021, sales of food and food ingredients to a qualified food bank.

    (57.2) (A) For the period commencing July 1, 2015, and ending on June 30, 2021, the use of food and food ingredients which is donated to a qualified nonprofit agency and which is used for hunger relief purposes.

    (57.3) (A) For the period commencing July 1, 2015, and ending on June 30, 2020, the use of food and food ingredients which is donated following a natural disaster and which is used for disaster relief purposes.

  58. Reserved;
    1. Sales of food and food ingredients to and by member councils of the Girl Scouts of the U.S.A. in connection with fundraising activities of any such council.
    2. Sales of food and food ingredients to and by member councils of the Boy Scouts of America in connection with fundraising activities of any such council;
  60. The sale of machinery and equipment which is incorporated into any telecommunications manufacturing facility and used for the primary purpose of improving air quality in advanced technology clean rooms of Class 100,000 or less, provided such clean rooms are used directly in the manufacture of tangible personal property;
  61. Printed advertising inserts or advertising supplements distributed in this state in or as part of any newspaper for resale;
  62. The sale of grass sod of all kinds and character when such sod is in the original state of production or condition of preparation for sale. The exemption provided for by this paragraph shall only apply to a sale made by the sod producer, a member of such producer's family, or an employee of such producer. The exemption provided for by this paragraph shall not apply to sales of grass sod by a person engaged in the business of selling plants, seedlings, nursery stock, or floral products;
  63. The sale or use of funeral merchandise, outer burial containers, and cemetery markers as defined in Code Section 43-18-1, which are purchased with funds received from the Georgia Crime Victims Emergency Fund under Chapter 15 of Title 17;
  64. Reserved;
    1. Sales of dyed diesel fuel exclusively used to operate vessels or boats in the commercial fishing trade by licensed commercial fishermen.
    2. Any person making a sale of dyed diesel fuel for the purposes specified in this paragraph shall collect the tax imposed on the sale by this article unless the purchaser furnishes such person with a certificate issued by the commissioner certifying that the purchaser is entitled to purchase the dyed diesel fuel without paying the tax;
  66. Sales of gold, silver, or platinum bullion or any combination of such bullion, provided that the dealer maintains proper documentation, as specified by rule or regulation to be promulgated by the department, to identify each sale or portion of a sale which is exempt under this paragraph;
  67. Sales of coins or currency or a combination of coins and currency, provided that the dealer maintains proper documentation, as specified by rule or regulation to be promulgated by the department, to identify each sale or portion of a sale which is exempt under this paragraph;
    1. The sale or lease of computer equipment to be incorporated into a facility or facilities in this state to any high-technology company classified under North American Industrial Classification System code 51121, 51331, 51333, 51334, 51421, 52232, 54133, 54171, 54172, 334413, 334611, 513321, 513322, 514191, 541511, 541512, 541513, or 541519 where such sale of computer equipment for any calendar year exceeds $15 million or, in the event of a lease of such computer equipment, the fair market value of such leased computer equipment for any calendar year exceeds $15 million.
    2. Any person making a sale or lease of computer equipment to a high-technology company as specified in subparagraph (A) of this paragraph shall collect the tax imposed on the sale by this article unless the purchaser furnishes such seller with a certificate issued by the commissioner certifying that the purchaser is entitled to purchase the computer equipment without paying the tax. As a condition precedent to the issuance of the certificate, the commissioner, at such commissioner's discretion, may require a good and valid bond with a surety company authorized to do business in this state as surety or may require legal securities, in an amount fixed by the commissioner, conditioned upon payment by the purchaser of all taxes due under this article in the event it should be determined that the sale fails to meet the requirements of this subparagraph.
      1. As used in this paragraph, the term "computer equipment" means any individual computer or organized assembly of hardware or software, such as a server farm, mainframe or midrange computer, mainframe driven high-speed print and mailing devices, and workstations connected to those devices via high bandwidth connectivity such as a local area network, wide area network, or any other data transport technology which performs one of the following functions: storage or management of production data, hosting of production applications, hosting of application systems development activities, or hosting of applications systems testing.
      2. The term shall not include:
        1. Telephone central office equipment or other voice data transport technology; or
        2. Equipment with imbedded computer hardware or software which is primarily used for training, product testing, or in a manufacturing process.
    4. Any corporation, partnership, limited liability company, or any other similar entity which qualifies for the exemption and is affiliated in any manner with a nonqualified corporation, partnership, limited liability company, or any other similar entity must conduct at least a majority of its business with entities with which it has no affiliation;

      (B) Any person making a sale or lease of high-technology data center equipment shall collect the tax imposed on such sale by this article unless the purchaser furnishes such seller with a certificate issued by the commissioner certifying that such sale or lease is exempted pursuant to this paragraph.

      (C) (i) The commissioner shall not issue a certificate of exemption from sales and use tax to a high-technology data center or high-technology data center customer as provided in this paragraph unless the commissioner makes a determination that the high-technology data center will more likely than not meet the high-technology data center minimum investment threshold.

      (ii) The commissioner may require any information necessary to determine if such high-technology data center is in compliance with its investment budgeting plan to meet the high-technology data center minimum investment threshold.

      (iii) (I) Within 60 days after the end of the seventh year following its exemption start date, a high-technology data center shall file a final report with the commissioner listing the expenditures incurred that count toward its minimum investment threshold, the number of new quality jobs created, and any other information that the commissioner may reasonably require to determine whether the high-technology data center has met the minimum investment threshold.

      (II) If the commissioner determines that a high-technology data center failed to meet its high-technology data center minimum investment threshold, such high-technology data center shall be required to repay all taxes exempted or refunded pursuant to its certificate of exemption issued pursuant to this paragraph within 90 days after notification of such failure. Interest shall be due with such repayment at the rate specified in Code Section 48-2-40 computed from the date such taxes would have been due but for this exemption. Such repayment shall be calculated notwithstanding otherwise applicable periods of limitation for assessment of taxes under Code Section 48-2-49.

      (iv) (I) As a condition precedent to the issuance of a certificate of exemption, the commissioner, at his or her discretion, may require a good and valid bond with a surety company authorized to do business in this state, in an amount fixed by the commissioner not to exceed $20 million. The commissioner shall consider past performance and in-state investment when determining the value of the bond, if one is required.

      (II) The bond that may be required by this division shall be forfeited and paid to the general fund in an amount representing all taxes and interest required to be repaid pursuant to division (iii) of this subparagraph if the high-technology data center fails to meet the high-technology data center minimum investment threshold prior to the expiration of the seven-year period.

      (v) The commissioner shall have the authority to revoke the certificate of exemption at any time he or she believes that the high-technology data center is not likely to meet its high-technology minimum investment threshold.

      (vi) Each high-technology data center that has been issued a certificate of exemption pursuant to this paragraph shall provide a list of high-technology data center customers that are deploying high-technology data center equipment in its facility and shall notify the commissioner within 30 days of any change to the list.

      (D) (i) The commissioner shall require annual reporting by the high-technology data center of the amount of taxes exempted under this paragraph, the number of new quality jobs, and the total payroll resulting from construction, maintenance, and operation in and on its facility during the preceding year.

      (ii) The commissioner shall issue an annual report to the chairperson of the Senate Finance Committee and the chairperson of the House Committee on Ways and Means concerning the exemption allowed by this paragraph. Notwithstanding the confidentiality provisions of Code Section 48-2-15, such report shall include, for the prior calendar year for each high-technology data center issued a certificate of exemption pursuant to this paragraph, the amount of tax exempted and the number of new quality jobs created by each high-technology data center.

      (E) The commissioner shall promulgate such rules and regulations as are necessary to implement the provisions of this paragraph.

      (F) A high-technology data center shall not be entitled to claim any credit authorized under Code Sections 48-7-40 through 48-7-40.33 or Code Section 36-62-5.1 on its tax return if it has received a certificate of exemption from the commissioner pursuant to this paragraph. If a determination is made by the commissioner pursuant to division (iii) of subparagraph (C) of this paragraph that the high-technology data center must repay all taxes exempted or refunded pursuant to this paragraph, such high-technology data center may file amended income tax returns claiming any credit to which it would have been entitled under the foregoing Code sections but for having claimed the exemption under this paragraph.

      (G) As used in this paragraph, the term:

      1. "Exemption start date" means the date on or after July 1, 2018, chosen by the high-technology data center and indicated on its application filed on or after January 1, 2019, which begins the seven-year period during which the minimum investment threshold must be met. A refund claim must be filed for taxes paid on purchases qualifying for this exemption for any period on or after July 1, 2018, during which the high-technology data center has not yet applied for and received its certificate of exemption from the commissioner.
      2. "High-technology data center" means a facility, campus of facilities, or array of interconnected facilities in this state that is developed to power, cool, secure, and connect its own equipment or the computer equipment of high-technology data center customers and that has an investment budget plan which meets the high-technology data center minimum investment threshold.
      3. "High-technology data center customer" means a client, tenant, licensee, or end user of a high-technology data center that signs at least a 36 month contract for service with the high-technology data center.
      4. "High-technology data center equipment" means computer equipment as defined in paragraph (68) of this Code section of a high-technology data center or such equipment of a high-technology data center customer to be used or deployed in the high-technology data center; and the materials, components, machinery, hardware, software, or equipment, including but not limited to, emergency backup generators, air handling units, cooling towers, energy storage or energy efficiency technology, switches, power distribution units, switching gear, peripheral computer devices, routers, batteries, wiring, cabling, or conduit, which equipment or materials are used to:
        1. Create, manage, facilitate, or maintain the physical and digital environments for computer equipment;
        2. Protect the high-technology data center equipment from physical, environmental, or digital threats; or
        3. Generate or provide constant delivery of power, environmental conditioning, air cooling, or telecommunications services for the high-technology data center.

          Such term shall not include real property as defined in Code Section 48-8-3.2. A high-technology data center may not count high-technology data center equipment that it purchases or that is purchased by the high-technology data center customer and subsequently leased to another party more than once for purposes of satisfying the high-technology data center minimum investment threshold.

      5. "High-technology data center minimum investment threshold" means the creation of 20 new quality jobs and:
        1. For high-technology data centers located in a county in this state having a population greater than 50,000 according to the United States decennial census of 2010 or any future such census, $250 million in aggregate expenditures incurred over any consecutive seven-year period between July 1, 2018, and December 31, 2028, on the design and construction of the high-technology data center and high-technology data center equipment to be used or incorporated in the high-technology data center;
        2. For high-technology data centers located in a county in this state having a population greater than 30,000 and less than 50,001 according to the United States decennial census of 2010 or any future such census, $150 million in aggregate expenditures incurred over any consecutive seven-year period between July 1, 2018, and December 31, 2028, on the design and construction of the high-technology data center and high-technology data center equipment to be used or incorporated in the high-technology data center; and
        3. For high-technology data centers located in a county in this state having a population less than 30,001 according to the United States decennial census of 2010 or any future such census, $100 million in aggregate expenditures incurred over any consecutive seven-year period between July 1, 2018, and December 31, 2028, on the design and construction of the high-technology data center and high-technology data center equipment to be used or incorporated in the high-technology data center.
      6. "New quality jobs" shall have the same meaning as provided in paragraph (2) of subsection (a) of Code Section 48-7-40.17.

        (H) This paragraph shall stand repealed by operation of law on January 1, 2029.

    (68.1) (A) For the period commencing on July 1, 2018, and ending on December 31, 2028, high-technology data center equipment to be incorporated or used in a high-technology data center that meets the high-technology data center minimum investment threshold and other conditions provided in this paragraph.

  69. The sale of machinery, equipment, and materials incorporated into and used in the construction or operation of a clean room of Class 100 or less in this state, not to include the building or any permanent, nonremovable component of the building that houses such clean room, provided that such clean room is used directly in the manufacture of tangible personal property in this state;
    1. For the purposes of this paragraph, the term "local sales and use tax" shall mean any sales tax, use tax, or local sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; by or pursuant to Article 2 of this chapter; by or pursuant to Article 2A of this chapter; by or pursuant to Part 1 of Article 3 of this chapter; or by or pursuant to Part 2 of Article 3 of this chapter.
    2. The sale of natural or artificial gas used directly in the production of electricity which is subsequently sold.
    3. The exemption provided for in subparagraph (B) of this paragraph shall not apply to any local sales and use tax levied or imposed at any time.
    4. The commissioner shall adopt rules and regulations to carry out the provisions of this paragraph;

      (B) The exemption provided for in subparagraph (A) of this paragraph shall not apply to the first $7.60 per decatherm of the sales price or cost price of natural or artificial gas, the first $2.48 per gallon of the sales price or cost price of No. 2 fuel oil, the first $1.72 per gallon of the sales price or cost price of No. 6 fuel oil, the first $1.44 per gallon of the sales price or cost price of propane, the first $57.90 per ton of petroleum coke, the first $57.90 per ton of coal, or the first 3.44 › per kilowatt hour of the fuel cost recovery component of retail electricity rates whether such fuel recovery charges are charged separately or are embedded in such electric rates. Dealers with such embedded rates may exempt from the electricity sales upon which the sales tax is calculated no more than the amount, if any, by which the fuel cost recovery charge approved by the Georgia Public Service Commission for transmission customers of electric utilities regulated by the Georgia Public Service Commission exceeds 3.44 › per kilowatt hour.

      (C) (i) For the purposes of this paragraph, the term "local sales and use tax" shall mean any sales tax, use tax, or local sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; or by or pursuant to Article 2, 2A, 3, or 4 of this chapter.

      (ii) The exemption provided for in subparagraph (A) of this paragraph shall not apply to any local sales and use tax levied or imposed at any time.

      (D) Any person making a sale of items qualifying for exemption under subparagraph (A) of this paragraph shall be relieved of the burden of proving such qualification if the person receives in good faith a certificate from the purchaser certifying that the purchase is exempt under this paragraph.

      (E) Any person who qualifies for this exemption shall notify and certify to the person making the qualified sale that this exemption is applicable to the sale;

    (70.1) (A) For the period commencing July 1, 2008, and concluding on December 31, 2010, the sale of natural or artificial gas, No. 2 fuel oil, No. 6 fuel oil, propane, petroleum coke, and coal used directly or indirectly in the manufacture or processing, in a manufacturing plant located in this state, of tangible personal property primarily for resale, and the fuel cost recovery component of retail electric rates used directly or indirectly in the manufacture or processing, in a manufacturing plant located in this state, of tangible personal property primarily for resale.

  71. Sales to or by any nonprofit organization which has as its primary purpose the raising of funds for books, materials, and programs for public libraries if such organization qualifies as a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code;
  72. The sale or use of all mobility enhancing equipment prescribed by a physician;
  73. Reserved;
      1. Except as otherwise provided in divisions (ii) and (iii) of this subparagraph, the sale or use of digital broadcast equipment sold to, leased to, or used by a federally licensed commercial or public radio or television broadcast station, a cable network, or a cable distributor that enables a radio or television station, cable network, or cable distributor to originate and broadcast or transmit or to receive and broadcast or transmit digital signals, including, but not limited to, digital broadcast equipment required by the Federal Communications Commission.
      2. For commercial or public television broadcasters and cable distributors, such equipment shall be limited to antennas, transmission lines, towers, digital transmitters, studio to transmitter links, digital routing switchers, character generators, Advanced Television Systems Committee video encoders and multiplexers, monitoring facilities, cameras, terminal equipment, tape recorders, and file servers.
      3. For radio broadcasters, such equipment shall be limited to transmitters, digital audio processors, and diskettes.
    2. As used in this paragraph, the term:
      1. "Digital broadcast equipment" means equipment purchased, leased, or used for the origination or integration of program materials for broadcast over the airwaves or transmission by cable, satellite, or fiber optic line which uses or produces an electronic signal where the signal carries data generated, stored, and processed as strings of binary data. Data transmitted or stored as digital data consists of strings of positive or nonpositive elements of a transmission expressed in strings of 0's and 1's which a computer or processor can reconstruct as an electronic signal.
      2. "Federally licensed commercial or public radio or television broadcast station" means any entity or enterprise, either commercial or noncommercial, which operates under a license granted by the Federal Communications Commission for the purpose of free distribution of audio and video services when the distribution occurs by means of transmission over the public airwaves.
    3. The exemption provided under this paragraph shall not apply to any of the following:
      1. Repair or replacement parts purchased for the equipment described in this paragraph;
      2. Equipment purchased to replace equipment for which an exemption was previously claimed and taken under this paragraph;
      3. Any equipment purchased after a television station, cable network, or cable distributor has ceased analog broadcasting, or purchased after November 1, 2004, whichever occurs first; or
      4. Any equipment purchased after a radio station has ceased analog broadcasting, or purchased after November 1, 2008, whichever occurs first.
    4. Any person making a sale of digital broadcasting equipment to a federally licensed commercial or public radio or television broadcast station, cable network, or cable distributor shall collect the tax imposed on the sale by this article unless the purchaser furnishes a certificate issued by the commissioner certifying that the purchaser is entitled to purchase the equipment without paying the tax;
    1. The sale of eligible property. The exemption provided by this paragraph applies only to sales occurring during the period commencing at 12:01 A.M. on July 30, 2016, and concluding at 12:00 Midnight on July 31, 2016.
    2. As used in this paragraph, the term:
      1. "Clothing" means all human wearing apparel suitable for general use and includes footwear. The term "clothing" excludes belt buckles sold separately; costume masks sold separately; patches and emblems sold separately; sewing equipment and supplies, including but not limited to knitting needles, patterns, pins, scissors, sewing machines, sewing needles, tape measures, and thimbles; sewing materials that become part of clothing, including but not limited to buttons, fabric, lace, thread, yarn, and zippers; and clothing accessories or equipment.
      2. "Clothing accessories or equipment" means incidental items worn on the person or in conjunction with clothing.
      3. "Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions. The term "computer" excludes cellular phones.
      4. "Computer software" means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.
      5. "Eligible property" means:
        1. Articles of clothing with a sales price of $100.00 or less per item;
        2. Computers, computer components, and prewritten computer software purchased for noncommercial home or personal use with a sales price of $1,000.00 or less per item; and
        3. School supplies, school art supplies, school computer supplies, and school instructional materials purchased for noncommercial use with a sales price of $20.00 or less per item.
      6. "Prewritten computer software" means computer software, including prewritten upgrades, which is not designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of two or more prewritten computer software programs or prewritten portions thereof does not cause the combination to be other than prewritten computer software. Prewritten computer software includes software designed and developed by the author or other creator to the specifications of a specific purchaser when it is sold to a person other than the specific purchaser. Where a person modifies or enhances computer software of which the person is not the author or creator, the person shall be deemed to be the author or creator only of such person's modifications or enhancements. Prewritten computer software or a prewritten portion thereof that is modified or enhanced to any degree, where such modification or enhancement is designed and developed to the specifications of a specific purchaser, remains prewritten computer software; provided, however, that where there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for such modification or enhancement, such modification or enhancement shall not constitute prewritten computer software.
      7. "School art supply" means an item commonly used by a student in a course of study for artwork.
      8. "School computer supply" means an item commonly used by a student in a course of study in which a computer is used.
      9. "School instructional material" means written material commonly used by a student in a course of study as a reference and to learn the subject being taught.
      10. "School supply" means an item commonly used by a student in a course of study.
    3. The commissioner shall promulgate any rules and regulations necessary to implement and administer this paragraph including but not be limited to a list of those articles and items qualifying for the exemption pursuant to this paragraph;
    1. The sale or use of tangible personal property used for or in the renovation or expansion of an aquarium located in this state that charges for admission and that is owned or operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, to the extent provided in subparagraphs (B) and (C) of this paragraph.
    2. This exemption shall apply from July 1, 2018, until January 1, 2022, or until the aggregate state sales and use tax refunded pursuant to this paragraph exceeds $4.5 million, whichever occurs first. A qualifying aquarium must pay sales and use tax on all purchases and uses of tangible personal property and may obtain the benefit of this exemption from state sales and use tax by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph will not include interest.
    3. This exemption shall apply from July 1, 2018, until January 1, 2022, to any local sales and use tax levied or imposed at any time in any area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," or such taxes as authorized by or pursuant to Article 2, 2A, 3, 4, 5, or 5A of this chapter.
    4. Notwithstanding any provision of Code Section 48-8-63 to the contrary, purchases by a contractor may qualify for the exemption provided for in this paragraph. However, when a contractor purchases qualifying tangible personal property, the contractor shall pay the tax at the time of purchase or at the time of first use in this state; and the ultimate owner of the property may file a claim for refund of the tax paid on the qualifying property.
    5. Items qualifying for exemption include all tangible personal property that will remain at the aquarium facility after completion of construction and all tangible personal property that becomes incorporated into the real property structures of the aquarium facility. The exemption excludes all items that remain tangible personal property in the possession of a contractor after the completion of construction.
    6. Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, by June 30 each year, any taxpayer seeking to claim the exemption provided for in subparagraph (A) of this paragraph shall electronically submit to the department, at the time of application for the exemption and any such annual renewal, the total number of visitors admitted, the average monthly number of full-time employees, and the total amount of exempt purchases made by the taxpayer in the preceding calendar year. The department shall then issue a report to the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee containing such information;
  77. Reserved;
    1. Notwithstanding any provision of Code Section 48-8-63 to the contrary, from May 5, 2004, until September 1, 2011, sales of tangible personal property used in direct connection with the construction of a new symphony hall facility owned or operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code if the aggregate construction cost of such facility is $200 million or more.
    2. Any person making a sale of tangible personal property for the purpose specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes such person with an exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase the tangible personal property without paying the tax;
  79. Reserved;
    1. Notwithstanding any provision of Code Section 48-8-63 to the contrary, from May 17, 2004, until December 31, 2007, sales of tangible personal property to, or used in or for the new construction of an eligible corporate attraction.
    2. As used in this paragraph, the term "corporate attraction" means any tourist attraction facility constructed on or after May 17, 2004, dedicated to the history and products of a corporation which costs exceeds $50 million, is greater than 60,000 square feet of space, and has associated facilities, including but not limited to parking decks and landscaping owned by the same owner as the eligible corporate attraction.
    3. Any person making a sale of tangible personal property for the purpose specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes such person with an exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase the tangible personal property without paying the tax;
  81. The sale of food and food ingredients to a qualifying airline for service to passengers and crew in the aircraft, whether in flight or on the ground, and the furnishing without charge of food and food ingredients to qualifying airline passengers and crew in the aircraft, whether in flight or on the ground; and for purposes of this paragraph a "qualifying airline" shall mean any person which is authorized by the Federal Aviation Administration or appropriate agency of the United States to operate as an air carrier under an air carrier operating certificate and which provides regularly scheduled flights for the transportation of passengers or cargo for hire. As used in this paragraph, "food and food ingredients" means substances, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value. Food and food ingredients shall not include alcoholic beverages or tobacco;
    1. Purchase of Energy Star Qualified Products or WaterSense Products with a sales price of $1,500.00 or less per product purchased for noncommercial home or personal use. The exemption provided by this paragraph shall apply only to sales occurring during the period commencing at 12:01 A.M. on September 30, 2016, and concluding at 12:00 Midnight on October 2, 2016.
    2. As used in this paragraph, the term:
      1. "Energy Star Qualified Product" means any dishwasher, clothes washer, air conditioner, ceiling fan, fluorescent light bulb, dehumidifier, programmable thermostat, refrigerator, door, or window that meets the energy efficient guidelines set by the United States Environmental Protection Agency and the United States Department of Energy and is authorized to carry the Energy Star label.
      2. "WaterSense Product" means a product authorized to bear the United States Environmental Protection Agency WaterSense label.
    3. The exemption provided for in subparagraph (A) of this paragraph shall not apply to purchases of Energy Star Qualified Products or WaterSense Products purchased for trade, business, or resale.
    4. The commissioner shall promulgate any rules and regulations necessary to implement and administer this paragraph;
    1. The sale or use of biomass material, including pellets or other fuels derived from compressed, chipped, or shredded biomass material, utilized in the production of energy, including without limitation the production of electricity, steam, or the production of electricity and steam, which is subsequently sold.
    2. As used in this paragraph, the term "biomass material" means organic matter, excluding fossil fuels, including agricultural crops, plants, trees, wood, wood wastes and residues, sawmill waste, sawdust, wood chips, bark chips, and forest thinning, harvesting, or clearing residues; wood waste from pallets or other wood demolition debris; peanut shells; pecan shells; cotton plants; corn stalks; and plant matter, including aquatic plants, grasses, stalks, vegetation, and residues, including hulls, shells, or cellulose containing fibers;
    1. Notwithstanding any provision of Code Section 48-8-63 to the contrary, from July 1, 2006, until June 30, 2008, sales of tangible personal property used in direct connection with the construction of a national infantry museum and heritage park facility.
    2. As used in this paragraph, the term "national infantry museum and heritage park facility" means a museum and park facility which is constructed after July 1, 2006; is dedicated to the history of the American foot soldier; has more than 130,000 square feet of space; and has associated facilities, including, but not limited to, parking, parade grounds, and memorial areas.
    3. Any person making a sale of tangible personal property for the purpose specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes such person with an exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase the tangible personal property without paying the tax;
  85. Reserved;
  86. The sale or use of engines, parts, equipment, and other tangible personal property used in the maintenance or repair of aircraft when such engines, parts, equipment, and other tangible personal property are installed on such aircraft that is being repaired or maintained in this state, so long as such aircraft is not registered in this state;
    1. The sale or use of tangible personal property used for or in the renovation or expansion of a zoological institution to the extent provided in subparagraphs (B) and (C) of this paragraph. As used in this paragraph, the term "zoological institution" means a nonprofit wildlife park, terrestrial institution, or facility which:
      1. Is open to the public, charges for admission, exhibits and cares for a collection consisting primarily of animals other than fish, and has received accreditation from the Association of Zoos and Aquariums; and
      2. Is located in this state and owned or operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code.
    2. This exemption shall apply from July 1, 2016, until June 30, 2018, or until the aggregate state sales and use tax refunded pursuant to this paragraph exceeds $350,000.00, whichever occurs first. A qualifying zoological institution shall pay sales and use tax on all purchases and uses of tangible personal property and may obtain the benefit of this exemption from state sales and use tax by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph shall not include interest.
      1. This exemption shall apply from July 1, 2016, until June 30, 2018. A qualifying zoological institution shall pay sales and use tax on all purchases and uses of tangible personal property and may obtain the benefit of this exemption from local sales and use tax by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph shall not include interest.
      2. For purposes of this subparagraph, local sales and use tax shall be defined as any local sales and use tax levied or imposed at any time in any area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," or such taxes as authorized by or pursuant to Article 2, 2A, 3, 4, or 5 of this chapter.
    4. Notwithstanding any provision of Code Section 48-8-63 to the contrary, purchases by a contractor may qualify for the exemption provided for in this paragraph. However, when a contractor purchases qualifying tangible personal property, the contractor shall pay the tax at the time of purchase or at the time of first use in this state; and the ultimate owner of the property may file a claim for refund of the tax paid on the qualifying property.
    5. Items qualifying for exemption include all tangible personal property that will remain at the zoological institution after completion of construction and all tangible personal property that becomes incorporated into the real property structures of the zoological institution. This exemption excludes all items that remain tangible personal property in the possession of a contractor after the completion of construction;
    1. Notwithstanding any provision of Code Section 48-8-63 to the contrary, from July 1, 2009, until July 30, 2015, sales of tangible personal property to, or used in or for the new construction of, a civil rights museum.
    2. As used in this paragraph, the term "civil rights museum" means a museum which is constructed after July 1, 2009; is owned or operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code; has more than 40,000 square feet of space; and has associated facilities, including, but not limited to, special event space and retail space.
    3. Any person making a sale of tangible personal property for the purpose specified in this paragraph shall collect the tax imposed on this sale unless the purchaser furnishes such person with an exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase the tangible personal property without paying the tax.
    4. The exemption provided for under subparagraph (A) of this paragraph shall not apply to sales of tangible personal property that occur after the museum is opened to the public;
  89. For the period commencing on July 1, 2009, and ending on June 30, 2011, the sale or use of an airplane flight simulation training device approved by the Federal Aviation Administration under Appendices A and B, 14 C.F.R. Part 60;
  90. Reserved;
  91. The sale of prewritten software which has been delivered to the purchaser electronically or by means of load and leave;
  92. For the period commencing July 1, 2012, and ending on December 31, 2013, sales to an organization defined by the Internal Revenue Service as an instrumentality of the states relating to the holding of an annual meeting in this state;
    1. For the period commencing January 1, 2012, until June 30, 2019, sales of tangible personal property used for and in the construction of a competitive project of regional significance.
    2. The exemption provided in subparagraph (A) of this paragraph shall apply to purchases made during the entire time of construction of the competitive project of regional significance so long as such project meets the definition of a competitive project of regional significance within the period commencing January 1, 2012, until June 30, 2019.
    3. The department shall not be required to pay interest on any refund claims filed for local sales and use taxes paid on purchases made prior to the implementation of this paragraph.
    4. As used in this paragraph, the term "competitive project of regional significance" means the location or expansion of some or all of a business enterprise's operations in this state where the commissioner of economic development determines that the project would have a significant regional impact. The commissioner of economic development shall promulgate regulations in accordance with the provisions of this paragraph outlining the guidelines to be applied in making such determination;
  94. The sale, use, consumption, or storage of materials, containers, labels, sacks, or bags used for packaging tangible personal property for shipment or sale. To qualify for the packaging exemption, the items shall be used solely for packaging and shall not be purchased for reuse. The packaging exemption shall not include materials purchased at a retail establishment for consumer use;
  95. The sale or purchase of any motor vehicle titled in this state on or after March 1, 2013, pursuant to Code Section 48-5C-1. Except as otherwise provided in this paragraph, this exemption shall not apply to rentals of motor vehicles for periods of 31 or fewer consecutive days. Lease payments for a motor vehicle that is leased for more than 31 consecutive days for which a state and local title ad valorem tax is paid shall be exempt from sales and use taxes as provided for in this paragraph. No sales and use taxes shall be imposed upon state and local title ad valorem tax fees imposed pursuant to Chapter 5C of this title as a part of the purchase price of a motor vehicle or any portion of a lease or rental payment that is attributable to payment of state and local title ad valorem tax fees under Chapter 5C of this title;
    1. The sale or use of construction materials used for or in the construction of buildings at a private college to the extent provided in subparagraphs (B) and (C) of this paragraph. As used in this paragraph, the term "private college" means a college in this state which is operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code and has an enrollment of between 1,000 and 3,000 students.
    2. This exemption shall apply from July 1, 2015, until June 30, 2016, or until the aggregate state sales and use tax refunded pursuant to this paragraph exceeds $350,000.00, whichever occurs first. A qualifying private college shall pay sales and use tax on all purchases and uses of construction materials and may obtain the benefit of this exemption from state sales and use tax by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph shall not include interest.
      1. This exemption shall apply from July 1, 2015, until June 30, 2016. A qualifying private college shall pay sales and use tax on all purchases and uses of construction materials and may obtain the benefit of this exemption from local sales and use tax by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph shall not include interest.
      2. For purposes of this subparagraph, local sales and use tax shall be defined as any local sales and use tax levied or imposed at any time in any area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," or such taxes as authorized by or pursuant to Article 2, 2A, 3, 4, or 5 of this chapter.
    4. Notwithstanding any provision of Code Section 48-8-63 to the contrary, purchases by a contractor may qualify for the exemption provided for in this paragraph. However, when a contractor purchases qualifying construction materials, the contractor shall pay the tax at the time of purchase or at the time of first use in this state; and the ultimate owner of the property may file a claim for refund of the tax paid on the qualifying property.
    5. Items qualifying for exemption include all construction materials that will remain at the private college after completion of construction and all construction materials that become incorporated into the real property structures of the private college. This exemption excludes all items that remain in the possession of a contractor after the completion of construction;
    1. Sales of admissions to nonrecurring major sporting events in this state expected to generate over $50 million in the host locality.
    2. As used in this paragraph, the term "major sporting event" means the National Football League championship game; any semifinal game or championship game of a national collegiate tournament; a Major League Baseball, Major League Soccer, or National Basketball Association all-star game; or any other nonrecurring major sporting event determined by the commissioner of economic development and the state revenue commissioner to be a major sporting event.
    3. As used in this paragraph, the term "nonrecurring" means not occurring in this state more than once every three years.
    4. The revenue projections for purposes of this paragraph shall include, but not be limited to, lodging, meals, vehicle rentals, and admissions to tourist attractions.
    5. Determinations made under this paragraph by the commissioners on or after July 1, 2016, shall be made prior to the date of the convening of the General Assembly immediately preceding the awarding of the sales tax exemption for a major sporting event. Such a determination shall become effective either 30 days prior to the major sporting event or on the first fiscal day of the fiscal year immediately following a year during which such determination was made, whichever is earlier. Such a determination may be rendered null and void by a joint resolution passed by both chambers of the General Assembly. In the event that the presiding officers of the General Assembly, in their discretion, choose to introduce such a joint resolution, a special committee in each respective chamber of the General Assembly will be appointed by the presiding officers of both chambers of the General Assembly for the purpose of considering such a joint resolution, subject to the rules of both respective chambers.
    6. This paragraph shall stand automatically repealed on December 31, 2022; provided, however, that this repeal shall not apply to any event for which an application has been submitted prior to December 31, 2022;
    1. For the period beginning July 1, 2017, and ending June 30, 2020, sales of tangible personal property and services to a qualified job training organization when such organization obtains an exemption determination letter from the commissioner.
    2. For the purposes of this paragraph, the term "qualified job training organization" means an organization which:
      1. Is located in this state;
      2. Is exempt from income taxation under Section 501(c)(3) of the Internal Revenue Code;
      3. Specializes in the retail sale of donated items;
      4. Provides job training and employment services to individuals with workplace disadvantages and disabilities, including, but not limited to, reentry citizens who shall be persons released from incarceration, persons with disabilities, and veterans; and
      5. Uses a majority of its revenues for job training and placement programs.
      1. For the purposes of this paragraph, the term "local sales and use tax" means any sales tax, use tax, or local sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; or by or pursuant to Article 2, Article 2A, Part 1 or Part 2 of Article 3, Article 4, or Article 5 of this chapter.
      2. The exemption provided for in subparagraph (A) of this paragraph shall not apply to any local sales and use tax levied or imposed at any time.
    4. Any qualified job training organization which is granted an exemption under this paragraph shall provide an annual report to the department which contains, but is not limited to, the following:
      1. The number of individuals trained in the program;
      2. The number of individuals employed by the organization after receiving such training; and
      3. The number of individuals employed in full-time positions outside the organization after such training.

        Such data shall be compiled by the department and presented to the House Committee on Ways and Means and the Senate Finance Committee for consideration prior to any renewal or extension of the exemption provided by this paragraph.

    5. The commissioner shall promulgate any rules and regulations necessary to implement and administer this paragraph;
    1. The sale or use of tangible personal property used for or in the renovation or expansion of a theater located within a facility in this state that contains an art museum, symphonic hall, and theater that charges for admission and is owned or operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, if such organization's primary mission is to provide arts and education programming for the benefit of the citizens of this state, to the extent provided in subparagraphs (B) and (C) of this paragraph.
    2. This exemption shall apply from July 1, 2017, until January 1, 2019, and until the aggregate state sales and use tax refunded pursuant to this paragraph exceeds $750,000.00. A qualifying organization must pay sales and use tax on all purchases and uses of tangible personal property and may obtain the benefit of this exemption from state sales and use tax by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph shall not include interest.
    3. This exemption shall apply from July 1, 2017, until January 1, 2019, to any local sales and use tax levied or imposed at any time in any area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," or such taxes as authorized by or pursuant to Article 2, 2A, 3, 4, or 5 of this chapter.
    4. Notwithstanding any provision of Code Section 48-8-63 to the contrary, purchases by a contractor may qualify for the exemption provided for in this paragraph. However, when a contractor purchases qualifying tangible personal property, the contractor shall pay the tax at the time of purchase or at the time of first use in this state; and the ultimate owner of the property may file a claim for refund of the tax paid on the qualifying property.
    5. Items qualifying for exemption include all tangible personal property that will remain at the theater after completion of construction and all tangible personal property that becomes incorporated into the real property structures of the theater. The exemption excludes all items that remain tangible personal property in the possession of a contractor after the completion of construction;
    1. Sales of tickets, fees, or charges for admission to a fine arts performance or exhibition conducted within a facility in this state that is owned or operated by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, or a museum of cultural significance, if such organization's or museum's primary mission is to advance the arts in this state and to provide arts, educational, and culturally significant programming and exhibits for the benefit and enrichment of the citizens of this state.
    2. As used in this paragraph, the term "fine arts" means music performed by a symphony orchestra, poetry, photography, ballet, dance, opera, theater, dramatic arts, painting, sculpture, ceramics, drawing, watercolor, graphics, printmaking, and architecture.
    3. This paragraph shall be automatically repealed on July 1, 2020;
    1. The sale or use of noncommercial written materials or mailings by an organization which is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, if the organization is located in this state and provides such materials to charity supporters for educational, charitable, religious, or fundraising purposes, to the extent provided in subparagraph (B) of this paragraph.
    2. This exemption shall apply from July 1, 2018, until July 1, 2021. A qualifying organization must pay sales and use tax on all purchases and uses of tangible personal property and may obtain the benefit of this exemption from sales and use taxes by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph shall not include interest;
    1. Fifty percent of the sales price of a manufactured home if such manufactured home is installed pursuant to Code Section 8-2-160 and will be converted to real property pursuant to Code Section 8-2-183.1 within 30 days of the retail sale.
    2. As used in this paragraph, the term "manufactured home" means a structure built on a permanent chassis that:
      1. Is designed to be used as a dwelling;
      2. Is transportable in one or more sections;
      3. Contains plumbing, heating, air-conditioning, and electrical systems; and
      4. Is designed to have an angled roof and contain an area of at least 650 square feet.
    3. Within 30 days of a sale exempted as provided for in subparagraph (A) of this paragraph, the seller shall complete the requirements of Code Section 8-2-183.1 and properly file a copy of the Certificate of Permanent Location with the clerk of superior court, or the commissioner shall recover from the seller 1.5 times the amount of tax exempted by this paragraph.
    4. A manufactured home that is exempted as provided in subparagraph (A) of this paragraph shall not be eligible for a Certificate of Removal from Permanent Location provided in Part 4 of Article 2 of Chapter 2 of Title 8, or any other manner of a return to tangible personal property unless the amount exempted pursuant to subparagraph (A) of this paragraph is paid to the commissioner.
    5. The exemption provided for in subparagraph (A) of this paragraph shall not apply to any sales and use tax levied or imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to:
      1. Constitutional amendment;
      2. Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; or
      3. Article 2, 2A, 3, 4, 5, or 5A of this chapter; or
    1. The sale or use of tangible personal property used for the construction of a museum. For purposes of this exemption, the term "museum" means a facility that contains a main building with a permanent gallery that is at least 57,000 square feet in size, three temporary galleries, a theater, a garage for restoration or storage that is at least 26,500 square feet, and an outdoor pavilion; is owned or operated, either directly or indirectly, by an entity that is incorporated in this state as a nonprofit organization exempt from taxation under Section 501(c)(3) of the Internal Revenue Code; and celebrates, as its primary mission, the diverse heritage of automobiles through changing exhibits while providing educational and engaging experiences for the benefit of the citizens of this state, to the extent provided in subparagraphs (B) and (C) of this paragraph.
    2. This exemption shall apply from July 1, 2018, until December 31, 2020. Notwithstanding the foregoing, the aggregate state and local sales and use tax refunded pursuant to this paragraph shall not exceed $960,000.00. A qualifying organization must pay sales and use tax on all purchases and uses of tangible personal property and may obtain the benefit of this exemption from state sales and use tax by filing a claim for refund of tax paid on qualifying items. All refunds made pursuant to this paragraph shall not include interest.
    3. This exemption shall apply from July 1, 2018, until December 31, 2020, to any local sales and use tax levied or imposed at any time in any area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965" or such taxes as authorized by or pursuant to Article 2, 2A, 3, 4, 5, or 5A of this chapter.
    4. Notwithstanding any provision of Code Section 48-8-63 to the contrary, purchases by a contractor may qualify for the exemption provided for in this paragraph; provided, however, that when a contractor purchases qualifying tangible personal property, the contractor shall pay the tax at the time of purchase or at the time of first use in this state, and the ultimate owner of the property may file a claim for refund of the tax paid on the qualifying property.
    5. Items qualifying for exemption include all tangible personal property that will remain at the museum after completion of construction and all tangible personal property that becomes incorporated into the real property structures of the museum. The exemption excludes all items that remain tangible personal property in the possession of a contractor after the completion of construction.
    6. Notwithstanding Code Sections 48-2-15, 48-7-60, and 48-7-61, by June 30 of each year, any taxpayer seeking to claim the exemption provided for in subparagraph (A) of this paragraph shall electronically submit to the department, at the time of application for the exemption and any such annual renewal, the total number of visitors admitted, the average monthly number of full-time employees, and the total amount of exempt purchases made by the taxpayer in the preceding calendar year. The department shall then issue a report to the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee containing such information.
    7. This paragraph shall be automatically repealed on January 1, 2021.

      (Ga. L. 1951, p. 360, §§ 3, 22; Ga. L. 1953, Jan.-Feb. Sess., p. 182, §§ 1, 2; Ga. L. 1953, Jan.-Feb. Sess., p. 191, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 192, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 194, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 199, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 301, § 1; Ga. L. 1960, p. 153, § 2; Ga. L. 1963, p. 13, § 1; Ga. L. 1963, p. 132, § 1; Ga. L. 1963, p. 613, § 1; Ga. L. 1964, p. 57, § 3; Ga. L. 1964, p. 206, § 1; Ga. L. 1964, p. 672, § 1; Ga. L. 1965, p. 13, § 1; Ga. L. 1966, p. 211, § 1; Ga. L. 1966, p. 507, § 1; Ga. L. 1966, p. 537, §§ 1, 2; Ga. L. 1967, p. 282, § 1; Ga. L. 1967, p. 283, § 1; Ga. L. 1967, p. 286, § 1; Ga. L. 1968, p. 129, § 1; Ga. L. 1968, p. 136, § 1; Ga. L. 1968, p. 201, § 1; Ga. L. 1968, p. 545, § 1; Ga. L. 1968, p. 559, § 1; Ga. L. 1970, p. 16, § 1; Ga. L. 1970, p. 252, § 2; Ga. L. 1970, p. 254, § 1; Ga. L. 1970, p. 460, § 1; Ga. L. 1970, p. 631, § 1; Ga. L. 1971, p. 80, § 1; Ga. L. 1971, p. 265, § 1; Ga. L. 1971, p. 474, § 1; Ga. L. 1971, p. 653, § 1; Ga. L. 1972, p. 457, § 1; Ga. L. 1972, p. 504, § 1; Ga. L. 1973, p. 276, § 1; Ga. L. 1976, p. 411, § 1; Ga. L. 1976, p. 672, § 1; Ga. L. 1976, p. 987, § 1; Ga. L. 1977, p. 590, § 1; Code 1933, § 91A-4503, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1978, p. 1160, §§ 1-4; Ga. L. 1978, p. 1634, § 1; Ga. L. 1978, p. 1664, § 2; Ga. L. 1978, p. 1666, § 1; Ga. L. 1979, p. 5, §§ 85-92; Ga. L. 1979, p. 1278, §§ 1, 2; Ga. L. 1980, p. 10, §§ 25, 26; Ga. L. 1980, p. 586, § 1; Ga. L. 1980, p. 805, § 1; Ga. L. 1980, p. 1188, § 1; Ga. L. 1981, p. 1857, § 41; Ga. L. 1984, p. 1466, § 1; Ga. L. 1985, p. 491, § 1; Ga. L. 1985, p. 624, § 1; Ga. L. 1985, p. 625, § 1; Ga. L. 1985, p. 1177, § 1; Ga. L. 1986, p. 10, § 48; Ga. L. 1986, p. 1453, § 1; Ga. L. 1986, p. 1459, § 1; Ga. L. 1986, p. 1464, § 2; Ga. L. 1986, p. 1467, §§ 1, 2; Ga. L. 1986, p. 1584, § 1; Ga. L. 1987, p. 191, § 9; Ga. L. 1989, p. 62, §§ 2, 3; Ga. L. 1989, p. 622, § 1; Ga. L. 1990, p. 45, § 1; Ga. L. 1991, p. 87, § 2; Ga. L. 1992, p. 1276, § 1; Ga. L. 1992, p. 1521, § 2; Ga. L. 1992, p. 3173, § 1; Ga. L. 1994, p. 132, § 1; Ga. L. 1994, p. 552, § 1; Ga. L. 1994, p. 928, §§ 5, 6; Ga. L. 1994, p. 1269, § 1; Ga. L. 1995, p. 364, § 1; Ga. L. 1995, p. 585, § 8; Ga. L. 1995, p. 991, § 1; Ga. L. 1995, p. 1302, §§ 13, 14; Ga. L. 1996, p. 1, § 1; Ga. L. 1996, p. 220, §§ 8-10; Ga. L. 1996, p. 738, § 1; Ga. L. 1996, p. 1025, § 2; Ga. L. 1996, p. 1643, §§ 1-3; Ga. L. 1997, p. 157, § 1; Ga. L. 1997, p. 1295, § 1; Ga. L. 1997, p. 1412, §§ 1, 2; Ga. L. 1998, p. 128, § 48; Ga. L. 1998, p. 602, §§ 1-3; Ga. L. 1999, p. 634, §§ 1, 2; Ga. L. 2000, p. 409, § 1; Ga. L. 2000, p. 411, § 1; Ga. L. 2000, p. 414, § 1; Ga. L. 2000, p. 415, § 1; Ga. L. 2000, p. 468, § 1; Ga. L. 2000, p. 485, § 1; Ga. L. 2000, p. 615, §§ 1-3; Ga. L. 2000, p. 1202, §§ 1, 2; Ga. L. 2001, p. 4, § 48; Ga. L. 2001, p. 202, §§ 1, 2; Ga. L. 2001, p. 984, §§ 13-16; Ga. L. 2001, p. 1049, § 1; Ga. L. 2001, p. 1068, § 1; Ga. L. 2002, p. 6, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2002, p. 575, § 1; Ga. L. 2002, p. 804, § 1; Ga. L. 2002, p. 855, § 1; Ga. L. 2002, p. 954, § 3; Ga. L. 2002, p. 984, § 1; Ga. L. 2003, p. 337, § 1; Ga. L. 2003, p. 665, §§ 11, 12; Ga. L. 2004, p. 154, § 1; Ga. L. 2004, p. 328, § 1; Ga. L. 2004, p. 403, § 1; Ga. L. 2004, p. 628, § 1; Ga. L. 2004, p. 690, § 22; Ga. L. 2004, p. 947, § 1; Ga. L. 2004, p. 1073, § 1; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2005, p. 142, §§ 1, 2/HB 487; Ga. L. 2005, p. 334, § 29-6/HB 501; Ga. L. 2005, p. 725, §§ 1, 2, 3, 4/HB 341; Ga. L. 2005, p. 794, § 1/HB 559; Ga. L. 2005, p. 983, § 1/HB 5; Ga. L. 2006, p. 222, § 1/HB 1014; Ga. L. 2006, p. 263, § 1/HB 1018; Ga. L. 2006, p. 419, § 1/HB 834; Ga. L. 2006, p. 471, § 1/HB 1301; Ga. L. 2006, p. 524, §§ 1, 2/HB 1219; Ga. L. 2006, p. 527, § 1/HB 1121; Ga. L. 2006, p. 538, § 1/HB 841; Ga. L. 2007, p. 47, § 48/SB 103; Ga. L. 2007, p. 207, §§ 1, 2/HB 128; Ga. L. 2007, p. 419, § 1/HB 186; Ga. L. 2007, p. 594, § 1/HB 169; Ga. L. 2007, p. 604, § 1/HB 282; Ga. L. 2007, p. 709, § 1/HB 193; Ga. L. 2008, p. 316, § 1/HB 1178; Ga. L. 2008, p. 340, §§ 1, 2/HB 948; Ga. L. 2008, p. 644, § 3-1/SB 342; Ga. L. 2008, p. 739, §§ 1, 2, 3/HB 957; Ga. L. 2008, p. 773, § 1/HB 1078; Ga. L. 2008, p. 1148, § 1/HB 1023; Ga. L. 2008, p. 1151, § 1/HB 1110; Ga. L. 2008, p. 1160, § 1/HB 237; Ga. L. 2008, p. 1163, § 1/HB 272; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2009, p. 79, § 2/HB 59; Ga. L. 2009, p. 636, § 1/HB 116; Ga. L. 2009, p. 637, §§ 1, 2/HB 120; Ga. L. 2009, p. 642, § 1/HB 212; Ga. L. 2009, p. 650, § 1/HB 358; Ga. L. 2009, p. 651, § 1/HB 395; Ga. L. 2009, p. 777, § 1/HB 129; Ga. L. 2009, p. 794, § 1/HB 349; Ga. L. 2009, p. 795, § 1/HB 364; Ga. L. 2010, p. 662, § 2/HB 1221; Ga. L. 2011, p. 38, § 4/HB 168; Ga. L. 2011, p. 47, § 1/HB 322; Ga. L. 2011, p. 302, § 1/HB 234; Ga. L. 2012, p. 257, §§ 1-5, 4-1, 5-1, 5-5, 5-6, 6-2/HB 386; Ga. L. 2012, p. 580, § 18/HB 865; Ga. L. 2012, p. 694, § 4/HB 729; Ga. L. 2012, p. 775, § 48/HB 942; Ga. L. 2012, p. 1348, § 2/HB 743; Ga. L. 2013, p. 7, § 4/HB 266; Ga. L. 2013, p. 37, § 2-2/HB 487; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2013, p. 190, § 1/HB 164; Ga. L. 2013, p. 243, § 6.1/HB 318; Ga. L. 2014, p. 51, § 2/HB 958; Ga. L. 2014, p. 633, § 1/HB 933; Ga. L. 2014, p. 866, § 48/SB 340; Ga. L. 2015, p. 236, § 5-3/HB 170; Ga. L. 2015, p. 284, § 1/HB 428; Ga. L. 2015, p. 385, § 4-17/HB 252; Ga. L. 2015, p. 1219, § 26/HB 202; Ga. L. 2015, p. 1262, § 7/HB 225; Ga. L. 2015, p. 1313, §§ 1, 1A/HB 426; Ga. L. 2016, p. 62, § 1/HB 951; Ga. L. 2016, p. 758, § 4/SB 379; Ga. L. 2016, p. 772, § 1/HB 937; Ga. L. 2016, p. 796, § 1/HB 763; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2017, p. 46, § 2/HB 265; Ga. L. 2017, p. 530, § 1/SB 156; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 307, § 1/HB 697; Ga. L. 2018, p. 624, § 1/HB 696; Ga. L. 2018, p. 644, § 4/HB 217; Ga. L. 2018, p. 674, § 1/HB 871; Ga. L. 2018, p. 1075, §§ 1, 2/HB 793; Ga. L. 2018, p. 1112, § 48/SB 365; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-2/HB 5EX.)

The 2015 amendments. The first 2015 amendment, effective July 1, 2015, rewrote subparagraph (33.1)(B); inserted "not to exceed the rate at which such taxes were levied as of January 1, 2014," in the middle of subparagraph (33.1)(D); deleted "of division (ii)" preceding "of subparagraph (B)" near the beginning of subparagraphs (33.1)(E) and (33.1)(F); added subparagraph (33.1)(G); and redesignated former subparagraph (33.1)(G) as present subparagraph (33.1)(H). See Editor's notes for applicability. The second 2015 amendment, effective July 1, 2015, rewrote paragraphs (76) and (87). The third 2015 amendment, effective July 1, 2015, substituted "intellectually disabled," for "mentally retarded" in paragraph (7.1). The fourth 2015 amendment, effective January 1, 2016, deleted "or" at the end of paragraph (94); substituted "; or" for a period at the end of paragraph (95); and added paragraph (96). The fifth 2015 amendment, effective July 1, 2016, substituted the present provisions of paragraph (25) for the former provisions which read "Reserved". The sixth 2015 amendment, effective July 1, 2015, in paragraph (7.05), substituted "July 1, 2015, and ending on June 30, 2018" for "July 1, 2008, and ending on June 30, 2010" near the beginning of subparagraph (7.05)(A) and added subparagraph (7.05)(C); in subparagraph (7.3), designated the existing provisions as subparagraph (7.3)(A), in paragraph (7.3)(A), substituted "July 1, 2015, and ending June 30, 2018" for "July 1, 2008, and ending June 30, 2010" at the beginning and substituted a period for a semicolon, and added subparagraph (7.3)(B); substituted "July 1, 2015, and ending on June 30, 2020, the use of food and food ingredients" for "July 1, 2007, and ending on June 30, 2011, the use of prepared food" in subparagraphs (57.2)(A) and (57.3)(A); in paragraph (57.2), added subparagraph (57.2)(C), and redesignated former subparagraph (57.2)(C) as present subparagraph (57.2)(D); and, in subparagraph (57.3), added subparagraph (57.3)(B) and redesignated former subparagraph (57.3)(B) as present subparagraph (57.3)(C).

The 2016 amendments. The first 2016 amendment, effective July 1, 2016, in subparagraph (75)(A), substituted "the period commencing at 12:01 A.M. on July 30, 2016, and concluding at 12:00 Midnight on July 31, 2016." for "periods: (i) Commencing at 12:01 A.M. on August 1, 2014, and concluding at 12:00 Midnight on August 2, 2014;", and deleted former division (75)(A)(ii), which read "(ii) Commencing at 12:01 A.M. on July 31, 2015, and concluding at 12:00 Midnight on August 1, 2015."; in subparagraph (82)(A), substituted "sales occurring during the period commencing at 12:01 A.M. on September 30, 2016, and concluding at 12:00 Midnight on October 2, 2016" for "sales: (i) Commencing at 12:01 A.M. on October 3, 2014 and concluding at 12:00 Midnight on October 5, 2014; and", and deleted former division (82)(A)(ii), which read: "Commencing at 12:01 A.M. on October 2, 2015, and concluding at 12:00 Midnight on October 4, 2015."; and added paragraph (97). See Editor's notes for applicability. The second 2016 amendment, effective July 1, 2016, in paragraph (1), inserted "fire districts which have elected governing bodies and are supported by, in whole or in part, ad valorem taxes,"; deleted "or" at the end of paragraph (95), substituted "; or" for the period at the end of paragraph (96), and added paragraph (97) (now paragraph (98)). The third 2016 amendment, effective July 1, 2016, substituted "June 30, 2019" for "June 30, 2016" in subparagraphs (93)(A) and (93)(B); and substituted "competitive project of regional significance" for " 'competitive project of regional significance'", in the middle of subparagraph (93)(B). The fourth 2016 amendment, effective July 1, 2016, substituted "June 30, 2021" for "June 30, 2016" in subparagraph (57.1)(A); added present subparagraph (57.1)(C); redesignated former subparagraph (57.1)(C) as present subparagraph (57.1)(D); and substituted "June 30, 2021" for "June 30, 2020" in subparagraph (57.2)(A). The fifth 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, deleted paragraph (29.1) which was designated as reserved.

The 2017 amendments. The first 2017 amendment, effective April 25, 2017, deleted "or" at the end of paragraph (97); substituted a semicolon for a period at the end of paragraph (98); and added paragraphs (99) and (100). The second 2017 amendment, effective May 8, 2017, substituted "Except in counties in which a tax authorized under Part 1 of Article 3 of this chapter in connection with an equalized homestead option sales tax pursuant to Part 2 of Article 2A of this chapter is imposed, the" for "The" at the beginning of division (57)(D)(i); and added "but shall not mean a tax authorized under Part 1 of Article 3 of this chapter in connection with an equalized homestead option sales tax pursuant to Part 2 of Article 2A of this chapter" at the end of division (57)(D)(ii). See Editor's notes for applicability. The third 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (30).

The 2018 amendments. The first 2018 amendment, effective July 1, 2018, substituted "2019" for "2018" in subparagraphs (7.05)(A) and (7.3)(A). The second 2018 amendment, effective January 1, 2019, added paragraph (68.1). The third 2018 amendment, effective May 7, 2018, deleted "or" at the end of paragraph (99), substituted "; or" for a period at the end of paragraph (100), and added paragraph (101). The fourth 2018 amendment, effective July 1, 2018, deleted "or" at the end of subparagraph (99)(E), substituted "; or" for the period at the end of subparagraph (100)(C), and added paragraph (101). The fifth 2018 amendment, effective May 8, 2018, substituted "July 1, 2018" for "July 1, 2015" and substituted "January 1, 2022" for "January 1, 2017" in the first sentence of subparagraphs (76)(B) and (76)(C); substituted "$4.5 million" for "$750,000.00" in the first sentence of subparagraph (76)(B); substituted "4, 5, or 5A" for "4, or 5" near the end of subparagraph (76)(C); substituted a period for a semicolon at the end of subparagraph (76)(E); added subparagraph (76)(F); deleted "or" at the end of subparagraph (99)(E); substituted "; or" for a period at the end of subparagraph (100)(C); and added paragraph (101). The sixth 2018 amendment, effective May 8, 2018, part of an Act to revise, modernize, and correct the Code, reserved paragraph (25) formerly designated as repealed; and substituted "by products have begun" for "by products has begun" near the end of subparagraph (34.4)(E).

The 2018 Ex. Sess. amendment, effective December 1, 2018, in paragraph (33.1), substituted "Reserved;" for the former provisions, which read: "(33.1)(A) The sale or use of jet fuel to or by a qualifying airline at a qualifying airport, to the extent provided in subparagraphs (B) and (C) of this paragraph.

"(B) For the period of time beginning July 1, 2012, and ending on June 30, 2015, the sale or use of jet fuel to or by a qualifying airline at a qualifying airport shall be exempt from 1 percent of the 4 percent state sales and use tax.

"(C) The sale or use of jet fuel to or by a qualifying airline at a qualifying airport shall be exempt at all times from the sales or use tax levied and imposed as authorized pursuant to Part 1 of Article 3 of this chapter. As used in this subparagraph, the term 'qualifying airport' means any airport in this state that has had more than 750,000 takeoffs and landings during a calendar year, and the term 'qualifying airline' shall have the same meaning as set forth in subparagraph (E) of this paragraph.

"(D) Except as provided for in subparagraph (C) of this paragraph, this exemption shall not apply to any other local sales and use tax levied or imposed at any time in any area consisting of less than the entire state, however authorized, not to exceed the rate at which such taxes were levied as of January 1, 2014, including, but not limited to, such taxes authorized by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965,' or such taxes as authorized by or pursuant to Part 2 of Article 3 or Article 2, 2A, or 4 of this chapter.

"(E) For purposes of subparagraph (B) of this paragraph and paragraph (2) of subsection (d) of Code Section 48-8-241, a 'qualifying airline' shall mean any person which is authorized by the Federal Aviation Administration or appropriate agency of the United States to operate as an air carrier under an air carrier operating certificate and which provides regularly scheduled flights for the transportation of passengers or cargo for hire.

"(F) For purposes of subparagraph (B) of this paragraph and paragraph (2) of subsection (d) of Code Section 48-8-241, the term 'qualifying airport' means a certificated air carrier airport in Georgia.

"(G) On or after July 1, 2017, revenue derived from the levy of sales and use taxes on jet fuel shall be used for a state aviation program or airport related purposes to the extent required to comply with 49 U.S.C. Sections 47107(b) and 47113. Any portion of such revenue so derived which is in excess of the amount required for purposes of such compliance with federal law may be appropriated by the General Assembly for other purposes.

"(H) The commissioner shall adopt rules and regulations to carry out the provisions of this paragraph;".

Code Commission notes. - Ga. L. 1986, p. 1453, § 1; Ga. L. 1986, p. 1459, § 1; Ga. L. 1986, p. 1467, §§ 1, 2; and Ga. L. 1986, p. 1584, § 1; each of which became effective July 1, 1986, each deleted "or" at the end of paragraph (47), substituted a semicolon for a period and added "or" at the end of paragraph (48), and added differing language designated paragraph (49). Pursuant to Code Section 28-9-5, in 1986, "or" was deleted at the end of paragraph (47); a semicolon was substituted for a period at the end of paragraph (48); the paragraphs added by the four Acts listed above were designated as paragraphs (49)-(52), respectively; semicolons were substituted for periods at the end of paragraphs (49)-(51); and "or" was added at the end of paragraph (51). A fifth 1986 Act (Ga. L. 1986, p. 1464, § 2) also enacted a new paragraph (49) different from those enacted by the other 1986 Acts. However, due to its delayed effective date (October 1, 1987), the paragraph (49) added by Ga. L. 1986, p. 1464, § 2 was not incorporated in this Code section. In 1987, however, the "or" added following paragraph (51) was deleted, a semicolon and "or" was substituted for the period following paragraph (52), and the paragraph (49) added by Ga. L. 1986, p. 1464, § 2 was redesignated as paragraph (53).

Pursuant to Code Section 28-9-5, in 1992, "Chapter 17" was substituted for "Chapter 16" in paragraph (43); "or" was deleted at the end of paragraph (53); and "; or" was substituted for the period at the end of paragraph (54); and the paragraph (54) added by Ga. L. 1992, p. 3173, § 1, was redesignated as paragraph (55), since Ga. L. 1992, p. 1276, § 2, also added a paragraph (54).

Pursuant to Code Section 28-9-5, in 1994, the paragraph (39) added by Ga. L. 1994, p. 132, § 1 was redesignated as paragraph (39.1).

Pursuant to Code Section 28-9-5, in 1996, the paragraph (58) enacted by Ga. L. 1996, p. 1643, was redesignated as paragraph (59) and related stylistic changes were made.

Pursuant to Code Section 28-9-5, in 2000, "or" was deleted at the end of paragraph (63) and a semicolon was substituted for a period at the end of paragraph (64).

Pursuant to Code Section 28-9-5, in 2000, paragraph (64), as enacted by Ga. L. 2000, p. 415, § 1, was redesignated as paragraph (65), a semicolon was substituted for a period at the end of subparagraph (65)(B), and "or" was deleted at the end of paragraph (63).

Pursuant to Code Section 28-9-5, in 2000, paragraphs (64) and (65), as enacted by Ga. L. 2000, p. 485, § 1, were redesignated as paragraphs (66) and (67); "or" was deleted at the end of newly redesignated paragraph (66), and a semicolon was substituted for a period at the end of newly redesignated paragraph (67).

Pursuant to Code Section 28-9-5, in 2000, paragraphs (64) and (65), as enacted by Ga. L. 2000, p. 615, § 1, were redesignated as paragraphs (68) and (69); "or" was deleted at the end of newly redesignated paragraph (68), and a semicolon was substituted for a period at the end of newly redesignated paragraph (69).

Pursuant to Code Section 28-9-5, in 2000, paragraphs (64), (65), and (66) as enacted by Ga. L. 2000, p. 1202, § 2, were redesignated as paragraphs (70), (71), and (72), respectively.

Ga. L. 2002, p. 575, § 1 and Ga. L. 2002, p. 855, § 1 both added a paragraph (6.2). Pursuant to Code Section 28-9-5, in 2002, the paragraph (6.2) added by Ga. L. 2002, p. 855, § 1 was redesignated as paragraph (6.3).

Pursuant to Code Section 28-9-5, in 2002, in division (68)(C)(i), "mainframe driven" was substituted for "mainframe-driven" and "high-speed" was substituted for "high speed"; and "or" was deleted following the semicolon at the end of paragraph (73).

Pursuant to Code Section 28-9-5, in 2003, paragraph (76), as added by Ga. L. 2003, p. 337, § 1, was redesignated as paragraph (77), "or" was deleted at the end of paragraph (75), and "; or" was substituted for a period at the end of paragraph (76).

Pursuant to Code Section 28-9-5, in 2004, paragraph (78) as added by Ga. L. 2004, p. 403, § 1 was redesignated as paragraph (79); paragraph (78) as added by Ga. L. 2004, p. 1073, § 1 was redesignated as paragraph (80); "or" was deleted at the end of paragraph (77); and "; or" was substituted for a period at the end of paragraph (79).

Pursuant to Code Section 28-9-5, in 2005, in subparagraphs (59)(B) and (59)(C), "fund-raising" was substituted for "fundraising", "or" was deleted at the end of paragraph (80), "; or" was substituted for the period at the end of paragraph (81), and paragraph (81), as enacted by Ga. L. 2005, p. 794, § 1, was redesignated as paragraph (82).

Pursuant to Code Section 28-9-5, in 2006, "flourescent" was changed to "fluorescent" in subparagraph (82)(B).

Pursuant to Code Section 28-9-5, in 2006, paragraph (83), as enacted by Ga. L. 2006, p. 527, § 1, was redesignated as paragraph (84).

Pursuant to Code Section 28-9-5, in 2006, paragraph (83), as enacted by Ga. L. 2006, p. 538, § 1, was redesignated as paragraph (85).

Pursuant to Code Section 28-9-5, in 2006, "or" was deleted from the end of paragraph (82), a semicolon was substituted for a period at the end of paragraph (83), and "; or" was added at the end of paragraph (84).

Pursuant to Code Section 28-9-5, in 2006, "July 1, 2006" was substituted for "the effective date of this paragraph" in subparagraph (84)(B).

Pursuant to Code Section 28-9-5, in 2007, paragraph (33.2), as enacted by Ga. L. 2007, p. 709, § 1, was redesignated as paragraph (33.1).

Pursuant to Code Section 28-9-5, in 2007, a semicolon was substituted for a period at the end of paragraph (34.4).

Pursuant to Code Section 28-9-5, in 2008, in paragraph (7.05)(A), a comma was deleted following "pursuant to" and in divisions (70.1)(C)(i) and (85)(C)(i), "or" was inserted preceding "by or" near the end.

Pursuant to Code Section 28-9-5, in 2009, paragraph (87), as enacted by Ga. L. 2009, p. 794, § 1, was redesignated as paragraph (88); paragraph (87), as enacted by Ga. L. 2009, p. 795, § 1, was redesignated as paragraph (89); and related stylistic changes were made.

Pursuant to Code Section 28-9-5, in 2010, "May 5, 2004" was substituted for "the effective date of this paragraph" in paragraph (78), "May 17, 2004" was substituted for "the effective date of this paragraph" in subparagraph (80)(A), and "May 17, 2004," was substituted for "the effective date of this paragraph" in subparagraph (80)(B).

Pursuant to Code Section 28-9-3 , in 2012, the amendment of subparagraph (33.1)(C) of this Code section by Ga. L. 2012, p. 257, § 5-6/HB 386, was treated as impliedly repealed and superseded by Ga. L. 2012, p. 1348, § 2/HB 743, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

Pursuant to Code Section 28-9-5, in 2012, "Code Section 48-5C-1" was substituted for "Code Section 48-5B-1" in paragraph (95).

Pursuant to Code Section 28-9-5, in 2012, punctuation changes were made at the end of paragraphs (91) through (93), "; or" was substituted for a period at the end of paragraph (94), and a period was substituted for a semicolon at the end of paragraph (95).

Pursuant to Code Section 28-9-5, in 2012, paragraph (92), as enacted by Ga. L. 2012, p. 257, § 5-5/HB 386, was redesignated as paragraph (93); paragraph (92), as enacted by Ga. L. 2012, p. 1348, § 2/HB 743, was redesignated as paragraph (94); and paragraph (92), as enacted by Ga. L. 2012, p. 257, § 1-5/HB 386, was redesignated as paragraph (95).

Pursuant to Code Section 28-9-5, in 2015, a comma was deleted following "intellectually disabled" in paragraph (7.1).

Pursuant to Code Section 28-9-5, in 2016, "July 1, 2016," was substituted for "the effective date of this paragraph" in subparagraph (97)(E).

Pursuant to Code Section 28-9-5, in 2017, a period was substituted for a comma at the end of subparagraph (99)(B).

Pursuant to Code Section 28-9-5, in 2018, "; or" was deleted at the end of paragraph (100), a semicolon was substituted for a period at the end of subparagraph (101)(B) and "; or" was substituted for a period at the of division (102)(E)(iii).

Pursuant to Code Section 28-9-5, in 2018, paragraph (101), as added by Ga. L. 2018, p. 674, § 1/HB 871, was redesignated as paragraph (102).

Pursuant to Code Section 28-9-5, in 2018, paragraph (101), as added by Ga. L. 2018, p. 1075, § 2/HB 793, was redesignated as paragraph (103).

Editor's notes. - Ga. L. 1986, p. 1464, § 1, not codified by the General Assembly, provides that: "It is the intention of the General Assembly by the passage of this Act to comply fully with federal law which conditions state participation in the food stamp program and WIC program on the provision of an exemption from state and local taxes for purchases made with food stamps or WIC coupons."

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provided that that Act applies to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 1992, p. 1276, § 2, not codified by the General Assembly, provides, in part: "This Act shall not be construed to authorize the refund of any sales and use tax paid with respect to the sale or use of durable medical equipment and prosthetic devices prior to January 1, 1993."

Ga. L. 1992, p. 1521, § 4, not codified by the General Assembly, provides: "This Act [which amended this Code section] shall stand repealed in its entirety on January 1, 1996, and shall be void and of no effect and the provisions affected by this Act shall be specifically revived as such provisions stood before the enactment of this Act, as amended by laws other than this Act."

Ga. L. 1994, p. 834, § 4, not codified by the General Assembly, repeals Ga. L. 1992, p. 1521, § 4, which had provided for the repeal of this Code section as affected by that 1992 Act.

Ga. L. 1994, p. 928, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Business Expansion Support Act of 1994.'"

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2008, p. 1160, § 2(b)/HB 237, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility under paragraph (34.3) of Code Section 48-8-3 of the Official Code of Georgia Annotated, as amended by Section 1 of this Act, for any period prior to January 1, 2009, shall not be affected by the passage of this Act and shall continue to be governed by the provisions of said paragraph as it existed immediately prior to January 1, 2009."

Former paragraph (85) was repealed on its own terms effective July 1, 2010.

Former paragraph (58) was repealed on its own terms effective January 1, 2011, and was reserved by Ga. L. 2012, p. 775, § 48/HB 942.

Ga. L. 2011, p. 302, § 3/HB 234, not codified by the General Assembly, provides for severability.

Ga. L. 2012, p. 257, § 7-1(b)/HB 386, approved by the Governor April 19, 2012, provided that the effective date of the amendment to this Code section is January 1, 2012. See Op. Atty. Gen. No. 76-76 for construction of effective date provisions that precede the date of approval by the Governor.

Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Ga. L. 2013, p. 37, § 3-1/HB 487, not codified by the General Assembly, provides, in part, that: "(b) If any section of this Act is determined to be unconstitutional by a final decision of an appellate court of competent jurisdiction or by the trial court of competent jurisdiction if no appeal is made, with the exception of subsection (g) of Code Section 50-27-78 and Section 2-1 of this Act, this Act shall stand repealed by operation of law.

"(c) This Act is not intended to and shall not be construed to affect the legality of the repair, transport, possession, or use of otherwise prohibited gambling devices on maritime vessels within the jurisdiction of the State of Georgia. To the extent that such repair, transport, possession, or use was lawful prior to the enactment of this Act, it shall not be made illegal by this Act; and to the extent that such repair, transport, possession, or use was prohibited prior to the enactment of this Act, it shall remain prohibited." As of May 2018, no such finding has been issued.

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.' "

Ga. L. 2016, p. 62, § 2/HB 951, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2016, and shall be applicable to admissions purchased on or after January 1, 2017. This Act shall only apply to events secured on or after the effective date of this Act."

Ga. L. 2017, p. 530, § 4(c)/SB 156, not codified by the General Assembly, provides: "Sections 1 and 3 of this Act shall apply to all equalized homestead option sales and use taxes which are implemented on and after the effective date specified in subsection (a) of this section and to all county special purpose local option sales taxes which are implemented in conjunction with an equalized homestead option sales and use tax implemented on and after such date." Subsection (a) of this section provides that the Act becomes effective upon approval of the Governor which occurred on May 8, 2017.

Former paragraph (25) was repealed on its own terms effective July 1, 2017.

Ga. L. 2018, p. 624, § 2/HB 696, not codified by the General Assembly, provides that this Act "shall be applicable to transactions occurring on or after July 1, 2018."

U.S. Code. - Section 501 of the Internal Revenue Code, referred to in subparagraph (11)(A) of this Code section, is codified at 26 U.S.C. § 501.

Law reviews. - For article discussing tax exemptions and deductions as incentives for establishment of foreign business in Georgia, see 27 Mercer L. Rev. 629 (1976). For article surveying Georgia cases dealing with environment, natural resources, and land use from June 1977 through May 1978, see 30 Mercer L. Rev. 75 (1978). For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For survey article on recent developments in Georgia state and local taxation, see 34 Mercer L. Rev. 400 (1982). For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For article, "Common State Tax Pitfalls in the Acquisition or Disposition of Businesses in Georgia," see 22 Ga. St. B. J. 82 (1985). For article, "Georgia Sales and Use Tax Exemptions for Manufacturers," see 29 Ga. St. B. J. 19 (1992). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012). For article on the 2012 amendment of this Code section, see 29 Georgia St. U.L. Rev. 112 (2012). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 213 (2015). For note on 1991 amendment of this Code section, see 8 Georgia St. U.L. Rev. 190 (1992). For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Rev. 249 (1994). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Scrivener's error in paragraph (42). - Since there is no specific indication that the legislature intended to change the preexisting law when the legislature adopted the Official Code, the court views alterations of the Code Revision Commission in redrafting the statute and in substituting the words "common ownership of the property" for "persons under 100% common ownership," as merely a scrivener's error, and the court applies the substantive law in effect at the time of enactment of the 1982 Code. Charter Medical Info. Servs., Inc. v. Collins, 266 Ga. 720 , 470 S.E.2d 655 (1996).

Intent to exempt must be clear and distinct. - Exemption will not be held to be conferred unless the terms under which the exemption is granted clearly and distinctly show that such was the intention of the General Assembly. Oxford v. J.D. Jewell, Inc., 215 Ga. 616 , 112 S.E.2d 601 (1960).

Exemptions from taxation must be strictly construed. Oxford v. J.D. Jewell, Inc., 215 Ga. 616 , 112 S.E.2d 601 (1960); In re Ga. Air, Inc., 345 F. Supp. 636 (N.D. Ga. 1972).

Fixtures which pass by conveyance of realty are exempt. - All fixtures which would pass by a conveyance of an interest in realty as a part thereof, in the absence of provisions in the sales contract to the contrary, are exempt from the tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

Provision on religious book unconstitutional. - O.C.G.A. § 48-8-3(15)(A) and (16), which exempt from sales tax certain religious books and papers, are unconstitutional as violative of the free speech and establishment clauses of the First Amendment when the exemptions are based on content and there is no showing of a compelling interest or that the exemptions are narrowly tailored; thus, the state revenue commissioner was enjoined from enforcing those provisions. Budlong v. Graham, 414 F. Supp. 2d 1222 (N.D. Ga. 2006).

On a challenge by the plaintiffs, a former librarian and a book retailer, O.C.G.A. § 48-8-3(15)(A), which exempted sales and use taxes on certain religious papers, was held unconstitutional under the First Amendment's free press clause because the statute drew a line between religious and non-religious papers, thus requiring official scrutiny of content as a basis for imposing a tax, and a permanent injunction enjoining the defendant state revenue commissioner from continuing to enforce the provision was issued; under O.C.G.A. § 48-8-3(15)(A), a calendar published by a religious institution would presumably not qualify as a "religious paper" and the statute thus discriminated between religious and non-religious writings and, furthermore under O.C.G.A. § 48-8-3(16) , books with critiques of the Bible might or might not be exempted, depending on whether the state found the materials were "commonly recognized" as "Holy Scripture". Budlong v. Graham, 488 F. Supp. 2d 1252 (N.D. Ga. 2007).

Cited in Strickland v. W.E. Ross & Sons, 251 Ga. 324 , 304 S.E.2d 719 (1983).

Sales to State or Federal Government

General Assembly did not intend to exempt any body politic other than those specifically described in this section. Oxford v. Housing Auth., 104 Ga. App. 797 , 123 S.E.2d 175 (1961).

General Assembly intended to exempt foreign municipal corporations doing business and serving residents of this state from sales and use taxes on purchases of tangible personal property which the foreign municipality uses in conducting the corporation's business within the state. City of Chattanooga v. State, 246 Ga. 99 , 269 S.E.2d 5 (1980).

When foreign municipality treated as municipality of this state. - Foreign municipality permitted to enter this state and carry on proprietary function by providing services to residents of this state is a municipality of this state for purposes of this exemption. City of Chattanooga v. State, 246 Ga. 99 , 269 S.E.2d 5 (1980).

Housing authorities are taxable. - Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is an all inclusive statute which includes a housing authority as a taxpayer since no provision appears to exclude a housing authority. Oxford v. Housing Auth., 104 Ga. App. 797 , 123 S.E.2d 175 (1961).

Sales to a water authority are taxable. Blackmon v. Cobb County-Marietta Water Auth., 126 Ga. App. 459 , 191 S.E.2d 128 (1972).

Property Furnished for Work on Water, Gas, or Sewage System

Exemption applies to subcontractors. - Exemption applies not only to use of county pipe by a prime contractor with the county, but also use by a subcontractor performing an included portion of the work. Blackmon v. DeKalb Pipeline Co., 127 Ga. App. 395 , 193 S.E.2d 635 (1972).

Considerations as to whether installed to serve particular property site. - Water mains are not installed to serve a particular property site under this exemption when the water mains are the property of the county prior to and after installation; are installed upon property over which the county gains a permanent easement; when, once operational, the water mains serve new residential customers; when the water mains are installed in such a way as readily to permit extensions to adjoining areas as the need arises; when, as the county is developed, the water mains are extended and become an additional network of the county water system; and when, once installed, the water mains are part of the general water system of the county used for general distribution purposes. Blackmon v. DeKalb Pipeline Co., 127 Ga. App. 395 , 193 S.E.2d 635 (1972).

Federal Excise Tax

Section does not apply to excise taxes included in sales price and gross price. - This section is construed in harmony with other provisions of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), so that federal excise taxes as used in this section refer only to those federal excise taxes which are not included in sale price and gross sales. Undercofler v. Capital Auto. Co., 111 Ga. App. 709 , 143 S.E.2d 206 (1965).

Tax Injunction Act. - Tax Injunction Act, 28 U.S.C. § 1341, did not bar jurisdiction for a court to consider a challenge to O.C.G.A. § 48-8-3 and the statute's exemption from sales tax of certain religious books and papers because the plaintiffs did not seek to rewrite Georgia law but only asked the court to restrain further application of the exemption, which would actually enrich the state's coffers rather than deplete those coffers. Budlong v. Graham, 414 F. Supp. 2d 1222 (N.D. Ga. 2006).

Although a preliminary injunction was properly entered in a challenge to exemptions of religious items from sales tax of O.C.G.A. § 48-8-3(15)(A), and (16) without a hearing because the state tax official was not denied an opportunity to present contentions, it was error to consolidate the matter with final disposition without a hearing under Fed. R. Civ. P. 65(a)(2) without consent of the official; thus, a motion to reconsider was appropriate to set aside the consolidation pursuant to N.D. Ga. R. 7.2(E). Budlong v. Graham, 488 F. Supp. 2d 1245 (N.D. Ga. 2006).

Transportation Charges

Purpose of exemption for transportation charges. - Purpose of Ga. L. 1953, Jan.-Feb. Sess., p. 182, § 1 is merely to exclude the sale of such services from the sales tax, not from use tax. Colonial Pipeline Co. v. Undercofler, 115 Ga. App. 58 , 153 S.E.2d 592 (1967).

Inconsequential Sales Incident to Service Transactions

When skilled service is the object of transaction, property incidentally furnished is exempt. - When the furnishing of tangible personal property constitutes part of a personal service transaction in which skilled service in the preparation thereof is more the object of the transaction than inconsequential items of tangible personal property for which no separate charges are made, such items are exempt from sales tax. Hawes v. Dimension, Inc., 122 Ga. App. 190 , 176 S.E.2d 602 (1970).

Purchase to be transferred to another in providing a service is a taxable retail transaction, even though the actual consumption of the item is made by the recipient of the service or by the recipient's customer. Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 , 73 S.E.2d 749 (1952); L.M. Berry & Co. v. Blackmon, 129 Ga. App. 347 , 199 S.E.2d 610 (1973), aff'd, 231 Ga. 659 , 203 S.E.2d 520 (1974).

Subject to sales tax when purchased in state. - Purchase of property to be used in providing a service is a retail purchase, and if made within the state it is a taxable purchase subject to the sales tax on retail sales within the state. L.M. Berry & Co. v. Blackmon, 231 Ga. 659 , 203 S.E.2d 520 (1974).

Subject to use tax when purchased outside state. - Purchase of tangible personal property in another state to be transferred to one in this state in the course of providing a service under a contract executed and performed in this state is subject to use tax, even though the transfer incident to the service transaction is exempt under Ga. L. 1951, p. 360. L.M. Berry & Co. v. Blackmon, 231 Ga. 659 , 203 S.E.2d 520 (1974).

Actual cost or monetary value of materials used is not determinative. - In determining whether sale of materials used is an inconsequential element of the service transaction, or whether the service rendered is part of the sale, the actual cost or monetary value of materials used is not determinative. Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 , 73 S.E.2d 749 (1952).

Shoe repairs may reasonably be said to fall within the category of personal service transactions. Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 , 73 S.E.2d 749 (1952).

Sale of steel dies to a manufacturer is not a personal service transaction when such dies are used by the manufacturer until disposed of. Mead Corp. v. Strickland, 247 Ga. 495 , 276 S.E.2d 586 (1981).

Agricultural Machinery

Intent as to exemption of portable multipurpose drying barns. - This section reveals no distinct and clear intention on the part of the General Assembly to exempt from taxation portable multipurpose drying barns used for the storage of crops. Chilivis v. Dixon, 234 Ga. 703 , 217 S.E.2d 283 (1975).

Portable crop drying units (tobacco barns) are not farm equipment exclusively used in harvesting crops and are, therefore, not exempt from sales tax. Nimmer v. Strickland, 242 Ga. 430 , 249 S.E.2d 233 (1978).

Aircraft, etc., Used by Common Carriers in Interstate Commerce

Determination as to whether carrier is private or common. - If there is a question as to whether a carrier is a private or common carrier, it is to be determined by facts relating to whether the business is public business or employment, and whether the service is to be rendered to all indifferently, and whether one has held oneself out as so engaged, so as to make the carrier liable for a refusal to accept the employment offered. In re Ga. Air, Inc., 345 F. Supp. 636 (N.D. Ga. 1972).

Status as a common carrier is a factual question and cannot be forced on one by legislative fiat. In re Ga. Air, Inc., 345 F. Supp. 636 (N.D. Ga. 1972).

Machinery Directly Used in Manufacturing

Term "machinery" in O.C.G.A. § 48-8-3 is more expansive than the term "machine," in that the term "machinery" embraces both those parts of a machine which do generate or distribute power, as well as those parts of a machine which do not generate or distribute power. Amoena Corp. v. Strickland, 248 Ga. 496 , 283 S.E.2d 894 (1981).

Molds are not machines in themselves, but are part of tax-exempt machinery under O.C.G.A. § 48-8-3 , used in manufacturing prosthetic devices. Amoena Corp. v. Strickland, 248 Ga. 496 , 283 S.E.2d 894 (1981).

Repair and replacement parts. - Since the 2000 version of O.C.G.A. § 48-8-3 for the first time expressly exempted repair and replacement parts from taxation, it followed that such parts were not exempt under the 1994 version; consequently, the trial court properly granted the Department of Revenue partial summary judgment on the issue. Inland Paperboard & Packaging, Inc. v. Ga. Dep't of Revenue, 274 Ga. App. 101 , 616 S.E.2d 873 (2005).

The 1997 version of O.C.G.A. § 48-8-3 does not exempt machinery repair parts from sales tax but at best the language might have created some ambiguity that "replacement components" could include repair parts, but an exemption had to be expressed unambiguously; furthermore, in 2000, the legislature made it clear that the 1997 statute did not extend the exemption to machinery repair parts. Ga. Dep't of Revenue v. Owens Corning, 283 Ga. 489 , 660 S.E.2d 719 (2008).

This section is intended to create tax advantages for machinery purchased for new or expanded industry. Hawes v. Institutional Packers of Am., Inc., 117 Ga. App. 243 , 160 S.E.2d 459 (1968).

Exemption construed in taxing authority's favor. - Application of this exemption has been narrowly restricted in accordance with the general proposition that in interpreting tax exemptions all doubts must be resolved in favor of the taxing authority. Southwire Co. v. Chilivis, 139 Ga. App. 329 , 228 S.E.2d 295 (1976).

Direct use is measured by actual use, not essentialness to operation. - Test of whether equipment is used directly within the meaning of this exemption is not whether the property is essential to the operation of the plant, but whether it is an actual part of the process of manufacture. Blackmon v. Screven County Indus. Dev. Auth., 131 Ga. App. 265 , 205 S.E.2d 497 (1974).

Absence of intervening agency, not whether machinery actually touches or affects product. - Test as to direct use is not whether the substance generated by the machinery in question touched or directly affected the product. Rather, one test for direct use in manufacture is the absence of such an intervening agency. Blackmon v. Screven County Indus. Dev. Auth., 131 Ga. App. 265 , 205 S.E.2d 497 (1974).

One test for direct use in manufacture is the absence of an intervening agency. Southwire Co. v. Chilivis, 139 Ga. App. 329 , 228 S.E.2d 295 (1976).

Devices used to affect the environment of goods in manufacture are not used directly in manufacturing. Southwire Co. v. Chilivis, 139 Ga. App. 329 , 228 S.E.2d 295 (1976).

Definition of "manufacturing process." - For this section, the manufacturing process has been defined by the commissioner consisting of a series of separate operations at a fixed location whereby, through the application of machines and labor to raw material or materials at any stage of becoming finished, tangible, personal property, the form or composition of the material or materials is significantly changed. Chilivis v. Marble Prods. Co., 135 Ga. App. 187 , 217 S.E.2d 441 (1975).

What constitutes direct use. - When the machinery does not directly effect the chemical change in the raw material, but rather, the electrical current creates an electron imbalance within the electrolytic cell, which causes a chemical and physical change in the raw material, and the machinery simply modifies and transmits this electrical current, the equipment is not used directly in the manufacture of tangible personal property. Southwire Co. v. Chilivis, 139 Ga. App. 329 , 228 S.E.2d 295 (1976).

Industrial Materials, Packaging, etc.

Intent. - Intention of the General Assembly is that materials merely used in processing should not be excluded from the operation of Ga. L. 1951, p. 360. Undercofler v. Macon Linen Serv., Inc., 114 Ga. App. 231 , 150 S.E.2d 703 (1966).

Growth of living substances can be part of an industrial process when it is but one stage in the development of the end product and when the growth itself is so artificially controlled as to be unnatural. Blackmon v. J.D. Jewell, Inc., 126 Ga. App. 679 , 191 S.E.2d 621 (1972).

Lithographic plates used by printing company are not exempt. Chilivis v. Stein, 141 Ga. App. 536 , 233 S.E.2d 881 (1977).

Sale of scrap copper is exempt, but sale of the new product to the customer is taxable as a sale of tangible personal property at retail. Southwire Co. v. Chilivis, 139 Ga. App. 329 , 228 S.E.2d 295 (1976).

Laundering operations are in the nature of maintenance or service operations and the starch is not "impregnated into the product at any stage of its processing". Undercofler v. Macon Linen Serv., Inc., 114 Ga. App. 231 , 150 S.E.2d 703 (1966).

Industrial materials used to coat or impregnate a product at any stage of the product's manufacture are exempt even if the materials may later be removed in another manufacturing process. Hawes v. Bibb Mfg. Co., 224 Ga. 141 , 160 S.E.2d 355 (1968).

What constitutes packaging for shipment or sale. - Cabinets and dispensers furnished by a linen company to the company's customers are not containers used for packaging personal property for shipment or sale within the meaning of this section's exemption. Undercofler v. Macon Linen Serv., Inc., 114 Ga. App. 231 , 150 S.E.2d 703 (1966).

Bottles and cases for milk and soft drinks are exempt containers used for packaging tangible personal property for shipment and sale. Undercofler v. Buck, 107 Ga. App. 870 , 132 S.E.2d 157 (1963).

Sale of Antipollution Machinery and Equipment

Exemption applies to ultimate owner, not contractor. - Contractor purchasing waste water treatment equipment, who is not the ultimate owner of the water pollution control facility, is subject to sales tax. Indian River Constr. Co. v. Beloit Passavant Corp., 241 Ga. 282 , 244 S.E.2d 814 (1978).

Regulations permitting payment of tax by contractor and refund to ultimate owner. - This section is broad enough to authorize the commissioner to issue regulations requiring the contractor to remit the tax on pollution control equipment and allowing the ultimate owner to file a claim for refund since the contractor will presumably be able to pass this cost on to the ultimate owner. Eimco BSP Servs. Co. v. Chilivis, 241 Ga. 263 , 244 S.E.2d 829 (1978).

Pollutant Waste Used in Recycling or Burning Process

Legislative intent. - This exemption is intended for industrial raw materials used in the process of manufacturing tangible personal property for sale, which previously became wasteful by-products, but which now, with the advent of stricter pollution control standards, are being recycled or burned and used as a source of energy. Eimco BSP Servs. Co. v. Chilivis, 241 Ga. 263 , 244 S.E.2d 829 (1978).

Drugs Dispensed by Prescription and Prescription Eyeglasses and Contact Lenses

Contact lenses must be pursuant to prescription. - O.C.G.A. § 48-8-3(47) applies only to transactions involving a sale of contact lenses pursuant to a prescription. CIBA Vision Corp. v. Jackson, 248 Ga. App. 688 , 548 S.E.2d 431 (2001).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Sale of natural gas by a municipality is not exempt from the sales tax. 1950-51 Op. Att'y Gen. p. 407.

Agricultural commodity commissions are subject to taxes imposed under Ga. L. 1951, p. 360. 1975 Op. Att'y Gen. No. 75-136.

Sale of electricity to subscribers by a rural electric membership corporation is subject to sales tax at the rate of 3 percent of the total charges billed to such subscribers for electric service, regardless of whether the corporation utilizes 20 percent of such revenues to amortize federal loans or otherwise. 1967 Op. Att'y Gen. No. 67-377.

Middle Georgia Coliseum Authority is subject to Ga. L. 1951, p. 360 unless exempted by some provision of law. 1965-66 Op. Att'y Gen. No. 65-46.

Sales to State or Federal Government

.

Purpose of exemption. - Basic purpose of the exemption in this section is to relieve public institutions from the imposition and payment of the sales and use taxes and to exempt sales when the sale is to or the use is by a public instrumentality, i.e., an instrumentality of the state, city, or county. 1954-56 Op. Att'y Gen. p. 867.

Nonprofit corporation which does not receive any governmental appropriation is not exempt from taxation. 1971 Op. Att'y Gen. No. U71-112.

Sale made directly to department of this state is immune, and it may not pay erroneously imposed sales tax. 1970 Op. Att'y Gen. No. 70-28.

Sales to a contractor for use in performing a contract with the United States are not exempt, though sales to the United States are. 1960-61 Op. Att'y Gen. p. 553.

Subcontractor doing work for state owes sales tax. - Independent contractor who receives a subcontract from one who is doing work for the state must pay sales taxes on materials purchased. 1954-56 Op. Att'y Gen. p. 841.

Departments of state liable for taxes imposed by other jurisdictions. - Sales occurring in other states are subject to foreign statutes, which may or may not exempt sales made to a sister state. Absent such exemption, departments of this state are liable for payment of sales taxes imposed by other states. 1970 Op. Att'y Gen. No. 70-28.

What entities within exemption. - Federal credit unions are not subject, as consumers, to sales and use taxes. 1954-56 Op. Att'y Gen. p. 848.

Incorporated athletic associations, that are managed by public high school authorities, that are instrumentalities of the school board, and that derive at least some of their financial support from public funds, are exempt from payment of sales tax. 1954-56 Op. Att'y Gen. p. 867.

Purchases made by schools of supplies for their own use are not subject to sales tax. 1954-56 Op. Att'y Gen. p. 868.

Southern Governors' Conference is a cooperative agency of the chief executives of the southern states, and purchases by its various agencies are equivalent to purchases by the Executive Department of this state, and are exempt from sales and use tax. 1960-61 Op. Att'y Gen. p. 547.

Officer and noncommissioned officer clubs are instrumentalities of the United States and immune from state taxation. 1960-61 Op. Att'y Gen. p. 550.

Purchases by Southern Interstate Nuclear Board are equivalent to purchases by state and are exempt from sales and use taxes. 1962 Op. Att'y Gen. p. 555.

Purchases by the nonappropriated Athletic Fund of the Board of Corrections are not subject to sales tax. 1960-61 Op. Att'y Gen. p. 551 (decided under Ga. L. 1951, p. 360).

Sales to the University Hospital, Augusta, Georgia, are exempt. 1954-56 Op. Att'y Gen. p. 850.

American National Red Cross is not liable for Georgia sales tax on its purchases because it is a federal instrumentality for purposes of immunity from state taxation. 1980 Op. Att'y Gen. No. 80-28.

Purchases by a corporation operating a golfing facility on a municipally-owned course are subject to sales tax. 1969 Op. Att'y Gen. No. 69-208.

Georgia Seed Development Commission taxable. - Since the Georgia Seed Development Commission does not operate with appropriated government funds, it is subject to taxes imposed under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1971 Op. Att'y Gen. No. 71-72.

Federal Excise Tax

.

Federal gallonage tax on intoxicating liquors is an excise tax. Therefore, it is excluded in computation of gross sales for sales tax purposes, provided that it is billed to the consumer separately from the selling price. 1954-56 Op. Att'y Gen. p. 851.

Sales to Nonprofit Hospitals, Nursing Homes, etc.

.

Registration with commissioner necessary for exempt status. - Nonprofit organizations are not, because of their status as such, exempt from sales and use taxes. When the organization is not registered with the commissioner as a dealer, one who sells to it must collect the tax. 1971 Op. Att'y Gen. No. U71-143.

Sales to University System of Georgia

.

Exemption of purchases made with donated funds. - Since the Woman's College of Georgia is an educational unit of the University System of Georgia, it can make purchases tax free from any funds which the Foundation of the Woman's College of Georgia, Inc. might donate to it. 1965-66 Op. Att'y Gen. No. 66-221.

Sales to Private Colleges or Universities

.

Category of sales transactions exempted. - Exemption for sales of property to be used exclusively for educational purposes by certain colleges and universities does not exempt a type of property but a category of sales transactions. The sales tax is a transaction tax imposed upon retail sales of tangible personal property and not a property tax. Thus, this exemption applies only to sales transactions in which the purchaser is a private college or university within the meaning of the provision who uses the property or services exclusively for educational purposes. 1980 Op. Att'y Gen. No. 80-101.

Sales to Private Elementary and Secondary Schools

.

Instruction must be considered equal substitute for that received in public schools. - School which does not provide general instruction for children which could be considered an equal substitute for instruction received in public schools is not entitled to a sales tax exemption. 1968 Op. Att'y Gen. No. 68-270.

Sales by Religious Institutions or Denominations

.

Exemption of sales of religious papers inapplicable to purchases by publishing organization. - Ga. L. 1953, Jan.-Feb. Sess., p. 182, § 1 does not provide an exemption of purchases made by organizations publishing religious papers. Only the sale of the religious paper itself is exempted. 1952-53 Op. Att'y Gen. p. 480; 1954-56 Op. Att'y Gen. p. 866.

Sale of Fuel and Supplies Used by Ships

.

Exemption inapplicable to fishing ships. - This section relieves such ships as are engaged in trade between ports in this state and ports in other states of the United States or its possessions. Even assuming that fishing ships ply the high seas, such ships do not fall within the exemption provided in this section. 1954-56 Op. Att'y Gen. p. 853.

Sales of Transportation Equipment

.

Apparent intent behind O.C.G.A. § 48-8-3(32) was to provide for situations when due to size or other reasons the vehicle could not reasonably be removed by means other than its own motive power. The exemption would prevent the purchaser from being deemed to have taken delivery in Georgia (so as to incur tax liability) and put the purchaser on the same basis as other nonresident purchasers taking delivery outside Georgia. 1980 Op. Att'y Gen. No. 80-164.

Ordinary meaning of the phrase "under its own power" is "under its own motive power." 1980 Op. Att'y Gen. No. 80-164.

Trailer could not qualify for exemption. 1980 Op. Att'y Gen. No. 80-164.

Transportation Charges

.

Exemption inapplicable to transportation services incident to a sale. - Transportation costs are properly included in the total amount for which the property is sold as services which are part of the sale. The exemption provided for in Ga. L. 1953, Jan.-Feb. Sess., p. 182, § 1 applies solely to those charges made for transportation services by a carrier, not incident to a sale of goods by the carrier. 1970 Op. Att'y Gen. No. 70-94.

Lease or rental of vehicles not considered as rendering of transportation services. - Leasing or renting of trucks by lumber companies is subject to payment of the state sales tax, notwithstanding the fact that the goods transported are in interstate commerce, since it cannot be considered the rendering of transportation services, but is, in effect, a lease. 1952-53 Op. Att'y Gen. p. 242.

Inconsequential Sales Incident to Service Transactions

.

Personal service transactions which involve no sales are not within the meaning of "retail sales" or "sales at retail." 1952-53 Op. Att'y Gen. p. 236.

Control is test as to whether property deemed leased or used in rendering personal service. - When the owner of a bulldozer furnishing earth-moving services is at all times in complete control and direction of the machine, the transaction constitutes merely the rendition of personal services and is not a leasing of the property so as to be subject to payment of the state sales tax. 1952-53 Op. Att'y Gen. p. 236.

"Color separations" purchased by department stores for use in printing various advertising materials do not fall within sales and use tax exception of O.C.G.A. § 48-8-3 . 1981 Op. Att'y Gen. No. 81-93.

Use of bank computers by customers for consideration, when customers have complete control over operation for an allotted time, is a lease or rental of computers and is subject to Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1969 Op. Att'y Gen. No. 69-128.

Sale of Seed, Fertilizer, Animal Feed, and Related Goods

.

What constitutes feed for livestock. - Block salt constitutes feed for livestock and is therefore exempt from payment of state sales tax. 1952-53 Op. Att'y Gen. p. 236.

Food for bees kept for production of honey is not exempt since bees are not considered livestock within the legislative intent in granting an exemption. 1962 Op. Att'y Gen. p. 553.

Dog food is feed for a pet and not for livestock, and hence is not exempt from sales tax. 1957 Op. Att'y Gen. p. 318.

What property exempt. - Portable feed mill does not fall within Ga. L. 1951, p. 360, nor any other exemption. 1954-56 Op. Att'y Gen. p. 831.

Use of seeds and fertilizer to maintain a golf course is not exempt. 1969 Op. Att'y Gen. No. 69-208.

Industrial Materials, Packaging, and Other Items

.

Test for exemption of property used in industrial processes. - In order for tangible personal property to be exempt under Ga. L. 1951, p. 360, it must meet three tests: (1) it must be industrial material; (2) it must not be machinery or machinery repair parts; and (3) it must be used directly in the fabrication, converting, or processing of articles of tangible personal property or parts thereof for resale. 1950-51 Op. Att'y Gen. p. 414.

If the functional purpose of the material is product-related either as a component or as coating or impregnating material, even though removed prior to sale, it is exempt. Use for some other and distinct purpose is not sufficient for this exemption, even though the material is incidentally absorbed or coated upon the product. 1970 Op. Att'y Gen. No. 70-100.

What constitutes exempt industrial materials. - Filtering cloths used in manufacturing processes are not exempt from application of sales and use tax. To be entitled to an exempt status, the material must be coated upon or impregnated into the finished product. 1962 Op. Att'y Gen. p. 557.

Natural gas used in producing barium carbonate is not exempt under the sales tax. 1950-51 Op. Att'y Gen. p. 416.

Knitting needles and "jacks" are not such industrial materials as are exempt under Ga. L. 1951, p. 360. 1950-51 Op. Att'y Gen. p. 417.

Applicability of sales and use taxes to containers should be dealt with by regulations of the commissioner. 1957 Op. Att'y Gen. p. 320.

What constitutes packaging. - Milk bottles and cartons are exempt from the sales tax. 1950-51 Op. Att'y Gen. p. 410.

Advertising supplements purchased by department stores for insertion into local newspapers do not fall within the sales and use tax exception provided for certain "industrial materials" by O.C.G.A. § 48-8-3 . 1981 Op. Att'y Gen. No. 81-93.

Advertising supplement does not become a component part of the newspaper for purposes of O.C.G.A. § 48-8-3 ; it is a finished product when completed by the printer, and the advertising's inclusion within the newspaper is only for distribution purposes. 1981 Op. Att'y Gen. No. 81-93.

Purchase of material from out-of-state printers for distribution in Georgia. - Purchase by department stores within Georgia of advertising materials from out-of-state printers, shipped by printers to designated in-state direct mailing services, and distributed by such services to the stores' customers in Georgia constitutes "use" in Georgia by the stores within the meaning of O.C.G.A. § 48-8-2(12) . 1981 Op. Att'y Gen. No. 81-93.

Sale of Antipollution Machinery and Equipment

.

Mere certification by pollution control agency insufficient when primary purpose is not pollution control. - Board of tax assessors must exempt property used in or a part of any facility which has been certified by a pollution control agency as necessary and adequate to eliminate or reduce air or water pollution, if it finds from all the circumstances surrounding the case that the facility was installed for the primary purpose of eliminating or reducing pollution. If it finds that the facility, even though certified, was not installed or constructed for that primary purpose, but for another purpose, such as increasing production, with only an incidental intent to control pollution, then it must find that the exemption does not apply. 1969 Op. Att'y Gen. No. 69-325.

What constitutes antipollution machinery or equipment. - Purchase of soda ash (commercial anhydrous sodium carbonate) for use in reducing or eliminating water pollution is not exempt from sales tax as soda ash is neither machinery nor equipment. 1973 Op. Att'y Gen. No. U73-18.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 86, 90, 91, 96, 99 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 243 et seq., 266.

ALR. - State tax on goods purchased by, or for the benefit of, the federal government, or on the privilege of conducting the business in connection with which the sales are made, 56 A.L.R. 587 ; 140 A.L.R. 621 .

Co-operative corporations or associations formed by producers of agricultural products as within provisions of taxing statutes regarding agricultural products or producers, 100 A.L.R. 439 .

Deductibility of freight charges in determining amount of gross sales or receipts for purposes of statutes making gross sales or receipts the subject or measure of a tax, 102 A.L.R. 768 .

Exemption of charitable organization from taxation or special assessment, 108 A.L.R. 284 .

What is a municipal corporation within constitutional or statutory tax exemption provisions, 108 A.L.R. 577 .

Construction and application of terms in tax statute, "compounding," "preparing," "distilling," and the like, descriptive of the production or processing of food, drugs, or other chemical products, 108 A.L.R. 1074 .

Hospital as within tax exemption provision not specifically naming hospitals, 144 A.L.R. 1483 .

Computation of sales tax, 150 A.L.R. 1311 .

Tax exemption of property of religious, educational, or charitable body as extending to property or income thereof used in publication or sale of literature, 154 A.L.R. 895 .

Construction and application of exemption or deduction provision of general sales tax act, 157 A.L.R. 804 .

What transactions constitute a "sale" within operation of sales tax law provision defining a sale as including a transfer of possession, license to use, or words to that effect, 172 A.L.R. 1317 .

Tax exemptions and the contract clause, 173 A.L.R. 15 .

Sale or use tax as within tax exemption provisions of statutes other than those imposing such taxes, 1 A.L.R.2d 465.

Applicability of sales tax to judicial or bankruptcy sales, 27 A.L.R.2d 1219.

Items or materials exempt from use tax as used in manufacturing, processing, or the like, 30 A.L.R.2d 1439.

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in Constitution, 61 A.L.R.2d 1031.

Validity of use tax exemption having no complementary exemption under sales tax, 85 A.L.R.2d 1043.

Validity and construction of provision exempting from use tax property which is "not readily obtainable" in the state, 88 A.L.R.2d 811.

Sales or use tax: deduction or exemption of discount or premium in computing amount of sales, 90 A.L.R.2d 338.

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

Sales and use taxes: exemption of casual, isolated, or occasional sales, 42 A.L.R.3d 292.

Exemption of religious organization from sales or use tax, 54 A.L.R.3d 1204.

Validity of municipal admission tax for college football games or other college sponsored public events, 60 A.L.R.3d 1027.

Applicability of sales tax to "tips" or service charges added in lieu of tips, 73 A.L.R.3d 1226.

What constitutes direct use within meaning of statute exempting from sales and use taxes equipment directly used in production of tangible personal property, 3 A.L.R.4th 1129.

Eyeglasses or other optical accessories as subject to sales or use tax, 14 A.L.R.4th 1370.

What constitutes newspapers, magazines, periodicals, or the like, under sales or use tax law exemption, 25 A.L.R.4th 750.

Architectural drawings or illustrations as exempt from sales or use tax, 27 A.L.R.5th 794.

Sales and use tax exemption for medical supplies, 30 A.L.R.5th 494.

Exemption of charitable or educational organization from sales or use tax, 69 A.L.R.5th 477.

Items or materials exempt from use tax as becoming component part or ingredient of manufactured or processed article, 89 A.L.R.5th 493.

Parts and supplies used in repair as subject to sales and use taxes, 113 A.L.R.5th 313.

Cable television equipment or services as subject to sales or use tax, 23 A.L.R.6th 165.

Validity, construction, and application of sales, use, and utility taxes on retail transactions of internet sellers and internet access providers, 30 A.L.R.6th 341.

48-8-3.1. Exemptions as to motor fuels.

  1. Except as provided in subsection (b) of this Code section, sales of motor fuels as defined in paragraph (9) of Code Section 48-9-2 shall be exempt from the state sales and use taxes levied or imposed by this article.
  2. Sales of motor fuel, other than gasoline, purchased for purposes other than propelling motor vehicles on public highways as defined in Article 1 of Chapter 9 of this title shall be fully subject to the state sales and use taxes levied or imposed by this article unless otherwise specifically exempted by this article.
  3. It is specifically declared to be the intent of the General Assembly that taxation imposed on sales of motor fuel wholly or partially subject to taxation under this Code section shall not constitute motor fuel taxes for purposes of any provision of the Constitution providing for the automatic or mandatory appropriation of any amount of funds equal to funds derived from motor fuel taxes. (Code 1981, § 48-8-3.1 , enacted by Ga. L. 1989, p. 62, § 4; Ga. L. 2015, p. 236, § 5-4/HB 170.)

The 2015 amendment, effective July 1, 2015, in subsection (a), substituted "state sales" for "first 3 percent of the sales" near the end and deleted "and shall be subject to the remaining 1 percent of the sales and use taxes levied or imposed by this article" following "this article" at the end; and, in subsection (b), substituted "fuel, other than gasoline," for "fuel other than gasoline which motor fuel other than gasoline is" near the beginning and substituted "state sales" for "4 percent sales" near the end. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-8-3.2. Definitions; exemption; applicability; examples.

  1. As used in this Code section, the term:
    1. "Consumable supplies" means tangible personal property, other than machinery and industrial materials, that is consumed or expended during the manufacture of tangible personal property. The term includes, but is not limited to, water treatment chemicals for use in, on, or in conjunction with machinery or equipment and items that are readily disposable. The term excludes packaging supplies and energy.
    2. "Energy" means natural or artificial gas, oil, gasoline, electricity, solid fuel, wood, waste, ice, steam, water, and other materials necessary and integral for heat, light, power, refrigeration, climate control, processing, or any other use in any phase of the manufacture of tangible personal property. The term excludes energy purchased by a manufacturer that is primarily engaged in producing electricity for resale.
    3. "Equipment" means tangible personal property, other than machinery and industrial materials. The term includes durable devices and apparatuses that are generally designed for long-term continuous or repetitive use. The term also includes consumable supplies. Examples of equipment include, but are not limited to, machinery clothing, cones, cores, pallets, hand tools, tooling, molds, dies, waxes, jigs, patterns, conveyors, safety devices, and pollution control devices. The term includes components and repair or replacement parts. The term excludes real property.
    4. "Fixtures" means tangible personal property that has been installed or attached to land or to any building thereon and that is intended to remain permanently in its place. A consideration for whether tangible property is a fixture is whether its removal would cause significant damage to such property or to the real property to which it is attached. Fixtures are classified as real property. Examples of fixtures include, but are not limited to, plumbing, lighting fixtures, slabs, and foundations.
    5. "Industrial materials" means materials for future processing, manufacture, or conversion into articles of tangible personal property for resale when the industrial materials become a component part of the finished product. The term also means materials that are coated upon or impregnated into the product at any stage of its processing, manufacture, or conversion, even though such materials do not remain a component part of the finished product for sale. The term includes raw materials.
    6. "Local sales and use tax" means any sales tax, use tax, or local sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; and by or pursuant to any article of this chapter.
    7. "Machinery" means an assemblage of parts that transmits force, motion, and energy one to the other in a predetermined manner to accomplish a specific objective. The term includes a machine and all of its components, including, but not limited to, belts, pulleys, shafts, gauges, gaskets, valves, hoses, pipes, wires, blades, bearings, operational structures attached to the machine, including stairways and catwalks, or other devices that are required to regulate or control the machine, allow access to the machine, or enhance or alter its productivity or functionality. The term includes repair or replacement parts. The term excludes real property and consumable supplies.
    8. "Machinery clothing" means felts, screen plates, wires, or any other items used to carry, form, or dry work in process through the manufacture of tangible personal property.
    9. "Manufacture of tangible personal property," used synonymously with the term "manufacturing," means a manufacturing operation, series of continuous manufacturing operations, or series of integrated manufacturing operations engaged in at a manufacturing plant or among manufacturing plants to change, process, transform, or convert industrial materials by physical or chemical means into articles of tangible personal property for sale, for promotional use, or for further manufacturing that have a different form, configuration, utility, composition, or character. The term includes, but is not limited to, the storage, preparation, or treatment of industrial materials; assembly of finished units of tangible personal property to form a new unit or units of tangible personal property; movement of industrial materials and work in process from one manufacturing operation to another; temporary storage between two points in a continuous manufacturing operation; random and sample testing that occurs at a manufacturing plant; and a packaging operation that occurs at a manufacturing plant.
    10. "Manufacturer" means a person or business, or a location of a person or business, that is engaged in the manufacture of tangible personal property for sale or further manufacturing. To be considered a manufacturer, the person or business, or the location of a person or business, must be:
      1. Classified as a manufacturer under the 2007 North American Industrial Classification System Sectors 21, 31, 32, or 33, or North American Industrial Classification System industry code 22111 or specific code 511110; or
      2. Generally regarded as being a manufacturer.

        Businesses that are primarily engaged in providing personal or professional services or in the operation of retail outlets, generally including, but not limited to, grocery stores, pharmacies, bakeries, or restaurants, are not considered manufacturers.

    11. "Manufacturing plant" means any facility, site, or other area where a manufacturer engages in the manufacture of tangible personal property.
    12. "Packaging operation" means bagging, boxing, crating, canning, containerizing, cutting, measuring, weighing, wrapping, labeling, palletizing, or other similar processes necessary to prepare or package manufactured products in a manner suitable for sale or delivery to customers as finished goods or suitable for the transport of work in process at or among manufacturing plants for further manufacturing, and the movement of such finished goods or work in process to a storage or distribution area at a manufacturing plant.
    13. "Packaging supplies" means materials, including, but not limited to, containers, labels, sacks, boxes, wraps, fillers, cones, cores, pallets, or bags, used in a packaging operation solely for packaging tangible personal property.
    14. "Real property" means land, any buildings thereon, and any fixtures attached thereto.
    15. "Repair or replacement part" means a part for any machinery or equipment that is necessary and integral to the manufacture of tangible personal property. Repair or replacement parts must be used to maintain, repair, restore, install, or upgrade such machinery or equipment that is necessary and integral to the manufacture of tangible personal property. Examples of repair and replacement parts may include, but are not limited to, oils, greases, hydraulic fluids, coolants, lubricants, machinery clothing, molds, dies, waxes, jigs, and other interchangeable tooling.
    16. "Substantial purpose" means the purpose for which an item of tangible personal property is used more than one-third of the time of the total amount of time that the item is in use; alternatively, instead of time, the purpose may be measured in terms of other applicable criteria, including, but not limited to, the number of items produced.
  2. The sale, use, or storage of machinery or equipment which is necessary and integral to the manufacture of tangible personal property and the sale, use, storage, or consumption of industrial materials or packaging supplies shall be exempt from all sales and use taxation.
    1. Except as otherwise provided in paragraph (4) of this subsection, the sale, use, storage, or consumption of energy which is necessary and integral to the manufacture of tangible personal property at a manufacturing plant in this state shall be exempt from all sales and use taxation except for the sales and use tax for educational purposes levied pursuant to Part 2 of Article 3 of this chapter and Article VIII, Section VI, Paragraph IV of the Constitution and except for local sales and use taxes for educational purposes authorized by or pursuant to local constitutional amendment. This exemption shall be phased in over a four-year period as follows:
      1. For the period commencing January 1, 2013, and concluding at the last moment of December 31, 2013, such sale, use, storage, or consumption of energy shall be exempt from an amount equal to 25 percent of the total amount of state sales and use tax that would be collected at the rate of 4 percent on such sale, use, storage, or consumption of energy and shall be exempt from an amount equal to 25 percent of the total amount of each local sales and use tax that would be collected at the rate of 1 percent on such sale, use, storage, or consumption of energy;
      2. For the period commencing January 1, 2014, and concluding at the last moment of December 31, 2014, such sale, use, storage, or consumption of energy shall be exempt from an amount equal to 50 percent of the total amount of state sales and use tax that would be collected at the rate of 4 percent on such sale, use, storage, or consumption of energy and shall be exempt from an amount equal to 50 percent of the total amount of each local sales and use tax that would be collected at the rate of 1 percent on such sale, use, storage, or consumption of energy;
      3. For the period commencing January 1, 2015, and concluding at the last moment of December 31, 2015, such sale, use, storage, or consumption of energy shall be exempt from an amount equal to 75 percent of the total amount of state sales and use tax that would be collected at the rate of 4 percent on such sale, use, storage, or consumption of energy and shall be exempt from an amount equal to 75 percent of the total amount of each local sales and use tax that would be collected at the rate of 1 percent on such sale, use, storage, or consumption of energy; and
      4. On or after January 1, 2016, such sale, use, storage, or consumption of energy shall be fully exempt from such sales and use taxation.
      1. Any person making a sale of items qualifying for exemption under paragraph (1) of this subsection shall be relieved of the burden of proving such qualification if the person making the sale receives a certificate from the purchaser certifying that the purchase is exempt under this subsection.
      2. Any person who qualifies for the exemption under paragraph (1) of this subsection shall notify and certify to the person making the qualified sale that such exemption is applicable to the sale.
    3. With respect to services which are regularly billed on a monthly basis, the exemption under paragraph (1) of this subsection shall become effective with respect to and the exemption shall apply to services billed on or after January 1, 2013.
    4. If a competitive project of regional significance under paragraph (93) of Code Section 48-8-3 is started in a county or municipality, it shall not be subject to the phase-in period contained in subparagraphs (A), (B), and (C) of paragraph (1) of this subsection, but such project shall receive the full exemption provided for in subparagraph (D) of paragraph (1) of this subsection notwithstanding the January 1, 2016, limitation in that subparagraph.
  4. The exemptions under this Code section shall be applied as follows:
    1. The manufacture of tangible personal property commences as industrial materials are received at a manufacturing plant and concludes once the packaging operation is complete and the tangible personal property is ready for sale or shipment, regardless of whether the manufacture of tangible personal property occurs at one or more separate manufacturing plants;
    2. For machinery or equipment that has multiple purposes, some purposes necessary and integral to the manufacture of tangible personal property and some purposes not necessary and integral to the manufacture of tangible personal property, the substantial purpose of such machinery or equipment will prevail for purposes of determining the eligibility for exemption. The commissioner shall consider any reasonable methodology for measuring the substantial purpose of machinery or equipment for which the substantial purpose is not readily identifiable;
    3. For leased machinery or equipment that did not qualify for an exemption at the date of lease inception and subsequently qualifies for the exemption under this Code section, the exemption shall apply to all lease payments made subsequent to such qualification;
    4. Miscellaneous spare parts for which the ultimate use of the spare parts is unknown at the time of purchase are eligible for the exemption as repair or replacement parts. However, use tax must be accrued and remitted if spare parts are withdrawn from the inventory of spare parts and used for any purpose other than to maintain, repair, restore, install, or upgrade machinery or equipment that is necessary and integral to the manufacture of tangible personal property; and
    5. Energy necessary and integral to the manufacture of tangible personal property includes energy used to operate machinery or equipment, to create conditions necessary for the manufacture of tangible personal property, or to perform an actual part of the manufacture of tangible personal properly; energy used in administrative or other ancillary activities that are located and performed at the manufacturing plant so long as such activities primarily benefit such manufacture of tangible personal property; energy used in related operations that convey, transport, handle, or store raw materials or finished goods at the manufacturing plant; energy used for heating, cooling, ventilation, illumination, fire safety or prevention, and personal comfort and convenience of the manufacturer's employees at the manufacturing plant; and energy used for any other purpose at a manufacturing plant.
  5. Examples that qualify as necessary and integral to the manufacture of tangible personal property include, but are not limited to:
    1. Machinery or equipment used to convey or transport industrial materials, work in process, consumable supplies, or packaging materials at or among manufacturing plants or to convey and transport finished goods to a distribution or storage point at the manufacturing plant. Specific examples may include, but are not limited to, forklifts, conveyors, cranes, hoists, and pallet jacks;
    2. Machinery or equipment used to gather, arrange, sort, mix, measure, blend, heat, cool, clean, or otherwise treat, prepare, or store industrial materials for further manufacturing;
    3. Machinery or equipment used to control, regulate, heat, cool, or produce energy for other machinery or equipment that is necessary and integral to the manufacture of tangible personal property. Specific examples may include, but are not limited to, boilers, chillers, condensers, water towers, dehumidifiers, humidifiers, heat exchangers, generators, transformers, motor control centers, solar panels, air dryers, and air compressors;
    4. Testing and quality control machinery or equipment located at a manufacturing plant used to test the quality of industrial materials, work in process, or finished goods;
    5. Starters, switches, circuit breakers, transformers, wiring, piping, and other electrical components, including associated cable trays, conduit, and insulation, located between a motor control center and exempt machinery or equipment or between separate units of exempt machinery or equipment;
    6. Machinery or equipment used to maintain, clean, or repair exempt machinery or equipment;
    7. Machinery or equipment used to provide safety for the employees working at a manufacturing plant, including, but not limited to, safety machinery and equipment required by federal or state law, gloves, ear plugs, face masks, protective eyewear, hard hats or helmets, or breathing apparatuses;
    8. Machinery or equipment used to condition air or water to produce conditions necessary for the manufacture of tangible personal property, including pollution control machinery or equipment and water treatment systems;
    9. Pollution control, sanitizing, sterilizing, or recycling machinery or equipment;
    10. Industrial materials bought for further processing in the manufacture of tangible personal property for sale or further processing or any part of the industrial material or by-product thereof which becomes a wasteful product contributing to pollution problems and which is used up in a recycling or burning process;
    11. Machinery or equipment used in quarrying and mining activities, including blasting, extraction, and crushing;
    12. Until July 1, 2020, maintenance and replacement parts for machinery or equipment, stationary or in transit, used to mix, agitate, and transport freshly mixed concrete in a plastic and unhardened state, including but not limited to mixers and components, engines and components, interior and exterior operational controls and components, hydraulics and components, all structural components, and all safety components, provided that sales and use taxes on motor fuel used as energy in a concrete mixer truck shall not be exempt or refundable; and
    13. Energy used at a manufacturing plant. (Code 1981, § 48-8-3.2 , enacted by Ga. L. 2012, p. 257, § 5-2/HB 386; Ga. L. 2014, p. 229, § 1/HB 900; Ga. L. 2017, p. 568, § 1/HB 247.)

The 2017 amendment, effective July 1, 2017, deleted "and" at the end of paragraph (e)(11); added paragraph (e)(12); and redesignated former paragraph (e)(12) as present paragraph (e)(13).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, "or after January 1, 2013" was substituted for "or after the effective date of this Code section" at the end of paragraph (c)(3) and "paragraph (93)" was substituted for "paragraph (92)" in paragraph (c)(4).

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Georgia St. U.L. Rev. 112 (2012).

48-8-3.3. Definitions; applicability; criteria for eligibility; rules and regulations; dealer performing both manufacturing and agricultural operations; exemption; audits; annual report.

  1. As used in this Code section, the term:
      1. "Agricultural machinery and equipment" means machinery and equipment used in the production of agricultural products, including, but not limited to, machinery and equipment used in the production of poultry and eggs for sale, including, but not limited to, equipment used in the cleaning or maintenance of poultry houses; in hatching and breeding of poultry and the breeding of livestock and equine; in production, processing, and storage of fluid milk for sale; in drying, ripening, cooking, further processing, or storage of agricultural products, including, but not limited to, orchard crops; in production of livestock and equine for sale; by a producer of poultry, eggs, fluid milk, equine, or livestock for sale; for the purpose of harvesting agricultural products to be used on the farm by that producer as feed for poultry, equine, or livestock; in tilling the soil or in animal husbandry; machinery and equipment used exclusively for irrigation of agricultural products, including, but not limited to, fruit, vegetable, and nut crops regardless of whether the irrigation machinery or equipment becomes incorporated into real property; and machinery and equipment used to cool agricultural products in storage facilities.
      2. "Agricultural machinery and equipment" shall mean farm tractors and attachments to the tractors; off-road vehicles used primarily in the production of nursery and horticultural crops; self-propelled fertilizer or chemical application equipment sold to persons engaged primarily in producing agricultural products for sale and which are used exclusively in tilling, planting, cultivating, and harvesting agricultural products, including growing, harvesting, or processing onions, peaches, blackberries, blueberries, or other orchard crops, nursery, and other horticultural crops; devices and containers used in the transport and shipment of agricultural products; aircraft exclusively used for spraying agricultural crops; pecan sprayers, pecan shakers, and other equipment used in harvesting pecans sold to persons engaged in the growing, harvesting, and production of pecans; and off-road equipment and related attachments which are sold to or used by persons engaged primarily in the growing or harvesting of timber and which are used exclusively in site preparation, planting, cultivating, or harvesting timber. Equipment used in harvesting shall include all off-road equipment and related attachments used in every forestry procedure starting with the severing of a tree from the ground until and including the point at which the tree or its parts in any form has been loaded in the field in or on a truck or other vehicle for transport to the place of use. Such off-road equipment shall include, but not be limited to, skidders, feller bunchers, debarkers, delimbers, chip harvesters, tub-grinders, woods cutters, chippers of all types, loaders of all types, dozers, mid-motor graders, and the related attachments; grain bins and attachments to grain bins regardless of whether such grain bins or attachments are incorporated into real property; any repair, replacement, or component parts installed on agricultural machinery and equipment; trailers used to transport agricultural products; all-terrain vehicles and multipassenger rough-terrain vehicles; and any other off-road vehicles used in the production of agricultural or horticultural products.
      1. "Agricultural operations" is used synonymously with the term "agricultural purposes" and means the following activities:
        1. Raising, growing, harvesting, or storing of crops, including, but not limited to, soil preparation and crop production services such as plowing, fertilizing, seed bed preparation, planting, cultivating, and crop protecting services;
        2. Feeding, breeding, or managing livestock, equine, or poultry;
        3. Producing or storing feed for use in the production of livestock, including, but not limited to, cattle, calves, swine, hogs, goats, sheep, equine, and rabbits, or for use in the production of poultry, including, but not limited to, chickens, hens, ratites, and turkeys;
        4. Producing plants, trees, fowl, equine, or other animals;
        5. Producing aquacultural, horticultural, viticultural, silvicultural, grass sod, dairy, livestock, poultry, egg, and apiarian products;
        6. Processing poultry;
        7. Post-harvest services on crops with the intent of preparing them for market or further processing, including but not limited to crop cleaning, drying, shelling, fumigating, curing, sorting, grading, packing, ginning, canning, pickling, and cooling;
        8. Slaughtering poultry and other animals; and
        9. Manufacturing dairy products.
      2. "Agricultural operations" excludes constructing, installing, altering, repairing, dismantling, or demolishing real property structures or fixtures, including, but not limited to, grain bins, irrigation equipment, and fencing.

      (2.1) "Agricultural products" means items produced by agricultural operations. Agricultural products are considered grown in this state if such products are grown, produced, or processed in this state, whether or not such products are composed of constituent products grown or produced outside this state.

    3. "Agricultural production inputs" means seed; seedlings; plants grown from seed, cuttings, or liners; fertilizers; insecticides; livestock and poultry feeds, drugs, and instruments used for the administration of such drugs; fencing products and materials used to produce agricultural products regardless of whether the fencing products or materials become incorporated into real property; fungicides; rodenticides; herbicides; defoliants; soil fumigants; plant growth regulating chemicals; desiccants, including, but not limited to, shavings and sawdust from wood, peanut hulls, fuller's earth, straw, and hay; feed for animals, including, but not limited to, livestock, fish, equine, hogs, or poultry; sugar used as food for honeybees kept for the commercial production of honey, beeswax, and honeybees; cattle, hogs, sheep, equine, poultry, or bees when sold for breeding purposes; ice or other refrigerants, including, but not limited to, nitrogen, carbon dioxide, ammonia, and propylene glycol used in the processing for market or the chilling of agricultural products in storage facilities, rooms, compartments, or delivery trucks; materials, containers, crates, boxes, labels, sacks, bags, or bottles used for packaging agricultural products when the product is either sold in the containers, sacks, bags, or bottles directly to the consumer or when such use is incidental to the sale of the product for resale; and containers, plastic, canvas, and other fabrics used in the care and raising of agricultural products or canvas used in covering feed bins, silos, greenhouses, and other similar storage structures.

      (3.1) "Animal" shall be synonymous with livestock and means living organisms that are commonly regarded as farm animals, organisms that produce tangible personal property for sale, or organisms that are processed, manufactured, or converted into articles of tangible personal property for sale. The term does not include living organisms that are commonly regarded as domestic pets or companion animals.

    4. "Energy used in agriculture" means fuels used for agricultural purposes, other than fuels subject to prepaid tax as defined in Code Section 48-8-2. The term includes, but is not limited to, off-road diesel, propane, butane, electricity, natural gas, wood, wood products, or wood by-products; liquefied petroleum gas or other fuel used in structures in which broilers, pullets, or other poultry are raised, in which swine are raised, in which dairy animals are raised or milked or where dairy products are stored on a farm, in which agricultural products are stored, and in which plants, seedlings, nursery stock, or floral products are raised primarily for the purposes of making sales of such plants, seedlings, nursery stock, or floral products for resale; electricity or other fuel for the operation of an irrigation system which is used on a farm exclusively for the irrigation of agricultural products; and electricity or other fuel used in the drying, cooking, or further processing of raw agricultural products, including, but not limited to, food processing of raw agricultural products.
    5. "Qualified agricultural producer" includes producers of agricultural products who meet one of the following criteria:
      1. The person or entity is the owner or lessee of agricultural land or other real property from which $5,000.00 or more of agricultural products in aggregate were produced and sold during the year, including payments from government sources;
      2. The person or entity is in the business of performing agricultural operations and has provided $5,000.00 of such services during the year;
      3. The person or entity is in the business of producing long-term agricultural products from which there might not be annual income, including, but not limited to, timber, pulpwood, orchard crops, pecans, livestock, and horticultural or other multiyear agricultural or farm products. Applicants must demonstrate that sufficient volumes of such long-term agricultural products will be produced which have the capacity to generate in aggregate at least $5,000.00 in annualized sales in the future; or
      4. The person or entity must establish, to the satisfaction of the Commissioner of Agriculture, that the person or entity is actively engaged in the production of agricultural products and has or will have created sufficient volumes to generate in aggregate at least $5,000.00 in annualized sales.
  2. The sales and use taxes levied or imposed by this article shall not apply to sales to, or use by, a qualified agricultural producer of agricultural production inputs, energy used in agriculture, and agricultural machinery and equipment.
  3. The Commissioner of Agriculture shall require applicants to acknowledge and produce, upon request, at least one of the following forms to determine eligibility under this Code section:
    1. Business activity on IRS schedule F (Profit or Loss from Farming);
    2. Farm rental activity on IRS form 4835 (Farm Rental Income and Expenses) or schedule E (Supplemental Income and Loss);
    3. IRS Form 4797;
    4. IRS Form 1065; or
    5. IRS Form 1120 or 1120(s).

      If an applicant does not file any of the forms provided for in this subsection but claims eligibility for the exemption certificate pursuant to the criteria specified in paragraph (5) of subsection (a) of this Code section, the applicant shall provide to the Commissioner of Agriculture any documentation, tax returns, forms, or sales receipts required by the Commissioner of Agriculture and the commissioner, in his or her discretion, shall determine if the applicant has met such eligibility requirements in determining whether to issue or deny the issuance of the certificate.

    1. Qualified agricultural producers that meet the criteria provided for in paragraph (5) of subsection (a) of this Code section must apply to the Commissioner of Agriculture to request an agricultural sales and use tax exemption certificate that contains an exemption number. Upon request, the qualified agricultural producer shall also produce the form or forms requested by the Commissioner of Agriculture under subsection (c) of this Code section to the commissioner. Such application shall be in a form prescribed by the Commissioner of Agriculture and shall contain, among other information, a warning to the agricultural producer of the consequences for providing false information on the application or for unauthorized use or misuse of the exemption applied for, an acknowledgment by the agricultural producer that the Commissioner of Agriculture is authorized, by the submission of the application, to share the information contained therein with the department, and an acknowledgment by the agricultural producer that records of purchases of qualified agricultural products exempt from sales and use tax shall be maintained and shall, upon request, be furnished to the Commissioner of Agriculture and the commissioner.
    2. The Commissioner of Agriculture shall not issue or renew an agricultural sales and use tax exemption until the agricultural producer requesting such certificate has provided the Commissioner of Agriculture with a valid state taxpayer identification number obtained through the Department of Revenue's Georgia Tax Center.
    3. Any agricultural sales and use tax exemption certificate issued or renewed on or after January 1, 2019, shall be valid for three years. In order to have staggered renewal dates for such three-year certificates, the Commissioner of Agriculture shall, by rules and regulations, establish a schedule for the orderly renewal of existing certificates and shall prorate the application or renewal fee specified in paragraph (4) of subsection (e) of this Code section for the initial period, if less than three years, so renewed.
    4. To facilitate the use of the exemption certificate, a wallet sized card containing the producer's name, address, exemption number, and expiration date shall be issued by the Commissioner of Agriculture. Notwithstanding that exemption certificates are renewed for three-year periods, the Commissioner of Agriculture shall, upon renewal, issue a card each year that such certificate is in effect.
    1. The Commissioner of Agriculture and the commissioner are authorized to cooperate in the promulgation of rules and regulations governing the issuance of agricultural exemption certificates and the administration and enforcement of this Code section.
    2. A seller shall, upon the first use of a new or renewed tax exemption certificate during any calendar year, verify that such certificate is valid by reviewing the producer's certificate. A seller shall be authorized to continue to honor the tax exemption certificate unless the seller receives actual notice of a suspension or revocation. A seller is prohibited from allowing the sales tax exemption if the producer cannot provide a valid tax exemption certificate.
    3. If an agricultural producer knowingly uses a tax exemption certificate unlawfully, the Commissioner of Agriculture, after verifying the unlawful use of the tax exemption certificate, and subject to notice and a hearing in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," shall suspend the certificate for up to one year. If a subsequent unlawful use is knowingly made within five years following the end of the suspension, the Commissioner of Agriculture, after notice and hearing, shall determine if the certificate should be revoked. Any agricultural producer who has had his or her certificate revoked pursuant to this paragraph shall not be eligible for the issuance of a new tax exemption certificate until three years from the date of such revocation.
    4. The Commissioner of Agriculture is authorized to establish an oversight board and direct staff and is authorized to charge a fee of $150.00 per three-year issuance or renewal.
    1. The department, in conjunction with the Department of Agriculture, is authorized to conduct audits, as necessary, to monitor compliance with the provisions of this Code section.
    2. The department and the Department of Agriculture shall, and are hereby authorized to, share information that is necessary to efficiently administer and enforce the provisions of this Code section. Any information shared for these purposes, if confidential, shall retain its character as confidential and privileged information. The furnishing of information as permitted by this Code section shall not be deemed to change the confidential character of the information furnished. Any person who divulges any confidential information obtained under this Code section shall be subject to the same civil and criminal penalties as provided for divulgence of confidential information by employees of the department.
    3. Upon issuance of a new or renewed tax exemption certificate, the Department of Agriculture shall provide the applicant with informational material detailing the lawful use of the tax exemption certificate. Any seller of tax exempt products under this Code section shall also be provided with such informational material. Any person who knowingly uses such certificate unlawfully shall be subject to any civil or criminal penalties authorized by law in addition to the suspension or revocation of such certificate.
  7. A dealer that performs both manufacturing and agricultural operations at a single place of business may avail itself of the exemptions under either Code Section 48-8-3.2 or this Code section, but not both, for that place of business in any one calendar year.
  8. Notwithstanding subsection (c) of Code Section 48-8-63, contractors shall not incur any use tax on:
    1. Tangible personal property that a qualified agricultural producer purchases tax-exempt under this Code section and furnishes to such contractor for use in the performance of an agricultural operation, so long as such property retains the character of tangible personal property and is returned to the qualified agricultural producer upon the completion of the contract; or
    2. Grain bins, irrigation equipment, and fencing or the repair, replacement, or component parts to grain bins, irrigation equipment, or fencing that a qualified agricultural producer purchases tax-exempt under this Code section for use in an agricultural operation and furnishes to such contractor for installation into real property.
  9. The Department of Agriculture shall prepare an annual report for the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee detailing the activity in administering and enforcing the provisions of this Code section. The report shall include but not be limited to the:
    1. Number of new tax exemption certificates issued;
    2. Number of renewed tax exemption certificates issued; and
    3. Number of tax exemption certificates revoked or suspended due to knowingly unlawful activity. (Code 1981, § 48-8-3.3 , enacted by Ga. L. 2012, p. 257, § 5-3/HB 386; Ga. L. 2013, p. 7, § 5/HB 266; Ga. L. 2014, p. 288, § 1/HB 983; Ga. L. 2016, p. 429, § 1/HB 822; Ga. L. 2018, p. 338, § 1/HB 886.)

The 2016 amendment, effective July 1, 2016, deleted "state" following "subject to prepaid" in the first sentence of paragraph (a)(4).

The 2018 amendment, effective May 3, 2018, substituted "$5,000.00" for "$2,500.00" and inserted "in aggregate" throughout paragraph (a)(5); inserted "livestock," in the first sentence of subparagraph (a)(5)(C); substituted "annualized sales" for "annually" in subparagraphs (a)(5)(C) and (a)(5)(D); added the ending undesignated paragraph following paragraph (c)(5); in subsection (d), designated the existing first and second sentences as paragraph (d)(1), in paragraph (d)(1), in the second sentence, inserted "also" and inserted "or forms", added the third sentence, added paragraphs (d)(2) and (d)(3), designated the former third sentence of subsection (d) as paragraph (d)(4); in paragraph (d)(4), substituted "wallet sized card containing the producer's name, address, exemption number, and expiration date shall be issued" for "wallet-sized card containing that same information shall also be issued" in the first sentence, and added the second sentence; designated the existing first sentence of subsection (e) as paragraph (e)(1); in paragraph (e)(1), substituted "and the commissioner are authorized to cooperate in the promulgation of" for "is authorized to promulgate", inserted "and enforcement", added paragraphs (e)(2) and (e)(3), designated the former second sentence of subsection (e) as paragraph (e)(4), and rewrote; substituted the present provisions of subsection (f) for the former provisions, which read: "The commissioner is authorized to promulgate rules and regulations as necessary to facilitate compliance with and the administration of the provisions of this Code section. The department, in conjunction with the Department of Agriculture, is authorized to conduct audits, as necessary, to monitor compliance with the provisions of this Code section."; and added subsection (i).

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act." This Act became effective January 1, 2013.

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act." This Act became effective January 1, 2013.

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Ga. L. 2014, p. 288, § 3/HB 983, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2015, and shall be applicable to all taxable years beginning on or after January 1, 2015."

Law reviews. - For article on the 2012 enactment of this Code section, see 29 Georgia St. U.L. Rev. 112 (2012).

48-8-3.4. Maximum amount of sales and use tax on boats; annual reporting; termination.

  1. As used in this Code section, the term:
    1. "Boat" means a vehicle used or capable of being used as a means of transportation on the water.
    2. "Event" means an uninterrupted period of time beginning when a boat arrives at a maintenance, refit, or repair facility in this state and ending when such boat departs such facility.
  2. Notwithstanding any other provision of this article, the maximum amount of sales and use tax imposed and collected to maintain, refit, or repair a boat in this state during a single event shall not exceed $35,000.00.
  3. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section, including, but not limited to, calling for an annual report to be issued to the department and the chairpersons of the House Committee on Ways and Means and the Senate Finance Committee that contains the following:
    1. The number of full-time and part-time positions created by the seller during the preceding tax year;
    2. The average salary of individuals employed in the reported positions; and
    3. The total revenue generated and sales and use taxes collected from qualifying events during the preceding year.
  4. This Code section shall be automatically repealed on June 30, 2025. (Code 1981, § 48-8-3.4 , enacted by Ga. L. 2017, p. 155, § 1/HB 125.)

Effective date. - This Code section became effective July 1, 2017.

48-8-3.5. Taxation on sale or use of jet fuel.

  1. The sale or use of jet fuel that is pumped into an aircraft in this state and the use of jet fuel that is pumped into an aircraft in another state shall be exempt from all sales and use tax except such tax levied:
    1. By the state pursuant to Code Section 48-8-30 at a rate that shall not exceed 4 percent;
    2. Pursuant to Article 2 of this chapter by a jurisdiction in which a sales and use tax was levied on jet fuel on December 30, 1987, at a rate that shall not exceed the rate in effect on December 30, 1987; and
    3. Pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," by a jurisdiction in which such tax was levied on jet fuel on December 30, 1987, at a rate that shall not exceed the rate in effect on December 30, 1987.
  2. For the period of time beginning December 1, 2018, and ending at the last moment of June 30, 2019, the sale or use of jet fuel that is pumped into an aircraft in this state and the use of jet fuel that is pumped into an aircraft in another state shall be exempt from the sales and use tax levied by the state pursuant to Code Section 48-8-30.
  3. To the extent required to comply with 49 U.S.C. Sections 47107(b) and 47133, revenue derived from the levy of sales and use taxes on jet fuel and other fuels sold or used at an airport for aviation purposes shall be used for a state aviation program or airport related purposes. Any portion of such revenue so derived which is not required or exceeds the amount required for purposes of such compliance with federal law may be appropriated for other purposes as provided by law.
  4. The commissioner shall adopt rules and regulations to carry out the provisions of this Code section. (Code 1981, § 48-8-3.5 , enacted by Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-3/HB 5EX.)

Effective date. - This Code section became effective December 1, 2018.

48-8-4. Nonapplicability of use tax to agricultural products, poultry, and livestock used by producer.

The use tax shall not apply to livestock, livestock products, poultry, poultry products, farm products, and agricultural products produced by the farmer and used by him and the members of his family.

(Ga. L. 1951, p. 360, § 12; Code 1933, § 91A-4515, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 168 et seq., 187.

48-8-5. Exemption of agricultural commodities not sold as finished product to ultimate consumer; "agricultural commodity" defined.

  1. For the purposes of this Code section, the term "agricultural commodity" means horticultural, poultry, and farm products and livestock and livestock products.
  2. Each agricultural commodity sold by any person other than a producer to any other person who purchases not for direct consumption but for the purpose of acquiring raw products for use or for sale in the process of preparing, finishing, or manufacturing the agricultural commodity for the ultimate retail consumer trade is exempted from all provisions of this article including payment of the tax applicable to the sale, storage, use, transfer, or any other utilization or handling of the commodity, except when the commodity is actually sold as a marketable or finished product to the ultimate consumer.

    (Ga. L. 1951, p. 360, § 12; Code 1933, § 91A-4516, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Retail sales are not exempt. - Retail sales by farmers or any other persons, including those who buy from the farmer and resell to the public, and those merchants who employ persons to operate stalls on the premises of state farmers' markets, are subject to sales tax. 1969 Op. Att'y Gen. No. 69-260.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 80, 86, 187.

ALR. - Legislative power to exempt from taxation property, purposes, or uses additional to those specified in Constitution, 61 A.L.R.2d 1031.

48-8-6. Prohibition of political subdivisions from imposing various taxes; ceiling on local sales and use taxes; taxation of mobile telecommunications.

  1. There shall not be imposed in any jurisdiction in this state or on any transaction in this state local sales taxes, local use taxes, or local sales and use taxes in excess of 2 percent. For purposes of this prohibition, the taxes affected are any sales tax, use tax, or sales and use tax which is levied in an area consisting of less than the entire state, however authorized, including such taxes authorized by or pursuant to constitutional amendment, except that the following taxes shall not count toward or be subject to such 2 percent limitation:
    1. A sales and use tax for educational purposes exempted from such limitation under Article VIII, Section VI, Paragraph IV of the Constitution;
    2. Any tax levied for purposes of a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Georgia Laws, 1964, page 1008; the continuation of such amendment under Article XI, Section I, Paragraph IV(d) of the Constitution; and the laws enacted pursuant to such constitutional amendment; provided, however, that the exception provided for under this paragraph shall only apply:
      1. In a county in which a tax is being imposed under subparagraph (a)(1)(D) of Code Section 48-8-111 in whole or in part for the purpose or purposes of a water capital outlay project or projects, a sewer capital outlay project or projects, a water and sewer capital outlay project or projects, water and sewer projects and costs as defined under paragraph (4) of Code Section 48-8-200, or any combination thereof and with respect to which the county has entered into an intergovernmental contract with a municipality, in which the average waste-water system flow of such municipality is not less than 85 million gallons per day, allocating proceeds to such municipality to be used solely for water and sewer projects and costs as defined under paragraph (4) of Code Section 48-8-200. The exception provided for under this subparagraph shall apply only during the period the tax under such subparagraph (a)(1)(D) is in effect. The exception provided for under this subparagraph shall not apply in any county in which a tax is being imposed under Article 2A of this chapter;
      2. In a county in which the tax levied for purposes of a metropolitan area system of public transportation is first levied after January 1, 2010, and before January 1, 2021. Such tax shall not apply to the following:
        1. The sale or use of jet fuel; and
        2. The sale of motor vehicles; or
      3. In a county in which a tax is levied and collected pursuant to Part 2 of Article 2A of this chapter;
    3. In the event of a rate increase imposed pursuant to Code Section 48-8-96, only the amount in excess of the initial 1 percent sales and use tax and in the event of a newly imposed tax pursuant to Code Section 48-8-96, only the amount in excess of a 1 percent sales and use tax;
    4. A sales and use tax levied under Article 4 of this chapter;
    5. Either a sales and use tax levied under Article 5 of this chapter or a sales and use tax levied under Article 5B of this chapter;
    6. A sales and use tax levied under Article 5A of this chapter; and
    7. A sales and use tax levied under Article 2 of Chapter 9 of Title 32.

      If the imposition of any otherwise authorized local sales tax, local use tax, or local sales and use tax would result in a tax rate in excess of that authorized by this subsection, then such otherwise authorized tax may not be imposed.

  2. Reserved.
  3. Where the exception specified in paragraph (2) of subsection (a) of this Code section applies, the tax imposed under subparagraph (a)(1)(D) of Code Section 48-8-111 shall not apply to the sale of motor vehicles.

    (c.1) Where the exception specified in paragraph (2) of subsection (a) of this Code section applies, on and after July 1, 2007, the aggregate amount of all excise taxes imposed under paragraph (5) of subsection (a) of Code Section 48-13-51 and all sales and use taxes shall not exceed 14 percent.

  4. Notwithstanding any law or ordinance to the contrary, any tax, charge, or fee levied by any political subdivision of this state and applicable to mobile telecommunications services, as defined in Section 124(7) of the federal Mobile Telecommunications Sourcing Act, 4 U.S.C. Section 124(7), shall apply only if the customer's place of primary use is located within the boundaries of the political subdivision levying such local tax, charge, or fee. For purposes of this subsection, the provisions of Code Section 48-8-13 shall apply in the same manner and to the same extent as such provisions apply to the tax levied by Code Section 48-8-1 on mobile telecommunications services. This subsection shall not be construed to authorize the imposition of any tax, charge, or fee.

    (Ga. L. 1951, p. 360, § 25; Ga. L. 1965, p. 451, § 3; Ga. L. 1971, p. 85, § 1A; Ga. L. 1971, p. 95, § 1; Ga. L. 1975, p. 984, § 1; Ga. L. 1975, p. 1002, § 6; Ga. L. 1977, p. 744, § 5; Code 1933, § 91A-4534, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 3, § 37; Ga. L. 1985, p. 232, § 3; Ga. L. 2002, p. 576, § 1; Ga. L. 2002, p. 970, § 1; Ga. L. 2003, p. 665, § 13; Ga. L. 2004, p. 69, § 5; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2010, p. 662, § 3/HB 1221; Ga. L. 2010, p. 778, § 5/HB 277; Ga. L. 2010, p. 813, § 1/HB 1393; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2014, p. 475, § 1/HB 1009; Ga. L. 2014, p. 649, § 2/HB 265; Ga. L. 2015, p. 217, § 1/HB 215; Ga. L. 2015, p. 236, § 7-4/HB 170; Ga. L. 2018, p. 377, § 1-2/HB 930; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-4/HB 5EX.)

The 2015 amendments. The first 2015 amendment, effective May 4, 2015, in subparagraph (a)(2)(A), substituted "such subparagraph" for "said subparagraph" in the second sentence and deleted "or" at the end of subparagraph (a)(2)(A); in division (a)(2)(B)(i), substituted "this state" for "the state" near the end; inserted "or" at the end of division (a)(2)(B)(ii); and added subparagraph (a)(2)(C). The second 2015 amendment, effective July 1, 2015, in subsection (a), deleted "and" at the end of paragraph (a)(4), substituted "; and" for a period at the end of paragraph (a)(5), and added paragraph (a)(6). See Editor's notes for applicability.

The 2018 amendment, effective January 1, 2019, substituted "January 1, 2021" for "November 1, 2016" at the end of the first sentence of subparagraph (a)(2)(B); substituted the present provisions of paragraph (a)(5) for the former provisions, which read: "A sales and use tax levied under Article 5 of this chapter; and"; added "; and" at the end of paragraph (a)(6); and added paragraph (a)(7).

The 2018 Ex. Sess. amendment, effective December 1, 2018, deleted "to or by a qualifying airline at a qualifying airport. For purposes of this division, a 'qualifying airline' means any person which is authorized by the Federal Aviation Administration or another appropriate agency of the United States to operate as an air carrier under an air carrier operating certificate and which provides regularly scheduled flights for the transportation of passengers or cargo for hire. For purposes of this division, a 'qualifying airport' means any airport in this state that has had more than 750,000 takeoffs and landings during a calendar year" following "use of jet fuel" in division (a)(2)(B)(i); and rewrote subsection (c), which read: "(c) Where the exception specified in paragraph (2) of subsection (a) of this Code section applies, the tax imposed under subparagraph (a)(1)(D) of Code Section 48-8-111 shall not apply to:

"(1) Reserved; and

"(2) The sale of motor vehicles."

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2002, subsection (c) as enacted by Ga. L. 2002, p. 970, § 1, was redesignated as subsection (d).

Pursuant to Code Section 28-9-5, in 2004, subsection (d) as added by Ga. L. 2004, p. 69, § 5 was redesignated as subsection (c.1).

Pursuant to Code Section 28-9-5, in 2010, subsection (b) was set out as reserved and "paragraph (2) of subsection (a)" was substituted for "paragraph (2) of subsection (b)" in the introductory language of subsection (c) and in subsection (c.1).

Editor's notes. - Ga. L. 2002, p. 970, § 4, not codified by the General Assembly, provides that: "If a court of competent jurisdiction enters a final judgment on the merits that is based on federal law, is no longer subject to appeal, and substantially limits or impairs the essential elements of Sections 116 through 126 of Title 4 U.S.C., then all provisions and applications of this Act are declared to be invalid and have no legal effect as of the date of entry of such judgment."

Ga. L. 2002, p. 970, § 5, not codified by the General Assembly, provides that this Act "shall apply to charges for mobile telecommunications services reflected on customer bills issued on or after August 2, 2002."

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2010, p. 778, § 1/HB 277, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Transportation Investment Act of 2010.'"

Ga. L. 2014, p. 649, § 3/HB 265, not codifed by the General Assembly, provides that the 2014 amendment "shall become effective on June 1, 2014, only if an Act providing for the suspension of restrictions on the use of annual proceeds from sales and use taxes by the Metropolitan Atlanta Rapid Transit Authority and reconstituting the board of directors of the Metropolitan Atlanta Rapid Transit Authority is enacted at the 2014 regular session of the General Assembly." This contingency was met by the passage of HB 264 (Ga. L. 2014, p. 634).

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2018, p. 377, § 5-1(c)/HB 930, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act became effective January 1, 2019.

Law reviews. - For article on the 2004 amendment of this Code section, see 21 Georgia St. U.L. Rev. 226 (2004). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

JUDICIAL DECISIONS

Tax forbidden whether incidence is on seller or purchaser. - This section forbids the imposition of a sales or use tax by a municipality, regardless of whether the legal incidence of such tax is placed on the seller or the purchaser. City of Columbus v. Atlanta Cigar Co., 111 Ga. App. 774 , 143 S.E.2d 416 (1965).

Exception for taxes otherwise authorized by General Assembly is not a grant of power to tax. - This section grants no power. It merely states that the section was not intended as a prohibition upon any otherwise existing power of counties to levy an excise tax upon these items. Chanin v. Bibb County, 234 Ga. 282 , 216 S.E.2d 250 (1975).

Ordinance imposing cigarette tax violates Constitution, this section, and Ch. 11 of this title. - City ordinance which placed a tax on cigarettes sold, stored, or delivered within the municipality was contrary to Ga. L. 1951, p. 360, § 25 (see now O.C.G.A. § 48-8-6 ), former Code 1933, Ch. 92-22 (see now O.C.G.A. Ch. 11, T. 48), and Ga. Const. 1945, Art. I, Sec. IV, Para. I (see now Ga. Const. 1983, Art. III, Sec. VI, Para. IV) which forbid the enactment of special laws for which provision had been made by an existing general law. City of Columbus v. Atlanta Cigar Co., 111 Ga. App. 774 , 143 S.E.2d 416 (1965).

RESEARCH REFERENCES

ALR. - Constitutionality, construction, and application of state and local public-utility-gross-receipts-tax statutes - modern cases, 58 A.L.R.5th 187.

48-8-7. Violation of article; penalty.

  1. It shall be unlawful for any dealer to knowingly and willfully fail, neglect, or refuse to collect the tax provided in this article, either by himself or through his agents or employees.
  2. In addition to the penalty of being liable for and paying the tax himself, any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both.

    (Ga. L. 1951, p. 360, § 12; Code 1933, § 91A-9934, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 181, § 1/HB 1506.)

Editor's notes. - Ga. L. 2006, p. 181, § 5/HB 1506, not codified by the General Assembly, provides that: "This Act shall not apply to any offense committed before July 1, 2006. Any such offense shall be punishable as provided by the statute in effect at the time the offense was committed."

JUDICIAL DECISIONS

Seller or dealer ultimately responsible for collection even though ultimate liability for payment is on purchaser. - Although the ultimate liability for payment of sales and use tax falls upon the purchaser, and although in the event of a failure to pay, the commissioner may proceed against either the purchaser or seller, it is nevertheless the intent of the law that the seller or dealer is the entity responsible for collecting and forwarding the tax, and the dealer's failure to do so subjects the dealer to both civil and criminal penalties in addition to the tax liability. Dittler Bros. v. AMR Int'l, Inc., 142 Ga. App. 570 , 236 S.E.2d 544 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violators. - Those charged with offenses under O.C.G.A. § 48-8-7 are to be fingerprinted. 2007 Op. Att'y Gen. No. 2007-1.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 222.

ALR. - Retailer's failure to pay to government sales or use tax funds as constituting larceny or embezzlement, 8 A.L.R.4th 1068.

48-8-8. Filing false or fraudulent return by dealer under article; penalty.

  1. It shall be unlawful for any dealer required by this article to knowingly and willfully make, render, sign, or verify any return to make a false or fraudulent return with intent to evade the tax levied by this article.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both.

    (Ga. L. 1951, p. 360, § 18; Code 1933, § 91A-9941, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 181, § 2/HB 1506.)

Editor's notes. - Ga. L. 2006, p. 181, § 5/HB 1506, not codified by the General Assembly, provides that: "This Act shall not apply to any offense committed before July 1, 2006. Any such offense shall be punishable as provided by the statute in effect at the time the offense was committed."

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violators. - Those charged with offenses under O.C.G.A. § 48-8-8 are to be fingerprinted. 2007 Op. Att'y Gen. No. 2007-1.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 222.

C.J.S. - 37 C.J.S., Fraud, §§ 12 et seq., 115, 123 et seq. 84 C.J.S., Taxation, §§ 623, 628. 85 C.J.S., Taxation, §§ 1854, 1855, 1865 et seq., 1932.

ALR. - Retailer's failure to pay to government sales or use tax funds as constituting larceny or embezzlement, 8 A.L.R.4th 1068.

48-8-9. Failure by dealer to furnish return under article; penalty.

  1. It shall be unlawful for any dealer subject to this article to knowingly and willfully fail or refuse to furnish any return required to be made by this article or to fail or refuse to furnish a supplemental return or other data required by the commissioner.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both.

    (Ga. L. 1951, p. 360, § 18; Code 1933, § 91A-9940, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 181, § 3/HB 1506.)

Editor's notes. - Ga. L. 2006, p. 181, § 5/HB 1506, not codified by the General Assembly, provides that: "This Act shall not apply to any offense committed before July 1, 2006. Any such offense shall be punishable as provided by the statute in effect at the time the offense was committed."

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violators. - Those charged with offenses under O.C.G.A. § 48-8-9 are to be fingerprinted. 2007 Op. Att'y Gen. No. 2007-1.

Percentage of local option sales and use tax to absent municipality. - Absent municipality cannot be forced under O.C.G.A. § 48-8-89 to accept a smaller percentage of the local option sales and use tax proceeds distributed to all qualified municipalities in the county than the percentage the absent municipality's population is of the total population of all such qualified municipalities, regardless of whether that distribution is pursuant to a negotiated certificate or is based instead on an order by a superior court judge when the necessary parties are unable to agree. 2012 Op. Att'y Gen. No. U12-1.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 120.

ALR. - Retailer's failure to pay to government sales or use tax funds as constituting larceny or embezzlement, 8 A.L.R.4th 1068.

48-8-10. Failure by dealer to keep or to allow inspection of records under article; penalty.

  1. It shall be unlawful for any dealer subject to this article to knowingly and willfully fail to keep records or to fail to open the records to inspection as required by law.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both.

    (Ga. L. 1951, p. 360, § 17; Code 1933, § 91A-9939, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 181, § 4/HB 1506.)

Editor's notes. - Ga. L. 2006, p. 181, § 5/HB 1506, not codified by the General Assembly, provides that: "This Act shall not apply to any offense committed before July 1, 2006. Any such offense shall be punishable as provided by the statute in effect at the time the offense was committed."

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required for violators. - Those charged with offenses under O.C.G.A. § 48-8-10 are to be fingerprinted. 2007 Op. Att'y Gen. No. 2007-1.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 120.

ALR. - Retailer's failure to pay to government sales or use tax funds as constituting larceny or embezzlement, 8 A.L.R.4th 1068.

48-8-11. Violation of any other provision of article; penalty.

  1. It shall be unlawful for any dealer to violate any other provision of this article for which punishment is not otherwise provided.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1951, p. 360, § 18; Code 1933, § 91A-9943, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Only dealers can be penalized under this section. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

Liability of dealers who are corporate officers or employees. - Since a corporate officer or employee may also be a dealer, it is clear that a dealer can violate Ga. L. 1960, p. 210, §§ 1, 2, though by definition only if the dealer is also an officer or employee in charge. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

Defendant cannot assert that acts in the form of corporate acts are not defendant's acts merely because the acts are carried out by the defendant through the instrumentality of the corporation. Bunge v. State, 149 Ga. App. 712 , 256 S.E.2d 23 (1979).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 222.

48-8-12. Refusal by transportation company, agency, firm, or person to allow examination of its books, records, and other documents under article; penalty.

  1. With respect to this article, it shall be unlawful for any transportation company, agency, firm, or person to refuse to permit the examination of its books, records, and other documents by the commissioner as provided by law.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1951, p. 360, § 17; Code 1933, § 91A-9938, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 222.

48-8-13. Taxing jurisdiction for mobile telecommunications services.

  1. For purposes of this Code section, the terms and corresponding definitions set forth in 4 U.S.C. Section 124 shall apply. In addition, as used in this Code section, the term:
    1. "Enhanced ZIP Code" means a United States postal ZIP Code of 9 or more digits.
    2. "Fee" shall include, without limitation, any emergency 9-1-1 charge imposed pursuant to Part 4 of Article 2 of Chapter 5 of Title 46.
    3. "FIPS" means the Federal Information Processing Standard (FIPS) 55-3 or any future enhancement.
    4. "Home service provider" means the facilities based carrier or reseller with which the customer contracts for the provision of mobile telecommunications services.
    5. "Mobile telecommunications service" means commercial mobile radio service, as such term is defined in 47 C.F.R. Section 20.3 as in effect on June 1, 1999, or as subsequently amended.
    6. "Place of primary use" means the street address representative of where the customer's use of the mobile telecommunications service primarily occurs, which must be the residential street address or the primary business street address of the customer. At such time as the state certifies a master street address data base covering all or a portion of the state, addresses within the area so covered shall be identified by FIPS code. If the state has not designated such a data base, a home service provider desiring to be held harmless from any tax, charge, or fee liability under the provisions of 4 U.S.C. Section 120 shall employ an enhanced ZIP Code to assign each street address to a specific taxing jurisdiction for each level of taxing jurisdiction and exercise due diligence at each level of taxing jurisdiction to ensure that each such street address is assigned to the correct taxing jurisdiction. If an enhanced ZIP Code overlaps boundaries of taxing jurisdictions of the same level, the home service provider shall designate one specific jurisdiction within such enhanced ZIP Code for use in taxing the activity for such enhanced ZIP Code for each level of taxing jurisdiction.
    7. "Taxing jurisdiction" means the state or any municipality or county.
  2. Subject to the provisions of 4 U.S.C. Section 116(c), the tax levied by this chapter shall apply only to those charges for mobile telecommunications services subject to tax that are deemed to be provided to a customer by a home service provider pursuant to 4 U.S.C. Section 117(a) if the customer's place of primary use is located within this state, regardless of where the mobile telecommunications services originate, terminate, or pass through.
  3. If a customer believes that an amount of tax, charge, or fee or an assignment of place of primary use or taxing jurisdiction included on a bill under the provisions of this Code section is erroneous, the customer shall notify the home service provider in writing to the address provided as required by subsection (g) of this Code section. The customer shall include in this written notification the street address for the customer's place of primary use, the account name and number for which the customer seeks a correction, a description of the error asserted by the customer, and any other information that the home service provider reasonably requires to process the request. Within 60 days of receiving a notice under this subsection, the home service provider shall review its records to determine the customer's taxing jurisdiction. If this review shows that the amount of tax, charge, or fee or assignment of place of primary use or taxing jurisdiction is in error, the home service provider shall correct the error and refund or credit the amount of tax, charge, or fee erroneously collected from the customer for a period of up to two years. If this review shows that the amount of tax, charge, or fee or assignment of place of primary use or taxing jurisdiction is correct, the home service provider shall provide a written explanation to the customer. The procedures in this subsection shall be the first course of remedy available to customers seeking correction of assignment of place of primary use or taxing jurisdiction or a refund of or other compensation for taxes, charges, or fees erroneously collected by the home service provider, and no cause of action based upon a dispute arising from such taxes, charges, or fees shall accrue until a customer has exhausted the remedies set forth in this subsection.
    1. If a mobile telecommunications service is not subject to the tax levied by this chapter, and if the amount charged for such mobile telecommunications service is aggregated with and not separately stated from the amount paid or charged for any service that is subject to such tax, then the nontaxable mobile telecommunications service shall be treated as being subject to such tax unless the home service provider can reasonably identify the amount paid or charged for the mobile telecommunications service not subject to such tax from its books and records kept in the regular course of business.
    2. If a mobile telecommunications service is not subject to the tax levied by this chapter, a customer may not rely upon the nontaxability of such mobile telecommunications service unless the customer's home service provider separately states the amount charged for such nontaxable mobile telecommunications service or the home service provider elects, after receiving a written request from the customer in the form required by the provider, to provide verifiable data based upon the home service provider's books and records that are kept in the regular course of business that reasonably identify the amount charged for such nontaxable mobile telecommunications service.
    1. A mobile telecommunications services provider who is obligated to remit or pay the tax levied by this chapter shall be held harmless from any liability, including tax, interest, and penalties, which would otherwise be due solely as a result of an assignment of a place of primary use to an incorrect jurisdiction, if the mobile telecommunications services provider satisfies the requirements of 4 U.S.C. Section 120(a).
      1. The department may elect to provide an electronic data base that satisfies the requirements of 4 U.S.C. Section 119. If the department provides such data base, a home service provider using the data contained in such data base shall be held harmless from any liability, including tax, interest, and penalties, which would otherwise be due solely as a result of an assignment of a place of primary use to an incorrect local jurisdiction.
      2. Paragraph (1) of this subsection shall apply to a home service provider who is in compliance with the terms of such paragraph until the later of:
        1. Eighteen months after the approval described in 4 U.S.C. Section 119(a); or
        2. Six months after the department provides an electronic data base that satisfies the requirements of 4 U.S.C. Section 119.
    3. A home service provider shall be responsible for obtaining and maintaining the customer's place of primary use. Subject to paragraph (5) of this subsection, if the home service provider's reliance on information provided by its customer is in good faith:
      1. The home service provider shall be entitled to rely on the applicable residential or business street address supplied by such customer; and
      2. The home service provider shall be held harmless from liability for any additional tax, including any related interest or penalties, which is based on a different determination of such customer's place of primary use.
    4. Except as provided in paragraph (5) of this subsection, a home service provider shall be allowed to treat the address used for purposes of the tax levied by this chapter for any customer under a service contract in effect on August 1, 2002, as that customer's place of primary use for the remaining term of such service contract or agreement, excluding any extension or renewal of such service contract or agreement.
      1. If the department determines that the address used by a home service provider as a customer's place of primary use does not meet the definition of "place of primary use," the department shall notify such customer of such determination and provide such customer an opportunity to demonstrate that such address satisfies such definition.
      2. If the customer fails to demonstrate that the address meets the definition of such customer's place of primary use, the department shall provide the home service provider with the proper address to be used as such customer's place of primary use, and the home service provider shall begin using the address provided by the department as such customer's place of primary use in the next full billing period.
      1. If the department determines that the assignment of a taxing jurisdiction by a home service provider does not reflect the correct taxing jurisdiction, the department shall notify the home service provider of such determination and provide such home service provider an opportunity to demonstrate that the assignment represents the correct taxing jurisdiction.
      2. If the home service provider fails to demonstrate that the assignment reflects the correct taxing jurisdiction, the department shall provide the home service provider with the correct taxing jurisdiction to be used, and the home service provider shall begin using the taxing jurisdiction provided by the department in the next full billing period.
  6. A home service provider shall identify each customer's place of primary use and shall provide at least quarterly a complete listing of the total number of customers to the Georgia Emergency Management and Homeland Security Agency. The home service provider shall indicate in such report whether it is employing an enhanced ZIP Code to assign each street address to a specific taxing jurisdiction so as to qualify for the safe harbor provisions of 4 U.S.C. Section 120. Further, each home service provider shall, upon request, provide information showing the total number of billings and the amount of fees collected to any taxing jurisdiction as to the customers whose place of primary use is within the jurisdiction of such taxing jurisdiction; provided, however, that in no event shall customer identification be required to be released. Such information shall initially be made available not later than July 1, 2006.
  7. A home service provider shall clearly state on each customer bill or invoice the following information:
    1. The taxing jurisdiction to which each tax and fee charged to the customer is paid and the amount paid to each taxing jurisdiction; provided, however, that such information shall initially be made available not later than July 1, 2006; and
    2. An address, telephone number, or electronic method for the customer to send the notification required by subsection (c) of this Code section or otherwise. (Code 1981, § 48-8-13 , enacted by Ga. L. 2002, p. 970, § 2; Ga. L. 2005, p. 660, § 10/HB 470; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2016, p. 91, § 22/SB 416.)

The 2016 amendment, effective July 1, 2016, inserted "and Homeland Security" in the first sentence of subsection (f).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2002, in paragraph (d)(2), "identify" was substituted for "indentifes" and, in subsection (e), "data base" was substituted for "database" in subparagraph (e)(2)(A) and division (e)(2)(B)(ii) and "is" was substituted for "are" in subparagraph (e)(3)(B).

Editor's notes. - Ga. L. 2002, p. 970, § 4, not codified by the General Assembly, provides that: "If a court of competent jurisdiction enters a final judgment on the merits that is based on federal law, is no longer subject to appeal, and substantially limits or impairs the essential elements of Sections 116 through 126 of Title 4 U.S.C., then all provisions and applications of this Act are declared to be invalid and have no legal effect as of the date of entry of such judgment."

Ga. L. 2002, p. 970, § 5, not codified by the General Assembly, provides that this Code section "shall apply to charges for mobile telecommunications services reflected on customer bills issued on or after August 2, 2002."

48-8-14. Restrictions on state contracts with nongovernmental vendors filing or refusing to collect sales or use taxes.

  1. As used in this Code section, the term "state agency" means any authority, board, department, instrumentality, institution, agency, or other unit of state government. The term "state agency" shall not include any county, municipality, or local or regional governmental authority.
  2. On or after April 12, 2005, the Department of Administrative Services and any other state agency shall not enter into a state-wide contract or agency contract for goods or services, or both, in an amount exceeding $100,000.00 with a nongovernmental vendor if the vendor or an affiliate of the vendor is a dealer as defined in Code Section 48-8-2, or meets one or more of the conditions thereunder, but fails or refuses to collect sales or use taxes levied under this chapter on its sales delivered to Georgia.
  3. The Department of Administrative Services and any other state agency may contract for goods or services, or both, with a source prohibited under subsection (b) of this Code section in the event of an emergency or where the nongovernmental vendor is the sole source of such goods or services or both.
  4. The determination of whether a vendor is a prohibited source shall be made by the Department of Revenue, which shall notify the Department of Administrative Services and any other state agency of its determination within three business days of a request for such determination.
  5. Prior to awarding a contract, the Department of Administrative Services and any other state agency to which this article applies shall provide the Department of Revenue the name of the nongovernmental vendor awarded the contract, the name of the vendor's affiliate, and the certificate of registration number as provided for under Code Section 48-8-59 for the vendor and affiliate of the vendor.
  6. The commissioner is specifically authorized to promulgate regulations to implement this Code section. (Code 1981, § 48-8-14 , enacted by Ga. L. 2005, p. 159, § 22/HB 488; Ga. L. 2006, p. 72, § 48/SB 465; Ga. L. 2010, p. 662, § 4/HB 1221.)

Editor's notes. - Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

48-8-15. State sales and use taxes applicable to the liquid propane gas commodity sold and delivered for residential heating; legislative findings; power and duties of commissioner.

  1. The General Assembly finds that:
    1. Liquid propane gas and natural gas are essential commodities used by all Georgians to heat their homes;
    2. There has been a substantial rise in the prices of liquid propane gas and natural gas since adjournment of the 2005 regular session of the General Assembly such that the prices for liquid propane gas and natural gas for 2006 are projected to far exceed the 2005 prices for these commodities;
    3. The significant increase in liquid propane gas and natural gas prices has burdened and will continue to burden financially all Georgians who must use these commodities to heat their homes during the winter months; and
    4. The significant increase in liquid propane gas and natural gas prices for the winter months of 2006 will result in a windfall to the state in the form of surplus sales and use taxes on these commodities.
    1. For the time period commencing as specified in the Executive Order of the Governor dated December 19, 2005, and filed in the official records of the office of the Governor as Executive Order 12.19.05.01 and the time period concluding at the end of the third completed billing cycle ending on or before April 30, 2006, state sales and use taxation pursuant to Code Section 48-8-30 as that tax applies to charges for the natural gas commodity billed for residential use shall be governed by the provisions of this Code section notwithstanding any provisions of Code Section 48-8-30, or any other law, to the contrary.
    2. For the time period commencing as specified in the Executive Order of the Governor dated December 19, 2005, and filed in the official records of the office of the Governor as Executive Order 12.19.05.01 and concluding on the last moment of March 31, 2006, state sales and use taxation pursuant to Code Section 48-8-30 as that tax applies to sales of the liquid propane gas commodity when sold and delivered primarily for residential heating purposes shall be governed by the provisions of this Code section notwithstanding any provisions of Code Section 48-8-30, or any other law, to the contrary.
  3. Sales or use of fuels described in subsection (b) of this Code section shall be exempt from the first 2 percent of the 4 percent state sales and use tax imposed under this chapter and shall be subject to the remaining  2 percent  of the 4 percent state sales and use tax imposed under this chapter. The temporary and partial sales and use tax exemption provided for in this subsection shall not apply to local sales and use taxes levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, known as the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; or by or pursuant to Article 2, 2A, 3, or 4 of Chapter 8 of this title. Such local taxes shall remain applicable to sales of such fuels.
  4. The tax relief required under this Code section with respect to charges for the natural gas commodity billed for residential use shall be credited or otherwise reflected on a consumer's natural gas bill as soon as practicable and shall apply only with respect to charges billed for the natural gas commodity and not for other enumerated charges.
  5. The failure of the dealer to pass through to the purchaser of any of the fuels described in subsection (b) of this Code section the amount of the tax exemptions, decreases, or reduction under this Code section shall constitute an unfair or deceptive act or practice under Part 2 of Article 15 of Chapter 10 of Title 10, the "Fair Business Practices Act," as amended, and shall be subject to enforcement by the administrator of said Part 2 in the same manner as any other act or practice constituting a violation of said Part 2 and subject to the same remedies and penalties as any other act or practice constituting a violation of said Part 2.
  6. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section. (Code 1981, § 48-8-15 , enacted by Ga. L. 2006, p. 1, § 2/HB 970; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised capitalization in paragraphs (b)(1) and (b)(2).

Editor's notes. - Ga. L. 2006, p. 1, § 1/HB 970, not codified by the General Assembly, provides that: "The Executive Order of the Governor dated December 19, 2005, and filed in the official records of the Office of the Governor as Executive Order 12.19.05.01 which suspended the collection of state sales and use taxation in part as that tax applies to the liquid propane gas commodity sold and delivered primarily for residential heating purposes and to charges for the natural gas commodity for residential use is ratified by the General Assembly of Georgia."

48-8-16. Ratification of Executive Order on sale of dyed fuel oils.

  1. The General Assembly finds that:
    1. The price of dyed fuel oils, as used primarily for off-road, agricultural uses, including timber growing or harvesting and mining or construction, has risen substantially; and
    2. This spike in the price of dyed fuel oils has produced an acute strain on Georgia's agricultural, timber growing or harvesting, and mining or construction sectors.
  2. The General Assembly of Georgia ratifies the Executive Order of the Governor dated May 15, 2008, and filed in the official records of the office of the Governor as Executive Order 05.15.08.01 which suspended the collection of state sales and use taxation as that tax applies to the sales of dyed fuel oils as defined in paragraph (5.1) of Code Section 48-9-2 which are used exclusively for agricultural purposes, timber growing or harvesting purposes, or mining or construction purposes and used directly by such industry sectors for such purposes and not for highway use as defined in paragraph (8) of Code Section 48-9-2.
  3. For the time period commencing on May 12, 2008, as specified in the Executive Order of the Governor dated May 15, 2008, and filed in the official records of the office of the Governor as Executive Order 05.15.08.01 and concluding on the last moment of April 30, 2009, state sales and use taxation pursuant to Code Section 48-8-30 as that tax applies to the sale or use of dyed fuel oils, as defined in paragraph (5.1) of Code Section 48-9-2, which are used exclusively for agricultural purposes, timber growing or harvesting purposes, or mining or construction purposes and used directly by such industry sectors for such purposes and not for highway use as defined in paragraph (8) of Code Section 48-9-2 shall be governed by the provisions of this Code section notwithstanding any provisions of Code Section 48-8-30 or any other law to the contrary.
  4. The temporary sales and use tax exemption provided for in this Code section shall not apply to local sales and use taxes levied and imposed in an area consisting of less than the entire state, however authorized, including, but not limited to, such taxes authorized by or pursuant to constitutional amendment; by or pursuant to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, known as the "Metropolitan Atlanta Rapid Transit Authority Act of 1965"; or by or pursuant to Article 2, 2A, 3, or 4 of this chapter. Such local taxes shall remain applicable to sales or uses of such dyed fuel oils.
  5. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section. (Code 1981, § 48-8-16 , enacted by Ga. L. 2009, p. 76, § 1/HB 46; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised capitalization in subsections (b) and (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, "concluding on the last moment of April 30, 2009," was substituted for "concluding on the last moment of the earlier of the last day of the month of the effective date of this act or May 31, 2009," in subsection (c).

48-8-17. Suspension of the collection of taxes on motor fuels and aviation gasoline; ratification of temporary suspension.

  1. The General Assembly finds that:
    1. Motor fuels and aviation gasoline are essential commodities used by Georgians for transportation;
    2. The price of gasoline has fluctuated dramatically since the adjournment of the 2014 General Assembly;
    3. It is the intention of this state to stabilize the rate of taxation on motor fuels and aviation gasoline during periods of volatile price swings; and
    4. Code Section 45-12-22 authorizes the Governor to suspend the collection of taxes, or any part thereof, due the state until the meeting of the next General Assembly.
  2. The General Assembly of Georgia ratifies the Executive Order of the Governor dated December 5, 2014, and filed in the official records of the office of the Governor as Executive Order 12.05.14.02 which suspended commencing on December 5, 2014, the collection of any rate of prepaid state taxes as defined in paragraph (24) of Code Section 48-8-2 to the extent it differs from the rate levied as of June 1, 2014, pursuant to Code Section 48-9-14 as it existed on April 15, 2015, as it applies to sales of motor fuel and aviation gasoline as those terms are defined in Code Section 48-9-2. The period of suspension under this subsection shall conclude at the last moment of December 31, 2015.
  3. The ratification of the temporary suspension of collection of prepaid state tax shall not apply to prepaid local taxes as defined in paragraph (23) of Code Section 48-8-2.
  4. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section. (Code 1981, § 48-8-17 , enacted by Ga. L. 2015, p. 48, § 1/HB 319; Ga. L. 2017, p. 774, § 48/HB 323.)

Effective date. - This Code section became effective April 15, 2015.

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, inserted "as it existed on the effective date of this subsection" in the middle of the first sentence of subsection (b).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2017, "April 15, 2015," was substituted for "on the effective date of this subsection" in the middle of the first sentence of subsection (b).

Editor's notes. - This Code section formerly pertained to the ratification of Executive Order 06.02.08.01 which provided for a temporary prepaid state tax exemption. The former Code section was based on Code 1981, § 48-8-17 , enacted by Ga. L. 2009, p. 84, § 1/HB 121; Ga. L. 2010, p. 662, § 5/HB 1221 and was repealed by Ga. L. 2011, Ex. Sess., p. 258, § 1/HB 2EX, effective September 21, 2011.

Subsequently, this Code section formerly pertained to the collection of taxes on gasoline and aviation fuel. That former Code section was based on Code 1981, § 48-8-17 , enacted by Ga. L. 2011, Ex. Sess., p. 258, § 1/HB 2EX, and was repealed by Ga. L. 2013, p. 784, § 1/HB 210, effective May 6, 2013.

This Code section formerly pertained to the temporary suspension of the collection of taxes on gasoline and aviation fuel. The former Code section was based on Code 1981, § 48-8-17 , and Ga. L. 2013, p. 784, § 1/HB 210; Ga. L. 2014, p. 866, § 48/SB 340 and was repealed by Ga. L. 2015, p. 48, § 1, effective April 15, 2015.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

48-8-17.1. Ratification of Executive Order on prepaid taxes; suspension of provisions.

Repealed by Ga. L. 2011, Ex. Sess., p. 258, § 2/HB 2EX, effective September 21, 2011.

Editor's notes. - This Code section was based on Code 1981, § 48-8-17.1 , enacted by Ga. L. 2009, p. 84, § 2/HB 121; Ga. L. 2010, p. 662, § 6/HB 1221.

48-8-18. Ratification of Executive Order on pharmaceuticals distributed without cost.

  1. The General Assembly finds that:
    1. Pharmaceutical samples provide a zero-cost option for some Georgians to obtain medication necessary to maintain their health and sustain their lives;
    2. Pharmaceutical medications used in clinical trials are often provided without cost; and
    3. It is in the best interests of Georgians to exempt from sales and use taxes pharmaceutical medications that are distributed without cost for several reasons, including:
      1. The ability to distribute needed medicines to persons who might not otherwise be able to afford them;
      2. The attraction of clinical trials to Georgia for the betterment of the health of Georgians and to continue the state's place as a leader in cutting-edge health research; and
      3. The elimination of an inconsistency in the law whereby pharmaceutical medicines that are sold at retail are not taxed, but those that are distributed for free are subject to taxation.
  2. The General Assembly of Georgia ratifies the Executive Order of the Governor dated August 29, 2008, and filed in the official records of the office of the Governor as Executive Order 08.29.08.01 which suspended the collection of any rate of sales and use taxation as that tax applies to those controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensable by prescription for the treatment of natural persons which are dispensed without charge to physicians, dentists, clinics, hospitals, or any other person or entity located in Georgia by a pharmaceutical manufacturer or distributor and the collection of any such taxes on controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensed without charge for the purposes of a clinical trial approved by an institutional review board which has been accredited by the Association for the Accreditation of Human Research Protection Programs.
  3. For the time period commencing on September 1, 2008, as specified in the Executive Order of the Governor dated August 29, 2008, and filed in the official records of the office of the Governor as Executive Order 08.29.08.01 and concluding on the last moment of June 30, 2009, sales and use taxation pursuant to Code Section 48-8-30 as that tax applies to those controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensable by prescription for the treatment of natural persons which are dispensed without charge to physicians, dentists, clinics, hospitals, or any other person or entity located in Georgia by a pharmaceutical manufacturer or distributor and as such tax applies to controlled substances and dangerous drugs, as defined by Code Section 16-13-1, lawfully dispensed without charge for the purposes of a clinical trial approved by an institutional review board which has been accredited by the Association for the Accreditation of Human Research Protection Programs, shall be governed by the provisions of this Code section notwithstanding any provisions of Code Section 48-8-30 or any other law to the contrary.
  4. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section. (Code 1981, § 48-8-18 , enacted by Ga. L. 2009, p. 79, § 1/HB 59; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised capitalization in subsections (b) and (c).

48-8-19. Exemption of jet fuel from certain taxes; regulatory authority.

  1. The General Assembly finds that:
    1. The annual economic impact of Georgia airports amounts to more than $62 billion per year;
    2. Direct flights out of Hartsfield-Jackson Atlanta International Airport alone have supported nearly $11 billion in foreign investment and 42,000 jobs across the state;
    3. Georgia's sales and use tax levy on jet fuel amounts to the fourth highest tax burden on jet fuel among states with major airport hubs, placing Georgia at a competitive disadvantage compared to major airport hubs in Florida, New York, North Carolina, and Texas, among others; and
    4. The distribution of the proceeds of sales and use tax on jet fuel could jeopardize Georgia's legal standing and compliance with federal aviation programs.
  2. The General Assembly of Georgia hereby ratifies the Executive Order of the Governor dated July 30, 2018, and filed in the official records of the office of the Governor as Executive Order 07.30.18.01 which suspended the collection of any rate of sales and use tax as such tax applies to jet fuel. The General Assembly of Georgia hereby continues such suspension of collection indefinitely.
  3. For the time period commencing on August 1, 2018, as specified in the Executive Order of the Governor dated July 30, 2018, and filed in the official records of the office of the Governor as Executive Order 07.30.18.01, and concluding at the last moment of November 30, 2018, sales and use taxation pursuant to Code Section 48-8-30 as such tax applies to jet fuel shall be governed by the provisions of this Code section notwithstanding any provisions of Code Section 48-8-30 or any other law to the contrary.
  4. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section. (Code 1981, § 48-8-19 , enacted by Ga. L. 2018, Ex. Sess., p. HB5EX, § 2-1/HB 5EX.)

Effective date. - This Code section became effective November 17, 2018.

PART 2 I MPOSITION, RATE, COLLECTION, AND ASSESSMENT

48-8-30. (For effective date, see note.) Imposition of tax; rates; collection.

  1. There is levied and imposed a tax on the retail purchase, retail sale, rental, storage, use, or consumption of tangible personal property and on the services described in this article.
    1. Every purchaser of tangible personal property at retail in this state shall be liable for a tax on the purchase at the rate of 4 percent of the sales price of the purchase. The tax shall be paid by the purchaser to the retailer making the sale, as provided in this article. The retailer shall remit the tax to the commissioner as provided in this article and, when received by the commissioner, the tax shall be a credit against the tax imposed on the retailer. Every person making a sale or sales of tangible personal property at retail in this state shall be a retailer and a dealer and shall be liable for a tax on the sale at the rate of 4 percent of the sales price, or the amount of taxes collected by him from his purchaser or purchasers, whichever is greater.
    2. No retail sale shall be taxable to the retailer or dealer which is not taxable to the purchaser at retail.
    1. Upon the first instance of use, consumption, distribution, or storage within this state of tangible personal property purchased at retail outside this state, the owner or user of the property shall be a dealer and shall be liable for a tax at the rate of 4 percent of the purchase price, except as provided in paragraph (2) of this subsection.
    2. Upon the first instance of use, consumption, distribution, or storage within this state of tangible personal property purchased at retail outside this state and used outside this state for more than six months prior to its first use within this state, the owner or user of the property shall be a dealer and shall be liable for a tax at the rate of 4 percent of the purchase price or fair market value of the property, whichever is the lesser.
    3. This subsection shall not be construed to require a duplication in the payment of the tax. The tax imposed by this subsection shall be subject to the credit otherwise granted by this article for like taxes previously paid in another state.

      (B) Every dealer who makes a retail sale of tangible personal property outside this state which is to be delivered electronically or physically to a location within this state shall be liable for a tax on the sale at the rate of 4 percent of such sales price or the amount of tax as collected by such dealer from purchasers having their purchases delivered in this state, whichever is greater.

      (C) It shall be prima-facie evidence that such property is to be used, consumed, distributed, or stored for use or consumption in this state if that property is delivered electronically or physically to a location within this state to the purchaser or agent thereof.

      (D) No retail sale shall be taxable to the retailer or dealer which is not taxable to the purchaser at retail. The tax imposed by this subsection shall be subject to the credit otherwise granted by this article for like taxes previously paid in another state. This paragraph shall not be construed to require a duplication in the payment of the tax.

      (2) The department may bring an action for a declaratory judgment in any superior court against any person the department believes meets the definition of dealer provided in subparagraph (M.1) or (M.2) of paragraph (8) of Code Section 48-8-2 in order to establish that the collection obligation created by this subsection is applicable and valid under state and federal law with respect to such a dealer. If such action presents a question for judicial determination related to the constitutionality of the imposition of taxes upon such a dealer, the court shall, upon motion, enjoin the state from enforcing the collection obligation against such a dealer. The superior court shall act on such declaratory judgment action and issue a final decision in an expeditious manner.

      1. "Delivery retailer" means a retailer that does not collect and remit the tax imposed by this Code section and that in the previous or current calendar year:
        1. Obtains gross revenue, in an amount exceeding $250,000.00 from retail sales of tangible personal property to be delivered electronically or physically to a location within this state or used, consumed, distributed, or stored for use or consumption in this state; or
        2. Conducts 200 or more retail sales of tangible personal property to be delivered electronically or physically to a location within this state or used, consumed, distributed, or stored for use or consumption in this state.
      2. "Purchaser" means a person or agent thereof who gives consideration to a delivery retailer in exchange for tangible personal property to be delivered electronically or physically to a location within this state or used, consumed, distributed, or stored for use or consumption in this state.

        (2) A delivery retailer shall collect and remit the tax imposed by this Code section or shall:

        (A) Notify each potential purchaser immediately prior to the completion of each retail sale transaction with the following statement: "Sales or use tax may be due to the State of Georgia on this purchase. Georgia law requires certain consumers to file a sales and use tax return remitting any unpaid taxes due to the State of Georgia.";

        (B) On or before January 31 of each year, send a sales and use tax statement to each purchaser who completed one or more retail sales with such delivery retailer that totaled $500.00 or more in aggregate during the prior calendar year in an envelope containing the words "IMPORTANT TAX DOCUMENT ENCLOSED" on the exterior of the mailing by first class mail and separate from any other shipment; and

      3. On or before January 31 of each year, file a copy of each sales and use tax statement required under subparagraph (B) of this paragraph with the department in a manner to be prescribed by the department.

        (3) For the purposes of this subsection, a sales and use tax statement shall:

        (A) Be on a form to be prescribed by the department;

        (B) Contain the total amount paid by the purchaser for retail sales from the delivery retailer during the previous calendar year, as well as, if available, the dates of purchases, the amounts of each purchase, and the category of each purchase, including, if known by the retailer, whether the purchase is exempt from taxation under this article; and

        (C) Include the following statement: "Sales or use taxes may be due to the State of Georgia on the purchase(s) identified in this statement as Georgia taxes were not collected at the time of purchase. Georgia law requires certain consumers to file a sales and use tax return remitting any unpaid taxes due to the State of Georgia."

    4. Unless determined by the commissioner upon a showing of reasonable cause:
      1. Failure to provide the notice required by subparagraph (A) of paragraph (2) of this subsection shall subject a delivery retailer to a penalty of $5.00 for each failure;
      2. Failure to send a sales and use statement as required by subparagraph (B) of paragraph (2) of this subsection shall subject a delivery retailer to a penalty of $10.00 for each failure; and
      3. Failure to file a copy of a sales and use tax statement with the department as required by subparagraph (C) of paragraph (2) of this subsection shall subject a delivery retailer to a penalty of $10.00 for each failure.
    5. It shall be prima-facie evidence that such property is to be used, consumed, distributed, or stored for use or consumption in this state if that property is delivered electronically or physically to a location within this state to the purchaser or agent thereof.

    (c.1) (1) (A) (For effective date, see note.) Every purchaser of tangible personal property at retail outside this state from a dealer when such property is to be used, consumed, distributed, or stored for use or consumption in this state, shall be liable for a tax on the purchase at the rate of 4 percent of the sales price of the purchase. The tax shall be paid by the purchaser to the retailer making the sale, as provided in this article. The retailer shall remit the tax to the commissioner as provided in this article, and when received by the commissioner, the tax shall be a credit against the tax imposed on the retailer.

    (c.2) (1) (For effective date, see note.) For the purposes of this subsection, the term:

    1. Every person to whom tangible personal property in the state is leased or rented shall be liable for a tax on the lease or rental at the rate of 4 percent of the sales price. The tax shall be paid to the person who leases or rents the property by the person to whom the property is leased or rented. A person who leases or rents property to others as a dealer under this article shall remit the tax to the commissioner as provided in this article. When received by the commissioner, the tax shall be a credit against the tax imposed on the person who leases or rents the property to others. Every person who leases or rents tangible personal property in this state to others shall be a dealer and shall be liable for a tax on the lease or rental at the rate of 4 percent of the sales price, or the amount of taxes collected by him from persons to whom he leases or rents tangible personal property, whichever is greater.
    2. No lease or rental shall be taxable to the person who leases or rents tangible property to another which is not taxable to the person to whom the property is leased or rented.
    3. The lessee of both taxable and exempt property in this state under a single lease agreement containing a lease period of ten years or more shall have the option to discharge in full all sales and use taxes imposed by this article relating to the tangible personal property by paying in a lump sum 4 percent of the fair market value of the tangible personal property at the date of inception of the lease agreement in the same manner and under the same conditions applicable to sales of the tangible personal property.
  5. Upon the first instance of use within this state of tangible personal property leased or rented outside this state, the person to whom the property is leased or rented shall be a dealer and shall be liable for a tax at the rate of 4 percent of the sales price paid to the person who leased or rented the property, subject to the credit authorized for like taxes previously paid in another state.

    (e.1) (1) Every person who leases, as lessor, or rents tangible personal property outside this state for use within this state shall be liable for a tax at the rate of 4 percent of the sales price paid for that lease or rental if that person is a dealer, as defined in Code Section 48-8-2, and title to that property remains in that person. It shall be prima-facie evidence that such property is to be used within this state if that property is delivered in this state to the lessee or renter of such property, or to the agent of either. The tax shall be paid by the lessee or renter and payment of the tax shall be made to the lessor or person receiving rental payments for that property, which person shall be the dealer for purposes of this article. The dealer shall remit the tax to the commissioner as provided in this article and, when received by the commissioner, the tax shall be a credit against the tax imposed on the dealer. Every person who is a dealer, as defined in Code Section 48-8-2, and who leases or rents tangible personal property outside this state to be delivered in this state to the lessee, renter, or agent of either shall be a dealer and shall be liable as such for a tax on the lease or rental at the rate of 4 percent of the sales price from such leases or rentals or the amount of taxes collected by that dealer for leases or rentals of tangible personal property delivered in this state, whichever is greater.

    (2) No lease or rental shall be taxable to the dealer which is not taxable to the lessee or renter. The tax imposed by this subsection shall be subject to the credit granted by this article for like taxes previously paid in another state. This subsection shall not be construed to require a duplication in the payment of the tax.

    1. Every person purchasing or receiving any service within this state, the purchase of which is a retail sale, shall be liable for tax on the purchase at the rate of 4 percent of the sales price made for the purchase. The tax shall be paid by the person purchasing or receiving the service to the person furnishing the service. The person furnishing the service, as a dealer under this article, shall remit the tax to the commissioner as provided in this article; and, when received by the commissioner, the tax shall be a credit against the tax imposed on the person furnishing the service. Every person furnishing a service, the purchase of which is a retail sale, shall be a dealer and shall be liable for a tax on the sale at the rate of 4 percent of the sales price made for furnishing the service, or the amount of taxes collected by him from the person to whom the service is furnished, whichever is greater.
    2. No sale of services shall be taxable to the person furnishing the service which is not taxable to the purchaser of the service.
  7. Whenever a purchaser of tangible personal property under subsection (b) or (c.1) of this Code section, a lessee or renter of the property under subsection (d) or (e.1) of this Code section, or a purchaser of taxable services under subsection (f) of this Code section does not pay the tax imposed upon him or her to the retailer, lessor, or dealer who is involved in the taxable transaction, the purchaser, lessee, or renter shall be a dealer himself or herself and the commissioner, whenever he or she has reason to believe that a purchaser or lessee has not so paid the tax, may assess and collect the tax directly against and from the purchaser, lessee, or renter, unless the purchaser, lessee, or renter shows that the retailer, lessor, or dealer who is involved in the transaction has nevertheless remitted to the commissioner the tax imposed on the transaction. If payment is received directly from the purchaser, it shall not be collected a second time from the retailer, lessor, or dealer who is involved.
  8. The tax imposed by this Code section shall be collected from the dealer and paid at the time and in the manner provided in this article. Any person engaging or continuing in business as a retailer and wholesaler or jobber shall pay the tax imposed on the sales price of retail sales of the business at the rate specified when proper books are kept showing separately the gross proceeds of sales for each business. If the records are not kept separately, the tax shall be paid as a retailer or dealer on the gross sales of the business. For the purpose of this Code section, all sales through any one vending machine shall be treated as a single sale. The gross proceeds for reporting vending sales shall be treated as if the tax is included in the sale and the taxable proceeds shall be net of the tax included in the sale.
  9. The tax levied by this Code section is in addition to all other taxes, whether levied in the form of excise, license, or privilege taxes, and shall be in addition to all other fees and taxes levied.
  10. In the event any distributor licensed under Chapter 9 of this title purchases any motor fuel on which the prepaid state tax or prepaid local tax or both have been imposed pursuant to this Code section and resells the same to a governmental entity that is totally or partially exempt from such tax under paragraph (1) of Code Section 48-8-3, such distributor shall be entitled to either a credit or refund. The amount of the credit or refund shall be the prepaid state tax or prepaid local tax or both rates for which such governmental entity is exempt multiplied by the gallons of motor fuel purchased for its exclusive use. To be eligible for the credit or refund, the distributor shall reduce the amount such distributor charges for the fuel sold to such governmental entity by an amount equal to the tax from which such governmental entity is exempt. Should a distributor have a liability under this Code section, the distributor may elect to take a credit for those sales against such liability.
  11. The prepaid local tax shall be imposed at the time tax is imposed under Code Section 48-9-3.

    (Ga. L. 1951, p. 360, § 2; Ga. L. 1960, p. 153, § 1; Ga. L. 1967, p. 284, § 1; Code 1933, § 91A-4502, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 24; Ga. L. 1989, p. 62, § 5; Ga. L. 1990, p. 1243, §§ 2-4; Ga. L. 1992, p. 6, § 48; Ga. L. 1996, p. 1635, § 1; Ga. L. 1998, p. 602, § 4; Ga. L. 2001, p. 4, § 48; Ga. L. 2001, p. 984, § 17; Ga. L. 2007, p. 309, § 2/HB 219; Ga. L. 2010, p. 662, § 7/HB 1221; Ga. L. 2011, p. 674, § 1-4/HB 117; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2015, p. 236, § 5-5/HB 170; Ga. L. 2018, p. 259, § 2/HB 61.)

Delayed effective date. - Subsections (c.1) and (c.2), as set out above, become effective January 1, 2019. For version of subsections (c.1) and (c.2) in effect until January 1, 2019, see the 2018 amendment note. Until January 1, 2019, there is no subsection (c.2).

The 2015 amendment, effective July 1, 2015, substituted "under Code Section 48-9-3" for "under subparagraph (b)(2)(B) of Code Section 48-9-14" at the end of subsection (k). See Editor's notes for applicability.

The 2018 amendment, effective January 1, 2019, substituted the present provisions of subsection (c.1) for the former provisions, which read: "(1) Every purchaser of tangible personal property at retail outside this state from a dealer, as defined in Code Section 48-8-2, when such property is to be used, consumed, distributed, or stored within this state, shall be liable for a tax on the purchase at the rate of 4 percent of the sales price of the purchase. It shall be prima-facie evidence that such property is to be used, consumed, distributed, or stored within this state if that property is delivered in this state to the purchaser or agent thereof. The tax shall be paid by the purchaser to the retailer making the sale, as provided in this article. The retailer shall remit the tax to the commissioner as provided in this article and, when received by the commissioner, the tax shall be a credit against the tax imposed on the retailer. Every person who is a dealer, as defined in Code Section 48-8-2, and who makes any sale of tangible personal property at retail outside this state which property is to be delivered in this state to a purchaser or purchaser's agent shall be a retailer and a dealer for purposes of this article and shall be liable for a tax on the sale at the rate of 4 percent of such sales price or the amount of tax as collected by that person from purchasers having their purchases delivered in this state, whichever is greater.

"(2) No retail sale shall be taxable to the retailer or dealer which is not taxable to the purchaser at retail. The tax imposed by this subsection shall be subject to the credit otherwise granted by this article for like taxes previously paid in another state. This subsection shall not be construed to require a duplication in the payment of the tax."; and added subsection (c.2). See Editor's notes for applicability.

Editor's notes. - Ga. L. 1989, p. 62, § 1, not codified by the General Assembly, provides: "It is the intention of the General Assembly that the revenue generated by the increase in the state sales and use tax provided for in this Act shall be used in part for general governmental purposes and in part for grants of funds to political subdivisions of the state to provide ad valorem tax relief. The General Assembly recognizes and intends that all such revenue is to be paid into the general fund of the state treasury and subject to the normal budgetary and appropriations process, but it is the intention of the General Assembly that a portion of such revenue shall be appropriated to fund such grants for ad valorem tax relief purposes."

Ga. L. 1989, p. 62, § 14, not codified by the General Assembly, provides: "In the event that any other Act of the 1989 General Assembly amends Article 3 of Chapter 13 of Title 48 of the Official Code of Georgia Annotated, it is the intention of the General Assembly that the provisions of such other Act control over the provisions of this Act, except that it is the intention of the General Assembly that the increase in the rate of state sales and use taxation provided for in this Act shall not operate to decrease the maximum rate of taxes which may be imposed by local governments under said article as now existing or as it may be amended; and for this limited purpose, the provisions of this Act and particularly of this statement of intent shall control over the provisions of such other Act, notwithstanding any limitation on maximum aggregate amounts of taxation which may be contained in such other Act."

Ga. L. 1989, p. 62, § 15, not codified by the General Assembly, provides: "(a) As used in this section, the term 'building and construction materials' means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract.

"(b) The increased rate of state sales and use taxation provided for in this Act shall not apply with respect to the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to April 1, 1989, and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to April 1, 1989; provided, however, that any such sale or use shall remain fully taxable at the prior rate of taxation.

"(c) With respect to services which are regularly billed on a monthly basis, the increased rate of state sales and use taxation provided for in this Act shall apply to services billed on or after April 1, 1989; provided, however, that any such services billed prior to such date shall remain fully taxable at the prior rate of taxation."

Former paragraph (f)(3), concerning accrual of assessments for state sales and use tax, was repealed by operation of law on June 30, 2014, pursuant to Ga. L. 2011, p. 674, § 1-4/HB 117.

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2018, p. 259, § 3/HB 61, not codified by the General Assembly, provides that the amendment to subsection (c.1) and addition of subsection (c.2) shall apply to all sales made on or after January 1, 2019.

Law reviews. - For article surveying Georgia cases in the area of state and local taxation from June 1979 through May 1980, see 32 Mercer L. Rev. 203 (1980). For article, "Clarification Needed in Georgia Retail Sales and Use Tax Statute," see 41 Mercer L. Rev. 1 (1989). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001). For comment on National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 87 S. Ct. 1389 , 18 L. Ed. 2 d 505 (1967), as to constitutionality of imposing state use taxes on out-of-state mail order form, see 19 Mercer L. Rev. 257 (1968).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

"Moment of sale" or "moment of purchase" test should be applied to sales and use tax computations, respectively. Rich's, Inc. v. Blackmon, 133 Ga. App. 665 , 211 S.E.2d 916 (1975).

Substance of a transaction, rather than the appellation chosen by the parties, controls its tax treatment. Footpress Corp. v. Strickland, 242 Ga. 686 , 251 S.E.2d 278 (1978).

Purpose of Ga. L. 1951, p. 360, § 2 (see now O.C.G.A. § 48-8-30 ) differs from that of Ga. L. 1951, p. 360, § 8 (see now O.C.G.A. § 48-8-39 ). Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Ga. L. 1951, p. 360, § 2 (see now O.C.G.A. § 48-8-30 ) and Ga. L. 1951, p. 360, § 8 (see now O.C.G.A. § 48-8-39 ) operate to tax sales made under different circumstances. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Tax on personal use followed by tax on sale to customer permissible. - Tax of retail purchaser who makes any use of property other than retention, demonstration, or display while holding the property for sale in the regular course of business, under Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, Ch. 8), and subsequent tax if that purchaser thereafter sells the property to a consuming purchaser, involve two distinct sales transactions which are independent taxable events, and are not violative of the prohibition against duplication of taxes under Ga. L. 1951, p. 360. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Article does not provide for taxation of real property. - No provision is made in Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, Ch. 8) for a tax upon sales of real property as elsewhere defined and distinguished from personal property by the law of this state. State v. Dyson, 89 Ga. App. 791 , 81 S.E.2d 217 (1954).

Bracket system illegal when overpayment results. - Bracket system which requires the payment or collection of more tax than that contemplated by the General Assembly, that is, to collect a whole cent of tax when a fractional part of a cent of tax (by mathematical calculation) is involved, would exceed the authority granted. Hawes v. Phillips, 122 Ga. App. 714 , 178 S.E.2d 759 (1970).

Attachment and priority of lien for sales and use tax. - Lien and the lien's rank is provided for the state for sales and use taxes. Such lien attaches on the day on which the dealer is required to make a return and remittance to the commissioner, and is declared to be superior to all other liens. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

Effect of failure to record fi. fa. for sales taxes. - Recording of the fi. fa. issued by the commissioner on the general execution docket is not a condition precedent to attachment of the lien for sales taxes, and the only effect of a failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

When maintenance charges not within meaning of "gross lease or rental proceeds". - When maintenance charges are separately stated, are based upon maintenance costs, and may be changed after the initial year independently of the rental or lease charge, such charges are not within the meaning of "gross lease or rental proceeds" as set forth in O.C.G.A. § 48-8-30 . Strickland v. Sperry Rand Corp., 248 Ga. 535 , 285 S.E.2d 1 (1981).

Taxation of separately stated maintenance charges. - Separately stated maintenance charges which are included in a lease transaction on tangible personal property are not taxable as part of the gross lease or rental proceeds. Strickland v. Sperry Rand Corp., 248 Ga. 535 , 285 S.E.2d 1 (1981).

Standing to claim tax refund. - Electrical membership corporation lacked direct standing to pursue a claim for a refund of sales tax on behalf of its members/patrons, pursuant to O.C.G.A. § 48-2-35(b)(1) (now (c)(1)), as it was not a "taxpayer" within O.C.G.A. § 48-2-35(b)(4) (now (c)(4)), for purposes of bringing an action for a tax refund when it did not bear the burden of the tax because the tax was passed on to its members/patrons; one purpose of the EMC was to furnish electrical energy and service to its members, pursuant to O.C.G.A. § 46-3-200(1) , and the sale of electricity required a retail sales tax paid to the EMC, which was passed onto the Georgia Commissioner of Revenue, pursuant to O.C.G.A. § 48-8-30(a) . Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22 , 608 S.E.2d 611 (2005).

Trial court did not err in dismissing a bank's complaint alleging that the bank was entitled to a refund for sales tax paid under the General Refund Statute, O.C.G.A. § 48-2-35 , because the bank was not a taxpayer entitled to a refund under § 48-2-35 since the bank was simply a third-party lender that contracted to advance the money for the consumer, and ultimately the merchant, to meet the merchant's obligations to pay the sales tax; the bank's recourse was against the consumer who defaulted on the debt or possibly through any provisions in the credit card program contracts assigning responsibility for bad debts among the various parties. Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120 , 726 S.E.2d 617 (2012), cert. denied, No. S12C1281, 2012 Ga. LEXIS 1017 (Ga. 2012).

Cited in Bagley v. State, 161 Ga. App. 688 , 288 S.E.2d 332 (1982); Adrian Hous. Corp. v. Collins, 253 Ga. 263 , 319 S.E.2d 852 (1984); Outdoor Displays Welding & Fabrication, Inc. v. United States Enters., Inc., 84 Bankr. 260 (Bankr. S.D. Ga. 1988); GMAC v. Jackson, 247 Ga. App. 141 , 542 S.E.2d 538 (2000); Aircraft Spruce & Specialty Co. v. Fayette County Bd. of Tax Assessors, 294 Ga. App. 241 , 669 S.E.2d 417 (2008).

Interstate Transactions

Nondiscriminatory use tax on goods transported in interstate commerce not a violation of commerce clause. - Nondiscriminatory tax on goods transported in interstate commerce, which is imposed under this section not upon the operations of interstate commerce but upon the privilege of use after commerce has ended, is not a regulation contrary to the commerce clause of the United States Constitution. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

Purpose of use tax on property purchased outside the state. - To preclude avoidance of the sales tax when enforcement directly against the retail sale is not practicable, this section imposes a complementary use tax on property purchased outside the state. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

Intent as to credit for like taxable incidents occurring in other states. - Intent in Georgia is to allow credit for a like taxable incident which first occurs in another state and to collect a tax based on a taxable incident in Georgia occurring thereafter, but only to the extent of the difference between a lesser like tax previously paid and the Georgia tax, and only if the other state has a reciprocal law. Hawes v. National Serv. Indus., Inc., 121 Ga. App. 775 , 175 S.E.2d 34 (1970), aff'd, 227 Ga. 221 , 179 S.E.2d 765 (1971).

Use tax on out-of-state purchase by resident purchaser upon which sales tax not collected. - Law imposes a tax on a Georgia purchaser who purchases personal property outside the state from an out-of-state seller, when the seller is not required to collect and remit a sales tax on the purchase to this state. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Taxation of goods purchased outside state by nonresident for delivery in state. - When a nonresident taxpayer purchased telephone directories from nonresident printers for delivery by the printers within this state pursuant to the taxpayer's contracts with certain telephone companies in this state, the taxpayer is considered a consumer within the meaning of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) and is not relieved of liability from the tax by the fact that the directories were purchased outside the state nor by the fact that the directories were shipped by the printers directly to the telephone companies. L.M. Berry & Co. v. Blackmon, 129 Ga. App. 347 , 199 S.E.2d 610 (1973), aff'd, 231 Ga. 659 , 203 S.E.2d 520 (1974).

Direct mail advertising materials purchased by a corporation outside the state for distribution to residents within the state were subject to use tax. Collins v. J.C. Penney Co., 218 Ga. App. 405 , 461 S.E.2d 582 (1995).

Preprinted newspaper advertising inserts purchased by a corporation did not become a component or integral part of the newspaper through which the inserts were distributed and were subject to use tax. Collins v. J.C. Penney Co., 218 Ga. App. 405 , 461 S.E.2d 582 (1995).

Liability for Collection and Payment

Order of liability for sales tax. - Liability for sales tax is imposed primarily on the purchaser with secondary liability on the seller to collect and remit the tax. Blackmon v. Nichols, 494 F.2d 1179 (5th Cir. 1974).

Ultimate liability for use tax is upon purchaser, not seller, who is merely the state's collecting agent. For this service the seller is compensated, provided the taxes due are not delinquent at the time of payment. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

Intent is that seller be responsible for collection. - Although ultimate liability for payment of sales and use tax falls upon the purchaser, and although in the event of failure to pay such tax the commissioner may proceed against either purchaser or seller, it is nevertheless the intent of the law that the seller or dealer is the entity responsible for collecting and forwarding the tax, and the seller's failure to do so subjects the seller to both civil and criminal penalties in addition to the tax liability. Dittler Bros. v. AMR Int'l, Inc., 142 Ga. App. 570 , 236 S.E.2d 544 (1977).

Authority to proceed against purchaser is permissive, not mandatory. - Dealer liability for the tax is not altered because the state may also proceed against the purchaser for the tax. The law, in permissive and not mandatory language, provides that when the purchaser has not paid the sales tax, the commissioner may proceed directly against the purchaser to recover the tax. Nimmer v. Strickland, 242 Ga. 430 , 249 S.E.2d 233 (1978).

Party designated as "owner" in lease contract liable for collection and remittance. - If one who is designated in a written contract as the "owner" of described personal property grants to another designated as "user" the right to possess and use described personal property in consideration for a specified sum of money, which sum is designated in such contract as rental and, when by the terms of such contract the personalty remains the property of the owner and is to be returned to the owner at the termination of the period of the lease contract, the one designated therein as the "owner" is liable for collection and remittance of the sales tax imposed thereby on the gross proceeds received under such lease contract. Undercofler v. Whiteway Neon Ad, Inc., 114 Ga. App. 644 , 152 S.E.2d 616 (1966).

Purchaser has right to hearing regarding assessment for sales tax. - Purchaser who has paid the sales tax to the seller has the right to prove such payment at a hearing in which the purchaser is contesting the assessment against the purchaser. Gainesville-Hall County Economic Opportunity Org., Inc. v. Blackmon, 233 Ga. 507 , 212 S.E.2d 341 (1975).

Proof of remittance at hearing. - At a hearing contesting a tax assessment, the purchaser has a right to show that the seller remitted the tax on the transaction to the state, and this is a question of fact. Gainesville-Hall County Economic Opportunity Org., Inc. v. Blackmon, 233 Ga. 507 , 212 S.E.2d 341 (1975).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Purpose of use tax. - Intent of the General Assembly was not to levy a primary use tax from which would be exempt transactions involving sales at retail in this state, upon which sales tax has been collected. Rather, the use tax supplements the sales tax and is intended as a collection device. Williams v. Suwannee Longleaf Mfg. Co., 97 Ga. App. 431 , 103 S.E.2d 123 (1958), aff'd, 214 Ga. 613 , 106 S.E.2d 797 (1959).

Purpose of taxes on use and rentals. - Rentals tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is, like the use tax imposed by Ga. L. 1951, p. 360, a supplementary or compensating tax designed to deter sales tax avoidance through renting instead of selling tangible personal property and to equalize the tax treatment of persons engaged in the business of renting with those engaged in selling tangible personal property. It treats the rental of tangible personal property as a pro tanto sale, that is, a retail sale to the extent of the rent and for the term of the rental. 1958-59 Op. Att'y Gen. p. 382.

Legislative intent as to distinction between services and leases or rentals. - Analytically, if inquiry be pursued to the limit of its logic, it might be said that every lease or rental involves some element of service, while every service involves some utilization of personal property; but here, as in all cases, the law does not deal in absolutes for the General Assembly has, by employing two concepts differing in their consequences, manifested the legislature's intention that a line is to be drawn somewhere separating the areas of taxability and nontaxability. 1963-65 Op. Att'y Gen. p. 172.

Taxation of representative from foreign country. - Representative from foreign country is not exempt from either Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) or former Code 1933, Ch. 92-14 (see now O.C.G.A. Art. 1, Ch. 9, T. 48). 1962 Op. Att'y Gen. p. 514.

Building and construction materials. - Under Ga. L. 1989, p. 62, § 15(a) and (b), the increased state sales and use tax rate does not apply to the sale or use of certain building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid and the bid was submitted prior to April 1, 1989, even though the contract is awarded or entered into after April 1, 1989. 1989 Op. Att'y Gen. No. U89-5.

Entities and Transactions Subject to Tax

.

Housing authorities are not exempt from payment of state sales taxes upon purchases made by those authorities. 1952-53 Op. Att'y Gen. p. 476.

Agricultural commodity commissions are subject to taxes imposed under Ga. L. 1951, p. 360. 1975 Op. Att'y Gen. No. 75-136.

Taxation of Georgia Prison Store. - Georgia Prison Store is a dealer under Ga. L. 1951, p. 360 and is required to register, collect, and remit sales tax on all the store's retail sales. 1974 Op. Att'y Gen. No. 74-29.

Inmates in Georgia prisons are neither exempt nor constitutionally protected from tax on purchases of items from inmate stores. 1974 Op. Att'y Gen. No. 74-29.

Automobile dealers furnishing vehicles for high school driver education classes are exempt from sales tax thereon. 1952-53 Op. Att'y Gen. p. 473.

Taxation of sales by area vocational-technical schools to students. - Area vocational-technical schools, operated by local units of school administration, engaged in selling books and other miscellaneous materials to their students on a nonprofit basis, must collect and remit sales taxes on sales made by them. Upon failure to make such collections and remittances, the local units are liable themselves for the tax. 1973 Op. Att'y Gen. No. 73-83.

Sales by executors and administrators are subject to payment of the state sales tax. 1952-53 Op. Att'y Gen. p. 474.

Drying and cleaning of peanuts is a service which is not taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 1962 Op. Att'y Gen. p. 561.

Amount Subject to Tax

.

Royalty payments. - Sales tax is only based upon gross proceeds from rentals and is not imposed upon the payment of royalties. 1954-56 Op. Att'y Gen. p. 845.

Taxes imposed prior to retail sale included in base for computing sales tax. - If a tax is imposed on an event prior to a retail sale, that tax must be included in the base on which the sales tax is computed. 1971 Op. Att'y Gen. No. U71-121.

Sales tax paid on federal excise tax if not listed separately. - Sales tax is not paid on federal excise tax when purchasing a new car unless federal excise tax is not listed separately, but simply included in the gross price of the car. 1954-56 Op. Att'y Gen. p. 852.

Other excise taxes on beer included in sales price. - Sales of beer are subject to payment of the state sales tax, but such tax is to be computed on the actual sales price excluding other excise taxes imposed thereon. 1952-53 Op. Att'y Gen. p. 472.

Use tax on property furnished to contractor by government. - When a government contractor under a fixed-price type maintenance, overhaul, and modification contract uses up and consumes government furnished property in performing a contract, although having previously purchased such property as agent for the government, the contractor becomes liable for use tax based upon the fair market value of the property so used up and consumed. 1962 Op. Att'y Gen. p. 547.

Interstate Transactions

.

Sales tax applies when title passes in this state. - Sales tax applies to the purchase of property by an out-of-state purchaser if the title passes in this state, even if the property is immediately removed from the state. 1971 Op. Att'y Gen. No. U71-92.

Tax when title passes in another state to purchasers in this state. - When title passes in another state to a purchaser in this state, and the items are distributed gratuitously to persons within this state, the sales tax would not apply, but use tax should be collected. 1960-61 Op. Att'y Gen. p. 554.

Sale and delivery of property in this state is subject to this state's sales tax, even though the purchaser is a nonresident. 1970 Op. Att'y Gen. No. U70-63.

Rental contracts which are completed fully within this state are subject to Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 9, T. 48), notwithstanding the fact that physical possession of the rented property is delivered outside this state. 1969 Op. Att'y Gen. No. 69-146.

Tax situs for lease transaction is where lessee first takes exclusive control. - Situs of the taxable event under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) is the place where the tangible personal property is first put under the exclusive control of the renter for use under the rental agreement, this being considered as the equivalent of delivery were the transaction a sale. When this taxable event takes place within this state the dealer who rents is subject to the tax imposed by Ga. L. 1951, p. 360, irrespective of the fact that the rented property may be used in interstate commerce, and when this taxable event takes place outside this state, then, upon the property being brought into this state, whether in interstate commerce or not, the tax imposed by Ga. L. 1951, p. 360 applies against the renter as if the tangible personal property had been originally rented within this state, subject to the credit for like taxes paid elsewhere. 1958-59 Op. Att'y Gen. p. 382.

Store in this state may not require out-of-state customer to pay state sales tax on goods ordered shipped to such customer. 1952-53 Op. Att'y Gen. p. 479.

Tax on lease of trucks for use outside state. - Any person or company engaged in the business of leasing trucks in this state has an obligation to pay tax on the gross proceeds and to pass the tax on to the lessee as an additional charge. The fact that a leased truck may be used outside this state is immaterial so long as there is any use within this state. 1954-56 Op. Att'y Gen. p. 845.

Tax on use of machinery belonging to nonresident corporation. - Use of machinery by a Georgia corporation, which machinery belongs to a nonresident corporation and for which the Georgia corporation pays a royalty, is subject to use tax. 1954-56 Op. Att'y Gen. p. 846.

Property delivered to out-of-state location by buyer. - When property is delivered pursuant to sales to out-of-state locations by a means of transportation which is leased or rented by the buyer, the sales occur in this state and are taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 9, T. 48). 1969 Op. Att'y Gen. No. 69-146.

Use tax on advertising materials purchased outside state. - Manufacturer who buys advertising materials outside state, ships the materials directly to dealers, at no cost to dealers, with dealers using the materials to promote local sales, is liable for use tax on such materials. 1962 Op. Att'y Gen. p. 556.

Dual operator liable for tax on property consumed in performance of contract. - Since a dual operator, or person who, as a retail dealer, sells tangible personal property in performing contracts, is a consumer of the property used in performing contracts, irrespective of where the contracts may be performed, the person would owe this state a sales tax with respect to the purchase of such property in this state and would owe this state a use tax with respect to such property purchased outside this state and then brought to rest in this state. 1968 Op. Att'y Gen. No. 68-96.

First Use in State of Property Purchased Outside State

.

Meaning of "fair market value" of imported advertising materials. - For purposes of O.C.G.A. § 48-8-30(c) , fair market value of advertising materials imported by department stores into Georgia is that price that a willing buyer with similar advertising needs would pay to purchase like advertising from a willing seller. In absence of evidence to the contrary, fair market value of these advertising materials at time of their first use within Georgia should be taken to be the materials' purchase price. 1981 Op. Att'y Gen. No. 81-93.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 34 et seq., 41 et seq., 50 et seq., 137, 166, 205 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 20, 159 et seq.

ALR. - Computation of sales tax, 107 A.L.R. 267 ; 135 A.L.R. 1485 ; 150 A.L.R. 1311 .

Who is liable for tax in case of conditional sale, or option for purchase, of personal property, 116 A.L.R. 325 .

Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542 .

Sale of article intended for consumption or use by customers or patrons of the buyer on the latter's premises as retail sale within sales tax law, 157 A.L.R. 557 .

Applicability of sales tax to judicial or bankruptcy sales, 27 A.L.R.2d 1219.

Use tax on property purchased by nonresident in another state, 41 A.L.R.2d 535.

Federal retail luxury or other excise tax as includable in amount on which state sales or use tax is computed, 43 A.L.R.2d 862.

Validity and construction of provision exempting from use tax property which is "not readily obtainable" in the state, 88 A.L.R.2d 811.

Sales by automatic vending machine as subject to retail sales tax, 91 A.L.R.2d 1138.

Sales and use taxes: exemption of casual, isolated, or occasional sales, 42 A.L.R.3d 292.

Sales or use tax on motor vehicle purchased out of state, 45 A.L.R.3d 1270.

Applicability of sales tax to "tips" or service charges added in lieu of tips, 73 A.L.R.3d 1226.

Reusable soft drink bottles as subject to sales or use taxes, 97 A.L.R.3d 1205.

Sales and use taxes on leased tangible personal property, 2 A.L.R.4th 859.

Transportation, freight, mailing, or handling charges billed separately to purchaser of goods as subject to sales or use tax, 2 A.L.R.4th 1124.

Eyeglasses or other optical accessories as subject to sales or use tax, 14 A.L.R.4th 1370.

Sales and use taxes on sale or lease of mailing or customer list, 80 A.L.R.4th 1126.

Computer software or printout transactions as subject to state sales or use tax, 36 A.L.R.5th 133.

Sufficient nexus for state to require foreign entity to collect state's compensating, sales, or use tax - post-complete auto transit cases, 71 A.L.R.5th 671.

48-8-31. Tax computation to be carried to third decimal place; rounding.

Tax computation must be carried to the third decimal place, and the tax must be rounded to a whole cent using a method that rounds up to the next cent whenever the third decimal place is greater than four.

(Ga. L. 1951, p. 360, § 22; Code 1933, § 91A-4531, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 40; Ga. L. 2010, p. 662, § 8/HB 1221.)

JUDICIAL DECISIONS

Bracket system valid when no more than 3 percent tax on fractional part of dollar. - Bracket system which does not require the payment and collection of more than the necessary amount of coinage required to pay and collect the 3 percent levied on sales of a fractional part of a dollar is not contrary to the legislative grant of authority to the commissioner. Hawes v. Phillips, 122 Ga. App. 714 , 178 S.E.2d 759 (1970).

Bracket system illegal if overpayment results. - Bracket system which requires the payment or collection of more tax than that contemplated by the General Assembly, that is, to collect a whole cent of tax where a fractional part of a cent of tax (by mathematical calculation) is involved, would exceed the authority granted. Hawes v. Phillips, 122 Ga. App. 714 , 178 S.E.2d 759 (1970).

48-8-32. Tax collectable from dealers; rate for retail sales price and purchase price.

The tax at the rate of 4 percent of the retail sales price at the time of sale or 4 percent of the purchase price at the time of purchase, as the case may be, shall be collectable from all persons engaged as dealers in the sale at retail, or in the use, consumption, distribution, or storage for use or consumption in this state of tangible personal property.

(Ga. L. 1951, p. 360, § 4; Code 1933, § 91A-4504, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 62, § 6; Ga. L. 2010, p. 662, § 9/HB 1221.)

JUDICIAL DECISIONS

Dealer liable for tax whether collected by the dealer or not. - Every person making a sale of tangible personal property at retail in the state is required by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) to collect and remit the tax to the commissioner, and is a dealer under Ga. L. 1951, p. 360, and is liable for the tax as of the moment of sale, whether the dealer collects the tax or not. Davis v. Chilivis, 142 Ga. App. 679 , 237 S.E.2d 2 (1977).

"Moment of sale" or "moment of purchase" test should be applied to sales and use tax computations, respectively. Rich's, Inc. v. Blackmon, 133 Ga. App. 665 , 211 S.E.2d 916 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Use tax on property purchased out of state. - Automobile purchased by taxpayer out of state and brought into this state for use herein is subject to use tax. 1954-56 Op. Att'y Gen. p. 862.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 107, 109, 181, 182.

ALR. - Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542 .

48-8-33. Collection of tax by dealer as agent of state notwithstanding constitutional or other exemptions.

Notwithstanding any exemption from taxes which a dealer enjoys under the Constitution or laws of this state, any other state, or the United States, the dealer shall collect the tax imposed by this article from the purchaser or consumer and shall pay the tax over to the commissioner as provided by law.

(Ga. L. 1951, p. 360, § 12; Ga. L. 1960, p. 153, § 4; Code 1933, § 91A-4511, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Dealer's relationship with purchaser and state. - This section is merely descriptive of the relationship between the dealer and purchaser. The dealer is an agent for the state in the collection of the tax imposed upon the dealer and passed on to the purchaser. For reporting, accounting, and payment of the tax the dealer is a taxpayer with the right of the state in the case of the dealer's default to proceed against the dealer, not as an ordinary agent, but as a taxpayer. This section is in harmony, and not in conflict, with other provisions of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 9, T. 48). Williams v. Bear's Den, Inc., 214 Ga. 240 , 104 S.E.2d 230 (1958).

Cited in International Computer Group, Inc. v. Data Gen. Corp., 159 Ga. App. 169 , 283 S.E.2d 12 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Municipal corporations are not exempt from collecting sales taxes when municipal corporations engage in the business of operating a public swimming pool and charging admission. 1954-56 Op. Att'y Gen. p. 859.

Operators of concessions located within a park should charge, collect, and remit the 3 percent sales tax on the sales price of tangible personal property and services sold by those operators. 1954-56 Op. Att'y Gen. p. 858.

Area vocational-technical schools, operated by local units of school administration, engaged in selling books and other miscellaneous materials to their students on a nonprofit basis, must collect and remit sales taxes on sales made by them. Upon failure to make such collections and remittances, the local units are liable themselves for the tax. 1973 Op. Att'y Gen. No. 73-83.

Sales by executors and administrators are subject to payment of the state sales tax. 1952-53 Op. Att'y Gen. p. 474.

Stone Mountain Memorial Association must collect tax. - As to sales made by the Stone Mountain Memorial Association, sales tax must be collected by the association from its purchasers and remitted to the state. 1971 Op. Att'y Gen. No. 71-139.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 208 et seq.

48-8-34. Collection of tax from purchaser by dealer at time of sale; payment of tax on imports; use, consumption, distribution, or storage equivalent to sale at retail; no duplication of tax.

  1. Every dealer making sales within or outside the state of tangible personal property for distribution, storage, use, or other consumption in this state shall collect the tax imposed by this article from the purchaser at the time of sale.
  2. On all tangible personal property imported or caused to be imported by any dealer from another state or foreign country and used by him, the dealer shall pay the tax imposed by this article as if the property had been sold at retail for use or consumption in this state. For the purposes of this article, the use, consumption, distribution, or storage for use or consumption in this state of tangible personal property shall each be equivalent to a sale at retail and the tax shall be immediately levied and collected on each such sale in the manner provided in this article. There shall be no duplication of the tax in any event as a result of this subsection.

    (Ga. L. 1951, p. 360, § 4; Code 1933, § 91A-4505, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Purpose is to equalize taxes, sales and use of property wherever purchased. - Effect of this section is to require, as far as practicable, that the application of the tax upon use of tangible personal property purchased outside the state shall be consistent with the application of the tax upon sales of tangible personal property at retail inside the state. Colonial Pipeline Co. v. Undercofler, 115 Ga. App. 58 , 153 S.E.2d 592 (1967).

Intent is that seller be responsible for collection although purchaser also liable. - Although ultimate liability for payment of sales and use tax falls upon the purchaser, and although in the event of failure to pay, the commissioner may proceed against either the purchaser or seller, it is nevertheless the intent of the law that the seller or dealer is the entity responsible for collecting and forwarding the tax, and the dealer's failure to do so subjects the dealer to both civil and criminal penalties in addition to the tax liability. Dittler Bros. v. AMR Int'l, Inc., 142 Ga. App. 570 , 236 S.E.2d 544 (1977).

Taxation of property purchased in this state for future shipment to other states. - Tangible personal property purchased from sellers in this state and stored by the taxpayer in this state for future shipment to other states for ultimate use are taxable and are not excluded from tax, whether or not the property is at all times designated for future shipment outside the state. National Serv. Indus., Inc. v. Hawes, 227 Ga. 221 , 179 S.E.2d 765 (1971).

Cited in Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120 , 726 S.E.2d 617 (2012).

OPINIONS OF THE ATTORNEY GENERAL

Purchases in state of property to be used or consumed exclusively outside state. - Construing Ga. L. 1951, p. 360, § 4 (see now O.C.G.A. § 48-8-34 ), purchases made in this state of tangible personal property to be used or consumed or stored exclusively outside the state are not subject to the tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), and dealers are not required to collect the tax from such purchasers. 1954-56 Op. Att'y Gen. p. 865.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 208.

C.J.S. - 84 C.J.S., Taxation, § 160.

ALR. - Right of seller to collect from buyer amount of sales tax in addition to price fixed by the contract, 127 A.L.R. 1183 .

Sales and use taxes on sale or lease of mailing or customer list, 80 A.L.R.4th 1126.

48-8-35. Addition of tax by dealer to sale price or charge; amount of tax as debt owed by purchaser to dealer; liability of dealer for failure to collect.

Each dealer shall add the amount of the tax imposed under this article, as far as practicable, to the sale price or charge. The tax shall be a debt from the purchaser or consumer to the dealer until it is paid and shall be recoverable at law in the same manner as authorized for the recovery of other debts. Any dealer who neglects, fails, or refuses to collect the tax provided for in this article upon a retail sale of tangible personal property made by him, his agent, or his employee when the sale is subject to the tax shall be liable for and shall pay the tax himself.

(Ga. L. 1951, p. 360, § 12; Ga. L. 1953, Jan.-Feb. Sess., p. 197, § 1; Code 1933, § 91A-4512, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 95.)

JUDICIAL DECISIONS

Dealer responsible for collection and remittance. - Responsibility for collecting the taxes levied under Ga. L. 1951, p. 360 from the purchaser and remitting such taxes to the commissioner is on the dealer. Thyer Mfg. Corp. v. Drake, 217 Ga. 114 , 121 S.E.2d 136 (1961).

Failure to report taxes collected. - Provisions of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) exclude the idea that the tax is always payable at the time of the sale. However, a failure to report a collection violates the statute. Drake v. Thyer Mfg. Corp., 105 Ga. App. 20 , 123 S.E.2d 457 (1961).

Failure to report sale no bar to recovery of tax when tax has been paid. - Payment of the tax, whenever made, is regarded as full compliance with the law, whether certain technical details in the reporting of the tax, or any other preliminary requirements, are omitted. Mere failure to report the sale will not preclude the right to recover the tax when the end, namely payment, sought by the law, has been in fact made. Drake v. Thyer Mfg. Corp., 105 Ga. App. 20 , 123 S.E.2d 457 (1961).

Attachment and ranking of lien for sales and use taxes. - Lien and the lien's rank is provided for the state for sales and use taxes. Such lien attaches on the day on which the dealer is required to make the return and remittance to the commissioner and is declared to be superior to all other liens. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

Effect of failure to record fi. fa. - Recording of the fi. fa. issued by the commissioner on the general execution docket is not a condition precedent to attachment of the lien for sales taxes. The only effect of a failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147 , 82 S.E.2d 145 (1954).

Cited in International Computer Group, Inc. v. Data Gen. Corp., 159 Ga. App. 169 , 283 S.E.2d 12 (1981); Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120 , 726 S.E.2d 617 (2012).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 208 et seq.

ALR. - Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542 .

48-8-36. Prohibition of advertising by dealer of assumption of payment of tax; exception; liability of dealer.

No person engaged in making retail sales shall advertise or represent to the public in any manner directly or indirectly that he or she will absorb all or any part of the tax or that he or she will relieve the purchaser of the payment of all or any part of the tax imposed by this article unless:

  1. The retailer includes in the advertisement that any portion of the tax not paid by the purchaser will be remitted on behalf of the purchaser by the retailer; and
  2. The retailer furnishes the purchaser with written evidence that the retailer will be liable for and pay any tax the purchaser was relieved from paying under this Code section.

    If a retailer advertises that any portion of the tax not paid by the purchaser will be remitted on the purchaser's behalf by the retailer, the retailer shall be solely liable for and shall pay that portion of the tax. If a dealer or retailer complies with the provisions of this Code section and pays the absorbed tax over to the commissioner as provided by law, the dealer or retailer shall be deemed to have complied with the provisions of this article requiring collection of the tax from the purchaser or consumer.

    (Ga. L. 1951, p. 360, § 12; Ga. L. 1960, p. 153, § 5; Code 1933, § 91A-4514, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2012, p. 954, § 1/SB 332.)

OPINIONS OF THE ATTORNEY GENERAL

Assumption by seller of the risk of a variable and unascertainable amount of tax violates this section. 1969 Op. Att'y Gen. No. 69-439.

48-8-37. Violation of Code Section 48-8-36; penalty.

  1. It shall be unlawful for any person to violate Code Section 48-8-36.
  2. Any person who violates Code Section 48-8-36 shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $25.00 nor more than $250.00 or imprisonment in the county jail for not more than three months, or both. Any person who is convicted of a second or subsequent violation of Code Section 48-8-36 shall be punished by a fine of $500.00 and imprisonment for six months.

    (Ga. L. 1951, p. 360, § 12; Code 1933, § 91A-9935, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48.)

JUDICIAL DECISIONS

Contracts in violation of section not thereby nullified. - Although this section provides a penalty for absorbing the sales tax, it was designed merely for revenue purposes, not for the protection of the public, and does not impliedly nullify a contract made in contravention of this section. Chilivis v. Rogers Oil Co., 135 Ga. App. 176 , 217 S.E.2d 179 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 222.

48-8-38. Burden of proof on seller as to taxability; certificate that property purchased for resale; requirements of purchaser having certificate; contents; proof of claimed exemption.

  1. All gross sales of a retailer are subject to the tax imposed by this article until the contrary is established. The burden of proving that a sale of tangible personal property is not a sale at retail shall be upon the person who makes the sale unless such person, in good faith, takes from the purchaser a certificate stating that the property is purchased for resale or is otherwise tax exempt.
  2. The certificate relieves the seller from the burden of proof as provided in subsection (a) of this Code section if the seller acquires from the purchaser a properly completed certificate taken in good faith. A properly completed certificate taken in good faith means a seller shall obtain a certificate:
    1. That is fully completed, including, but not limited to, the name, address, sales tax number, and signature of the taxpayer when required;
    2. In a form appropriate for the type of exemption claimed;
    3. Claiming an exemption that was statutorily available on the date of the transaction in the jurisdiction where the transaction is sourced;
    4. Claiming an exemption that could be applicable to the item being purchased; and
    5. Claiming an exemption that is reasonable for the purchaser's type of business.
  3. The certificate relieves the seller from the burden of proof on sales for resale as provided in subsection (a) of this Code section if the seller acquires from the purchaser a properly completed certificate, taken in good faith, from a purchaser who:
    1. Is engaged in the business of selling tangible personal property;
    2. Has a valid sales tax registration number at the time of purchase and has listed his or her sales tax number on the certificate; and
    3. At the time of purchasing the tangible personal property, the seller has no reason to believe that the purchaser does not intend to resell it in his or her regular course of business.
  4. The certificate shall include such information as is determined by the commissioner and is signed by the purchaser if it is a paper exemption certificate.
  5. A seller shall obtain the same information for proof of a claimed exemption regardless of the medium in which the transaction occurred.

    (Ga. L. 1951, p. 360, §§ 5-7; Code 1933, § 91A-4507, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 94; Ga. L. 2010, p. 662, § 10/HB 1221; Ga. L. 2011, p. 38, § 5/HB 168; Ga. L. 2013, p. 7, § 6/HB 266.)

JUDICIAL DECISIONS

Cited in International Computer Group, Inc. v. Data Gen. Corp., 159 Ga. App. 169 , 283 S.E.2d 12 (1981); Strickland v. W.E. Ross & Sons, 251 Ga. 324 , 304 S.E.2d 719 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Section applies to sales to nonprofit organizations. - Nonprofit organizations are not, because of their status as such, exempt from sales and use taxes. When the organization is not registered with the commissioner as a dealer, one who sells to the nonprofit organization must collect the tax. 1971 Op. Att'y Gen. No. U71-143.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 209.

ALR. - Burden of proof as to amount for which dealer is liable under sales tax or tax based on amount sold or offered for sale, 39 A.L.R. 273 .

Reusable soft drink bottles as subject to sales or use taxes, 97 A.L.R.3d 1205.

48-8-39. Effect of use other than retention, demonstration, or display by giver of certificate or by processor, manufacturer, or converter.

  1. If a purchaser who gives a certificate stating that property is purchased for resale makes any use of the property other than retention, demonstration, or display while holding it for sale in the regular course of business, the use shall be deemed a retail sale by the purchaser as of the time the property is first used by him and the purchase price of the property to him shall be deemed the gross receipts from the retail sale. If the sole use of the property other than retention, demonstration, or display in the regular course of business is the rental of the property while holding it for sale or the transportation of persons for hire while holding the property for sale, the purchaser may elect to include in his gross receipts either the amount of the rental charged or the total amount of the charges made by him for the transportation rather than the cost of the property to him.
      1. If a person who engages in the business of processing, manufacturing, or converting industrial materials into articles of tangible personal property for sale, whether as custom-made or stock items, makes any use of the article of tangible personal property other than retaining, demonstrating, or displaying it for sale, the use shall be deemed a retail sale as of the time the article is first used by such person and its fair market value at the time shall be deemed the sales price of the article, except as otherwise provided in subparagraph (B) of this paragraph.
        1. As used in this subparagraph, the term "total raw material cost" means the manufactured cost of floor covering samples; supplies used in the manufacturing of floor covering samples such as binding, grommets, and similar items; floor covering sample display devices such as racks, binders, and similar items; and inbound freight charges. Such term does not mean or include labor or overhead for assembling or producing samples from finished floor covering and does not mean or include outbound freight charges which may be charged to the expense account for floor covering samples.
        2. As used in this subparagraph, the term "floor covering sample" or "floor covering samples" includes, but is not limited to, samples of carpet floor covering, hardwood floor covering, engineered hardwood floor covering, laminate floor covering, stone floor covering, tile floor covering, vinyl floor covering, resilient floor covering, linoleum floor covering, and other floor coverings.
        3. For purposes of subparagraph (A) of this paragraph, the fair market value of any floor covering sample shall be equal to 21.9 percent of the total raw material cost of the sample, except that the fair market value of a sample of any floor covering that is manufactured exclusively for commercial use shall be equal to 1 percent of the total raw material cost of the sample.
    2. If the sole use of the article other than retaining, demonstrating, or displaying it for sale is the rental of the article while holding it for sale, the processor, manufacturer, or converter may elect to treat the amount of the rental charged rather than the fair market value of the article as its sales price.

      (Ga. L. 1951, p. 360, § 8; Ga. L. 1968, p. 496, § 1; Ga. L. 1970, p. 595, § 1; Code 1933, § 91A-4508, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 385, § 1; Ga. L. 2006, p. 470, § 1/HB 1040; Ga. L. 2010, p. 662, § 11/HB 1221; Ga. L. 2015, p. 910, § 1/HB 277.)

The 2015 amendment, effective July 1, 2015, in subparagraph (b)(1)(B), substituted "floor covering" for "carpet" throughout division (b)(1)(B)(i), added division (b)(1)(B)(ii), redesignated former division (b)(1)(B)(ii) as present division (b)(1)(B)(iii), and, in division (b)(1)(B)(iii), substituted "floor covering" for "carpet" and substituted "any floor covering" for "carpet" near the middle.

Law reviews. - For article, "Administrative Law," see 53 Mercer L. Rev. 81 (2001). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

JUDICIAL DECISIONS

For constitutionality, see Ingalls Iron Works Co. v. Chilivis, 237 Ga. 479 , 228 S.E.2d 866 (1976), appeal dismissed, 429 U.S. 1081, 97 S. Ct. 1086 , 51 L. Ed. 2 d 528 (1977).

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) was not impliedly repealed by Ga. L. 1960, p. 989, § 1 (see now O.C.G.A. § 48-8-61 ). Bailes Oldsmobile, Inc. v. Hawes, 122 Ga. App. 395 , 177 S.E.2d 170 (1970).

Purpose of Ga. L. 1951, p. 360, § 2 (see now O.C.G.A. § 48-8-30 ) differs from that of Ga, L. 1951, p. 360, § 8 (see now O.C.G.A. § 48-8-39 ). Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Ga. L. 1951, p. 360, §§ 2 and 8 (see now O.C.G.A. §§ 48-8-30 and 48-8-39 ) operate to tax sales made under different circumstances. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

This section creates nothing more than a rebuttable presumption. Bailes Oldsmobile, Inc. v. Hawes, 122 Ga. App. 395 , 177 S.E.2d 170 (1970).

O.C.G.A. § 48-8-39 applies to property held for sale to general public. - Words "holding it for sale in the regular course of business" in the first sentence of this section refer to holding for sale to the general public. Superior Type, Inc. v. Williams, 98 Ga. App. 89 , 105 S.E.2d 14 (1958).

No exemption is permitted for personal uses of property. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Use other than demonstration or display deemed taxable purchase. - As soon as a retail seller makes any use of the property other than demonstration or display in the regular course of business, the seller is deemed to have purchased the property personally and will be taxed on the property. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Seller must pay tax when personal use made of property. - If a retailer takes merchandise to the retailer's home for personal use the retailer would at that time be liable for the tax, regardless of the fact that at some subsequent time the retailer sells the machine in the regular course of business. Similarly, if the seller makes personal use of materials used for producing goods for sale, the seller is liable for the tax even if such materials are used to fill an order and are sold to a customer along with the order. Superior Type, Inc. v. Williams, 98 Ga. App. 89 , 105 S.E.2d 14 (1958).

Sale of small portion otherwise used for personal use not taxable. - One who sells at retail a small portion of industrial materials one has otherwise produced or manufactured for own use will not be subject to a sales or use tax on the fair market value of those materials one uses personally. Strickland v. W.E. Ross & Sons, 251 Ga. 324 , 304 S.E.2d 719 (1983).

Tax on personal use followed by tax on sale to customer permissible. - Tax of retail purchaser who makes any use of property other than retention, demonstration, or display while holding the property for sale in the regular course of business, under Ga. L. 1951, p. 360, § 8 (see now O.C.G.A. § 48-8-39 ), and subsequent tax if the purchaser thereafter sells the property to a consuming purchaser, involve two distinct sales transactions which are independent taxable events, and are not violative of the prohibition against duplication of taxes under Ga. L. 1951, p. 360, § 2 (see now O.C.G.A. § 48-8-30 ). Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Personal use of a demonstrator automobile for over six months is not a use which this section will excuse. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Rebuttable presumption that automobiles held more than six months not used solely for demonstration. - Under the Official Compilation of Rules and Regulations of the State of Georgia, Rules of the Department of Revenue, § 560-12-2-09(5), a rebuttable presumption arises that automobiles held in excess of six months are not being used solely for retention, demonstration, or display. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Personal and business use of demonstrator cars by employees of dealer. - When demonstrator cars are driven by employees of dealer for both personal and business purposes for more than six months, the dealer could not escape tax liability by simply denominating personal uses of the automobiles as displays to the community. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237 , 271 S.E.2d 152 (1980).

Contractor liable for tax on raw materials even if purchaser exempt. - Fabrication of raw materials by a contractor into products to be installed and incorporated into realty constitutes a use or consumption by the contractor, who is liable for the tax, regardless of the fact that the entity with whom it is contracting is a political subdivision exempt from the payment of sales tax. Macon Mach. Shop, Inc. v. Hawes, 118 Ga. App. 280 , 163 S.E.2d 440 (1968).

Use of materials sold to customer together with order produced from such materials. - When materials are purchased by seller from another who has prepared such materials to order for the benefit of a customer who has placed an order, and are then resold to such customer, the use is for the benefit of the customer, and this section did not apply. Superior Type, Inc. v. Williams, 98 Ga. App. 89 , 105 S.E.2d 14 (1958).

Use of items furnished by customer not taxable. - Use made of an item produced from materials furnished by the customer for the purpose of producing goods for such customer is not a use contemplated by this section for the reason that it is solely for the benefit of the buyer who ultimately receives both title and right of possession of such item, and pays the sales tax thereon. Its purchase in the first instance by the seller is for the purpose of resale after use for the benefit of the person to whom it is resold by producing goods which the customer has ordered. Superior Type, Inc. v. Williams, 98 Ga. App. 89 , 105 S.E.2d 14 (1958).

Carpet manufacturer's use of carpet samples in connection with its sales of carpeting constituted a "fictional sale" under O.C.G.A. § 48-8-39(b) and the samples were subject to tax; however, the fair market value of the samples was zero so that no taxes were owed for such sales. Collins v. Prince St. Technologies Ltd., 220 Ga. App. 492 , 469 S.E.2d 700 (1996).

Contact lenses. - Lenses given to eye-care professionals for their use in any way they saw fit was simply a marketing scheme designed to promote the sale of lenses manufactured by the plaintiff; therefore, those lenses were properly classified as deemed retail sales. However, lenses in packages which sales representatives opened for demonstration purposes were exempt from taxation. CIBA Vision Corp. v. Jackson, 248 Ga. App. 688 , 548 S.E.2d 431 (2001).

Ophthalmic drugs. - Drugs packaged or designated as samples were taxable because those drugs were not purchased for resale. CIBA Vision Corp. v. Jackson, 248 Ga. App. 688 , 548 S.E.2d 431 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Manufacturer taxable for own use of goods. - Manufacturer of personal property for sale is subject to sales tax on use of such manufactured goods based on fair market value of goods at time of use. 1969 Op. Att'y Gen. No. 69-139.

Cost of items purchased under a certificate for resale but withdrawn from stock for other use is subject to tax. 1969 Op. Att'y Gen. No. 69-126.

Dispensing of drugs by pharmacist. - Pharmacist, with respect to dispensing drugs under Medicaid, is in a position analogous to that of a dealer who withdraws goods from inventory to provide a service. The use is taxable to the pharmacist at cost. 1971 Op. Att'y Gen. No. 71-145.

48-8-40. Effect of sales from commingled goods when certificate given for portion of goods.

If a purchaser gives a certificate with respect to the purchase of fungible goods and after giving the certificate commingles these goods with other fungible goods not so purchased but of such similarity that the identity of the constituent goods in the commingled mass cannot be determined, sales from the mass of commingled goods shall be deemed to be sales of the goods so purchased until a quantity of commingled goods equal to the quantity of purchased goods so commingled has been sold.

(Ga. L. 1951, p. 360, § 9; Code 1933, § 91A-4509, enacted by Ga. L. 1978, p. 309, § 2.)

48-8-41. Bringing action raising issue of taxability; copy of initial pleading to Attorney General; filing of acknowledgment of pleading in court; judgment void absent filed acknowledgment.

If the issue of taxability under this article is raised in any case, the person raising the issue shall furnish the Attorney General with a copy of the initial pleading in which the issue is raised. The Attorney General shall acknowledge receipt of the pleading and his acknowledgment shall be filed in the court in which the case is pending. Any judgment rendered in a case in which the acknowledgment has not been filed shall be void and of no effect.

(Ga. L. 1951, p. 360, § 12; Ga. L. 1953, Jan.-Feb. Sess., p. 197, § 1; Code 1933, § 91A-4512.1, enacted by Ga. L. 1979, p. 5, § 96.)

JUDICIAL DECISIONS

Notice under § 48-2-9 need not be given when action brought to recover taxes. - Action to recover a sum alleged to be due as a tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) may be maintained under those provisions without giving notice thereof under Ga. L. 1937-38, Ex. Sess., p. 77, § 8 (see now O.C.G.A. § 48-2-9 ). Craig-Tourial Leather Co. v. Reynolds, 87 Ga. App. 360 , 73 S.E.2d 749 (1952).

RESEARCH REFERENCES

C.J.S. - 7A C.J.S., Attorney General, §§ 11, 13.

ALR. - Sales or use tax on motor vehicle purchased out of state, 45 A.L.R.3d 1270.

48-8-42. Credit for tax when like tax paid in another state; procedure; proof of payment; payment of difference when like tax less than tax imposed by article; no credit absent reciprocity; exception.

  1. This article shall not apply with respect to the use, consumption, distribution, or storage of tangible personal property in this state upon which a like tax equal to or greater than the amount imposed by this article has been paid in another state. The proof of payment of the tax shall be determined according to rules and regulations made by the commissioner. If the amount of tax paid in another state is less than the amount of tax imposed by this article, the dealer shall pay to the commissioner an amount sufficient to make the tax paid in the other state and in this state equal to the amount imposed by this article.
  2. Except as provided in this subsection, no credit shall be given under this Code section for taxes paid in another state if the other state does not grant like credit for taxes paid in this state. Credit in the amount of tax actually paid in a state which does not grant like credit for taxes paid in this state shall be given up to the amount of the like tax due in this state only with respect to any use in the other state of tangible personal property by a manufacturer or fabricator in fulfillment of a bona fide written contract to furnish the property and perform services relative to the property in the other state when the property was manufactured or fabricated in this state exclusively for use by the manufacturer or fabricator as a contractor in fulfillment of the contract.

    (Ga. L. 1951, p. 360, § 10; Ga. L. 1953, Nov.-Dec. Sess., p. 369, § 1; Ga. L. 1976, p. 469, § 1; Code 1933, § 91A-4510, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

JUDICIAL DECISIONS

Intent as to credit for taxes paid in other states. - Intent in this state is to allow credit for a like taxable incident which first occurs in another state and to collect a tax based on a taxable incident in this state occurring thereafter, but only to the extent of the difference between a lesser like tax previously paid and the Georgia tax, and only if the other state has a reciprocal law. Hawes v. National Serv. Indus., Inc., 121 Ga. App. 775 , 175 S.E.2d 34 (1970), aff'd, 227 Ga. 221 , 179 S.E.2d 765 (1971).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 79, 176.

ALR. - Validity and construction of provisions allowing use tax credit for tax paid in other state, 31 A.L.R.4th 1206.

48-8-43. Disposition of taxes collected in excess of 4 percent.

When the tax collected for any period is in excess of 4 percent, the total tax collected shall be paid over to the commissioner less the compensation to be allowed the dealer.

(Ga. L. 1951, p. 360, § 12; Code 1933, § 91A-4513, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 62, § 7.)

48-8-44. Payment of tax when used articles taken as credit on sale of new and used articles.

When used articles are taken in trade or a series of trades as a credit or partial payment on the sale of new and used articles, the tax imposed by this article shall be paid on the value of the new or used articles less the credits for the used articles.

(Ga. L. 1951, p. 360, § 13; Code 1933, § 91A-4517, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Trade-in credit provision does not apply to automobile dealers who "trade" with themselves. 1975 Op. Att'y Gen. No. U75-76.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 129.

ALR. - Computation of sales tax where property is turned in by purchaser, 4 A.L.R.2d 1059.

48-8-45. Reporting cash and credit sales; change of basis of accounting; payment of tax at time of filing return under cash basis of accounting; deduction of bad debts under accrual basis of accounting; availability of refund; bad debt deduction or refund nonassignable; allocation of bad debts.

  1. Any dealer taxable under this article having both cash and credit sales may report the sales on either the cash or accrual basis of accounting. Each election of a basis of accounting shall be made on the first return filed and, once made, the election shall be irrevocable unless the commissioner grants written permission for a change. Permission for a change in the basis of accounting shall be granted only upon written application and under rules and regulations promulgated by the commissioner.
  2. Any dealer reporting on a cash basis of accounting shall include in each return all cash sales made during the period covered by the return and all collections made in any period on credit sales of prior periods and shall pay the tax on the sales at the time of filing the return.
  3. Any dealer reporting on the accrual basis of accounting shall be allowed a deduction for bad debts under rules and regulations of the commissioner. Any deduction taken or refund claimed that is attributed to bad debts shall not accrue or include interest.
  4. The bad debt may be deducted on the return for the period during which the bad debt is written off as uncollectable in the claimant's books and records and is eligible to be deducted for federal income tax purposes. Any such deduction for such bad debt shall be reported as a separate line item on the claimant's sales and use tax return. If such deduction is not reported as a line item, it shall be disallowed. A claimant who is not required to file federal income tax returns may deduct a bad debt on a return filed for the period in which the bad debt is written off as uncollectable in the claimant's books and records and the claimant would be eligible for a bad debt deduction for federal income tax purposes if the claimant was required to file a federal income tax return.
  5. If a deduction is taken for a bad debt and the debt is subsequently collected in whole or in part, the tax on the amount so collected must be paid and reported on the return filed for the period in which the collection is made. For the purposes of reporting a payment received on a previously claimed bad debt, any payments made on a debt or account are applied first proportionally to the taxable price of the property or service and the sales tax thereon, and, secondly, to interest, service charges, and any other charges.
    1. As used in this subsection, "assignee" includes but is not limited to:
      1. Assignees of promissory notes, accounts, or accounts receivable; or
      2. Financial institutions that do not make taxable retail sales but that finance retail sales by making loans or issuing credit cards to purchasers.
    2. The deduction and refund provided for in this Code section are not assignable. The deduction and refund provided for in this Code section are only available to a dealer that makes a taxable retail sale, remits tax on that sale, and subsequently incurs a bad debt with respect to that sale. Assignees may not take a deduction or claim a refund pursuant to this Code section.
  7. For purposes of calculating the deduction taken or refund claimed, a "bad debt" shall have the same meaning as defined in 26 U.S.C. Section 166. However, the amount calculated pursuant to 26 U.S.C. Section 166 shall be adjusted to exclude:
    1. Financing charges or interest;
    2. Sales or use taxes charged on the purchase price;
    3. Uncollectable amounts on property that remain in the possession of the seller until the full purchase price is paid;
    4. Expenses incurred in attempting to collect any debt; and
    5. Repossessed property.
  8. For bad debts incurred and written off after January 1, 2011, when the amount of bad debt exceeds the amount of taxable sales for the period during which the bad debt is written off, a refund claim may be filed. The statute of limitations for filing such claim shall be three years from the due date of the return on which the bad debt could first be claimed. Such refund shall be claimed on such form as shall be established by the commissioner.
  9. Where filing responsibilities have been assumed by a certified service provider, the department allows the service provider to claim, on behalf of the seller, any bad debt allowance provided by this Code section. Such refund shall be claimed on such form as shall be established by the commissioner. The certified service provider must credit or refund the full amount of any bad debt allowance or refund received to the seller.
  10. Where the books and records of the party claiming the bad debt allowance support an allocation of the bad debts among the Streamlined Sales Tax member states, such allocation is permitted.

    (Ga. L. 1951, p. 360, § 14; Code 1933, § 91A-4518, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1998, p. 604, § 1; Ga. L. 2008, p. 340, § 3/HB 948; Ga. L. 2010, p. 662, § 12/HB 1221; Ga. L. 2011, p. 38, § 6/HB 168.)

Law reviews. - For article, "Administrative Law," see 53 Mercer L. Rev. 81 (2001).

JUDICIAL DECISIONS

O.C.G.A. § 48-8-45(c) . - Company which financed both automobile dealers' wholesale floor plans and retail purchases by consumers of automobiles from the dealers did not qualify as "any person" under O.C.G.A. § 48-8-45(c) so as to entitle the company to seek a deduction for bad debts under the Sales and Use Tax Act, O.C.G.A. Art. 1, Ch. 8, T. 48. GMAC v. Jackson, 247 Ga. App. 141 , 542 S.E.2d 538 (2000).

Only potential tax relief afforded by statute is deduction. - Trial court did not err in dismissing a bank's complaint alleging that the bank was entitled to a refund for sales tax paid under the Bad Debt Statute, O.C.G.A. § 48-8-45 , because the only potential tax relief afforded by § 48-8-45 (c) was a deduction; in drafting the Bad Debt Statute, the General Assembly chose to grant only a deduction for bad credit card debt. Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120 , 726 S.E.2d 617 (2012), cert. denied, No. S12C1281, 2012 Ga. LEXIS 1017 (Ga. 2012).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 205 et seq.

C.J.S. - 85 C.J.S., Taxation, §§ 1994, 2004, 2042 et seq.

48-8-46. Final return and payment upon sale of or quitting business; withholding of sufficient amount of purchase money by successor; effect of failure to withhold.

If any dealer liable for any tax, interest, or penalty imposed by this article sells out his business or stock of goods or equipment or quits the business, he shall make a final return and payment within 15 days after the date of selling or quitting the business. The dealer's successor or assigns, if any, shall withhold a sufficient amount of the purchase money to cover the amount of the taxes, interest, and penalties due and unpaid until the former owner produces either a receipt from the commissioner showing that the taxes, interest, and penalties have been paid or a certificate from the commissioner stating that no sales and use taxes, interest, or penalties are due. If the purchaser of a business or stock of goods or equipment fails to withhold the purchase money as required by this Code section, he shall be personally liable for the payment of any sales and use taxes, interest, and penalties accruing and unpaid by any former owner or assignor. The personal liability of the purchaser in such a case shall not exceed the amount of the total purchase money, but the property being transferred shall in all cases be subject to the full amount of the tax lien arising from the delinquencies of the former owner.

(Ga. L. 1951, p. 360, § 15; Ga. L. 1960, p. 153, § 6; Code 1933, § 91A-4519, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 11.)

Law reviews. - For article, "Common State Tax Pitfalls in the Acquisition or Disposition of Businesses in Georgia," see 22 Ga. St. B. J. 82 (1985).

JUDICIAL DECISIONS

Section comports with due process and equal protection requirements. - Ga. L. 1951, p. 360, § 15 (see now O.C.G.A. § 48-8-46 ) is not unconstitutional under U.S. Const., amend. 14 or Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I) because it must be considered in pari materia with Ga. L. 1937-38, Ex. Sess., p. 77, § 44 and Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. §§ 48-2-50 and 48-2-59 ) which provide for due process. Richards v. Blackmon, 233 Ga. 739 , 213 S.E.2d 638 (1975).

Stock of goods or equipment. - Buyer's purchase of the inventory, furniture, fixtures, equipment, vehicles, goodwill, and other assets from its predecessor in interest constituted the purchase of the "stock of goods or equipment" of a dealer liable for sales taxes due and brought the sale within the purview of O.C.G.A. § 48-8-46 . JD Design Group, Inc. v. Graham, 282 Ga. 130 , 646 S.E.2d 227 (2007).

Section does not deprive a purchaser of due process and equal protection of the law when a purchaser can prevent liability by compliance with this section's provisions. Richards v. Blackmon, 233 Ga. 739 , 213 S.E.2d 638 (1975).

Buyer's duty to search lien recordings. - Buyer's claim that the buyer was an innocent purchaser for value did not afford the buyer relief from liability for the taxes owed under O.C.G.A. § 48-8-46 as the statute effectively put the buyer on notice of the possibility of tax liability not apparent from a search of the lien recordings because the statute imposed a duty to inquire on the buyer; additionally, the buyer could have prevented the buyer's liability by withholding part of the purchase money to cover such taxes, or could have required the buyer's predecessor to produce a certificate from the commissioner that no taxes were due. JD Design Group, Inc. v. Graham, 282 Ga. 130 , 646 S.E.2d 227 (2007).

Relationship of debtor and creditor does not exist between the state and the dealer. - Dealer's relationship to the state is that of a taxpayer. Richards v. Blackmon, 233 Ga. 739 , 213 S.E.2d 638 (1975).

Uniform Commercial Code provisions on bulk transfers did not deal with taxpayers; therefore, it does not impliedly repeal Ga. L. 1951, p. 360, § 15. Richards v. Blackmon, 233 Ga. 739 , 213 S.E.2d 638 (1975).

Effect of affidavit listing no creditors. - Affidavit of a seller of a business listing no creditors pursuant to the provisions on bulk transfers does not relieve the purchaser from a tax assessment made under this section. Richards v. Blackmon, 233 Ga. 739 , 213 S.E.2d 638 (1975).

Summary judgment as to the issue of a successor in interest's liability for unpaid taxes in favor of that successor was reversed as the successor failed to protect itself from successor liability for the unpaid sales and use taxes owed by its predecessor under O.C.G.A. § 48-8-46 , and the successor failed to protect itself against unrecorded tax liens to the extent allowed by the statute. Graham v. JD Design Group, Inc., 281 Ga. App. 347 , 636 S.E.2d 66 (2006).

No successor liability. - Appellee that purchased assets used in a business was not liable for sales and use taxes as a successor to a corporation under O.C.G.A. § 48-8-46 as the appellee had not purchased the assets from the corporation itself. Graham v. Palmtop Props., 284 Ga. App. 730 , 645 S.E.2d 343 (2007).

Statutory estoppel did not apply to lien. - No statutory estoppel applied to a lien to which the Georgia Department of Revenue was entitled with regard to delinquent sales taxes. JD Design Group, Inc. v. Graham, 282 Ga. 130 , 646 S.E.2d 227 (2007).

Cited in Amoco Oil Co. v. G. Sims & Assocs., 162 Ga. App. 307 , 291 S.E.2d 128 (1982); Miles v. Georgia Dep't of Revenue, 143 F.R.D. 302 (S.D. Ga. 1992); Miles v. Georgia Dep't of Revenue, 797 F. Supp. 987 (S.D. Ga. 1992).

OPINIONS OF THE ATTORNEY GENERAL

Section applicable even when purchaser does not continue business as going concern. - One who purchases either stock of goods or equipment from a going business does so at one's own peril unless and until one receives a certificate from the commissioner, even if the purchaser does not continue to operate the business as a going concern. 1963-65 Op. Att'y Gen. p. 337.

Liability when one purchases franchise agreements and another the business property. - Company which purchases franchise agreements of a retail dealer and a company which purchases the business property are both liable for any sales tax, interest, and penalty thereon which became due by reason of taxable sales made by the retail dealer, the former owner, and are unpaid. 1969 Op. Att'y Gen. No. 69-186.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 222.

48-8-47. Notice by commissioner to persons holding credits of or owing debts to delinquent dealers; duty of such persons.

In the event any dealer is delinquent in the payment of the tax imposed by this article, the commissioner may give notice of the amount of the delinquency by registered or certified mail or statutory overnight delivery to all persons having in their possession or under their control any credits or other personal property belonging to the dealer and to all persons owing any debts to the dealer at the time of receipt by them of the notice. In lieu of registered or certified mail or statutory overnight delivery, the notice may be served and the recipient may acknowledge service thereof by telephonic facsimile transmission or by other means of instantaneous electronic transmission. Thereafter, no person so notified shall transfer or make any other disposition of the credits, other personal property, or debts until the commissioner has consented to a transfer or disposition or until 30 days have elapsed after the receipt of the notice. Each person so notified must advise the commissioner within five days after receipt of the notice of any and all credits, other personal property, or debts in such person's possession, under such person's control, or owing by such person as provided in this Code section.

(Ga. L. 1951, p. 360, § 15; Code 1933, § 91A-4520, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1996, p. 780, § 4; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act shall apply with respect to notices delivered on or after July 1, 2000.

48-8-48. Violation of Code Sections 48-8-46 and 48-8-47; penalty.

  1. It shall be unlawful for any person to violate Code Section 48-8-46 or 48-8-47.
  2. Any person who violates Code Section 48-8-46 or 48-8-47 shall be guilty of a misdemeanor.

    (Ga. L. 1951, p. 360, § 15; Code 1933, § 91A-9936, enacted by Ga. L. 1978, p. 309, § 2.)

48-8-49. Dealers' returns as to gross proceeds of sales and purchases; returns based on estimated tax liability; returns as to rentals or leases; granting of extensions.

  1. Each dealer, on or before the twentieth day of each month, shall transmit returns to the commissioner showing the gross sales and purchases arising from all sales and purchases taxable under this article during the preceding calendar month. The commissioner may provide by regulation for quarterly or annual returns or, upon application, may permit a dealer to file a return on a quarterly or annual basis if deemed advisable by the commissioner. The returns required by this subsection shall be made upon forms prescribed, prepared, and furnished by the commissioner.
    1. As used in this subsection, the term "estimated tax liability" means a dealer's tax liability, adjusted to account for any subsequent change in the state sales and use tax rate, based on the dealer's average monthly payments for the last calendar year.
    2. If the tax liability of a dealer in the preceding calendar year was greater than $60,000.00 excluding local sales taxes, the dealer shall file a return and remit to the commissioner not less than 50 percent of the estimated tax liability for the taxable period on or before the twentieth day of the period. The amount of the payment of the estimated tax liability shall be credited against the amount to be due on the return required under subsection (a) of this Code section.
  3. Rentals or leases of tangible personal property shall be reported and the tax shall be paid with respect to the sales price in accordance with the rules and regulations prescribed by the commissioner.
    1. The commissioner, in his discretion, may grant extensions, upon written application, to the end of the calendar month in which any tax return is due under this Code section.
    2. No extension granted pursuant to paragraph (1) of this subsection shall be valid unless granted in writing and only for a period of not more than 12 consecutive months.
    3. Upon the grant of any extension authorized by this subsection, the taxpayer shall remit to the commissioner on or before the date the tax would otherwise become due without the grant of the extension an amount which, when added to the amount previously remitted for the period pursuant to subsection (b) of this Code section, equals not less than 100 percent of the dealer's payment for the corresponding period of the preceding tax year.
    4. No interest or penalty shall be charged, assessed, or collected by reason of the granting of an extension pursuant to this subsection.
    5. This subsection shall apply to all extensions granted pursuant to this subsection on or after July 1, 1980, and to all extensions granted pursuant to this subsection and in effect on July 1, 1980.

      (Ga. L. 1951, p. 360, § 16; Ga. L. 1952, p. 334, § 1; Ga. L. 1960, p. 153, § 7; Ga. L. 1972, p. 8, § 1; Code 1933, § 91A-4521, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 27; Ga. L. 1989, p. 62, § 8; Ga. L. 1990, p. 1243, § 5; Ga. L. 1996, p. 780, § 3; Ga. L. 2003, p. 355, § 4; Ga. L. 2003, p. 665, § 14; Ga. L. 2006, p. 530, § 1/HB 1120; Ga. L. 2010, p. 662, § 13/HB 1221; Ga. L. 2011, p. 38, § 7/HB 168; Ga. L. 2015, p. 236, § 5-6/HB 170.)

The 2015 amendment, effective July 1, 2015, deleted the former last sentence of paragraph (b)(2), which read: "This subsection shall not apply to any dealer whose primary business is the sale of motor fuels who is remitting prepaid state tax under paragraph (2) of subsection (b) of Code Section 48-9-14." See Editor's notes for applicability.

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For survey article on recent developments in Georgia state and local taxation, see 34 Mercer L. Rev. 400 (1982). For article, "Clarification Needed in Georgia Retail Sales and Use Tax Statute," see 41 Mercer L. Rev. 1 (1989). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 205 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 177, 699.

ALR. - Sales and use taxes on leased tangible personal property, 2 A.L.R.4th 859.

48-8-50. Compensation of dealers for reporting and paying tax; reimbursement deduction.

  1. As used in this Code section, the term "affiliated entity" means with respect to any corporation, sole proprietorship, partnership, limited partnership, enterprise, franchise, association, trust, joint venture, or other entity, any other corporation, sole proprietorship, partnership, limited partnership, enterprise, franchise, association, trust, joint venture, or other entity related thereto:
    1. As a parent, subsidiary, sister, or daughter corporation, sole proprietorship, partnership, limited partnership, enterprise, franchise, association, trust, joint venture, or other entity;
    2. By control of one corporation, sole proprietorship, partnership, limited partnership, enterprise, franchise, association, trust, joint venture, or other entity by the other; or
    3. By any other common ownership or control.
  2. Each dealer required to file a return under this article shall include such dealer's certificate of registration number or numbers for each sales location or affiliated entity of such dealer on such return. In reporting and paying the amount of tax due under this article, each dealer shall be allowed the following deduction, but only if the return was timely filed and the amount due was not delinquent at the time of payment; and that deduction shall be subject to the provisions of subsection (f) of this Code section pertaining to calculation of the deduction when more than one tax is reported on the same return:
    1. With respect to each certificate of registration number on such return, a deduction of 3 percent of the first $3,000.00 of the combined total amount of all sales and use taxes reported due on such return for each location other than the taxes specified in paragraph (3) of this subsection;
    2. With respect to each certificate of registration number on such return, a deduction of one-half of 1 percent of that portion exceeding $3,000.00 of the combined total amount of all sales and use taxes reported due on such return for each location other than the taxes specified in paragraph (3) of this subsection; and
    3. With respect to each certificate of registration number on such return, a deduction of 3 percent of the combined total amount due of all sales and use taxes on motor fuel as defined under paragraph (9) of Code Section 48-9-2, which are imposed under any provision of this title, including, but not limited to, sales and use taxes on motor fuel imposed under any of the provisions described in subsection (f) of this Code section.
  3. The department shall compile and maintain a master registry of the certificate of registration numbers filed on such returns with respect to all the affiliated business entities and multiple locations of each dealer and shall assign a master number to each dealer. Each dealer required to file a return under this article shall also include such dealer's master number on such return if such number has been assigned by the department under this subsection.
  4. With respect to a dealer which consists of only a single sales location or which consists of a group of fewer than four sales locations or affiliated entities, or any combination thereof, claiming such deduction, a separate return shall be filed for each sales location and affiliated entity for each reporting period. With respect to a dealer which consists of a group of four or more sales locations or affiliated entities, or any combination thereof, claiming such deduction, a single, consolidated return shall be filed for such entire group. A consolidated return under this subsection shall be used for the purpose of identifying the sales locations or affiliated entities of a dealer and such consolidated return shall identify separately the reporting and paying of the tax due under this article for each sales location or affiliated entity of such dealer. The deduction requirements of subsection (b) of this Code section shall apply separately to each certificate of registration number on such return.
  5. No deduction shall be allowed under this Code section unless all of the requirements of subsections (b), (c), and (d) of this Code section have been satisfied.
  6. The deduction authorized under this Code section shall be combined with and calculated with the deductions authorized under Code Section 48-8-87, Code Section 48-8-104, Code Section 48-8-113, Code Section 48-8-204, Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," and any other sales tax, use tax, or sales and use tax which is levied and imposed in an area consisting of less than the entire state, however authorized, by applying the deduction rate specified in this Code section against the combined total of all such taxes reported due on the same return.
  7. The reimbursement deduction authorized under Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," shall be at the rate and subject to the requirements specified under subsections (b) through (f) of this Code section.
  8. Each certified service provider as defined in Code Section 48-8-161 shall receive the amount provided in the contract between the certified service provider and the Streamlined Sales Tax Governing Board.

    (Ga. L. 1951, p. 360, § 16; Ga. L. 1964, p. 57, § 1; Ga. L. 1965, p. 321, § 1; Ga. L. 1966, p. 505, § 1; Ga. L. 1975, p. 101, § 1; Code 1933, § 91A-4522, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1992, p. 815, § 1; Ga. L. 1993, p. 995, § 1; Ga. L. 2003, p. 355, § 5; Ga. L. 2003, p. 665, § 15; Ga. L. 2004, p. 425, § 1; Ga. L. 2005, p. 159, § 23/HB 488; Ga. L. 2007, p. 309, § 3/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 14/HB 1221; Ga. L. 2015, p. 236, § 5-7/HB 170.)

The 2015 amendment, effective July 1, 2015, in subsection (b), added "and" at the end of paragraph (b)(2), substituted a period for ", but not including Code Section 48-9-14; and" at the end of paragraph (b)(3), and deleted former paragraph (b)(4), which read: "A deduction with respect to Code Section 48-9-14, as defined in Code Section 48-8-2, shall be at the rate of one-half of 1 percent of the total amount due of the prepaid state tax reported due on such return, so long as the return and payment are timely, regardless of the classification of tax return upon which the remittance is made." See Editor's notes for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2003, "subsection (f) of this Code section" was substituted for "subsection (f) of Code section" near the end of paragraph (b)(3).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

JUDICIAL DECISIONS

Seller acts as collecting agent for state. - Ultimate liability for a use tax is laid upon the purchaser, not the seller, whose role is merely that of collecting agent for the state. For this service the seller is compensated, provided the taxes due are not delinquent at the time of payment. Independent Publishing Co. v. Hawes, 119 Ga. App. 858 , 168 S.E.2d 904 (1969).

48-8-51. Extension of time for making returns; limit; conditions for valid extensions; remittance under extension; interest; estimate when no return or false return filed; presumption of correctness.

    1. The commissioner may, for good cause, extend the time for making any returns required under this article for not more than 30 days.
    2. No extension granted pursuant to paragraph (1) of this subsection shall be valid unless granted in writing upon written application and only for a period, as appropriate, of not more than 12 consecutive months or four consecutive calendar quarters.
    3. Upon the grant of any extension authorized by this subsection, the dealer shall remit to the commissioner on or before the date the tax would otherwise become due without the grant of the extension an amount which equals not less than 100 percent of the dealer's payment for the corresponding period of the preceding tax year.
    4. No interest shall be charged by reason of the granting of an extension pursuant to this subsection during the first ten days of each extension period. Thereafter, interest shall be collected upon the unpaid balance of the dealer's liability at the rate specified in Code Section 48-2-40.
    5. This subsection shall apply to all extensions granted pursuant to this subsection on or after July 1, 1980, and to all extensions granted pursuant to this subsection and in effect on July 1, 1980.
  2. In the event any dealer fails to make a return and pay the tax as provided by this article or makes a grossly incorrect return or a return that is false or fraudulent, the commissioner shall make an estimate for the taxable period of retail sales of the dealer and the gross proceeds from rentals or leases of tangible personal property by the dealer and shall estimate the cost price of all articles of tangible personal property imported by the dealer for use, consumption, distribution, or storage for use or consumption in this state. Based upon his estimate, the commissioner shall assess and collect the tax, interest, and penalty, as accrued, on the basis of the assessments. The commissioner's assessments shall be considered prima facie correct and the burden to show the contrary shall rest upon the dealer.

    (Ga. L. 1951, p. 360, § 16; Code 1933, § 91A-4524, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 28.)

JUDICIAL DECISIONS

Assessment is prima facie evidence of assessment's correctness. - Language of this section making the assessment prima facie correct in effect makes the assessment prima facie evidence of the assessment's correctness. Hawes v. Foster, 118 Ga. App. 296 , 163 S.E.2d 351 (1968).

Burden of going forward with evidence. - When a taxpayer attacks the legality of a tax levy by affidavit of illegality, the commissioner makes out a prima facie case by introducing the tax fi. fa., and the burden of going forward with evidence shifts to the defendant in fi. fa. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Effect of the language of Ga. L. 1951, p. 360, § 16 and Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8 , 48-8-9 , 48-8-11 , and 48-8-49 et seq.) is to shift to the taxpayer the burden of going forward with evidence to dispute the correctness of an assessment made thereunder. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Assessments may not be issued for purpose of extending time for appeal. - Assessment made by the commissioner pursuant to this section may not be cancelled or abated and a new assessment issued after the time for appeal has expired solely for the purpose of extending the time of appeal. Undercofler v. VFW Post 4625, 110 Ga. App. 711 , 139 S.E.2d 776 (1964).

Section imposes no duty to conduct hearing. - This section places a duty on the commissioner to estimate, assess, and collect tax when a dealer either fails to make a return or makes a grossly incorrect, false, or fraudulent return. No mention is made of a duty to conduct a hearing. Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970).

48-8-52. Dealers' duty to keep records of sales, purchases, and invoices of goods; examination by commissioner; assessment and collection when no or incorrect invoice produced; presumption of correctness; fixing of actual consideration for lease or rental; collection.

    1. Each dealer required to make a return and pay any tax under this article shall keep and preserve:
      1. Suitable records of the sales and purchases taxable under this article;
      2. Other books of account which are necessary to determine the amount of tax due;
      3. Other information as required by the commissioner; and
      4. For a period of three years, all invoices and other records of goods, wares, merchandise, and other subjects of taxation under this article.
    2. All books, invoices, and other records required to be kept by this subsection shall be open to examination at all reasonable hours by the commissioner or any of his duly authorized agents.
  2. In the event the dealer has imported tangible personal property and fails to produce an invoice showing the purchase price of each article subject to tax or if the invoice does not reflect the true or actual purchase price, the commissioner shall ascertain in any manner feasible the true purchase price and shall assess and collect the tax with interest and penalties as accrued on the true purchase price as assessed by the commissioner. The assessment so made shall be considered prima facie correct and the burden to show the contrary shall rest upon the dealer.
  3. In the case of the lease or rental of tangible personal property when the consideration reported by the dealer does not, in the judgment of the commissioner, represent the true or actual consideration, the commissioner may fix the true or actual consideration and collect the tax on the consideration in the same manner as provided in Code Section 48-8-51, with interest and penalties as accrued.

    (Ga. L. 1951, p. 360, § 16; Ga. L. 1953, Jan.-Feb. Sess., p. 200, § 1; Code 1933, § 91A-4525, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2010, p. 662, § 15/HB 1221.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1951, p. 360, § 17, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Declaratory judgment as to taxability affords no relief from audit. - Declaratory judgment as to taxability under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 2, Ch. 8, T. 48) will not relieve the taxpayer from audit of the taxpayer's books under Ga. L. 1951, p. 360, § 16 (see now O.C.G.A. § 48-8-49 ) or Ga. L. 1951, p. 360, § 17 or Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8 , 48-8-9 , and 48-811). Undercofler v. Eastern Air Lines, 221 Ga. 824 , 147 S.E.2d 436 (1966) (decided under Ga. L. 1951, p. 360, § 17).

Power of commissioner to rely on outside sources when taxpayer's records unavailable. - Whole thrust of Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8 , 48-8-9 , and 48-811) is to authorize the commissioner to make an assessment based upon whatever outside information the commissioner can locate when the commissioner does not have the benefit of the best source, the taxpayer's own records, because the taxpayer has refused to permit examination of the books or answer questions, first at the place of business, then after a formal notice. Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970) (decided under Ga. L. 1951, p. 360, § 17).

When commissioner must invoke formal procedures to gain access to tax information. - Only when a dealer refuses to allow on-site examination of records, the most expeditious and least disruptive way to conduct an audit, need the commissioner invoke the formal notice to produce records or to subpoena employees in order to gain information from which the dealer can make a reasonably accurate assessment. Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970) (decided under Ga. L. 1951, p. 360, § 17).

Hearing under § 48-8-55 not required when tax records are known to be insufficient. - Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8 , 48-8-9 , and 48-811) sets out the procedures which must be exhausted before the commissioner can make an assessment without regard to the taxpayer's records, but does not require a useless notice and hearing when the dealer voluntarily opened records to the field auditors, the records were found insufficient, and the commissioner, with the taxpayer's knowledge, resorted to additional sources of information to compute the tax liability. Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970) (decided under Ga. L. 1951, p. 360, § 17).

Cited in Bagley v. State, 161 Ga. App. 688 , 288 S.E.2d 332 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Limits on duty to maintain tax records. - State law requires that tax records be kept for a period of three years only and that requirement is with respect to sales tax information only. 1969 Op. Att'y Gen. No. 69-288.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 205.

48-8-53. Duty of wholesalers and jobbers to keep records; contents; inspection by commissioner.

Each wholesale dealer or jobber in this state shall keep a record of all sales of tangible personal property made in this state whether the sales are for cash or on terms of credit. The record shall contain the name and address of the purchaser, the date of the purchase, the article purchased, and the price at which the article is sold to the purchaser. These records shall be kept for a period of three years and shall be open to inspection by the commissioner or his duly authorized deputies, agents, and assistants at all reasonable hours during the day.

(Ga. L. 1951, p. 360, § 16; Code 1933, § 91A-4526, enacted by Ga. L. 1978, p. 309, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Limits on duty to maintain tax records. - State law requires that tax records be kept for a period of three years only and that requirement is with respect to sales tax information only. 1969 Op. Att'y Gen. No. 69-288.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 205.

48-8-54. Failure of wholesalers or jobbers to keep and allow inspection of records under Code Section 48-8-53; penalty.

  1. It shall be unlawful for any wholesale dealer or jobber in this state to fail to keep the records required to be kept by Code Section 48-8-53 or to fail to permit an inspection of the records by the commissioner as provided in Code Section 48-8-53.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1951, p. 360, § 16; Code 1933, § 91A-9937, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 222.

48-8-55. Appearance before commissioner of dealer who fails to file return or files false or fraudulent return; notice; presumption of correctness of commissioner's assessment.

  1. If any dealer required to make and file a return under this article fails to submit the return within the time required or submits a return which is false or fraudulent in that it contains statements which differ from the true gross sales, purchases, leases, or rentals taxable under this article or otherwise fails to comply with this article for the taxable period for which the return is made, the commissioner shall give the dealer ten days' notice in writing prior to requiring the dealer to appear before him or his assistant with the books, records, and papers required by the commissioner which relate to the business of the dealer for the taxable period.
  2. Any assessment of a dealer by the commissioner pursuant to this article shall be deemed prima facie correct.

    (Ga. L. 1951, p. 360, § 18; Code 1933, § 91A-4528, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Power of commissioner to rely on outside sources when taxpayer's records unavailable. - Whole thrust of this section is to authorize the commissioner to make an assessment based upon whatever outside information the commissioner can locate when the commissioner does not have the benefit of the best source, the taxpayer's own records, because the taxpayer has refused to permit examination of the books or answer questions, first at the place of business, then after a formal notice. Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970).

When commissioner must invoke formal procedures to gain access to tax information. - Only when a dealer refuses to allow on-site examination of records, the most expeditious and least disruptive way to conduct an audit, need the commissioner invoke the formal notice to produce records, or to subpoena employees, in order to gain information from which the dealer can make a reasonably accurate assessment. Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970).

Hearing not required when tax records known to be insufficient. - This section sets out the procedures which must be exhausted before the commissioner can make an assessment without regard to the taxpayer's records, but does not require a useless notice and hearing when the dealer voluntarily opened records to the field auditors, the records were found insufficient, and the commissioner, with the taxpayer's knowledge, resorted to additional sources of information to compute the tax liability. Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970).

Burden of going forward with evidence. - When a taxpayer attacks the legality of a tax levy by affidavit of illegality, the commissioner makes out a prima facie case by introducing the tax fi. fa., and the burden of going forward with evidence shifts to the defendant in fi. fa. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Effect of the language of Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8 , 48-8-9 , and 48-8-11 ) and Ga. L. 1951, p. 360, § 16 (see now O.C.G.A. § 48-8-49 et seq.) is to shift to the taxpayer the burden of going forward with evidence to dispute the correctness of an assessment made thereunder. Fowler v. Strickland, 243 Ga. 30 , 252 S.E.2d 459 , cert. denied, 444 U.S. 827, 100 S. Ct. 53 , 62 L. Ed. 2 d 35 (1979).

Declaratory judgment as to taxability affords no relief from audit. - Declaratory judgment as to taxability under Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8 , 48-8-9 , and 48-8-11 ) will not relieve the taxpayer from an audit of the taxpayer's books under Ga. L. 1951, p. 360, § 16, Ga. L. 1951, p. 360, § 17, or Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. § 48-8-49 et seq.). Undercofler v. Eastern Air Lines, 221 Ga. 824 , 147 S.E.2d 436 (1966).

OPINIONS OF THE ATTORNEY GENERAL

Purpose of notice and hearing. - Purpose of the notice and hearing is dual. First, it is primarily to afford the taxpayer or dealer an opportunity to be heard and give evidence relating to the amount of tax due and the dealer's compliance with the law. Secondly, its purpose is to give the commissioner an opportunity to acquire such additional information relating to the violation as may be made available to the commissioner in such hearing before finally assessing additional taxes. 1954-56 Op. Att'y Gen. p. 833.

Legislative intent as to power to assess delinquent taxpayers. - General Assembly intended that in any case where the dealer fails to file a return or to appear in response to the ten days' notice or, having appeared, fails to produce records showing the true amount of the tax due, the commissioner is authorized after the expiration of the ten days' notice in the case where the dealer fails to appear or immediately after the hearing, if the dealer does appear, to make an assessment of any tax found to be due based on the best information available to the commissioner. 1954-56 Op. Att'y Gen. p. 833.

When notice and hearing available. - Wording of Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8 , 48-8-9 , and 48-8-11 ) is broad enough to require that in all cases when for any reason whatever the commissioner or the department shall determine that a dealer has failed to make or file a return, or has rendered a false or fraudulent return, or has otherwise failed to comply with Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 2, Ch. 8, T. 48), the dealer should be given ten days' written notice to appear before the commissioner or the commissioner's assistant and to produce such books, records, and papers relating to the amount of tax due as the commissioner may deem pertinent, and be required to give testimony relating to such failure to comply with the provisions of Ga. L. 1951, p. 360, and only after such ten days' notice may an assessment be made. 1954-56 Op. Att'y Gen. p. 833. But see Anderson v. Blackmon, 123 Ga. App. 128 , 179 S.E.2d 657 (1970) (dispensing with notice and hearing when those procedures would be useless).

Protest procedures inapplicable. - It is manifest that Ga. L. 1937-38, Ex. Sess., p. 77, § 29 is applicable only to those cases when the law requires the commissioner to give the taxpayer an opportunity to protest the assessment. Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 2, Ch. 8, T. 48) does not contain any requirement that the taxpayer be given an opportunity to protest. Therefore, the General Assembly did not intend that such protest procedure should be applicable to sales taxes. 1954-56 Op. Att'y Gen. p. 833.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 212 et seq.

48-8-56. Period of delinquency of unpaid taxes; issuance of fi. fa. for collection.

The tax imposed by this article shall become delinquent for each month after the twentieth day of each succeeding month during which it remains unpaid. The commissioner may, and, when any tax becomes delinquent under this article, shall, issue a fi. fa. for the collection of the tax, interest, and penalty from each delinquent taxpayer, provided that the commissioner may transmit such a fi. fa. electronically.

(Ga. L. 1951, p. 360, § 19; Ga. L. 1952, p. 334, § 2; Code 1933, § 91A-4529, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1997, p. 734, § 8.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 216.

C.J.S. - 85 C.J.S., Taxation, §§ 1276 et seq., 1329 et seq.

48-8-57. Furnishing of bond by chronically delinquent or defaulting dealers; amount; sale at public auction of securities for collection of taxes due; notice to dealer or depositor by mail or personal service.

  1. The commissioner may require any dealer whom the commissioner finds, after notice and the opportunity for a hearing, to have been chronically delinquent or chronically in default under this article to execute and file with the commissioner a good and valid bond with a surety company authorized to do business in this state, or may require legal securities, in an amount of not less than $1,000.00 nor more than $10,000.00 as determined by the commissioner and in the manner deemed proper by the commissioner.
  2. The commissioner may sell any security deposited with him pursuant to this article at public auction if it is deemed necessary to do so in order to recover any tax or any amount required to be collected plus penalty and interest due. Notice of the sale may be served upon the delinquent dealer either in person or by mail or upon the person who deposited the security either in person or by mail. If the service is made by mail, it shall be in the manner prescribed for service of notice of assessment and shall be addressed to the person at his address as it appears in the records of the commissioner. If service is made other than by mail, notice of sale may be served personally by any duly authorized agent of the commissioner.

    (Ga. L. 1974, p. 407, § 1; Code 1933, § 91A-4527, enacted by Ga. L. 1978, p. 309, § 2.)

48-8-58. Property sold returned to dealer by purchaser; "return allowance" defined; credit for tax payments; deduction of return allowance; claim for refund of tax credit by retired dealer; forms; effect of failure to secure forms.

    1. As used in this subsection, the term "return allowance" means the amount of the sales price or purchase price refunded by the dealer to the purchaser in cash or credit. No credit shall be allowed to the dealer under this subsection for taxes collected by such dealer from the purchaser unless the taxes collected have been returned by the dealer to the purchaser.
    2. When property sold is subsequently returned by agreement to the dealer by the purchaser, the dealer shall be entitled to credit for the tax imposed by this article with respect to the return allowance, in the manner prescribed by the commissioner, as follows:
      1. The dealer in the original return for the taxable period in which the return of the property is allowed may deduct from the dealer's gross sales the amount of the return allowance; or
      2. When a dealer has retired from business and has filed a final return, a claim for refund of the tax for which the dealer would be entitled to credit under this subsection may be filed within the time and in the manner prescribed under Code Section 48-2-35.
  2. The commissioner shall make available to dealers all necessary forms for filing returns and instructions to ensure a full collection from dealers and an accounting for the taxes due. Failure of any dealer to secure the commissioner's forms shall not relieve the dealer from the payment of the tax at the time and in the manner provided in this article.
  3. The commissioner shall promulgate any rules and regulations necessary to implement this Code section.

    (Ga. L. 1951, p. 360, § 21; Ga. L. 1976, p. 341, § 1; Code 1933, § 91A-4530, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2006, p. 200, § 5/HB 1310; Ga. L. 2010, p. 662, § 16/HB 1221.)

48-8-59. Dealer's certificate of registration; one license for all operations of single business in state; application for certificate; contents; conditions for valid certificate; renewal fee after revocation or suspension of certificate.

    1. Every person desiring to engage in or conduct business as a seller or dealer in this state shall file with the commissioner an application for a certificate of registration for each place of business.
    2. Each person whose business extends into more than one county shall be required to secure only one certificate of registration under this article. The certificate of registration shall cover all operations of the company throughout this state.
  2. Every application for a certificate of registration shall be made upon a form prescribed by the commissioner and shall contain the name under which the applicant transacts or intends to transact business, the location of his place or places of business, and such other information as the commissioner may require. Except for sellers or dealers who register with the Streamlined Sales Tax Governing Board, the application shall be signed:
    1. If the owner is an individual, by the individual;
    2. In the case of an association or partnership, by a member or partner; or
    3. In the case of a corporation, by an executive officer or some other person specifically authorized by the corporation to sign the application. Written evidence of this authority to sign shall be attached to the application.
  3. When the required application has been made, the commissioner shall issue to the applicant a separate certificate of registration for each place of business within the state. A certificate of registration is not assignable and is valid only for the person in whose name it is issued and for the transaction of business at the place designated in the certificate. The certificate shall be conspicuously displayed at all times at the place for which the certificate is issued.
  4. A seller whose certificate of registration has been previously suspended or revoked shall pay the commissioner a fee of $1.00 for the renewal or issuance of a certificate of registration.

    (Ga. L. 1951, p. 360, § 24; Code 1933, § 91A-4532, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2010, p. 662, § 17/HB 1221.)

Cross references. - State agencies responsibility to provide registration number for contracting vendors, § 50-5-82 .

JUDICIAL DECISIONS

Application form is not a "rule". - An "ST-1 form," which corporations are required by the department of revenue to use when applying for a certificate of registration, is not a "rule" within the purview of O.C.G.A. § 50-13-10 , governing actions for declaratory judgment on the validity of rules. Roy E. Davis & Co. v. Department of Revenue, 256 Ga. 709 , 353 S.E.2d 195 (1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, § 25 et seq.

C.J.S. - 53 C.J.S., Licenses, §§ 51, 58 et seq.

ALR. - Recovery of sales taxes paid on bad debts, 38 A.L.R.6th 255.

48-8-60. Engaging in business as seller without certificate of registration required by Code Section 48-8-59; penalty.

  1. It shall be unlawful for any person to engage in business as a seller in this state without a certificate of registration as required by Code Section 48-8-59 after a certificate of registration has been suspended or revoked.
  2. Each officer of a corporation which engages in business in violation of subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1951, p. 360, § 24; Code 1933, § 91A-9942, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, § 46.

48-8-61. Application for certificate of registration by importing dealers; filing of returns and payment of use tax on imported tangible personal property.

Dealers who import or cause to be imported tangible personal property from other states or foreign countries for use or consumption or for storage for use or consumption in this state, if not already registered as dealers under Code Section 48-8-59, shall at the time and in the manner required by rules and regulations of the commissioner obtain from the commissioner a certificate of registration and shall file returns and pay the applicable use tax on the tangible personal property.

(Ga. L. 1960, p. 989, § 1; Code 1933, § 91A-4532.1, enacted by Ga. L. 1979, p. 5, § 96A.)

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, § 25 et seq.

C.J.S. - 53 C.J.S., Licenses, § 64.

48-8-62. Revocation or suspension of certificate of registration for violation of article or regulation; notice; hearing.

Whenever any person fails to comply with any provision of this article or with any rule or regulation of the commissioner relating to this article, the commissioner, upon hearing, after giving the person ten days' notice in writing specifying the time and place of hearing and requiring him to show cause why his certificate of registration should not be revoked, may revoke or suspend any one or more of the certificates of registration held by the person. The notice may be served in person or by registered or certified mail or statutory overnight delivery directed to the last known address of the person.

(Ga. L. 1951, p. 360, § 24; Code 1933, § 91A-4533, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that that Act shall apply with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, §§ 35 et seq.

48-8-63. "Nonresident subcontractor" defined; payment of tax by contractors; liability of seller; withholding of payments due subcontractor; rate; bond; exemption of property unconsumed; property deemed consumed; property of the state or of the United States.

  1. As used in this Code section, the term "nonresident subcontractor" means a person who does not have a bona fide place of business in Georgia through the maintaining of a permanent domicile or business facility engaged in contracting real property work and who contracts with a prime or general contractor to perform all or any part of the contract of the prime or general contractor or who contracts with a subcontractor who has contracted to perform any part of the contract entered into by the prime or general contractor.
  2. Each person who orally, in writing, or by purchase order contracts to furnish tangible personal property and to perform services under the contract within this state shall be deemed to be the consumer of the tangible personal property and shall pay the sales tax imposed by this article at the time of the purchase. Any person so contracting who fails to pay the sales tax at the time of the purchase or at the time the sale is consummated outside the limits of this state shall be liable for the payment of the sales or use tax. This Code section shall not relieve the dealer who made the sale from such dealer's liability to collect and pay the tax on purchases by a contractor.
  3. Each person who contracts to perform services in this state and who is furnished tangible personal property for use under the contract by the person, or such person's agent or representative, for whom the contract is to be performed, when a sales or use tax has not been paid to this state by the person supplying the tangible personal property, shall be deemed to be the consumer of the tangible personal property so used and shall pay a use tax based on the fair market value of the tangible personal property so used irrespective of whether any right, title, or interest in the tangible personal property becomes vested in the contractors.
  4. Each person who orally, in writing, or by purchase order contracts to perform any service the principal part of which is the furnishing of machinery which will not be under the exclusive control of the contractor shall be liable to collect a sales tax on the rental value of the machinery so used. If labor and other charges are not separated from the rental charge, the person so contracting shall be liable to collect a sales tax on the entire contract price.
    1. Any subcontractor who enters into a construction contract with a general or prime contractor shall be liable under this article as a general or prime contractor. Any general or prime contractor who enters into any construction contract or contracts with any nonresident subcontractor, where the total amount of such contract or contracts between such general or prime contractor and any nonresident subcontractors on any given project equals or exceeds $250,000.00, shall withhold 2 percent of the payments due the nonresident subcontractor in satisfaction of any sales or use taxes owed this state.
    2. The prime or general contractor shall withhold payments on all contracts that meet the criteria specified in paragraph (1) of this subsection until the nonresident subcontractor furnishes such prime or general contractor with a certificate issued by the commissioner showing that all sales taxes accruing by reason of the contract between the nonresident subcontractor and the general or prime contractor have been paid and satisfied. If the prime or general contractor for any reason fails to withhold 2 percent of the payments due the nonresident subcontractor under their contract, such prime or general contractor shall become liable for any sales or use taxes due or owed this state by the nonresident subcontractor.
  6. Whenever a nonresident subcontractor holding a contract with a general or prime contractor has posted with the commissioner either a good and valid bond with a surety company authorized to do business in this state or legal securities in an amount of not less than $5,000.00 nor more than $50,000.00, as determined by the commissioner, conditioned that all sales and use taxes which may accrue to this state on account of the execution of contracts that meet the criteria established in paragraph (1) of subsection (e) of this Code section by nonresident subcontractors will be paid when due, no general or prime contractor shall withhold any sums due the nonresident subcontractor under their contract with respect to sales and use taxes.
  7. Nothing contained in this Code section shall be construed to impose any sales or use tax with respect to the use of tangible personal property owned by the United States in the performance of contracts with the United States when the property is not actually used up and consumed in the performance of the contract. Tangible personal property incorporated into real property construction which loses its identity as tangible personal property shall be deemed to be used up and consumed within the meaning of this subsection.
    1. Nothing contained in this Code section shall be construed to impose any sales or use tax with respect to the use of tangible personal property owned by the State of Georgia, the University System of Georgia, or any county, municipality, local board of education, or other political subdivision of this state in the performance of contracts with such entities when the property is not actually used up and consumed in the performance of the contract. Tangible personal property incorporated into real property construction which loses its identity as tangible personal property shall be deemed to be used up and consumed within the meaning of this subsection. Any governmental entity which furnishes tangible personal property to a contractor for incorporation into a construction, renovation, or repair project conducted pursuant to a contract with such governmental entity shall issue advance written notice to such contractor of the amount of tax owed for such tangible personal property. The failure of the governmental entity to issue such advance written notice to the contractor of such tax liability shall render such governmental entity liable for such tax.
    2. This subsection shall not apply with respect to the use of tangible personal property owned by the United States.
  9. The commissioner is authorized to prescribe forms and promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section.

    (Ga. L. 1955, p. 389, §§ 1, 2; Code 1933, § 91A-4536, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 97; Ga. L. 1989, p. 62, § 9; Ga. L. 2000, p. 411, § 2; Ga. L. 2005, p. 498, § 1/HB 306; Ga. L. 2006, p. 59, § 2/HB 111; Ga. L. 2012, p. 774, § 1/HB 932.)

Law reviews. - For survey article on recent developments in Georgia state and local taxation, see 34 Mercer L. Rev. 400 (1982). For annual survey of construction law, see 57 Mercer L. Rev. 79 (2005). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

JUDICIAL DECISIONS

Taxation of materials used by building contractor. - When building materials are purchased by a contractor to be used in the construction, improvement, or repair of the house of the party who engages the contractor, such materials are not bought for the purpose of resale within the meaning of Ga. L. 1951, p. 360 (see O.C.G.A. Art. 1, Ch. 8. T. 48), so as to be exempt from sales tax. Troup Roofing Co. v. Dealers Supply Co., 91 Ga. App. 880 , 87 S.E.2d 358 (1955).

Contractor was responsible to pay the sales tax related to material purchased for a contract with the United States Department of the Army and shipped to Afghanistan as the material was purchased and stored in Georgia before being shipped to Afghanistan and, thus, the contractor fell under the contractor-as-consumer rule. Inglett & Stubbs Int'l, Ltd. v. Riley, 339 Ga. App. 375 , 791 S.E.2d 642 (2016).

Exclusive control of dock cranes. - Dock cranes furnished by a port authority to a stevedore were under the "exclusive control" of the port authority within the meaning of O.C.G.A. § 48-8-63(c) , when the port authority retained total operational control over the cranes. Southeastern Maritime Co. v. Collins, 258 Ga. 725 , 374 S.E.2d 197 (1988).

No exemption for agent of tax exempt entity. - Taxpayer, a for-profit corporation based in Illinois, that made purchases as an agent for a hospital authority, a tax exempt entity, was liable for sales and use taxes under O.C.G.A. § 48-8-63(b) or (c). There was no derivative exemption based upon the taxpayer's relationship with the authority. Resourcing Servs. Atlanta, LLC v. Ga. Dep't of Revenue, 288 Ga. App. 532 , 654 S.E.2d 649 (2007).

Cited in Strickland v. Sperry Rand Corp., 248 Ga. 535 , 285 S.E.2d 1 (1981); Strickland v. W.E. Ross & Sons, 251 Ga. 324 , 304 S.E.2d 719 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Taxation of raw materials from roadway used by contractor in constructing highway. - When contractor on highway project uses raw materials from roadway in construction of highway, those materials are not subject to sales and use tax, but when the subcontractor processes materials for the contractor's use, such processed materials are subject to tax. 1962 Op. Att'y Gen. p. 559.

Sales tax on materials must be paid by contractor even though state work is being done, when contract is for services including materials. 1962 Op. Att'y Gen. p. 560.

Use tax on property furnished to contractor by government. - When a government contractor under a fixed-price type maintenance, overhaul, and modification contract uses up and consumes government furnished property in performing the contract, although having previously purchased such property as agent for the government, the contractor becomes liable for the use tax based upon the fair market value of the property so used up and consumed. 1962 Op. Att'y Gen. p. 547.

Materials purchased for construction of a church are subject to sales tax. 1957 Op. Att'y Gen. p. 325.

Construction with other bond provisions. - Minimum requirements of the bond called for in former Code 1933, Ch. 92-4 do not meet the minimum requirements of this section, and a qualifying subcontractor should, therefore, post both bonds. 1960-61 Op. Att'y Gen. p. 545.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, §§ 159 et seq., 503 et seq., 596 et seq.

ALR. - Computer software or printout transactions as subject to state sales or use tax, 36 A.L.R.5th 133.

48-8-64. Time for assessment.

The amount of taxes imposed by this article shall be assessed within the time periods specified in Code Section 48-2-49.

(Ga. L. 1951, p. 360, § 26; Ga. L. 1953, Jan.-Feb. Sess., p. 184, § 1; Ga. L. 1960, p. 941, §§ 1, 2; Ga. L. 1960, p. 1007, § 1; Code 1933, § 91A-4535, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 29; Ga. L. 1985, p. 1350, § 3.)

JUDICIAL DECISIONS

Period of limitations as to sums not required to be assessed. - As to sums not required to be assessed, the period of limitations is seven years from the time when a fi. fa. could first have been issued. Oxford v. Jessup, 101 Ga. App. 612 , 115 S.E.2d 434 (1960).

Assessment of proper, accepted returns does not change limitation of actions as to them. - Amounts due on returns properly made and accepted by the commissioner need not be assessed. The fact that the amounts are assessed does not change the limitation of action as to them. Oxford v. Jessup, 101 Ga. App. 612 , 115 S.E.2d 434 (1960).

Section inapplicable to returns properly made and accepted. - Section has no application to the amounts due by a taxpayer ascertained by returns properly made and accepted by the commissioner, whether the amounts so shown to be due are sought to be collected by assessment or execution. Oxford v. Jessup, 101 Ga. App. 612 , 115 S.E.2d 434 (1960).

Statute of limitations does not extinguish debt itself. - Statute of limitation contained in Ga. L. 1951, p. 360 (see O.C.G.A. Art. 1, Ch. 8. T. 48) operates only to bar the remedy, not to extinguish the tax debt itself. Hawes v. Shuman, 125 Ga. App. 117 , 186 S.E.2d 582 (1971).

Payment of debt after period of limitations is expired. - Person who pays a debt after the running of the statute of limitations has expired cannot sue to recover the debt back because of this fact. Hawes v. Shuman, 125 Ga. App. 117 , 186 S.E.2d 582 (1971).

Voluntary payment of illegal taxes cannot be recovered. Hawes v. Shuman, 125 Ga. App. 117 , 186 S.E.2d 582 (1971).

Comparable income tax provisions. - Laws cited by former Code 1933, § 91A-4535 (see now O.C.G.A. § 48-8-64 ) were intended to serve the same function as to sales tax as acts cited in former Code 1933, § 92-3303 (see now O.C.G.A. § 48-7-82 ) were intended to serve as to the income tax. Oxford v. Jessup, 101 Ga. App. 612 , 115 S.E.2d 434 (1960).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 231, 234 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 503 et seq., 596 et seq., 610 et seq.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

48-8-65. Engaging in business by nonresident dealer as appointment of Secretary of State as attorney in fact for service of process; circumstances and events constituting engaging in business by nonresident dealer; venue; perfection of service of process.

  1. For the purpose of this Code section, the term "processes of law" means any notice, demand, proposed assessment, final assessment, direction, ruling, or order issued by the commissioner or other official of the department as provided by law in the administration of the tax laws of this state. When service in the hands of the Secretary of State or other action is required of the Secretary of State, it shall be sufficient compliance with this Code section if the service or other action is done by a deputy of the Secretary of State. When action is required of the commissioner, it shall be sufficient compliance with this Code section if the action is done by his deputy or attorney.
    1. The fact of engaging in some act or activity within this state giving rise to a tax liability or obligation under this article shall constitute an appointment by the person engaging in the act or activity of the Secretary of State or his successor in office to be the true and lawful attorney in fact of the person upon whom may be served, while the act or activity is being engaged in or for as long as the statute of limitations prescribed for the tax liability or obligation remains open, any processes of law for the determination and enforcement of the tax liability or obligation and shall signify the agreement of the person engaging in the act or activity that any process of law served upon the Secretary of State shall be of the same legal force and validity as if served upon the person personally.
    2. For the purposes of this subsection, a person engages in some act or activity within this state giving rise to a tax liability or obligation when the person:
        1. Performs or carries on any employment, trade, business, profession, or any other act or activity for financial gain or profit within this state including, but not limited to, the rental of real or personal property located within this state or for use within this state and the sale, exchange, or other disposition of tangible or intangible property having a situs in this state;
        2. By reason of any act or activity performed or carried on within this state comes within the definition of "dealer" as defined in Code Section 48-8-2; or
        3. Otherwise operates personally or through partners, employees, agents, or otherwise in this state so as to incur any liability or obligation with respect to the payment or collection of taxes imposed by this article; and
        1. Does not maintain a residence, known place of business, or known agent to receive service of process; or
        2. If he has maintained in this state a known place of residence, place of business, or agent, the known place of residence, business, or agent has been discontinued.
  3. Venue in any action or proceeding in which the Secretary of State by reason of subsection (b) of this Code section is made an attorney in fact for service of process shall be in Fulton County. The service in such a case shall be perfected by leaving a copy of the process in the hands of the Secretary of State and by sending by registered or certified mail or statutory overnight delivery a copy of the process to the person if his address is known and by attaching to the original process an affidavit of compliance with this Code section. When it appears from the affidavit that a copy of process has been mailed by the commissioner to a known address, a second mailing shall not be required of the Secretary of State to the same address, but the Secretary of State shall keep the copy received by him on file as a source of information for any inquiry from the person for whom the Secretary of State is attorney in fact, concerning the person's tax liabilities and obligations incident to the person's taxable acts or activities within this state.

    (Ga. L. 1957, p. 654, §§ 1-3; Code 1933, § 91A-4537, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that this Act shall apply with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

C.J.S. - 72 C.J.S., Process, § 76.

48-8-66. Penalties for failure to file return or make payment in full; exception for providential cause; penalty for willful failure to file return or for false or fraudulent return.

When any dealer fails to make any return or to pay the full amount of the tax required by this article, there shall be imposed, in addition to other penalties provided by law, a penalty to be added to the tax in the amount of 5 percent or $5.00, whichever is greater, if the failure is for not more than 30 days and an additional 5 percent or $5.00, whichever is greater, for each additional 30 days or fraction of 30 days during which the failure continues. The penalty for any single violation shall not exceed 25 percent or $25.00 in the aggregate, whichever is greater. If the failure is due to providential cause shown to the satisfaction of the commissioner in affidavit form attached to the return and remittance is made within ten days of due date, the return may be accepted exclusive of penalties and interest. In the case of a false or fraudulent return or of a failure to file a return where willful intent exists to defraud the state of any tax due under this article, a penalty of 50 percent of the tax due shall be assessed.

(Ga. L. 1951, p. 360, § 16; Ga. L. 1953, Jan.-Feb. Sess., p. 196, § 1; Ga. L. 1964, p. 57, § 1; Ga. L. 1974, p. 409, § 1; Ga. L. 1975, p. 162, § 1; Code 1933, § 91A-4523, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Taxpayer not liable when an innocent and ignorant participant in fraudulent scheme. - Court is authorized to find that a taxpayer is not liable for penalties based on a taxpayer's participation in the filing of a false or fraudulent return, when the taxpayer unlawfully but innocently and ignorantly sought to settle a tax debt with a representative of the state for less than the amount due, and did not contemplate or participate in the filing of false and fraudulent returns on the taxpayer's behalf by the state agents, and did not conspire with the state agents in a scheme whereby the agents were to rob the state of the amount paid in an effort to settle the debt, and the taxpayer honestly believed the state agents had authority to make the settlement and the state would receive the amount paid in settlement. Oxford v. Jessup, 101 Ga. App. 612 , 115 S.E.2d 434 (1960).

OPINIONS OF THE ATTORNEY GENERAL

It is mandatory that penalties be imposed against a person failing to pay state sales taxes, notwithstanding the fact that a return was made. 1952-53 Op. Att'y Gen. p. 236.

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 220 et seq., 230, 238.

C.J.S. - 85 C.J.S., Taxation, § 1851 et seq.

48-8-67. Distribution of certain unidentifiable sales and use tax proceeds; limitations; powers and duties of state revenue commissioner.

  1. As used in this Code section, the term "authorized recipient" means the state, special districts, counties, or municipalities, or any combination thereof, as determined by general law, applicable local constitutional amendment, or Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," which specifies the entities to whom the commissioner is directed to distribute the proceeds of sales and use taxes.
  2. When a dealer makes a return with insufficient information to identify proceeds as being attributable to retail sales, retail purchases, rentals, storage, use, or consumption of tangible personal property or services occurring within a particular special district or particular county, the commissioner shall make reasonable efforts to obtain the information needed to make a distribution of those proceeds. When the information cannot be obtained, the commissioner shall allocate unidentifiable proceeds among the authorized recipients in the same proportion as the proceeds of the sales and use taxes are otherwise allocated and distributed to the authorized recipients. Each allocation of unidentifiable proceeds shall be calculated by determining each authorized recipient's pro rata share of identifiable proceeds collected during the same period of time in which the unidentifiable proceeds to be allocated were collected. Each authorized recipient's pro rata share of the unidentifiable proceeds for each such collection period shall be the same as that authorized recipient's pro rata share of the identifiable proceeds for the same collection period.
  3. The initial allocation of such unidentifiable proceeds shall be distributed in the manner consistent with subsection (b) of this Code section before July 1, 1998, and such allocation shall include all amounts of such unidentifiable proceeds that have been collected subsequent to June 30, 1997, and prior to April 1, 1998, and which have not been distributed by the commissioner at the time of the initial distribution. Such initial distribution of unidentifiable proceeds to an authorized recipient shall be made separate and distinct from the regular distribution of identifiable proceeds to such authorized recipient. In lieu of interest earned on such unidentifiable proceeds, an amount equivalent to 5 percent of the initial distribution amount shall be allocated and distributed by the commissioner in a similar manner, if funds are specifically appropriated for such purpose.
  4. Following the initial allocation under subsection (c) of this Code section, allocations of unidentifiable proceeds shall be made by the commissioner according to a schedule provided for by rules and regulations of the commissioner but in no event less often than twice per year. Any such subsequent distribution of unidentified proceeds to an authorized recipient shall be made separate and distinct from the regular distribution of identifiable proceeds to such authorized recipient.
  5. Information regarding proceeds distributed to authorized recipients pursuant to this Code section shall be identified by the commissioner, and such information shall be made available upon request.
  6. The department shall at the time of the first distribution of such unidentifiable proceeds provide each authorized recipient with written notice advising each authorized recipient that negotiation of the first distribution shall constitute a release and full accord and satisfaction for any and all refund requests or claims with respect to any sales and use tax collected prior to April 1, 1998, which the authorized recipient has or may have for recovery of any such tax funds. Negotiation of the first distribution shall also constitute full and complete acceptance of all the terms and conditions set forth in this Code section and shall bar any challenges to this Code section.
  7. The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient distribution of state and local sales and use tax proceeds in accordance with this Code section. (Code 1981, § 48-8-67 , enacted by Ga. L. 1998, p. 769, § 1; Ga. L. 1999, p. 81, § 48; Ga. L. 2001, p. 984, § 18; Ga. L. 2005, p. 159, § 24/HB 488; Ga. L. 2009, p. 723, § 1/HB 181; Ga. L. 2011, p. 47, § 2/HB 322.)

Editor's notes. - Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

Law reviews. - For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

JUDICIAL DECISIONS

Constitutionality. - Court would reject the contention that O.C.G.A. § 48-8-67 is unconstitutional, either as a retrospective application of law which alters vested rights, or as a breach of an implied contract between DeKalb County and the State of Georgia. DeKalb County v. State, 270 Ga. 776 , 512 S.E.2d 284 (1999).

48-8-68. Relief from liability in certain circumstances for failure to collect tax at new rate.

If the sales tax rate changes with less than 30 days between the enactment of the rate change and the effective date of such rate change, sellers shall be relieved of liability for failing to collect tax at the new rate if:

  1. The seller collected tax at the immediately preceding effective rate; and
  2. The seller's failure to collect at the newly effective rate does not extend beyond 30 days after the date of enactment of the new rate. The provisions of this Code section do not apply if the commissioner establishes that the seller fraudulently failed to collect at the new rate or solicits purchasers based on the immediately preceding effective rate. (Code 1981, § 48-8-68 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221.)

48-8-69. Purchases from printed catalogs; local jurisdiction boundary changes.

  1. Any local sales tax rate changes made pursuant to this chapter shall apply to purchases from printed catalogues wherein the purchaser computed the tax based upon local tax rates published in the catalogue only on the first day of a calendar quarter after a minimum of 120 days' notice to sellers.
  2. For sales and use tax purposes only, local jurisdiction boundary changes are effective only on the first day of a calendar quarter after a minimum of 60 days' notice to sellers. (Code 1981, § 48-8-69 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221; Ga. L. 2013, p. 141, § 48/HB 79.)

Law reviews. - For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010).

48-8-70. Determination of ZIP Code designation applicable to particular purchases; rebuttable presumption of seller's due diligence.

If a nine-digit ZIP Code designation is not available for a street address or if a seller or certified service provider is unable to determine the nine-digit ZIP Code designation applicable to a purchase after exercising due diligence to determine the designation, the seller or certified service provider may apply the rate for the five-digit ZIP Code area. For the purposes of this Code section, there is a rebuttable presumption that a seller or certified service provider has exercised due diligence if the seller has attempted to determine the nine-digit ZIP Code designation by utilizing software approved by the Streamlined Sales Tax Governing Board that makes this designation from the street address and the five-digit ZIP Code applicable to a purchase.

(Code 1981, § 48-8-70 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221; Ga. L. 2013, p. 141, § 48/HB 79.)

48-8-71. Immunity from liability for reliance upon erroneous data provided by the state on tax rates, local boundaries, and taxing jurisdiction assignments.

Sellers and certified service providers shall not be liable for having charged and collected the incorrect amount of sales or use tax resulting from the seller or certified service provider relying on erroneous data provided by this state on state and local tax rates, local boundaries, and taxing jurisdiction assignments.

(Code 1981, § 48-8-71 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221.)

48-8-72. Over-collected sales or use tax.

  1. A cause of action against a seller for over-collected sales or use taxes does not accrue until a purchaser has provided written notice to the seller and the seller has had 60 days to respond. Such notice to the seller must contain the information necessary to determine the validity of the request.
  2. In connection with a purchaser's request from a seller of over-collected sales or use taxes, a seller shall be presumed to have a reasonable business practice if, in the collection of such sales or use taxes, the seller:
    1. Uses either a provider or a system, including a proprietary system, that is certified by the state; and
    2. Has remitted to the state all taxes collected less any deductions, credits, or collection allowances. (Code 1981, § 48-8-72 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221; Ga. L. 2013, p. 141, § 48/HB 79.)

JUDICIAL DECISIONS

Cited in Ga. Power Co. v. Cazier, 321 Ga. App. 576 , 740 S.E.2d 458 (2013); Cazier v. Georgia Power Company, 339 Ga. App. 506 , 793 S.E.2d 668 (2016).

48-8-73. Immunity from liability for reliance upon erroneous taxability matrix data provided by the state.

A seller and certified service provider are relieved of liability for having charged and collected the incorrect amount of sales or use tax resulting from the seller or certified service provider relying on erroneous data provided by this state in the taxability matrix.

(Code 1981, § 48-8-73 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221.)

48-8-74. Effective date for sales tax rate change.

The effective date for a sales tax rate change for services covering a period starting before and ending after the statutory effective date shall be as follows:

  1. For a rate increase, the new rate shall apply to the first billing period starting on or after the effective date; and
  2. For a rate decrease, the new rate shall apply to bills rendered on or after the effective date. (Code 1981, § 48-8-74 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221.)

48-8-75. Purchaser's immunity from liability for failure to pay correct sales tax under certain circumstances.

  1. A purchaser shall be relieved from liability for penalty for having failed to pay the correct amount of sales or use tax if:
    1. A purchaser's seller or certified service provider relied on erroneous data provided by this state on tax rates, boundaries, taxing jurisdiction assignments, or in the taxability matrix completed by this state;
    2. A purchaser holding a direct pay permit relied on erroneous data provided by this state on tax rates, boundaries, taxing jurisdiction assignments, or in the taxability matrix completed by this state;
    3. A purchaser relied on erroneous data provided by this state in the taxability matrix completed by this state; or
    4. A purchaser using data bases provided by this state relied on erroneous data provided by this state on tax rates, boundaries, or taxing jurisdiction assignments.
  2. A purchaser shall be relieved from liability for tax and interest for having failed to pay the correct amount of sales or use tax in the circumstances described in subsection (a) of this Code section provided that, with respect to reliance on the taxability matrix completed by this state, such relief is limited to the state's erroneous classification in the taxability matrix of terms included in the Library of Definitions as "taxable" or "exempt," "included in sales price," or "excluded from sales price" or "included in the definition" or "excluded from the definition." (Code 1981, § 48-8-75 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221; Ga. L. 2014, p. 866, § 48/SB 340.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, "in" was inserted following "described" in subsection (b).

48-8-76. Compliance with terms of Streamlined Sales and Use Tax Agreement; relief from certain obligations.

  1. A seller who registers to pay or to collect and remit applicable sales or use tax on sales made to purchasers in this state in accordance with the terms of the Streamlined Sales and Use Tax Agreement is relieved from the obligation to remit uncollected sales tax provided the seller was not so registered in this state in the twelve-month period preceding the effective date of this state's participation in the Streamlined Sales and Use Tax Agreement.
  2. The relief provided in subsection (a) of this Code section precludes an assessment for uncollected or unpaid sales together with penalty or interest for sales made during the period the seller was not registered in this state, provided that the registration occurs within 12 months of the effective date of this state's participation in the Streamlined Sales and Use Tax Agreement.
  3. The relief provided in subsection (a) of this Code section shall not be available to a seller with respect to any matter or matters for which the seller received notice of the commencement of an audit and which audit is not yet finally resolved including any related administrative and judicial processes.
  4. The relief provided in subsection (a) of this Code section shall not be available for sales or use taxes already paid or remitted to this state or to taxes collected by the seller.
  5. The relief provided in subsection (a) of this Code section is fully effective, absent the seller's fraud or intentional misrepresentation of a material fact, as long as the seller continues registration and continues payment or collection and remittance of applicable sales or use taxes for a period of at least 36 months. The statute of limitations applicable to asserting a tax liability is tolled during this 36 month period.
  6. The relief provided in subsection (a) of this Code section is applicable only to sales or use taxes due from a seller in its capacity as a seller and not to sales or use taxes due from a seller in its capacity as a buyer. (Code 1981, § 48-8-76 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221.)

48-8-77. Sourcing; definitions; sales of advertising and promotional direct mail and other direct mail; sales of telecommunications service.

  1. This Code section shall not be construed to impose sales and use tax on any tangible personal property or service which was not subject to such tax prior to January 1, 2011.
    1. The retail sale, excluding lease or rental, of a product shall be sourced as follows:
      1. When the product is received by the purchaser at a business location of the seller, the sale is sourced to that business location;
      2. When the product is not received by the purchaser at a business location of the seller, the sale is sourced to the location where receipt by the purchaser, or the purchaser's donee, designated as such by the purchaser, occurs, including the location indicated by instructions for delivery to the purchaser or donee, known to the seller;
      3. When subparagraph (A) or (B) of this paragraph does not apply, the sale is sourced to the location indicated by an address for the purchaser that is available from the business records of the seller that are maintained in the ordinary course of the seller's business when use of this address does not constitute bad faith;
      4. When subparagraph (A), (B), or (C) of this paragraph does not apply, the sale is sourced to the location indicated by an address for the purchaser obtained during the consummation of the sale, including the address of a purchaser's payment instrument, if no other address is available, when use of this address does not constitute bad faith;
      5. When subparagraph (A), (B), (C), or (D) of this paragraph does not apply, including the circumstance in which the seller is without sufficient information to apply the previous rules, then the location will be determined by the address from which tangible personal property was shipped, from which the digital good or the computer software delivered electronically was first available for transmission by the seller, or from which the service was provided, disregarding for these purposes any location that merely provided the digital transfer of the product sold.
    2. The lease or rental of tangible personal property, other than property identified in paragraph (3) or (4) of this subsection, shall be sourced as follows:
      1. For a lease or rental that requires recurring periodic payments, the first periodic payment is sourced the same as a retail sale in accordance with the provisions of paragraph (1) of this subsection. Periodic payments made subsequent to the first payment are sourced to the primary property location for each period covered by the payment. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, when use of this address does not constitute bad faith. The property location shall not be altered by intermittent use at different locations, such as use of business property that accompanies employees on business trips and service calls.
      2. For a lease or rental that does not require recurring periodic payments, the payment is sourced the same as a retail sale in accordance with the provisions of paragraph (1) of this subsection.
      3. This subsection does not affect the imposition or computation of sales or use tax on leases or rentals based on a lump sum or accelerated basis, or on the acquisition of property for lease.
    3. The lease or rental of motor vehicles, trailers, semitrailers, or aircraft that do not qualify as transportation equipment, as defined in paragraph (4) of this subsection, shall be sourced as follows:
      1. For a lease or rental that requires recurring periodic payments, each periodic payment is sourced to the primary property location. The primary property location shall be as indicated by an address for the property provided by the lessee that is available to the lessor from its records maintained in the ordinary course of business, when use of this address does not constitute bad faith. This location shall not be altered by intermittent use at different locations.
      2. For a lease or rental that does not require recurring periodic payments, the payment is sourced the same as a retail sale in accordance with the provisions of paragraph (1) of this subsection.
      3. This subsection shall not affect the imposition or computation of sales or use tax on leases or rentals based on a lump sum or accelerated basis, or on the acquisition of property for lease.
    4. The retail sale, including lease or rental, of transportation equipment shall be sourced the same as a retail sale in accordance with the provisions of paragraph (1) of this subsection, notwithstanding the exclusion of lease or rental in paragraph (1) of this subsection. As used in this paragraph, "transportation equipment" means any of the following:
      1. Locomotives and railcars that are utilized for the carriage of persons or property in interstate commerce.
      2. Trucks and truck-tractors with a Gross Vehicle Weight Rating of 10,001 pounds or greater, trailers, semitrailers, or passenger buses that are:
        1. Registered through the International Registration Plan; and
        2. Operated under authority of a carrier authorized and certificated by the U.S. Department of Transportation or another federal authority to engage in the carriage of persons or property in interstate commerce.
      3. Aircraft that are operated by air carriers authorized and certificated by the U.S. Department of Transportation or another federal or a foreign authority to engage in the carriage of persons or property in interstate or foreign commerce.
      4. Containers designed for use on and component parts attached or secured on the items set forth in subparagraph (A), (B), or (C) of this paragraph.
  3. For the purposes of paragraph (1) of subsection (b) of this Code section, the terms "receive" and "receipt" mean:
    1. Taking possession of tangible personal property;
    2. Making first use of services; or
    3. Taking possession or making first use of digital goods, whichever comes first.

      The terms "receive" and "receipt" shall not include possession by a shipping company on behalf of the purchaser.

    1. Notwithstanding subsection (b) of this Code section, the following provisions shall apply to sales of advertising and promotional direct mail:
      1. A purchaser of advertising and promotional direct mail may provide the seller with either:
        1. A direct pay permit;
        2. An agreement certificate of exemption claiming direct mail or other written statement approved, authorized, or accepted by the state; or
        3. Information showing the jurisdictions to which the advertising and promotional direct mail is to be delivered to recipients;
      2. If the purchaser provides the permit, certificate, or statement referred to in division (i) or (ii) of subparagraph (A) of this paragraph, the seller, in the absence of bad faith, is relieved of all obligations to collect, pay, or remit any tax on any transaction involving advertising and promotional direct mail to which the permit, certificate, or statement applies. The purchaser shall source the sale to the jurisdictions to which the advertising and promotional direct mail is to be delivered to the recipients and shall report and pay any applicable tax due;
      3. If the purchaser provides the seller information showing the jurisdictions to which the advertising and promotional direct mail is to be delivered to recipients, the seller shall source the sale to the jurisdictions to which the advertising and promotional direct mail is to be delivered and shall collect and remit the applicable tax. In the absence of bad faith, the seller is relieved of any further obligation to collect any additional tax on the sale of advertising and promotional direct mail where the seller has sourced the sale according to the delivery information provided by the purchaser; and
      4. If the purchaser does not provide the seller with any of the items listed in subparagraph (A) of this paragraph, the sale shall be sourced according to Section 310.A.5 of the Streamlined Sales and Use Tax Agreement. The state to which the advertising and promotional direct mail is delivered may disallow credit for tax paid on sales sourced under this paragraph.
    2. Notwithstanding subsection (b) of this Code section, the following provisions shall apply to sales of other direct mail:
      1. Except as otherwise provided in this paragraph, sales of other direct mail are sourced in accordance with subparagraph (b)(1)(C) of this Code section;
      2. A purchaser of other direct mail may provide the seller with either:
        1. A direct pay permit; or
        2. An agreement certificate of exemption claiming direct mail or other written statement approved, authorized, or accepted by the state; and
      3. If the purchaser provides the permit, certificate, or statement referred to in paragraph (1) or (2) of this subsection, the seller, in the absence of bad faith, is relieved of all obligations to collect, pay, or remit any tax on any transaction involving other direct mail to which the permit, certificate, or statement applies. Notwithstanding paragraph (1) of this subsection, the sale shall be sourced to the jurisdictions to which the other direct mail is to be delivered to the recipients and the purchaser shall report and pay applicable tax due.
    3. For purposes of this subsection, the term:
      1. "Advertising and promotional direct mail" means:
        1. Printed material that meets the definition of direct mail, under Code Section 48-8-2;
        2. The primary purpose of which is to attract public attention to a product, person, business, or organization, or to attempt to sell, popularize, or secure financial support for a product, person, business, or organization. As used in this division, the term "product" means tangible personal property, a product transferred electronically, or a service.
      2. "Other direct mail" means any direct mail that is not advertising and promotional direct mail regardless of whether advertising and promotional direct mail is included in the same mailing. The term includes, but is not limited to:
        1. Transactional direct mail that contains personal information specific to the addressee including, but not limited to, invoices, bills, statements of account, and payroll advices;
        2. Any legally required mailings including, but not limited to, privacy notices, tax reports, and stockholder reports; and
        3. Other nonpromotional direct mail delivered to existing or former shareholders, customers, employees, or agents including, but not limited to, newsletters and informational messages.

          Other direct mail does not include the development of billing information or the provision of any data processing service that is more than incidental.

        1. This paragraph shall apply to a transaction characterized under this chapter as the sale of services only if the service is an integral part of the production and distribution of printed material that meets the definition of direct mail.
        2. This paragraph shall not apply to any transaction that includes the development of billing information or the provision of any data processing service that is more than incidental regardless of whether advertising and promotional direct mail is included in the same mailing.
      2. If a transaction is a bundled transaction that includes advertising and promotional direct mail, this subsection shall apply only if the primary purpose of the transaction is the sale of products or services that meet the definition of advertising and promotional direct mail.
      3. Nothing in this paragraph shall limit any purchaser's:
        1. Obligation for sales or use tax to any state to which the direct mail is delivered;
        2. Right under local, state, federal, or constitutional law, to a credit for sales or use taxes legally due and paid to other jurisdictions; or
        3. Right to a refund of sales or use taxes overpaid to any jurisdiction.
      4. This subsection applies for purposes of uniformly sourcing direct mail transactions and does not otherwise impose requirements regarding the taxation of products that meet the definition of direct mail or to the application of sales for resale or other exemptions.
    1. Except for the defined telecommunications service in paragraph (3) of this subsection, the sale of telecommunications service sold on a call-by-call basis shall be sourced to: (A) Each level of taxing jurisdiction where the call originates and terminates in that jurisdiction; or (B) Each level of taxing jurisdiction where the call either originates or terminates and in which the service address is also located.
    2. Except for the defined telecommunications service in paragraph (3) of this subsection, a sale of telecommunications service sold on a basis other than a call-by-call basis shall be sourced to the customer's place of primary use.
    3. A sale of prepaid calling service or a sale of a prepaid wireless calling service is sourced in accordance with subsection (b) of this Code section; provided, however, that in the case of a sale of prepaid wireless calling service, the rule provided in subparagraph (b)(1)(E) of this Code section shall include as an option the location associated with the mobile telephone number.
    4. The sale of an ancillary service is sourced to the customer's place of primary use. (Code 1981, § 48-8-77 , enacted by Ga. L. 2010, p. 662, § 18/HB 1221; Ga. L. 2011, p. 38, § 8/HB 168; Ga. L. 2013, p. 141, § 48/HB 79.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2012, "paragraph (1)" was substituted for "paragraph (l)" in the last sentence of subparagraph (d)(2)(C).

Pursuant to Code Section 28-9-5, in 2013, "promotional" was substituted for "promotion" near the beginning of subparagraph (d)(4)(B).

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

48-8-77.1. Certification of review software by department; relief from liability.

  1. For purposes of this Code section, the definitions as provided in Code Section 48-8-161 shall apply.
  2. The department shall review software submitted to the Streamlined Sales Tax Governing Board for certification as a Certified Automated System under Section 501 of the Streamlined Sales and Use Tax Agreement. Such review shall include a review to determine that the program accurately reflects the taxability of the product categories included in the program. Upon approval by the department, the state will certify its acceptance of the software to the Streamlined Sales Tax Governing Board.
  3. The department shall relieve certified service providers and model 2 sellers from liability to the state and local jurisdictions in the state for not collecting sales or use taxes resulting from the certified service provider or model 2 seller relying on the certification provided by the state.
  4. The department shall provide relief from liability to certified service providers for not collecting sales and use taxes in the same manner as provided to sellers under Code Section 48-8-38.
  5. If the department determines that an item or transaction is incorrectly classified as to the item or transaction's taxability, the department shall notify the certified service providers or model 2 sellers of the incorrect classification. The certified service provider or model 2 seller shall have ten days to revise the classification after receipt of notice from the department of the determination. (Code 1981, § 48-8-77.1 , enacted by Ga. L. 2011, p. 38, § 9/HB 168.)

ARTICLE 2 JOINT COUNTY AND MUNICIPAL SALES AND USE TAX (LOST)

Law reviews. - For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article surveying Georgia cases in the area of local government law from June 1979 through May 1980, see 32 Mercer L. Rev. 137 (1980). For article surveying Georgia cases in the area of state and local taxation from June 1979 through May 1980, see 32 Mercer L. Rev. 203 (1980). For annual survey on local government law, see 42 Mercer L. Rev. 359 (1990). For annual survey of state and local taxation, see 42 Mercer L. Rev. 421 (1990). For note, "The Local Option Sales Tax: A General Overview," see 31 Mercer L. Rev. 313 (1979).

JUDICIAL DECISIONS

Tax authorized by Ga. L. 1975, p. 984 is constitutional whether viewed as a joint county-city tax which the General Assembly could and did authorize in the exercise of the state's inherent power to tax, or viewed as a special district tax authorized by Ga. Const. 1976, Art. IX, Sec. IV, Para. II (see now Ga. Const. 1983, Art. IX, Sec. II, Para. IV). Board of Comm'rs v. Cooper, 245 Ga. 251 , 264 S.E.2d 193 (1980).

Ga. L. 1975, p. 984 does not violate U.S. Const., amend. 14 or Ga. Const. 1976, Art. I, Sec. I, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Board of Comm'rs v. Cooper, 245 Ga. 251 , 264 S.E.2d 193 (1980).

Article does not violate the uniformity provision in Ga. Const. 1976, Art. I, Sec. II, Para. VII (see now Ga. Const. 1983, Art. III, Sec. VI, Para. IV). Board of Comm'rs v. Cooper, 245 Ga. 251 , 264 S.E.2d 193 (1980).

Article does not impermissibly delegate legislative authority to the localities. Board of Comm'rs v. Cooper, 245 Ga. 251 , 264 S.E.2d 193 (1980).

Purpose. - Purpose of Ga. L. 1975, p. 984 is to provide a measure of ad valorem tax relief both to county and city taxpayers. City Council v. Mangelly, 243 Ga. 358 , 254 S.E.2d 315 (1979).

This is a county tax, and not a state tax. City Council v. Mangelly, 243 Ga. 358 , 254 S.E.2d 315 (1979).

Constitutionality. - Ga. L. 1975, p. 984 is unconstitutional in the statute's entirety and void. City Council v. Mangelly, 243 Ga. 358 , 254 S.E.2d 315 (1979).

Purposes for which county may tax. - Purposes for which a county may tax are listed in Ga. Const. 1976, Art. IX, Sec. IV, Para. II and Art. IX, Sec. V, Para. II (see now Ga. Const. 1983, Art. IX, Sec. II and Art. IX, Sec. IV), and taxation by counties for the purpose of sharing the resulting revenue with cities does not appear in that list. City Council v. Mangelly, 243 Ga. 358 , 254 S.E.2d 315 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Contractor who is performing work or services for the state is not exempt under Ga. L. 1979, p. 401, § 20 (see now O.C.G.A. § 50-17-29 ) from local sales and use tax imposed pursuant to Ga. L. 1978, p. 309. 1980 Op. Att'y Gen. No. 80-76.

Temporary loans authorized based upon revenues received. - Revenues received by cities and counties collected under the provisions of O.C.G.A. Art. 2, Ch. 8, T. 48 may be included as part of the "total gross income from taxes collected in the last preceding year" for purposes of Ga. Const. 1983, Art. IX, Sec. V, Para. V (temporary loans). 1988 Op. Att'y Gen. No. U88-19.

RESEARCH REFERENCES

ALR. - Validity of so-called "sales tax," 110 A.L.R. 1485 ; 117 A.L.R. 846 ; 128 A.L.R. 893 .

Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597 .

Deductibility of other taxes or fees in computing excise or license taxes, 148 A.L.R. 263 ; 174 A.L.R. 1263 .

Sale of building materials, supplies, or fixtures to contractor, or his use thereof in construction or repairs, as sale at retail within tax statute or ordinance, 163 A.L.R. 276 ; 171 A.L.R. 697 .

Validity and construction of provision exempting from use tax property which is "not readily obtainable" in the state, 88 A.L.R.2d 811.

48-8-80. "Qualified municipality" defined.

As used in this article, the term "qualified municipality" means only those incorporated municipalities which impose a tax other than the tax authorized by this article and which provide at least three of the following services:

  1. Water;
  2. Sewage;
  3. Garbage collection;
  4. Police protection;
  5. Fire protection; or
  6. Library.

    (Ga. L. 1975, p. 984, § 2; Code 1933, § 91A-4601, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4609, enacted by Ga. L. 1979, p. 446, § 2.)

Law reviews. - For survey article on local government law for the period from June 1, 2002, to May 31, 2003, see 55 Mercer L. Rev. 353 (2003).

JUDICIAL DECISIONS

Cited in Nielubowicz v. Chatham County, 252 Ga. 330 , 312 S.E.2d 802 (1984).

RESEARCH REFERENCES

C.J.S. - 62 C.J.S., Municipal Corporations, § 1 et seq.

48-8-81. Creation of special districts.

Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, there are created within this state 159 special districts. The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of one of the 159 special districts.

(Ga. L. 1975, p. 984, § 2; Ga. L. 1976, p. 1019, § 9; Code 1933, § 91A-4610, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1978, p. 1429, § 1; Ga. L. 1979, p. 5, § 98; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4601, enacted by Ga. L. 1979, p. 446, § 2; Ga. L. 1983, p. 3, § 64.)

JUDICIAL DECISIONS

Special district created by the Local Option Sales Tax Act, O.C.G.A. § 48-8-80 et seq., is the entire county. Nielubowicz v. Chatham County, 252 Ga. 330 , 312 S.E.2d 802 (1984).

48-8-82. Authorization of counties and municipalities to impose joint sales and use tax; rate; applicability to sales of motor fuels and food and beverages.

  1. When the imposition of a joint county and municipal sales and use tax is authorized according to the procedures provided in this article within a special district, the county whose geographical boundary is conterminous with that of the special district and each qualified municipality located wholly or partially within the special district shall levy a joint sales and use tax at the rate of 1 percent, except as provided in subsection (b) of this Code section. Except as to rate, the joint tax shall correspond to the tax imposed and administered by Article 1 of this chapter. No item or transaction which is not subject to taxation by Article 1 of this chapter shall be subject to the tax levied pursuant to this article, except that the joint tax provided in this article shall be applicable to:
    1. The sale of motor fuels as prepaid local tax as that term is defined in Code Section 48-8-2;
    2. The sale of food and food ingredients and alcoholic beverages only to the extent provided for in paragraph (57) of Code Section 48-8-3; and
    3. The sale or use of jet fuel as such term is defined in Code Section 48-8-2, to the extent allowed pursuant to Code Section 48-8-3.5.
  2. On or after July 1, 2015, such joint sales and use tax levied on sales of motor fuels as defined in Code Section 48-9-2 shall be at the rate of 1 percent of the retail sales price of the motor fuel which is not more than $3.00 per gallon; provided, however, that in any consolidated government levying a joint sales and use tax at 2 percent pursuant to Code Section 48-8-96, on or after July 1, 2015, any such joint sales and use tax levied on sales of motor fuels as defined in Code Section 48-9-2 shall be at the rate of 2 percent of the retail sales price of the motor fuel which is not more than $3.00 per gallon.

    (Ga. L. 1975, p. 984, § 2; Code 1933, § 91A-4602, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, §§ 1, 2; Ga. L. 1989, p. 62, § 10; Ga. L. 1991, p. 87, § 3; Ga. L. 1996, p. 1, § 2; Ga. L. 2007, p. 309, § 4/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 19/HB 1221; Ga. L. 2015, p. 236, § 5-8/HB 170; Ga. L. 2015, p. 1443, § 1/HB 106; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-5/HB 5EX.)

The 2015 amendment, effective July 1, 2015, designated the existing provisions as subsection (a); added ", except as provided in subsection (b) of this Code section" at the end of the first sentence of subsection (a); and added subsection (b).

The 2018 Ex. Sess. amendment, effective December 1, 2018, substituted "applicable to:" for "applicable to sales" at the end of the introductory paragraph of subsection (a); added the paragraphs (a)(1) and (a)(2) designations; in paragraph (a)(1), added "The sale" at the beginning and substituted "Code Section 48-8-2;" for "Code Section 48-8-2 and shall be applicable to the sale" at the end; in paragraph (a)(2), added "The sale" at the beginning and added "; and" at the end; and added paragraph (a)(3).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, the amendment of this Code section by Ga. L. 2015, p. 236, § 5-8/HB 170, was treated as impliedly repealed and superseded by Ga. L. 2015, p. 1443, § 1/HB 106, due to irreconcilable conflict.

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For note on the 1991 amendment of this Code section, see 8 Georgia St. U.L. Rev. 190 (1992).

JUDICIAL DECISIONS

Subjects of taxation. - Local option tax is restricted to the same types of items and transactions as defined in the state sales and use tax article and is not limited to those instances in which the state tax must actually be paid. C.W. Matthews Contracting Co. v. Collins, 265 Ga. 448 , 457 S.E.2d 171 (1995).

When a contractor purchased equipment in a particular county and paid the state sales and use tax there, and later used the equipment in other counties, assessment of a local option tax on the latter use was authorized, even though such use created no state tax obligation. C.W. Matthews Contracting Co. v. Collins, 265 Ga. 448 , 457 S.E.2d 171 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 4.

C.J.S. - 20 C.J.S., Counties, § 369 et seq. 64A C.J.S., Municipal Corporations, § 2225 et seq. 84 C.J.S., Taxation, § 159 et seq.

48-8-82.1. One-year increase in tax rate.

Repealed by Ga. L. 1989, p. 504, § 1, effective April 3, 1989.

Editor's notes. - This Code section was enacted by Ga. L. 1988, p. 543, § 1.

Ga. L. 1989, p. 504, § 2, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. If on such effective date the rate of taxation under Article 2 of Chapter 8 of Title 48 has been increased from 1 percent to 2 percent under the authority of former Code Section 48-8-82.1, or if on such date all proceedings have been completed so as to authorize such an increase in the rate of taxation in any special district, then in such special district such increased rate of taxation shall be effective for the period of time specified by former Code Section 48-8-82.1."

48-8-83. Special districts where joint tax to be levied.

Effective January 1, 1980, the joint tax provided in Code Section 48-8-82 shall be levied in each special district in which prior to January 1, 1980, a joint county and municipal sales and use tax was levied pursuant to Ga. L. 1975, p. 984, Section 2 (as amended by Ga. L. 1975, Ex. Sess., p. 1729, Section 1; Ga. L. 1976, p. 1019, Sections 1-13; Ga. L. 1977, p. 1008, Section 1; Ga. L. 1978, p. 1429, Sections 1-3; Ga. L. 1978, p. 1460, Sections 1-3; Ga. L. 1978, p. 1678, Section 1; Ga. L. 1978, p. 1695, Section 1; Ga. L. 1979, p. 446, Section 1) or in which a referendum election had authorized the levying of such a tax within the special district.

(Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4603, enacted by Ga. L. 1979, p. 446, § 2.)

48-8-83.1. Levying and collection of joint tax to be continued.

Notwithstanding any distribution certificate filing deadline otherwise required under Code Section 48-8-89, for each special district in which the tax provided for by Code Section 48-8-82 was levied and collected immediately prior to June 4, 2010, such tax shall continue to be levied and collected; and the most recent distribution certificate which was executed on behalf of the county and on behalf of one or more qualified municipalities within the special district whose combined population within the special district is at least one-half of the combined total population of all qualified municipalities located within the special district and which was filed with the commissioner between June 4, 2010, and October 18, 2013, shall be valid and shall continue in force and effect until superseded by a subsequent distribution certificate properly executed and filed with the commissioner in accordance with Code Section 48-8-89 or Code Section 48-8-89.1, as applicable, or until such tax is subsequently discontinued and terminated pursuant to subsection (c) of Code Section 48-8-89 or pursuant to a referendum under Code Section 48-8-92.

(Code 1981, § 48-8-83.1 , enacted by Ga. L. 2014, p. 840, § 1/HB 719.)

48-8-84. Resolution by governing authorities of counties and municipalities in special districts imposing tax; time.

If the imposition of the tax provided for in Code Section 48-8-82 is to be levied pursuant to Code Section 48-8-83, the governing authority of the county whose geographical boundary is conterminous with that of the special district and the governing authority of each qualified municipality located wholly or partially within the district shall each adopt a resolution on or prior to January 1, 1980, imposing the tax authorized by Code Section 48-8-82 on behalf of the county and each qualified municipality located wholly or partially within the special district.

(Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4604, enacted by Ga. L. 1979, p. 446, § 2.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 145 et seq.

48-8-85. Referendum election to decide imposition of tax; procedure; resolution; call for election; publication; ballot; result; subsequent elections; declaration and certification of result; expense.

  1. Whenever the governing authority of any county or qualified municipality located wholly or partially within a special district in which a joint county and municipal sales and use tax was not imposed on January 1, 1980, wishes to submit to the electors of the special district the question of whether the tax authorized by Code Section 48-8-82 shall be imposed, any such governing authority shall notify the election superintendent of the county whose geographical boundary is conterminous with that of the special district by forwarding to the superintendent a copy of a resolution of the governing authority calling for a referendum election. Upon receipt of the resolution, it shall be the duty of the election superintendent to issue the call for an election for the purpose of submitting the question of the imposition of the tax to the voters of the special district for approval or rejection. The election superintendent shall set the date of the election for a day not less than 30 nor more than 45 days after the date of the issuance of the call. The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date of the election in the official organ of the county. The ballot shall have written or printed thereon the following:         "[  ] YES    Shall a retail sales and use tax of 1 percent be levied             [  ] NO     within the special district within __________ County?"
  2. All persons desiring to vote in favor of levying the tax shall vote "Yes," and those persons opposed to levying the tax shall vote "No." If more than one-half of the votes cast are in favor of levying the tax, then the tax shall be levied in accordance with this article; otherwise, the tax may not be levied, and the question of the imposition of the tax may not again be submitted to the voters of the special district until after 24 months immediately following the month in which the election was held. It shall be the duty of the election superintendent to hold and conduct such elections under the same rules and regulations as govern special elections. It shall be his further duty to canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be borne by the county whose geographical boundary is conterminous with that of the special district holding the election.

    (Ga. L. 1975, p. 984, § 2; Ga. L. 1976, p. 1019, § 13; Code 1933, § 91A-4603, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1978, p. 1460, § 1; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4605, enacted by Ga. L. 1979, p. 446, § 2.)

JUDICIAL DECISIONS

Cited in City of Winder v. Collins, 259 Ga. 570 , 385 S.E.2d 71 (1989).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 369 et seq. 64A C.J.S., Municipal Corporations, § 2234 et seq.

48-8-86. Adoption of resolution imposing tax by governing authorities of county and municipality; time; effective date in general and with respect to services billed monthly; certified copy of resolution to commissioner.

If the imposition of the tax provided in Code Section 48-8-82 is approved in a referendum election as provided by Code Section 48-8-85, the governing authority of the county whose geographical boundary is conterminous with that of the special district and the governing authority of each qualified municipality located wholly or partially within the district shall each adopt a resolution during the first 30 days following the certification of the result of the election imposing the tax authorized by Code Section 48-8-82 on behalf of the county and each qualified municipality located wholly or partially within the special district. The resolution shall be effective on the first day of the next succeeding calendar quarter which begins more than 80 days after the adoption of the resolution. With respect to services which are regularly billed on a monthly basis, however, the resolution shall become effective with the first regular billing period coinciding with or following the otherwise effective date of the resolution. A certified copy of the resolution shall be forwarded to the commissioner so that it will be received within five days after its adoption.

(Ga. L. 1975, p. 984, § 2; Ga. L. 1976, p. 1019, § 1; Code 1933, § 91A-4604, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4606, enacted by Ga. L. 1979, p. 446, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Approval date referred to in Ga. L. 1975, p. 984 is the date the resolution approving the tax is adopted. 1977 Op. Att'y Gen. No. U77-59.

RESEARCH REFERENCES

C.J.S. - 64A C.J.S., Municipal Corporations, § 2294 et seq.

48-8-87. Administration and collection of tax by commissioner; applicability of Article 1 of this chapter; first application of moneys to taxpayers' state tax liabilities; compensation of dealers if payments not delinquent; rate.

The tax levied pursuant to this article shall be exclusively administered and collected by the commissioner for the use and benefit of each county whose geographical boundary is conterminous with that of a special district and of each qualified municipality located wholly or partially therein. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter, except that the joint tax provided in this article shall be applicable to sales of motor fuels as prepaid local tax as that term is defined in Code Section 48-8-2; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Ga. L. 1975, p. 984, § 2; Code 1933, § 91A-4605, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4607, enacted by Ga. L. 1979, p. 446, § 2; Ga. L. 1992, p. 815, § 2; Ga. L. 2007, p. 309, § 5/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 20/HB 1221.)

JUDICIAL DECISIONS

County action against companies prohibited. - Provision that taxes are to be exclusively administered and collected by the commissioner precluded an action by a county against companies for damages resulting from the improper remittance of local sales taxes. Cellular One, Inc. v. Emanuel County, 227 Ga. App. 197 , 489 S.E.2d 50 (1997).

Although cities and counties were authorized under O.C.G.A. § 48-8-87 to impose sales and use taxes, cities and counties had no standing to bring claims against online travel companies for their alleged failure to pay those taxes because the taxes were exclusively administered and collected by the state revenue commissioner. The commissioner was not required to involuntarily join the action under Fed. R. Civ. P. 19(a) because the action was vested solely in the commissioner and the commissioner alleged that any suit was premature in that the Department of Revenue had not determined that a liability existed; further, the cities and counties failed to establish subject matter jurisdiction to support their claim that the commissioner, or the cities and counties in the commissioner's stead, could bring an action for the allegedly unremitted sales and use taxes when the action would deprive the court of diversity jurisdiction. City of Rome v. Hotels.com, LP, F. Supp. 2d (N.D. Ga. May 8, 2006).

Cited in C.W. Matthews Contracting Co. v. Collins, 265 Ga. 448 , 457 S.E.2d 171 (1995).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 382 et seq. 64A C.J.S., Municipal Corporations, § 2430 et seq.

ALR. - Validity and construction of provision exempting from use tax property which is "not readily obtainable" in the state, 88 A.L.R.2d 811.

48-8-88. Required information on sales tax returns; purpose.

Each sales tax return remitting taxes collected under this article shall separately identify the location of each retail establishment at which any of the taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all taxes imposed by this article are collected and distributed according to situs of sale.

(Ga. L. 1975, p. 984, § 2; Code 1933, § 91A-4616, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4614, enacted by Ga. L. 1979, p. 446, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 205.

48-8-89. Distribution and use of proceeds; certificate specifying percentage of proceeds for each political subdivision; determination of proceeds for absent municipalities; procedure for filing certificates; effect of failure to file; renegotiation of certificate.

  1. The proceeds of the tax collected by the commissioner in each special district under this article shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
    2. Except for the percentage provided in paragraph (1) of this subsection, the remaining proceeds of the tax shall be distributed to the governing authority of each qualified municipality within the special district and to the governing authority of the county whose geographical boundary is conterminous with that of the special district for the purpose of assisting such political subdivisions in funding all or any portion of those services which are to be provided by such governing authorities pursuant to and in accordance with Article IX, Section II, Paragraph III of the Constitution of this state.
  2. It is the intent of the General Assembly that no agreement as to the distribution of the proceeds of the tax shall enrich any political subdivision beyond a sum which in the absence of the distribution would be raised through other sources of revenue.  The distribution shall be in accordance with a certificate which shall be executed in behalf of each respective governing authority, except as otherwise provided in this subsection, and which shall encompass all respective political subdivisions, shall be filed with the commissioner, and shall specify by percentage that portion of the remaining proceeds of the tax available for distribution which each such political subdivision shall receive.  On or after July 1, 1995, the distribution of proceeds of the tax as specified in the certificate shall be based upon, but not be limited to, the following criteria:
    1. The service delivery responsibilities of each political subdivision to the population served by the political jurisdiction and served during normal business hours, conventions, trade shows, athletic events and the inherent value to a community of a central business district and the unincorporated areas of the county and the obligation of all residents of the county for the maintenance and prosperity of the central business district and the unincorporated areas of the county;
    2. The service delivery responsibilities of each political subdivision to the resident population of the subdivision;
    3. The existing service delivery responsibility of each political subdivision;
    4. The effect of a change in sales tax distribution on the ability of each political subdivision to meet its short-term and long-term debt;
    5. The point of sale and use which generates the tax to be apportioned;
    6. The existence of intergovernmental agreements among and between the political subdivisions;
    7. The use by any political subdivision of property taxes and other revenues from some taxpayers to subsidize the cost of services provided to other taxpayers of the levying subdivision; and
    8. Any coordinated plan of county and municipal service delivery and financing.

      Notwithstanding the fact that a certificate shall not contain an execution in behalf of one or more qualified municipalities within the special district, if the combined total of the populations of all such absent municipalities is less than one-half of the aggregate population of all qualified municipalities located within the special district, the submitting political subdivisions shall, in behalf of the absent municipalities, specify a percentage of that portion of the remaining proceeds which each such municipality shall receive, which percentage shall not be less than that proportion which each absent municipality's population bears to the total population of all qualified municipalities within the special district multiplied by that portion of the remaining proceeds which are received by all qualified municipalities within the special district. For the purpose of determining the population of the absent municipalities, only that portion of the population of each such municipality which is located within the special district shall be computed. No certificate may contain a total of specified percentages in excess of 100 percent. The certificate shall be filed with the commissioner by March 1, 1980, for those special districts in which the tax authorized by this article is being levied on January 1, 1980. For all other special districts in which the tax shall be imposed subsequent to January 1, 1980, the certificate shall be filed with the commissioner within 60 days after the tax is imposed within the district. The commissioner shall continue to distribute the proceeds of the tax as otherwise provided in this Code section until the first day of the next calendar year following the month in which the commissioner receives a certificate as provided in this Code section, which certificate shall provide other percentages upon which the commissioner shall make the distribution to the political subdivisions entitled to the proceeds of the tax. At such time, the commissioner shall thereafter distribute the proceeds of the tax in accordance with the directions of the certificate.

  3. If the certificate provided for in subsection (b) of this Code section is not received by the commissioner by the required date, the authority to impose the tax authorized by Code Section 48-8-82 shall cease on the first day of the second calendar month following the month in which the tax was initially imposed and the tax shall not be levied in the special district after such date unless the reimposition of the tax is subsequently authorized pursuant to Code Section 48-8-85. When the imposition of the tax is so terminated, the commissioner shall retain the proceeds of the tax which were to be distributed to the governing authorities of the county and qualified municipalities within the special district until he receives a certificate in behalf of each such governing authority specifying the percentage of the proceeds which each such governing authority shall receive. If no such certificate is received by the commissioner within 120 days of the date on which the authority to levy the tax was terminated, the proceeds shall escheat to the state and the commissioner shall transfer the proceeds to the state's general fund.
    1. A certificate providing for the distribution of the proceeds of the tax authorized by this article shall expire on December 31 of the second year following the year in which the decennial census is conducted. No later than December 30 of the second year following the year in which the census is conducted, a new distribution certificate meeting the requirements for certificates specified by subsection (b) of this Code section shall be filed with and received by the commissioner. The General Assembly recognizes that the requirement for government services is not always in direct correlation with population. Although a new distribution certificate is required within a time certain of the decennial census, this requirement is not meant to convey an intent by the General Assembly that population as a criterion should be more heavily weighted than other criteria. It is the express intent of the General Assembly in requiring such renegotiation that eligible political subdivisions shall analyze local service delivery responsibilities and the existing allocation of proceeds made available to such governments under the provisions of this article and make rational the allocation of such resources to meet such service delivery responsibilities. Political subdivisions in their renegotiation of such distributions shall at a minimum consider the criteria specified in subsection (b) of this Code section.
    2. The commissioner shall be notified in writing of the commencement of renegotiation proceedings by the county governing authority on behalf of all eligible political subdivisions within the special district. The eligible political subdivisions shall commence renegotiations at the call of the county governing authority before July 1 of the second year following the year in which the census is conducted. If the county governing authority does not issue the call by that date, any eligible municipality may issue the call and so notify the commissioner and all eligible political subdivisions within the special district.
    3. Following the commencement of such renegotiation, if the parties necessary to an agreement fail to reach an agreement within 60 days, such parties shall submit the dispute to nonbinding arbitration, mediation, or such other means of resolving conflicts in a manner which attempts to reach a resolution of the dispute. Any renegotiation agreement reached pursuant to this paragraph shall be in accordance with the requirements specified in paragraph (1) of this subsection.
    4. Reserved.
    5. If a new distribution certificate as provided for in this Code section is not received by the commissioner, the authority to impose the tax authorized by Code Section 48-8-82 shall cease, and the tax shall not be levied in the special district after such date unless the reimposition of the tax is subsequently authorized pursuant to Code Section 48-8-85. When the imposition of the tax is so terminated, the commissioner shall retain the proceeds of the tax which were to be distributed to the governing authorities of the county and qualified municipalities within the special district until the commissioner receives a certificate on behalf of each such governing authority specifying the percentage of the proceeds which each such governing authority shall receive. If no such certificate is received by the commissioner within 120 days of the date on which the authority to levy the tax was terminated, the proceeds shall escheat to the state, and the commissioner shall transfer the proceeds to the state's general fund.
    6. If the commissioner receives a new distribution certificate by the required date, the commissioner shall distribute the proceeds of the tax in accordance with the directions of the new distribution certificate commencing on January 1 of the year immediately following the year in which such certificate was executed by the parties or the judge or the first day of the second calendar month following the month such certificate was executed by the parties or the judge, whichever is sooner.
    7. Costs of any conflict resolution under paragraph (3) or (4) of this subsection shall be borne proportionately by the affected political subdivisions in accordance with the final percentage distributions of the proceeds of the tax as reflected by the new distribution certificate.
    8. Political subdivisions shall be authorized, at their option, to renegotiate distribution certificates on a more frequent basis than is otherwise required under this subsection.
    9. No provision of this subsection shall apply to any county which is authorized to levy or which levies a local sales tax, local use tax, or local sales and use tax for educational purposes pursuant to a local constitutional amendment or to any county which is authorized to expend all or any portion of the proceeds of any sales tax, use tax, or sales and use tax for educational purposes pursuant to a local constitutional amendment.

      (Ga. L. 1975, p. 984, § 2; Ga. L. 1976, p. 1019, § 2; Code 1933, § 91A-4606, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4608, enacted by Ga. L. 1979, p. 446, § 2; Ga. L. 1983, p. 3, § 64; Ga. L. 1994, p. 1816, §§ 1, 2; Ga. L. 2010, p. 958, § 1/HB 991; Ga. L. 2014, p. 840, § 2/HB 719; Ga. L. 2014, p. 866, § 48/SB 340.)

Law reviews. - For annual survey on local government law, see 66 Mercer L. Rev. 135 (2014).

JUDICIAL DECISIONS

All qualified municipalities share proportionally in sales and use tax proceeds. - General Assembly intended that all qualified municipalities share proportionally in the proceeds of the sales and use tax approved and paid for by the municipalities' citizens. City of Winder v. Collins, 259 Ga. 570 , 385 S.E.2d 71 (1989).

2010 amendment to O.C.G.A. § 48-8-89(d)(4) violates separation of powers doctrine. - To the extent the 2010 amendment to the Local Option Sales Tax Act (LOST), O.C.G.A. § 48-8-89(d)(4), permits judicial resolution of the issue of whether LOST should be renewed and the governing bodies of the special district should be required to levy and collect the tax, the amendment violates the separation of powers doctrine of Ga. Const. 1983, Art. I, Sec II, Para. III. Turner County v. City of Ashburn, 293 Ga. 739 , 749 S.E.2d 685 (2013).

Georgia Supreme Court is not invalidating the tax and not striking the Local Option Sales Tax Act, O.C.G.A. § 48-8-80 et seq., or the statute's terms for how the tax may be levied or for what purposes the proceeds may be applied; rather, the Court is striking only the 2010 amendment, O.C.G.A. § 48-8-89(d)(4), which effectively grants judicial resolution of the allocation and distribution of tax proceeds, a process that the Court deems to be a clear violation of the separation of powers doctrine. Turner County v. City of Ashburn, 293 Ga. 739 , 749 S.E.2d 685 (2013).

Trial court erred when the court denied a county's motion to dismiss and sustained the constitutionality of the 2010 amendment to the Local Option Sales Tax Act (LOST), O.C.G.A. § 48-8-89(d)(4), because the 2010 amendment, which effectively grants judicial resolution of the allocation and distribution of tax proceeds, was deemed to be a clear violation of the separation of powers doctrine by the Georgia Supreme Court. Turner County v. City of Ashburn, 293 Ga. 739 , 749 S.E.2d 685 (2013).

There is no constitutional requirement that local option sales tax revenues be used for educational purposes. Salem v. Tattnall County, 250 Ga. 881 , 302 S.E.2d 99 (1983).

Only the portion of a city's population that resides within the special tax district is included when calculating a municipality's pro rata share of the local option sales tax proceeds in that district. City of Atlanta v. Collins, 262 Ga. 261 , 417 S.E.2d 141 (1992).

Use of local option sales tax proceeds to reduce county-wide millage rate. - When a county creates a special service tax district which consists of the unincorporated area of the county, and it levies a special service district tax on property located therein, it may use its proceeds from the local option sales tax (O.C.G.A. § 48-8-80 et seq.) to reduce the millage rate of the general maintenance and operation tax which is levied county-wide (i.e., is levied on property located in municipalities in the county and in the unincorporated area), and not just to reduce the millage rate in the special service tax district. Nielubowicz v. Chatham County, 252 Ga. 330 , 312 S.E.2d 802 (1984).

Distribution plan could not be imposed. - When one city within a special tax district chose to be treated as an absent municipality, neither the revenue department nor the trial court had authority to impose a distribution plan on the county and cities. Jackson v. City of College Park, 230 Ga. App. 487 , 496 S.E.2d 777 (1998).

Effective date for a new distribution formula for local option sales tax, when a minority municipality requests treatment as an absent municipality, is January 1 of the next calendar year, whether the county's political subdivisions file a distribution certificate or the commissioner institutes a new distribution formula that includes an absent municipality. City of Roswell v. City of Atlanta, 261 Ga. 657 , 410 S.E.2d 28 (1991).

Effective date for a replacement certificate shall be January 1 following the month when the governing authorities file a distribution certificate with the commissioner or the commissioner institutes a new distribution formula after notifying the county that a minority municipality elects absent municipality status. City of Roswell v. City of Atlanta, 261 Ga. 657 , 410 S.E.2d 28 (1991).

Cited in City of Union Point v. Greene County, 303 Ga. 449 , 812 S.E.2d 278 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Neither initial nor replacement certificates expire, whether or not the certificates carry expiration dates, assuming, that the tax itself has not been discontinued pursuant to Ga. L. 1979, p. 446, § 2 (see now O.C.G.A. § 48-8-80 et seq.). 1980 Op. Att'y Gen. No. 80-46 (issued prior to the 1994 addition of subsection (d), which provides for expiration of distribution certificates).

Replacement certificates may be filed at any time after the filing of an initial certificate, and replacement certificates always take effect on the January 1 next succeeding the date the replacement certificate is filed. 1980 Op. Att'y Gen. No. 80-46 (issued prior to the 1994 addition of subsection (d), which provides for expiration of distribution certificates).

Percentage of local option sales and use tax to absent municipality. - Absent municipality cannot be forced under O.C.G.A. § 48-8-89 to accept a smaller percentage of the local option sales and use tax proceeds distributed to all qualified municipalities in the county than the percentage the absent municipality's population is of the total population of all such qualified municipalities, regardless of whether that distribution is pursuant to a negotiated certificate or is based instead on an order by a superior court judge when the necessary parties are unable to agree. 2012 Op. Att'y Gen. No. U12-1.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 382 et seq. 64A C.J.S., Municipal Corporations, § 2495 et seq.

48-8-89.1. Procedure for certifying additional qualified municipalities; issuance of new distribution certificate; cessation of authority to collect tax ceases upon failure to file new certificate.

  1. If there exists within any special district in which the tax authorized by this article is imposed a qualified municipality which was not a qualified municipality on the date of filing with the commissioner of the most recently filed certificate under Code Section 48-8-89, such qualified municipality may request the commissioner to give notice of the qualified municipality's existence as provided in this subsection. Upon receipt of such a request, the commissioner shall, unless he determines that the requesting entity is not a qualified municipality, within 30 days give written notice of the qualified municipality's existence to the county which is conterminous with the special district in which the qualified municipality is located and to each other qualified municipality within the special district. Such written notice shall include the name of the new qualified municipality, the effective date of the notice, and a statement of the provisions of this Code section.
  2. Within 60 days after the effective date of the notice referred to in subsection (a) of this Code section, a new distribution certificate shall be filed with the commissioner for the special district or, within 30 days after the last day of the 60 day alternative dispute resolution period required by paragraph (3) of subsection (d) of Code Section 48-8-89, the county, any qualified municipality located wholly or partially within the special district, or any new qualified municipality as specified under subsection (a) of this Code section located wholly or partially within the special district may file a petition in superior court seeking resolution of the items remaining in dispute pursuant to the procedure set forth in paragraph (4) of subsection (d) of Code Section 48-8-89. In the event such a petition is filed, a new qualified municipality as specified under subsection (a) of this Code section located wholly or partially within the special district shall be subject to the same requirements applicable to qualified municipalities located wholly or partially within the special district under paragraph (4) of subsection (d) of Code Section 48-8-89. The new distribution certificate shall specify by percentage what portion of the proceeds of the tax available for distribution within the special district shall be received by the county in which the special district is located and by each qualified municipality located wholly or partially within the special district, including the new qualified municipality. No distribution certificate shall contain a total of specified percentages in excess of 100 percent.
  3. Except as otherwise provided in this subsection, a distribution certificate required by this Code section must be executed by the governing authorities of the county within which the special district is located and each qualified municipality located wholly or partially within the special district, including the new qualified municipality. Notwithstanding the fact that a certificate shall not contain an execution in behalf of one or more qualified municipalities within the special district, if the combined total of the populations of all such absent municipalities is less than one-half of the aggregate population of all qualified municipalities located within the special district, the submitting political subdivisions shall, in behalf of the absent municipalities, specify a percentage of that portion of the remaining proceeds which each such municipality shall receive, which percentage shall not be less than that proportion which each absent municipality's population bears to the total population of all qualified municipalities within the special district multiplied by that portion of the remaining proceeds which are received by all qualified municipalities within the special district. For the purpose of determining the population of the absent municipalities, only that portion of the population of each such municipality which is located within the special district shall be computed.
  4. If a new certificate is not filed for any special district as required by this Code section, the authority to impose the tax authorized by Code Section 48-8-82 within that special district shall cease on the first day of January of the year following the year in which the required distribution certificate could last have been timely filed. In any special district in which the authority to impose the tax is terminated pursuant to this subsection, the tax may thereafter be reimposed only pursuant to the procedures specified in Code Sections 48-8-84 through 48-8-86.
  5. If a new certificate is filed as required by this Code section, the commissioner shall begin to distribute the proceeds as specified in the new certificate on the first day of January of the first calendar year which begins more than 60 days after the effective date of the notice referred to in subsection (b) of this Code section. The commissioner shall continue to distribute the proceeds of the tax according to the new certificate until a subsequent certificate is filed and becomes effective as provided in Code Section 48-8-89.
    1. As used in this subsection, the term:
      1. "New qualified municipality" means a municipal corporation which has been chartered by local Act since the date of filing with the commissioner of the most recently filed certificate under Code Section 48-8-89 within a county which has a special district for the provision of local government services consisting of the unincorporated area of the county where the population of the unincorporated area of the county, after removal of the population of the new municipality from the unincorporated area, constitutes less than 20 percent of the population of the county according to the most recent decennial census.
      2. "Newly expanded qualified municipality" means a municipal corporation which since the date of filing with the commissioner of the most recently filed certificate under Code Section 48-8-89 has increased its population by more than 15 percent through one or more annexations and is located in the same county as a new qualified municipality.
    2. Notwithstanding any other provision of this Code section, if there exists within any special district in which the tax authorized by this article is imposed a new qualified municipality or a newly expanded qualified municipality or both, such qualified municipality or municipalities may request the commissioner to give notice of the qualified municipality's or municipalities' existence and status as a new qualified municipality or newly expanded qualified municipality as provided in this subsection. Upon receipt of such a request, the commissioner shall, unless he or she determines that the requesting entity is not a new qualified municipality or newly expanded qualified municipality, within 30 days give written notice of the qualified municipality's existence and status to the county which is conterminous with the special district in which the qualified municipality is located and to each other qualified municipality within the special district. Such written notice shall include the name of the new qualified municipality or newly expanded qualified municipality, the effective date of the notice, and a statement of the provisions of this subsection.
    3. Within 60 days after the effective date of the notice referred to in paragraph (2) of this subsection, a new distribution certificate shall be filed with the commissioner for the special district or, within 30 days after the last day of the 60 day alternative dispute resolution period required by paragraph (3) of subsection (d) of Code Section 48-8-89, the county, any qualified municipality located wholly or partially within the special district, or any new qualified municipality or newly expanded qualified municipality located wholly or partially within the special district may file a petition in superior court seeking resolution of the items remaining in dispute pursuant to the procedure set forth in paragraph (4) of subsection (d) of Code Section 48-8-89. The new distribution certificate shall address only the proceeds of the tax available for distribution from the percentage allocated to the county in the current distribution certificate and shall specify as a percentage of the total proceeds of the tax what portion of the proceeds shall be received by the county in which the special district is located and by the new qualified municipality and newly expanded qualified municipality located wholly or partially within the special district, if any.
    4. Except as otherwise provided in this paragraph, a distribution certificate required by this subsection must be executed by the governing authorities of the county within which the special district is located, each new qualified municipality located wholly or partially within the special district, and each newly expanded qualified municipality, if any. If a new certificate is not filed within 60 days as required by paragraph (3) of this subsection, the commissioner shall distribute the proceeds of the tax available for distribution from the percentage allocated to the county in the current distribution certificate such that:
      1. The new qualified municipality receives an allocation equal on a per capita basis to the average per capita allocation to the other qualified municipalities in the county (according to population), to be expended as provided in paragraph (2) of subsection (a) of Code Section 48-8-89; and
      2. Any newly expanded qualified municipality receives a total allocation of tax proceeds (including any amount previously allocated) equal on a per capita basis to the average per capita allocation to the other qualified municipalities in the county (according to population), to be expended as provided in paragraph (2) of subsection (a) of Code Section 48-8-89. Every other qualified municipality shall continue to receive the share provided by the existing distribution certificate or otherwise provided by law. The county shall receive the remaining proceeds of the tax, to be expended as provided in paragraph (2) of subsection (a) of Code Section 48-8-89. For the purpose of determining the population of qualified municipalities, only that portion of the population of each such municipality which is located within the special district shall be computed. For the purpose of determining population under this Code section, all calculations of population shall be according to the most recent decennial census, including the census data from such census applicable to any annexed territory.
    5. The commissioner shall begin to distribute the proceeds as specified in the newly filed certificate or, if such a certificate is not filed, as specified in paragraph (4) of this subsection on the first day of the first month which begins more than 60 days after the effective date of the notice referred to in paragraph (2) of this subsection. The commissioner shall continue to distribute the proceeds of the tax according to the existing certificate and the certificate applicable to the county and the new qualified municipality or, if such a certificate is not filed, as specified in paragraph (4) of this subsection until a subsequent certificate is filed and becomes effective as provided in Code Section 48-8-89. (Code 1981, § 48-8-89.1 , enacted by Ga. L. 1983, p. 1461, § 1; Ga. L. 1985, p. 149, § 48; Ga. L. 2005, p. 185, § 4/HB 36; Ga. L. 2006, p. 901, § 1/HB 1403; Ga. L. 2010, p. 958, §§ 2, 3/HB 991; Ga. L. 2013, p. 141, § 48/HB 79.)

Editor's notes. - Ga. L. 2005, p. 185, § 5/HB 36, not codified by the General Assembly, provides for severability.

Ga. L. 2005, p. 185, § 6/HB 36, not codified by the General Assembly, provides that this Act "shall apply with respect to any local Act enacted at the 2005 regular session of the General Assembly or any future session."

JUDICIAL DECISIONS

All qualified municipalities share proportionally in sales and use tax proceeds. - General Assembly intended that all qualified municipalities share proportionally in the proceeds of the sales and use tax approved and paid for by the municipalities' citizens. City of Winder v. Collins, 259 Ga. 570 , 385 S.E.2d 71 (1989).

When qualified municipality elects to be "absent municipality." - Municipality that becomes qualified after a certificate of distribution has been submitted to the revenue department is also guaranteed a proportional share of the taxes collected if the municipality elects to be an "absent municipality." City of Winder v. Collins, 259 Ga. 570 , 385 S.E.2d 71 (1989).

Only the portion of a city's population that resides within the special tax district is included when calculating a municipality's pro rata share of the local option sales tax proceeds in that district. City of Atlanta v. Collins, 262 Ga. 261 , 417 S.E.2d 141 (1992).

48-8-89.2. Distribution of tax proceeds upon qualified municipality ceasing to be qualified.

If the commissioner determines that a qualified municipality entitled to receive tax proceeds under this article has ceased to be a qualified municipality, he shall thereafter distribute the percentage of the proceeds of the tax to which that qualified municipality was entitled to the county which is conterminous with the special district and to each other qualified municipality within the special district pro rata according to the percentages of the tax to which each other such political subdivision is otherwise entitled; and such distribution formula shall remain in effect until a new certificate is filed and becomes effective as provided in Code Section 48-8-89.

(Code 1981, § 48-8-89.2 , enacted by Ga. L. 1983, p. 1461, § 1.)

48-8-89.3. Levy of tax in certain special districts; distribution of proceeds to qualified municipality.

  1. Notwithstanding any other provision of this article to the contrary, the tax provided for in Code Section 48-8-82 shall be levied in any special district in which:
    1. Prior to January 1, 1980, a joint county and municipal sales and use tax was levied pursuant to Ga. L. 1975, p. 984, Section 2 (as amended by Ga. L. 1975, Ex. Sess., p. 1729, Section 1; Ga. L. 1976, p. 1019, Sections 1-13; Ga. L. 1977, p. 1008, Section 1; Ga. L. 1978, p. 1429, Sections 1-3; Ga. L. 1978, p. 1460, Sections 1-3; Ga. L. 1978, p. 1678, Section 1; Ga. L. 1978, p. 1695, Section 1; Ga. L. 1979, p. 446, Section 1) or in which a referendum election had authorized the levying of such a tax within the special district;
    2. The tax provided for in Code Section 48-8-82 was actually collected during the period of January 1, 1980, to January 1, 1989; and
    3. There exists a qualified municipality which lies wholly or partially within the special district and which:
      1. Was a qualified municipality at the time of filing of the distribution certificate most recently filed with the commissioner under Code Section 48-8-89; and
      2. Was not assigned any percentage of the net proceeds of the tax under such distribution certificate.

        In any special district which meets the criteria specified in this subsection, the tax provided for in Code Section 48-8-82 shall be levied without regard to any past defects in compliance with the procedures specified by this article for the imposition of the tax.

  2. A qualified municipality described in paragraph (3) of subsection (a) of this Code section, for which receipt of a portion of the net tax proceeds was not specified in the certificate most recently filed with the commissioner under Code Section 48-8-89, may request the commissioner to thereafter distribute a portion of the net tax proceeds to the qualified municipality as provided in this Code section. Upon receipt of such a request, the commissioner shall thereafter, unless he determines that the requesting municipality does not meet the criteria specified in this Code section, give written notice of a new distribution formula to the county which is conterminous with the special district, to the requesting qualified municipality, and to each other qualified municipality within the special district. Such new distribution formula shall be determined as follows:
    1. Begin with the percentages specified in the distribution certificate most recently filed with the commissioner;
    2. Assign to the requesting municipality a percentage of the net proceeds which is equal to the total percentage of the net proceeds previously distributed to all other qualified municipalities in the special district multiplied by a fraction, the numerator of which is the population of the requesting municipality and the denominator of which is the population of all qualified municipalities within the special district;
    3. Deduct the percentage of the net proceeds so assigned to the requesting municipality from the percentages previously assigned to all other qualified municipalities within the special district, such deductions to be pro rata on the basis of population; and
    4. Make no change in the percentage of the net proceeds previously distributed to the county which is conterminous with the special district.
  3. This new distribution formula shall be implemented at the earliest date deemed administratively practicable by the commissioner, and the notice specified in subsection (b) of this Code section shall include such date. This new distribution formula shall remain in effect until a subsequent distribution certificate is filed and becomes effective as provided in Code Section 48-8-89.
  4. For the purpose of all population based calculations under this Code section, only that portion of the population of a qualified municipality which is located within the special district shall be computed. (Code 1981, § 48-8-89.3 , enacted by Ga. L. 1989, p. 1178, § 1.)

JUDICIAL DECISIONS

Only the portion of a city's population that resides within the special tax district is included when calculating a municipality's pro rata share of the local option sales tax proceeds in that district. City of Atlanta v. Collins, 262 Ga. 261 , 417 S.E.2d 141 (1992).

48-8-90. Crediting of tax paid by purchaser in another tax jurisdiction; payment of difference between lesser similar tax payment and tax imposed by article; proof of payment; limitation on credit.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within the state or in a tax jurisdiction outside the state, the tax may be credited against the tax authorized to be imposed by this article upon the same property. If the amount of sales or use tax so paid is less than the amount of the use tax due under this article, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this article. The commissioner may require such proof of payment in another local tax jurisdiction as he deems necessary and proper. No credit shall be granted, however, against the tax imposed under this article for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the special district or in the county which is conterminous with the special district; and taxes so paid in another jurisdiction shall be credited first against the tax levied under this article and then against the tax levied under Article 3 of this chapter, if applicable.

(Ga. L. 1975, p. 984, § 2; Code 1933, § 91A-4614, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4612, enacted by Ga. L. 1979, p. 446, § 2; Ga. L. 1985, p. 232, § 2; Ga. L. 2013, p. 141, § 48/HB 79.)

JUDICIAL DECISIONS

Cited in C.W. Matthews Contracting Co. v. Collins, 265 Ga. 448 , 457 S.E.2d 171 (1995).

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 125, 129.

48-8-91. Condition precedent to authority to impose tax following first year of imposition; annual adjustment of millage rate for ad valorem taxation of tangible personal property; formula; information required on tax bills; effect on tax bills when millage rate is zero.

  1. As a condition precedent for authority to levy the tax or to collect any proceeds from the tax authorized by this article for the year following the initial year in which it is levied and for all subsequent years, the county whose geographical boundary is conterminous with that of the special district and each qualified municipality therein receiving any proceeds of the tax shall adjust annually the millage rate for ad valorem taxation of tangible property within such political subdivisions as provided in this subsection. The governing authority of each such political subdivision shall compute the millage rate necessary to produce revenue from taxation of tangible property in its respective political subdivision which, when combined with other revenues reasonably expected to be received by the political subdivision during the year other than revenues derived from the tax imposed pursuant to this article, would provide revenues sufficient to defray the expenses of the political subdivision for the year. The millage rate so ascertained shall then be reduced by a millage rate which, if levied against the tangible property within the political subdivision, would produce an amount equal to the distribution of the proceeds of the tax imposed by this article which were received by the political subdivision during the preceding year. The tax bill of each ad valorem taxpayer in the political subdivision shall show in a prominent manner the millage rate first ascertained as provided in this subsection and shall show such millage rate reduced by the millage rate required to raise an amount of revenue equal to the distribution of the proceeds of the tax imposed by this article during the previous year. The remainder shall be the millage rate upon which each taxpayer's bill shall be based. The tax authority of each such political subdivision shall cause to be shown in a prominent manner on the tax bill of each ad valorem taxpayer the dollar amount of reduction of ad valorem property taxes which the taxpayer has received as a result of the political subdivision's sharing in the proceeds of the tax authorized to be imposed by this article; provided, however, that the dollar amount of reduction of ad valorem property taxes shall not be calculated or shown on those forms used for the registration and taxation of motor vehicles or trailers.
  2. This Code section shall not be construed to require a county or municipality to prepare and mail ad valorem property tax bills when the ad valorem property tax millage rate in the county or municipality has been reduced to zero as a result of the receipt of proceeds from the tax levied pursuant to this article.

    (Ga. L. 1975, p. 984, § 2; Ga. L. 1976, p. 1019, §§ 10, 11; Ga. L. 1977, p. 1008, § 1; Code 1933, §§ 91A-4611, 91A-4612, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1978, p. 1429, §§ 2, 3; Ga. L. 1978, p. 1460, §§ 2, 3; Ga. L. 1978, p. 1695, § 1; Ga. L. 1979, p. 5, §§ 99, 100; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4610, enacted by Ga. L. 1979, p. 446, § 2.)

JUDICIAL DECISIONS

Ad valorem tax reduction created by the local option sales tax is applicable to "tangible property within the political subdivision" (i.e., the county), not just to property within a special service tax district, consisting of the unincorporated area of the county in which a special service district tax is levied on property therein. Nielubowicz v. Chatham County, 252 Ga. 330 , 312 S.E.2d 802 (1984).

Roll back of millage rate for county residents unauthorized. - City ordinance violated the Joint County and Municipal Sales and Use Tax Act, O.C.G.A. § 48-8-66 et seq., by authorizing the city to use the city's pro rata share of revenue generated by another county's local option sales tax (LOST) to roll back the millage rate for county residents. Wells v. City of Baldwin, 275 Ga. 228 , 565 S.E.2d 439 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Distribution of intangible tax receipts should not account for millage rate adjustments. - Intangible tax receipts should be distributed among the various local taxing jurisdictions and the state in proportion to their tangible property millage rates, without taking into account adjustments made pursuant to Ga. L. 1975, p. 984. 1977 Op. Att'y Gen. No. 77-80.

Legislative intent as to adjustment of millage rates on tangible property. - Requirement that tangible property millage rates be adjusted makes clear the intent of the General Assembly that imposition of a local sales and use tax result initially in property tax relief, rather than in an automatic expansion of funds for local governmental services. This requirement also makes it clear that the General Assembly intended that a local taxing jurisdiction receive the same total revenue, irrespective of whether or not part of the total is generated by a local sales and use tax. 1977 Op. Att'y Gen. No. 77-80.

RESEARCH REFERENCES

C.J.S. - 64A C.J.S., Municipal Corporations, § 2283 et seq.

48-8-92. Referendum election to decide discontinuing imposition of tax; procedure; resolution; call for election; publication; ballot; result; subsequent elections; declaration and certification of result; expense.

  1. Whenever the governing authority of any county and the governing authorities of at least one-half of qualified municipalities located wholly or partially within a special district in which the tax authorized by this article is being levied wish to submit to the electors of the special district the question of whether the tax authorized by Code Section 48-8-82 shall be discontinued, such governing authorities shall notify the election superintendent of the county whose geographical boundary is conterminous with that of the special district by forwarding to the superintendent a copy of a joint resolution of the governing authorities calling for the referendum election. Upon receipt of the resolution, it shall be the duty of the election superintendent to issue the call for an election for the purpose of submitting the question of discontinuing the levy of the tax to the voters of the special district for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date of the election in the official organ of the county. The ballot shall have written or printed thereon the following:         "(  ) YES    Shall the 1 percent retail sales and use tax being levied within the special district within __________           (  ) NO    County be terminated?"
  2. All persons desiring to vote in favor of discontinuing the tax shall vote "Yes," and all persons opposed to discontinuing the tax shall vote "No." If more than one-half of the votes cast are in favor of discontinuing the tax, then the tax shall cease to be levied on the first day of the second calendar quarter following the month in which the commissioner receives the certification of the result of the election; otherwise, the tax shall continue to be levied, and the question of the discontinuing of the tax shall not again be submitted to the voters of the special district until after 24 months immediately following the month in which the election was held. It shall be the duty of the election superintendent to hold and conduct such elections under the same rules and regulations as govern special elections. It shall be such superintendent's further duty to canvass the returns, declare and certify the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be borne by the county whose geographical boundary is conterminous with that of the special district holding the election.

    (Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4616, enacted by Ga. L. 1979, p. 446, § 2; Ga. L. 2010, p. 958, § 4/HB 991.)

48-8-93. Nonimposition of tax on property ordered by and delivered to purchaser outside special district; conditions of delivery.

No tax provided for in Code Section 48-8-82 shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the special district in which the joint tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier licensed by the Federal Motor Carrier Safety Administration or the Georgia Department of Public Safety.

(Ga. L. 1975, p. 984, § 2; Code 1933, § 91A-4615, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4613, enacted by Ga. L. 1979, p. 446, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 2012, p. 580, § 19/HB 865.)

JUDICIAL DECISIONS

Cited in C.W. Matthews Contracting Co. v. Collins, 265 Ga. 448 , 457 S.E.2d 171 (1995).

48-8-94. Taxability of building and construction materials sold or used under contract entered into prior to approval of tax levy.

  1. As used in this Code section, the term "building and construction materials" means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract.
  2. No tax provided for in Code Section 48-8-82 shall be imposed by a county or municipality upon the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to approval of the levy of the tax by the county or municipality and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to approval of the levy of the tax.

    (Ga. L. 1978, p. 1678, § 1; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4615, enacted by Ga. L. 1979, p. 446, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 103, 120.

48-8-95. Authorization of commissioner to promulgate rules and regulations.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax authorized to be imposed by this article.

(Ga. L. 1975, p. 984, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4611, enacted by Ga. L. 1979, p. 446, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, § 205 et seq.

48-8-96. Taxation of property in consolidated governments; change in tax rates.

  1. With respect to any consolidated government created by the consolidation of a county and one or more municipalities in which consolidated government homestead property (exclusive of improvements) is valued for purposes of local ad valorem taxation according to a base year assessed value which does not change so long as the property is actually occupied by the same owner as a homestead, the provisions of this Code section shall control over any conflicting provisions of Article 1 of this chapter or this article.
  2. If the tax authorized by this article is in effect in the special district containing a consolidated government referred to in subsection (a) of this Code section, then the rate of tax imposed under this article in such special district may be increased from 1 percent to 2 percent if such increase is approved by:
    1. A resolution of the governing authority of the consolidated government in the same manner as otherwise required for the initial 1 percent sales tax pursuant to Code Section 48-8-84; and
    2. A referendum conducted in the same manner as otherwise required for the initial 1 percent sales tax pursuant to Code Section 48-8-85, except that the ballot shall have written or printed thereon the following:
  3. Such increased tax rate shall become effective on the first day of the next succeeding calendar quarter which begins more than 80 days after the date of the election at which such increase was approved by the voters. The proceeds of the increased tax shall be divided in the same proportions as the original tax.
  4. Such increased tax rate may be decreased from 2 percent to 1 percent if such decrease is approved by:
    1. A resolution of the governing authority of the consolidated government in the same manner as otherwise required under Code Section 48-8-92; and
    2. A referendum conducted in the same manner as otherwise required for discontinuation of the tax under Code Section 48-8-92, except that the ballot shall have printed or written thereon the following:
  5. Such decreased tax rate shall become effective on the first day of the second calendar quarter following the month in which the commissioner receives certification of the result of the election.
  6. If the tax authorized by this article is to be newly imposed in the special district containing a consolidated government referred to in subsection (a) of this Code section, then such tax may be imposed in such special district at the rate of 2 percent if such rate is approved by:
    1. A resolution of the governing authority of the consolidated government in the same manner as otherwise required pursuant to Code Section 48-8-84; and
    2. A referendum conducted in the same manner as otherwise required pursuant to Code Section 48-8-85, except that the ballot shall have written or printed thereon the following:
  7. Such 2 percent tax may be discontinued if such discontinuation is approved by:
    1. A resolution of the governing authority of the consolidated government in the same manner as otherwise required under Code Section 48-8-92; and
    2. A referendum conducted in the same manner as otherwise required for discontinuation of the tax under Code Section 48-8-92, except that the ballot shall have printed or written thereon the following:
    1. In the case of increase from 1 percent to 2 percent, the amount in excess of the initial 1 percent sales and use tax shall not apply to the sale of motor vehicles.
    2. In the case of a newly imposed 2 percent sales and use tax under this Code section, only the amount in excess of a 1 percent sales and use tax shall not apply to the sale of motor vehicles.
  9. In all respects not otherwise provided for in this Code section, the levy of a tax under this article by a consolidated government referred to in subsection (a) of this Code section shall be in the same manner as the levy of the tax by any other county. (Code 1981, § 48-8-96 , enacted by Ga. L. 2004, p. 69, § 6; Ga. L. 2010, p. 662, § 21/HB 1221.)

"( ) YES Shall the retail sales and use tax levied within the special district within ( ) NO ______________ County be increased from 1 percent to 2 percent?"

"( ) YES Shall the retail sales and use tax levied within the special district within ( ) NO ______________ County be decreased from 2 percent to 1 percent?"

"( ) YES Shall a retail sales and use tax of 2 percent be levied within the special district ( ) NO within ______________ County?"

"( ) YES Shall the retail sales and use tax levied within the special district within ( ) NO ______________ County be terminated?"

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Law reviews. - For article on the 2004 enactment of this Code section, see 21 Georgia St. U.L. Rev. 226 (2004).

ARTICLE 2A HOMESTEAD OPTION SALES AND USE TAX (HOST)

JUDICIAL DECISIONS

Intergovernmental agreement was contrary to statute. - Intergovernmental agreement between the county and the cities was contrary to the express language of the Homestead Option Sales and Use Tax statute, O.C.G.A. § 48-8-100 et seq., because the agreement required the county to give the county's tax revenue to the cities without any control over what was done with the proceeds once given to the cities. City of Decatur v. DeKalb County, 255 Ga. App. 868 , 567 S.E.2d 332 (2002).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 19 et seq.

C.J.S. - 84 C.J.S., Taxation, § 293 et seq.

PART 1 H OMESTEAD OPTION SALES AND USE TAX

48-8-100. Short title.

This part shall be known and may be cited as the "Homestead Option Sales and Use Tax Act."

(Code 1981, § 48-8-100 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 2015, p. 217, § 2/HB 215.)

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" in this Code section.

Law reviews. - For article, "Local Government Litigation: Some Pivotal Principles," see 55 Mercer L. Rev. 1 (2003). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003).

JUDICIAL DECISIONS

Arrangement between county and city allowable. - Court of Appeals erred in finding that the Homestead Option Sales Tax Act (HOST), O.C.G.A. § 48-8-100 et seq., did not allow a county to disburse funds to various cities in order to facilitate the capital outlay requirement under O.C.G.A. § 48-8-104(c)(2)(A) as HOST was implemented under the "special district" provision of Ga. Const. 1983, Art. IX, Sec. II, Para. VI, and as it was not a "county tax," it was subject to such an arrangement; however, the intergovernmental agreement between the county and cities had to be authorized under Ga. Const. 1983, Art. IX, Sec. III, Para. I in order to be valid. City of Decatur v. DeKalb County, 277 Ga. 292 , 589 S.E.2d 561 (2003).

HOST implements district tax. - Homestead Option Sales Tax (HOST), O.C.G.A. § 48-8-100 et seq., implements a district tax under the "special district" provision of Ga. Const. 1983, Art. IX, Sec. II, Para. VI; intergovernmental contracts which are authorized under Ga. Const. 1983, Art. IX, Sec. III, Para. I cannot be limited by HOST. City of Decatur v. DeKalb County, 277 Ga. 292 , 589 S.E.2d 561 (2003).

48-8-101. Definitions.

As used in this part, the term:

  1. "Ad valorem taxes for county purposes" means any and all ad valorem taxes for county maintenance and operation purposes levied by, for, or on behalf of the county, excluding taxes to retire general obligation bonded indebtedness of the county.
  2. "Existing municipality" means a municipality created prior to January 1, 2007, lying wholly within or partially within a county.
  3. "Homestead" means homestead as defined and qualified in Code Section 48-5-40, with the additional qualification that it shall include only the primary residence and not more than five contiguous acres of land immediately surrounding such residence.
  4. "Qualified municipality" means a municipality created on or after January 1, 2007, lying wholly within or partially within a county. (Code 1981, § 48-8-101 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 1997, p. 1, § 1; Ga. L. 2007, p. 598, § 1/HB 264; Ga. L. 2015, p. 217, § 2/HB 215.)

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" in the introductory paragraph of this Code section.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 18.

48-8-101.1. Equal distribution of homestead option sales and use tax among counties and municipalities.

It is the intent of the General Assembly that the proceeds of the homestead option sales and use tax be distributed equitably to the counties and qualified municipalities such that the residents of a new incorporated municipality will continue to receive a benefit from that tax substantially equal to the benefit they would have received if the area covered by the municipality had not incorporated. The provisions of this part shall be liberally construed to effectuate such intent.

(Code 1981, § 48-8-101.1 , enacted by Ga. L. 2007, p. 598, § 2/HB 264; Ga. L. 2015, p. 217, § 2/HB 215.)

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" in the last sentence of this Code section.

JUDICIAL DECISIONS

Amendment to Homestead Option Sales and Use Tax not payment of gratuity. - Trial court did not err in holding that Ga. L. 2007, p. 598, § 1 et seq., which amended the Homestead Option Sales and Use Tax (HOST) Act, O.C.G.A. § 48-8-100 et seq., was not the payment of a gratuity in violation of Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a), because the equalization amount received by a city as a qualified municipality within a county special tax district clearly represented the share of homestead option sales and use tax capital outlay proceeds the legislature determined the city's residents were entitled to receive; therefore, that share was not a gift in violation of Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a); under the Homestead Option Sales and Use Tax Act, O.C.G.A. § 48-8-100 et seq., as amended, the city, just like the county, would act as an agent for the special tax district coterminous with the geographical boundaries of the county in expending HOST revenues for capital outlay projects that benefited the special tax district. DeKalb County v. Perdue, 286 Ga. 793 , 692 S.E.2d 331 (2010).

48-8-102. Creation of special districts; levying of tax; use of proceeds of tax; restriction on levying taxes.

  1. Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, there are created within this state 159 special districts. The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of one of the 159 special districts.
    1. When the imposition of a local sales and use tax is authorized according to the procedures provided in this part within a special district, the county whose geographical boundary is conterminous with that of the special district shall levy a local sales and use tax at the rate of 1 percent, except as provided in paragraph (2) of this subsection. Except as to rate, the local sales and use tax shall correspond to the tax imposed and administered by Article 1 of this chapter. No item or transaction which is not subject to taxation by Article 1 of this chapter shall be subject to the sales and use tax levied pursuant to this part, except that the sales and use tax provided in this part shall be applicable to sales of motor fuels as prepaid local tax as such term is defined in Code Section 48-8-2 and shall be applicable to the sale of food and food ingredients and alcoholic beverages only to the extent provided for in paragraph (57) of Code Section 48-8-3.
    2. On or after July 1, 2015, such sales and use tax levied on sales of motor fuels as defined in Code Section 48-9-2 shall be at the rate of 1 percent of the retail sales price of the motor fuel which is not more than $3.00 per gallon.
    1. Except as otherwise provided in paragraph (2) of this subsection, the proceeds of the sales and use tax levied and collected under this part shall be used only for the purposes of funding capital outlay projects and of funding services within a special district equal to the revenue lost to the homestead exemption as provided in Code Section 48-8-104 and, in the event excess funds remain following the expenditure for such purposes, such excess funds shall be expended as provided in subparagraph (c)(2)(C) of Code Section 48-8-104.
    2. Prior to January 1 of the year immediately following the first complete calendar year in which the sales and use tax under this part is imposed, such proceeds may be used for funding all or any portion of those services which are to be provided by the governing authority of the county whose geographic boundary is conterminous with that of the special district pursuant to and in accordance with Article IX, Section II, Paragraph III of the Constitution of this state.
  4. Such sales and use tax shall only be levied in a special district following the enactment of a local Act which provides for a homestead exemption of an amount to be determined from the amount of sales and use tax collected under this part. Such exemption shall commence with taxable years beginning on or after January 1 of the year immediately following the first complete calendar year in which the sales and use tax under this part is levied. Any such local Act shall incorporate by reference the terms and conditions specified under this part. Any such local Act shall not be subject to the provisions of Code Section 1-3-4.1. Any such homestead exemption under this part shall be in addition to and not in lieu of any other homestead exemption applicable to county taxes for county purposes within the special district. Notwithstanding any provision of such local Act to the contrary, the referendum which shall otherwise be required to be conducted under such local Act shall only be conducted if the resolution required under subsection (a) of Code Section 48-8-103 is adopted prior to the issuance of the call for the referendum under the local Act by the election superintendent. If such ordinance is not adopted by that date, the referendum otherwise required to be conducted under the local Act shall not be conducted.
  5. No sales and use tax shall be levied in a special district under this part in which a tax is levied and collected under Article 2 of this chapter. (Code 1981, § 48-8-102 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 1996, p. 1, § 3; Ga. L. 1997, p. 1, § 2; Ga. L. 1997, p. 157, § 1A; Ga. L. 2007, p. 309, § 6/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 22/HB 1221; Ga. L. 2015, p. 217, § 2/HB 215; Ga. L. 2015, p. 236, § 5-9/HB 170.)

The 2015 amendments. The first 2015 amendment, effective May 4, 2015, substituted "part" for "article" in subsection (b), in paragraphs (c)(1) and (c)(2), and in subsections (d) and (e); and in subsection (b), substituted "such term" for "that term" in the middle of the last sentence. The second 2015 amendment, effective July 1, 2015, in subsection (b), designated the existing provisions as paragraph (b)(1), added ", except as provided in paragraph (2) of this subsection" at the end of the first sentence of paragraph (b)(1), and added paragraph (b)(2). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

JUDICIAL DECISIONS

Contract between county and cities. - Trial court did not err in granting a county summary judgment in the cities' action for breach of an intergovernmental agreement (IGA) the parties entered into pursuant to the Homestead Option Sales and Use Tax Act (HOST), O.C.G.A. § 48-8-100 et seq., because the IGA was not a valid intergovernmental contract under the Intergovernmental Contracts Clause of the Georgia Constitution, Ga. Const. 1983, Art. IX, Sec. III, Para. I(a), since the focus and clear purpose of the IGA was to provide a formula for the distribution of the HOST revenues, and the IGA could not be deemed an agreement for the provision of authorized "services"; the IGA was an agreement about how to divide and distribute HOST revenues between the county and the cities, with the cities agreeing to expend the monies disbursed solely for capital outlay projects to be located within the geographical boundaries of the county and to be owned, operated, or both either by the county, one of more cities or any combination thereof, and the fact that the IGA required the cities to expend the tax proceeds in accordance with the mandates of the Homestead Option Sales and Use Tax Act, O.C.G.A. § 48-8-102 , did not transform it into either a contract for services or one for the use of facilities. City of Decatur v. Dekalb County, 289 Ga. 612 , 713 S.E.2d 846 (2011).

48-8-103. Submission to voters to determine imposition of tax.

  1. Whenever the governing authority of any county whose geographical boundary is conterminous with that of the special district wishes to submit to the electors of the special district the question of whether the sales and use tax authorized by Code Section 48-8-102 shall be imposed, any such governing authority shall notify the election superintendent of the county whose geographical boundary is conterminous with that of the special district by forwarding to the superintendent a copy of a resolution of the governing authority calling for a referendum election. Upon receipt of the resolution, it shall be the duty of the election superintendent to issue the call for an election for the purpose of submitting the question of the imposition of the sales and use tax to the voters of the special district for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. Such election shall only be conducted on the date of and in conjunction with a referendum provided for by local Act on the question of whether to impose a homestead exemption within such county and based on the amount of proceeds from the sales and use tax levied and collected pursuant to this part. The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date of the election in the official organ of such county. The ballot shall have written or printed thereon the following statement which shall precede the ballot question specified in this subsection and the ballot question specified by the required local Act:

    Notwithstanding any other provision of law to the contrary, the statement, ballot question, and local Act ballot question referred to in this subsection shall precede any and all other ballot questions calling for the levy or imposition of any other sales and use tax which are to appear on the same ballot.

  2. All persons desiring to vote in favor of levying the sales and use tax shall vote "Yes," and those persons opposed to levying the tax shall vote "No." If more than one-half of the votes cast are in favor of levying the tax and approving the local Act providing such homestead exemption, then the tax shall be levied in accordance with this part; otherwise, the sales and use tax may not be levied, and the question of the imposition of the sales and use tax may not again be submitted to the voters of the special district until after 24 months immediately following the month in which the election was held. It shall be the duty of the election superintendent to hold and conduct such elections under the same rules and regulations as govern special elections. It shall be the superintendent's further duty to canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be borne by the county whose geographical boundary is conterminous with that of the special district holding the election.
  3. If the imposition of the sales and use tax provided in Code Section 48-8-102 is approved in a referendum election as provided by subsections (a) and (b) of this Code section, the governing authority of the county whose geographical boundary is conterminous with that of the special district shall adopt a resolution during the first 30 days following the certification of the result of the election imposing the sales and use tax authorized by Code Section 48-8-102 on behalf of the county whose geographical boundary is conterminous with that of the special district. The resolution shall be effective on the first day of the next succeeding calendar quarter which begins more than 80 days after the adoption of the resolution. With respect to services which are billed on a regular monthly basis, however, the resolution shall become effective with the first regular billing period coinciding with or following the otherwise effective date of the resolution. A certified copy of the resolution shall be forwarded to the commissioner so that it will be received within five days after its adoption. (Code 1981, § 48-8-103 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 1997, p. 1, § 3; Ga. L. 2015, p. 217, § 2/HB 215; Ga. L. 2016, p. 864, § 48/HB 737.)

"NOTICE TO ELECTORS: Unless BOTH the homestead exemption AND the retail homestead option sales and use tax are approved, then neither the exemption nor the sales and use tax shall become effective."

Such statement shall be followed by the following:

"( ) YES Shall a retail homestead option sales and use tax of 1 percent be levied within the special ( ) NO district within ______________ County for the purposes of funding capital outlay projects and of funding services to replace revenue lost to an additional homestead exemption of up to 100 percent of the assessed value of homesteads from county taxes for county purposes?"

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" at the end of the fourth sentence in the introductory paragraph of subsection (a) and in the second sentence of subsection (b).

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "geographical" for "geographic" in the first sentence of subsection (a).

48-8-104. Exclusive administration of tax by commissioner; identification of location where tax collected; manner of disbursement of proceeds.

  1. The sales and use tax levied pursuant to this part shall be exclusively administered and collected by the commissioner for the use and benefit of each county whose geographical boundary is conterminous with that of a special district. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter except that the sales and use tax provided in this part shall be applicable to sales of motor fuels as prepaid local tax as such term is defined in Code Section 48-8-2; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state. Dealers shall be allowed a percentage of the amount of the sales and use tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.
  2. Each sales and use tax return remitting sales and use taxes collected under this part shall separately identify the location of each retail establishment at which any of the sales and use taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all sales and use taxes imposed by this part are collected and distributed according to situs of sale.
  3. The proceeds of the sales and use tax collected by the commissioner in each special district under this part shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration;
    2. Except for the percentage provided in paragraph (1) of this subsection and the amount determined under subsections (d) and (e) of this Code section, the remaining proceeds of the sales and use tax shall be distributed to the governing authority of the county whose geographical boundary is conterminous with that of the special district; provided, however, that a county and any qualified municipality shall be authorized by intergovernmental agreement to waive the equalization amount otherwise required under subsections (d) and (e) of this Code section and provide for a different distribution amount. In the event of such waiver, except for the percentage provided in paragraph (1) of this subsection, the remaining proceeds of the sales and use tax shall be distributed to the governing authority of the county whose geographical boundary is conterminous with that of the special district. As a condition precedent for the authority to levy the sales and use tax or to collect any proceeds from the tax authorized by this part for the year following the first complete calendar year in which it is levied and for all subsequent years except the year following the year in which the sales and use tax is terminated under Code Section 48-8-106, the county whose geographical boundary is conterminous with that of the special district shall, except as otherwise provided in subsection (c) of Code Section 48-8-102, expend such proceeds as follows:
      1. A portion of such proceeds shall be expended for the purpose of funding capital outlay projects as follows:
        1. The governing authority of the county whose geographical boundary is conterminous with that of the special district shall establish the capital factor which shall not exceed .200 and, for a county in which a qualified municipality is located, shall not be less than the level required by subsection (d) of this Code section; therefore, at a minimum, the county shall set the capital factor at a level that yields an amount of capital outlay proceeds that is equal to or greater than the sum of all equalization amounts due qualified municipalities and existing municipalities under subsection (e) of this Code section; and
        2. Capital outlay projects shall be funded in an amount equal to the product of the capital factor multiplied by the net amount of the sales and use tax proceeds collected under this part during the previous calendar year, and this amount shall be referred to as capital outlay proceeds in subsections (d) and (e) of this Code section;
      2. A portion of such proceeds shall be expended for the purpose of funding services within the special district equal to the revenue lost to the homestead exemption as provided in this Code section as follows:
        1. The homestead factor shall be calculated by multiplying the quantity 1.000 minus the capital factor times an amount equal to the net amount of sales and use tax collected in the special district pursuant to this part for the previous calendar year, and then dividing by the taxes levied for county purposes on only that portion of the county tax digest that represents net assessments on qualified homestead property after all other homestead exemptions have been applied, rounding the result to three decimal places;
        2. If the homestead factor is less than or equal to 1.000, the amount of homestead exemption created under this part on qualified homestead property shall be equal to the product of the homestead factor multiplied times the net assessment of each qualified homestead remaining after all other homestead exemptions have been applied; and
        3. If the homestead factor is greater than 1.000, the homestead exemption created by this part on qualified homestead property shall be equal to the net assessment of each homestead remaining after all other homestead exemptions have been applied; and
      3. If any of such proceeds remain following the distribution provided for in subparagraphs (A) and (B) of this paragraph and subsections (d) and (e) of this Code section:
        1. The millage rate levied for county purposes shall be rolled back in an amount equal to such excess divided by the net taxable digest for county purposes after deducting all homestead exemptions including the exemption under this part; and
        2. In the event the rollback created by division (i) of this subparagraph exceeds the millage rate for county purposes, the governing authority of the county whose boundary is conterminous with the special district shall be authorized to expend the surplus funds for funding all or any portion of those services which are to be provided by such governing authorities pursuant to and in accordance with Article IX, Section II, Paragraph III of the Constitution of this state.
    1. The commissioner shall distribute to the governing authority of each qualified municipality located in the special district a share of the capital outlay proceeds calculated as provided in this subsection and subsection (e) of this Code section which proceeds shall be expended for the purpose of funding capital outlay projects of such municipality.
    2. Both the tax commissioner and the governing authority for the county in which a qualified municipality is located shall cooperate with and assist the commissioner in the calculation of the equalization amounts under subsection (e) of this Code section and shall, on or before July 1 of each year, provide to the commissioner and the governing authority of each qualified municipality written certification of the following:
      1. The capital factor set by the county for the current calendar year; provided, however, that the capital factor may not exceed 0.200;
      2. The total amount, if any, due to be paid to existing municipalities from the capital outlay proceeds as required by any intergovernmental agreement between the county and such municipalities;
      3. The incorporated county millage rate in each qualified municipality;
      4. The net homestead digest for each qualified municipality;
      5. The total homestead digest; and
      6. The unincorporated county millage rate.

        If the tax commissioner and the governing authority of the county fail to provide such certification on or before July 1, the commissioner shall not distribute to such county any additional proceeds of the sales and use tax collected after July 1 unless and until such certification is provided.

    3. The commissioner shall then calculate the equalization amount due each qualified municipality based on the certifications provided by the tax commissioner and the governing authority of the county and pay such amount to the governing authority of each qualified municipality in six equal monthly payments as soon as practicable during or after each of the last six months of the current calendar year. In the event an existing municipality that has entered into an intergovernmental agreement with a county at any time before January 1, 2007, to receive capital outlay proceeds of the homestead option sales and use tax and such intergovernmental agreement has become or does become null and void for any reason, such existing municipality shall be treated under this part the same as if it were a qualified municipality as defined in paragraph (4) of Code Section 48-8-101 and therefore receive payment of equalization amounts under this part as provided for under this part. The commissioner shall distribute to the governing authority of the county each month the net sales and use tax remaining after payment of equalization amounts to the qualified municipalities.
    1. As used in this subsection, the term:
      1. "Equalization amount" means for a qualified municipality the product of the equalization millage times the net homestead digest for that qualified municipality.
      2. "Equalization millage" means for each qualified municipality the product of the homestead factor calculated pursuant to division (c)(2)(B)(i) of this Code section times the difference between the unincorporated county millage rate and the incorporated county millage rate for that qualified municipality.
      3. "Incorporated county millage rate" means the millage rate for all ad valorem taxes for county purposes levied by the county in each of the qualified municipalities in the county.
      4. "Net homestead digest" means for each qualified municipality the total net assessed value of all qualified homestead property located in that portion of the qualified municipality located in the county remaining after all other homestead exemptions are applied.
      5. "Total homestead digest" means the total net assessed value of all qualified homestead property located in the county remaining after all other homestead exemptions are applied.
      6. "Unincorporated county millage rate" means the millage rate for all ad valorem taxes for county purposes levied by the county in the unincorporated areas of the county.
    2. For illustration purposes, a hypothetical example of the calculation of the equalization amount is provided below.
    3. In the event the total amount payable in a calendar year to all existing municipalities as certified by the county pursuant to subparagraph (d)(2)(B) of this Code section plus the total equalization amount payable to all qualified municipalities in the special district exceeds the capital outlay proceeds calculated based on a maximum capital factor of 0.200, the commissioner shall pay to the governing authority of each qualified municipality a share of such proceeds calculated as follows:
      1. Determine the capital outlay proceeds based on a maximum capital factor of 0.200;
      2. Subtract the amount certified by the county as payable to existing municipalities pursuant to subparagraph (d)(2)(B) of this Code section;
      3. The remaining amount equals the portion of the capital outlay proceeds that may be used by the commissioner to pay equalization amounts to qualified municipalities. The commissioner shall calculate each qualified municipality's share of such remaining amount by dividing the net homestead digest for each qualified municipality by the total homestead digest for all municipalities.
    4. In the event the incorporated county millage rate for a qualified municipality is greater than the unincorporated county millage rate, no payment shall be due from the governing authority of the qualified municipality to the governing authority of the county.
    5. In the event the amount of capital outlay proceeds exceeds the sum of the equalization amounts due all qualified municipalities plus the total amount certified under subparagraph (d)(2)(B) of this Code section as due all existing municipalities, the commissioner shall distribute to each qualified municipality a portion of such excess equal to the net homestead digest for such municipality divided by the total homestead digest.
    6. If any qualified municipality is located partially in the county then only that portion so located shall be considered in the calculations contained in this subsection. (Code 1981, § 48-8-104 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 1997, p. 1, § 4; Ga. L. 2007, p. 309, § 7/HB 219; Ga. L. 2007, p. 598, § 3/HB 264; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 23/HB 1221; Ga. L. 2015, p. 217, § 2/HB 215.)

First, calculate the homestead factor in accordance with division (c)(2)(B)(i) of this Code section as follows: (A) Capital factor certified by county as required by subsection (d) of this Code section 0.150 (B) Net amount of sales and use tax collected in the special district pursuant to this part for the previous calendar year $50 million (C) Taxes levied for county purposes on only that portion of the county tax digest that represents net assessments on qualified homestead property after all other homestead exemptions have been applied $100 million (D) Calculation of homestead factor using figures above = [(1-.0150)($50 million/$100 million)] .425 Next, calculate the equalization amount in accordance with paragraph (1) of this subsection as follows: (E) Unincorporated county millage rate 15.0 mills (F) Minus the incorporated county millage rate for qualified municipality "Y" (10.0 mills) Difference: = 5.0 mills (G) Times homestead factor (calculated above) x .425 (H) Equals the equalization millage: = 2.125 mills (I) Times net homestead digest for qualified municipality "Y" $200 million (J) Equals the equalization amount payable to municipality "Y" $425,000.00

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" throughout this Code section, and substituted "such term" for "that term" in the second sentence of subsection (a).

JUDICIAL DECISIONS

Arrangement between county and city allowable. - Court of Appeals erred in finding that the Homestead Option Sales Tax Act (HOST), O.C.G.A. § 48-8-100 et seq., did not allow a county to disburse funds to various cities in order to facilitate the capital outlay requirement under O.C.G.A. § 48-8-104(c)(2)(A) as HOST was implemented under the "special district" provision of Ga. Const. 1983, Art. IX, Sec. II, Para. VI, and as it was not a "county tax," it was subject to such an arrangement; however, the intergovernmental agreement between the county and cities had to be authorized under Ga. Const. 1983, Art. IX, Sec. III, Para. I in order to be valid. City of Decatur v. DeKalb County, 277 Ga. 292 , 589 S.E.2d 561 (2003).

Amendment to Homestead Option Sales and Use Tax not payment of gratuity. - Trial court did not err in holding that Ga. L. 2007, p. 598, § 1 et seq., which amended the Homestead Option Sales and Use Tax (HOST) Act, O.C.G.A. § 48-8-100 et seq., was not the payment of a gratuity in violation of Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a) because the equalization amount received by a city as a qualified municipality within a county special tax district clearly represented the share of homestead option sales and use tax capital outlay proceeds the legislature determined the city's residents were entitled to receive; therefore, that share was not a gift in violation of Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a); under the Homestead Option Sales and Use Tax Act, O.C.G.A. § 48-8-100 et seq., as amended, the city, just like the county, would act as an agent for the special tax district coterminous with the geographical boundaries of the county in expending HOST revenues for capital outlay projects that benefited the special tax district. DeKalb County v. Perdue, 286 Ga. 793 , 692 S.E.2d 331 (2010).

48-8-105. Credit of tax against similar taxes collected in other jurisdictions on same property.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within this state or in a tax jurisdiction outside this state, the sales and use tax may be credited against the sales and use tax authorized to be imposed by this part upon the same property. If the amount of sales or use tax so paid is less than the amount of the use tax due under this part, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this part. The commissioner may require such proof of payment in another local tax jurisdiction as the commissioner deems necessary and proper. No credit shall be granted, however, against the sales and use tax imposed under this part for tax paid in another jurisdiction if the sales and use tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the special district or in the county which is conterminous with the special district; and sales and use taxes so paid in another jurisdiction shall be credited first against the sales and use tax levied under this part and then against the sales and use tax levied under Article 3 of this chapter, if applicable.

(Code 1981, § 48-8-105 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 2015, p. 217, § 2/HB 215.)

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" in five places in this Code section and substituted "this state" for "the state" in two places in the first sentence.

48-8-106. Submission to voters of question as to whether to discontinue tax.

  1. Whenever the governing authority of any county whose geographical boundary is conterminous with that of the special district in which the sales and use tax authorized by this part is being levied wishes to submit to the electors of the special district the question of whether the sales and use tax authorized by Code Section 48-8-102 shall be discontinued, the governing authority shall notify the election superintendent of the county whose geographical boundary is conterminous with that of the special district by forwarding to the superintendent a copy of a resolution of the governing authority calling for the referendum election. Upon receipt of the resolution, it shall be the duty of the election superintendent to issue the call for an election for the purpose of submitting the question of discontinuing the levy of the sales and use tax to the voters of the special district for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. Such election shall be conducted only on the date of and in conjunction with a referendum provided for by local Act on the question of whether to repeal the homestead exemption within such county which is funded from the proceeds of the sales and use tax levied and collected pursuant to this part. The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date of the election in the official organ of such county. The ballot shall have written or printed thereon the following:        "(  ) YES Shall the 1 percent retail homestead option sales and use tax being levied within the  special          (  )  NO district within ______________ County for the purposes of funding capital outlay projects and of funding services to replace revenue lost to an additional homestead exemption of up to 100 percent of the assessed value of homesteads from county taxes for county purposes be terminated?"
  2. All persons desiring to vote in favor of discontinuing the sales and use tax shall vote "Yes," and those persons opposed to discontinuing the tax shall vote "No." If more than one-half of the votes cast are in favor of discontinuing the sales and use tax and repealing the local Act providing for such homestead exemption, then the sales and use tax shall cease to be levied on the last day of the taxable year following the taxable year in which the commissioner receives the certification of the result of the election; otherwise, the sales and use tax shall continue to be levied, and the question of the discontinuing of the tax may not again be submitted to the voters of the special district until after 24 months immediately following the month in which the election was held. It shall be the duty of the election superintendent to hold and conduct such elections under the same rules and regulations as govern special elections. It shall be the superintendent's further duty to canvass the returns, declare and certify the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be borne by the county whose geographical boundary is conterminous with that of the special district holding the election. (Code 1981, § 48-8-106 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 1997, p. 1, § 5; Ga. L. 2015, p. 217, § 2/HB 215; Ga. L. 2016, p. 864, § 48/HB 737.)

The 2015 amendment, effective May 4, 2015, in subsection (a), substituted "part" for "article" in the first and fourth sentences, and substituted "shall be conducted only" for "shall only be conducted" in the fourth sentence.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "geographical" for "geographic" in the first sentence of subsection (a).

48-8-107. Property ordered by and delivered to purchaser at point outside geographical area of special district in which tax imposed.

No sales and use tax provided for in Code Section 48-8-102 shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the special district in which the sales and use tax is imposed under this part regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier licensed by the Federal Motor Carrier Safety Administration or the Georgia Department of Public Safety.

(Code 1981, § 48-8-107 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 2012, p. 580, § 20/HB 865; Ga. L. 2015, p. 217, § 2/HB 215.)

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" in this Code section.

48-8-108. Taxation of building and construction materials.

  1. As used in this Code section, the term "building and construction materials" means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract.
  2. No sales and use tax provided for in Code Section 48-8-102 shall be imposed in a special district upon the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to approval of the levy of the sales and use tax by the county whose geographical boundary is conterminous with that of the special district and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to approval of the levy of the sales and use tax. (Code 1981, § 48-8-108 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 2015, p. 217, § 2/HB 215.)

The 2015 amendment, effective May 4, 2014, substituted "a special district" for "such special district" near the beginning of subsection (b).

48-8-109. Rules and regulations.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the sales and use tax authorized to be imposed by this part.

(Code 1981, § 48-8-109 , enacted by Ga. L. 1995, p. 655, § 1; Ga. L. 2015, p. 217, § 2/HB 215.)

The 2015 amendment, effective May 4, 2015, substituted "part" for "article" at the end of this Code section.

PART 2 E QUALIZED HOMESTEAD OPTION SALES TAX

Effective date. - This part became effective May 4, 2015.

48-8-109.1. Short title.

This part shall be known and may be cited as the "Equalized Homestead Option Sales Tax Act of 2015."

(Code 1981, § 48-8-109.1 , enacted by Ga. L. 2015, p. 217, § 2/HB 215.)

48-8-109.2. Referendum on suspension of taxation.

In any county where a homestead option sales and use tax under Part 1 of this article and a sales tax for purposes of a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Georgia Laws, 1964, page 1008; the continuation of such amendment under Article XI, Section I, Paragraph IV(d) of the Constitution; and the laws enacted pursuant to such constitutional amendment, are being levied, the county governing authority may choose to submit to the electors of the special district the question of whether to suspend the sales and use tax authorized by Code Section 48-8-102 and replace such tax with a sales and use tax authorized by this part. Such referendum shall only be held in conjunction with a referendum submitting to the electors of the special district the question of whether to approve a special purpose local option sales and use tax pursuant to the provisions of Part 1 of Article 3 of this chapter. The electors of the special district must approve both of the sales and use taxes in order for either of them to be implemented. If either of the sales and use taxes is not approved by the electors, the homestead option sales and use tax under Part 1 of this article shall be continued in full force and effect.

(Code 1981, § 48-8-109.2 , enacted by Ga. L. 2015, p. 217, § 2/HB 215.)

48-8-109.3. Creation of special districts; application of tax.

  1. Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, there are created within this state 159 special districts.  The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of one of the 159 special districts.
  2. When the imposition of a local sales and use tax is authorized according to the procedures provided in this part within a special district, the county whose geographical boundary is conterminous with that of the special district shall levy a local sales and use tax at the same rate as provided in Part 1 of this article.  Except as otherwise provided in this part, the local sales and use tax shall correspond to the tax imposed and administered by Part 1 of this article.  The local sales and use tax levied pursuant to this part shall apply to all items and transactions subject to taxation pursuant to Part 1 of this article.  No item or transaction which is not subject to taxation pursuant to Part 1 of this article shall be subject to the tax levied pursuant to this part.
  3. No sales and use tax shall be levied in a special district under this part in which a tax is levied and collected under Article 2 of this chapter. (Code 1981, § 48-8-109.3 , enacted by Ga. L. 2015, p. 217, § 2/HB 215.)

48-8-109.4. Role of election superintendent.

  1. Whenever the governing authority of any county whose geographical boundary is conterminous with that of the special district wishes to submit to the electors of the special district the question of whether the sales and use tax authorized by this part shall be imposed, any such governing authority shall notify the election superintendent of the county whose geographical boundary is conterminous with that of the special district by forwarding to the superintendent a copy of a resolution of the governing authority calling for a referendum election.  Upon receipt of the resolution, it shall be the duty of the election superintendent to issue the call for an election for the purpose of submitting the question of the imposition of the sales and use tax to the voters of the special district for approval or rejection.  The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540.  Such election shall only be held in conjunction with a referendum submitting to the electors of the special district the question of whether to approve a special purpose local option sales and use tax pursuant to the provisions of Part 1 of Article 3 of this chapter.  The electors of the special district must approve both of the sales and use taxes in order for either of them to be implemented.  If either of the taxes is not approved by the electors, the homestead option sales and use tax under Part 1 of this article shall be continued in full force and effect.  If the sales and use tax under Part 1 of Article 3 of this chapter is not renewed, the sales and use tax under Part 1 of this article shall replace the sales and use tax under this part upon expiration of the sales and use tax under Part 1 of Article 3 of this chapter.  The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date of the election in the official organ of such county.  The ballot shall have written or printed thereon the following statement which shall precede the ballot question specified in this subsection:

    Notwithstanding any other provision of law to the contrary, the statement and ballot question referred to in this subsection shall precede any and all other ballot questions which are to appear on the same ballot.

  2. All persons desiring to vote in favor of levying the sales and use tax shall vote "Yes," and those persons opposed to levying the tax shall vote "No."  If more than one-half of the votes cast are in favor of levying the tax, then the tax shall be levied in accordance with this part; otherwise, the sales and use tax may not be levied, and the question of the imposition of the sales and use tax may not again be submitted to the voters of the special district until after 24 months immediately following the month in which the election was held.  It shall be the duty of the election superintendent to hold and conduct such elections under the same rules and regulations as govern special elections.  It shall be the superintendent's further duty to canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner.  The expense of the election shall be borne by the county whose geographical boundary is conterminous with that of the special district holding the election.
  3. If the imposition of the sales and use tax provided in this part is approved in a referendum election as provided by subsections (a) and (b) of this Code section, the governing authority of the county whose geographical boundary is conterminous with that of the special district shall adopt a resolution during the first 30 days following the certification of the result of the election imposing the sales and use tax authorized in this part on behalf of the county whose geographical boundary is conterminous with that of the special district.  The resolution shall be effective on the first day of the next succeeding calendar quarter which begins more than 80 days after the adoption of the resolution.  With respect to services which are billed on a regular monthly basis, however, the resolution shall become effective with the first regular billing period coinciding with or following the otherwise effective date of the resolution.  A certified copy of the resolution shall be forwarded to the commissioner so that it will be received within five days after its adoption. (Code 1981, § 48-8-109.4 , enacted by Ga. L. 2015, p. 217, § 2/HB 215; Ga. L. 2016, p. 864, § 48/HB 737.)

"NOTICE TO ELECTORS: Unless BOTH the equalized homestead option sales and use tax AND the special purpose local option sales and use tax are approved, then neither sales and use tax shall become effective."

Such statement shall be followed by the following:

"( ) YES Shall an equalized homestead option sales and use tax be levied and the regular ( ) NO homestead option sales and use tax be suspended within the special district within ______________ County for the purposes of reducing the ad valorem property tax millage rates levied by county and municipal governments on homestead properties?"

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "geographical" for "geographic" in the first sentence of subsection (a).

48-8-109.5. Administration and collection of tax; disbursement of tax.

  1. The sales and use tax levied pursuant to this part shall be exclusively administered and collected by the commissioner for the use and benefit of each county whose geographical boundary is conterminous with that of a special district.  Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter except that the sales and use tax provided in this part shall be applicable to sales of motor fuels as prepaid local tax as such term is defined in Code Section 48-8-2, to the same extent that sales of motor fuels are subject to taxation pursuant to Part 1 of this article; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state.  Dealers shall be allowed a percentage of the amount of the sales and use tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment.  The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.
  2. Each sales and use tax return remitting sales and use taxes collected under this part shall separately identify the location of each retail establishment at which any of the sales and use taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all sales and use taxes imposed by this part are collected and distributed according to situs of sale.
  3. The proceeds of the sales and use tax collected by the commissioner in each special district under this part shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
    2. The remaining proceeds shall be disbursed to the governing authority of the county whose geographical boundary is conterminous with that of the special district, and each municipality located wholly or partially therein, and shall be utilized as follows:
      1. First, the proceeds shall be used to roll back, and eliminate if possible, the millage rates for any county ad valorem property tax line items levied uniformly throughout the county on homestead properties, including in all municipalities; and
      2. Next, any remaining proceeds shall be used to roll back at an equal and uniform rate across both of the following categories, and eliminate if possible:
        1. The millage rates for any county ad valorem property tax line items levied only in unincorporated portions of the county on homestead properties; and
        2. The millage rates for any municipal ad valorem property tax line items levied in every municipality located wholly or partially in the county on homestead properties but not in unincorporated portions of the county.

          If any municipality is located partially in the special district, then only that portion so located shall be considered in the calculations contained in this subsection.

  4. The form to collect ad valorem tax prepared by the county tax commissioner shall reflect the full amount owed by the taxpayer pursuant to the millage rates set by the county governing authority and any municipal governing authority.  Under a separate heading, the form shall reflect the deductions from the gross ad valorem tax amount realized through the application of proceeds from the equalized homestead option sales and use tax.
  5. Notwithstanding any provision of law to the contrary except subsection (f) of this Code section, in any county levying a tax under this part, a tax levied pursuant to the provisions of Part 1 of Article 3 of this chapter in a special district in such county shall be strictly divided between the unincorporated portions of the county whose geographical boundary is conterminous with that of the special district and the municipalities wholly or partially located within the special district on a per capita basis, based on the most recent decennial census, unless altered by an intergovernmental agreement between the county and all municipalities wholly located within the special district. Notwithstanding any provision of law to the contrary, the department shall disburse directly to the county and each municipality its share of the proceeds of the tax levied pursuant to Part 1 of Article 3 of this chapter.
  6. The tax levied in the special district under Part 1 of Article 3 of this chapter shall not be levied within the boundaries of any municipality wholly or partially located within  the special district that is levying a tax pursuant to Article 4 of this chapter.  No proceeds from the tax levied in the special district under Part 1 of Article 3 of this chapter shall be disbursed to any such municipality. Upon the expiration of the tax levied under Article 4 of this chapter in such municipality, the tax in the special district under Part 1 of Article 3 of this chapter shall be levied within such municipality and proceeds shall be disbursed to such municipality in accordance with this part. (Code 1981, § 48-8-109.5 , enacted by Ga. L. 2015, p. 217, § 2/HB 215; Ga. L. 2017, p. 530, § 2/SB 156.)

The 2017 amendment, effective July 1, 2017, deleted the former next-to-last sentence of subsection (e), which read: "For as long as a municipality located within the special district and incorporated after May 4, 2015, does not maintain the roads, streets, sidewalks, and bicycle paths within its territorial boundaries and relies upon the county governing authority for such maintenance, such municipality's per capita share of the proceeds of the tax levied pursuant to Part 1 of Article 3 of this chapter shall be paid to the county governing authority.".

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, "May 4, 2015," was substituted for "the effective date of this Code Section" in the second sentence in subsection (e).

48-8-109.6. Taxation from other jurisdiction; calculations.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within this state or in a tax jurisdiction outside this state, the sales and use tax may be credited against the sales and use tax authorized to be imposed by this part upon the same property. If the amount of sales or use tax so paid is less than the amount of the use tax due under this part, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this part. The commissioner may require such proof of payment in another local tax jurisdiction as the commissioner deems necessary and proper. No credit shall be granted, however, against the sales and use tax imposed under this part for tax paid in another jurisdiction if the sales and use tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the special district or in the county which is conterminous with the special district; and sales and use taxes so paid in another jurisdiction shall be credited first against the sales and use tax levied under this part and then against the sales and use tax levied under Article 3 of this chapter, if applicable.

(Code 1981, § 48-8-109.6 , enacted by Ga. L. 2015, p. 217, § 2/HB 215.)

48-8-109.7. Referendum on discontinuation of taxation; ballot.

  1. Whenever the governing authority of any county whose geographical boundary is conterminous with that of the special district in which the sales and use tax authorized by this part is being levied wishes to submit to the electors of the special district the question of whether the sales and use tax authorized by this part shall be discontinued, the governing authority shall notify the election superintendent of the county whose geographical boundary is conterminous with that of the special district by forwarding to the superintendent a copy of a resolution of the governing authority calling for the referendum election.  Upon receipt of the resolution, it shall be the duty of the election superintendent to issue the call for an election for the purpose of submitting the question of discontinuing the levy of the sales and use tax to the voters of the special district for approval or rejection.  The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540.  Such election shall be conducted only on the date of and in conjunction with an election to repeal the special purpose local option sales and use tax pursuant to the provisions of Part 1 of Article 3 of this chapter.  If either such sales and use tax is repealed, then both such sales and use taxes shall be repealed and the sales and use tax under Part 1 of this article shall replace the sales and use tax that was imposed under this part.  The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date of the election in the official organ of such county.  The ballot shall have written or printed thereon the following:            "(  ) YES Shall the equalized homestead option sales and use tax being levied within  the              (  )  NO special district within ______________ County for the purposes of reducing the ad valorem property tax millage rates levied by county and municipal governments on homestead properties be terminated?"
  2. All persons desiring to vote in favor of discontinuing the sales and use tax shall vote "Yes," and those persons opposed to discontinuing the tax shall vote "No."  If more than one-half of the votes cast are in favor of discontinuing the sales and use tax, then the sales and use tax shall cease to be levied on the last day of the taxable year following the taxable year in which the commissioner receives the certification of the result of the election; otherwise, the sales and use tax shall continue to be levied, and the question of discontinuing the tax may not again be submitted to the voters of the special district until after 24 months immediately following the month in which the election was held.  It shall be the duty of the election superintendent to hold and conduct such elections under the same rules and regulations as govern special elections.  It shall be the superintendent's further duty to canvass the returns, declare and certify the result of the election, and certify the result to the Secretary of State and to the commissioner.  The expense of the election shall be borne by the county whose geographical boundary is conterminous with that of the special district holding the election. (Code 1981, § 48-8-109.7 , enacted by Ga. L. 2015, p. 217, § 2/HB 215; Ga. L. 2016, p. 864, § 48/HB 737.)

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "geographical" for "geographic" in the first sentence of subsection (a).

48-8-109.8. Sales outside of jurisdiction.

No sales and use tax provided for in this part shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the special district in which the sales and use tax is imposed under this part regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier licensed by the Federal Motor Carrier Safety Administration or the Georgia Department of Public Safety.

(Code 1981, § 48-8-109.8 , enacted by Ga. L. 2015, p. 217, § 2/HB 215.)

48-8-109.9. "Building and construction materials" defined; exemption.

  1. As used in this Code section, the term "building and construction materials" means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract.
  2. No sales and use tax provided for in this part shall be imposed in a special district upon the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to approval of the levy of the sales and use tax by the county whose geographical boundary is conterminous with that of the special district and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to approval of the levy of the sales and use tax. (Code 1981, § 48-8-109.9 , enacted by Ga. L. 2015, p. 217, § 2/HB 215.)

48-8-109.10. Regulatory authority of commissioner.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the sales and use tax authorized to be imposed by this part.

(Code 1981, § 48-8-109.10 , enacted by Ga. L. 2015, p. 217, § 2/HB 215.)

ARTICLE 3 COUNTY SALES AND USE TAXES

Administrative Rules and Regulations. - Special county tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Chapter 560-12-6.

PART 1 C OUNTY SPECIAL PURPOSE LOCAL OPTION SALES TAX (SPLOST)

Law reviews. - For article on 2004 amendment of Code sections in this part, see 21 Georgia St. U.L. Rev. 226 (2004).

48-8-110. Definitions.

As used in this part, the term:

  1. "Capital outlay project" means major, permanent, or long-lived improvements or betterments, such as land and structures, such as would be properly chargeable to a capital asset account and as distinguished from current expenditures and ordinary maintenance expenses. Such term shall include, but not be limited to, roads, streets, bridges, police cars, fire trucks, ambulances, garbage trucks, and other major equipment.
  2. "County-wide project" means a capital outlay project or projects as defined in paragraph (1) of this Code section of the county for the use or benefit of the citizens of the entire county and is further defined as follows:
    1. "Level one county-wide project" means a county-wide project or projects of the county to carry out functions on behalf of the state and is limited to a county courthouse; a county administrative building primarily for county constitutional officers or elected officials; a county or regional jail, correctional institution, or other detention facility; a county health department facility; or any combination of such projects; and
    2. "Level two county-wide project" means a county-wide project or projects of the county or one or more municipalities, other than a level one county-wide project, which project or projects are to be owned or operated or both either by the county, one or more municipalities, or any combination thereof.
  3. "Intergovernmental agreement" means a contract entered into pursuant to Article IX, Section III, Paragraph I of the Constitution between a county and one or more qualified municipalities located within the special district containing a combined total of no less than 50 percent of the aggregate municipal population located within the special district.
  4. "Qualified municipality" means only those incorporated municipalities which provide at least three of the following services, either directly or by contract:
    1. Law enforcement;
    2. Fire protection (which may be furnished by a volunteer fire force) and fire safety;
    3. Road and street construction or maintenance;
    4. Solid waste management;
    5. Water supply or distribution or both;
    6. Waste-water treatment;
    7. Storm-water collection and disposal;
    8. Electric or gas utility services;
    9. Enforcement of building, housing, plumbing, and electrical codes and other similar codes;
    10. Planning and zoning;
    11. Recreational facilities; or
    12. Library. (Code 1981, § 48-8-110 , enacted by Ga. L. 2004, p. 69, § 8.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2009, "Article IX" was substituted for "Article XI" in paragraph (3).

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 8, redesignated former Code Section 48-8-110 as present Code Section 48-8-110.1 concerning authorization for special county 1 percent sales and use tax.

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8 (this Code section), 9, 10, 11, 12, 13, 14, and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

JUDICIAL DECISIONS

Cited in Turner County v. City of Ashburn, 293 Ga. 739 , 749 S.E.2d 685 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Borrowing from tax proceeds. - County may not borrow from Special Purpose Local Option Sales Tax (SPLOST) proceeds to fund expenditures other than voter-approved capital projects authorized in the SPLOST statutes. 2007 Op. Att'y Gen. No. 2007-5.

48-8-110.1. Authorization for county special purpose local option sales tax; subjects of taxation; applicability to sales of motor fuels and food and beverages.

  1. Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, there are created within this state 159 special districts. The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of the 159 special districts.
  2. When the imposition of a special district sales and use tax is authorized according to the procedures provided in this part within a special district, the governing authority of any county in this state may, subject to the requirement of referendum approval and the other requirements of this part, impose within the special district a special sales and use tax for a limited period of time which tax shall be known as the county special purpose local option sales tax.
  3. Except as provided in subsection (d) of this Code section, any tax imposed under this part shall be at the rate of 1 percent. Except as to rate, a tax imposed under this part shall correspond to the tax imposed by Article 1 of this chapter. No item or transaction which is not subject to taxation under Article 1 of this chapter shall be subject to a tax imposed under this part, except that a tax imposed under this part shall apply to sales of motor fuels as prepaid local tax as that term is defined in Code Section 48-8-2 and shall be applicable to the sale of food and food ingredients and alcoholic beverages as provided for in Code Section 48-8-3.
  4. On or after July 1, 2015, such sales and use tax levied on sales of motor fuels as defined in Code Section 48-9-2 shall be at the rate of 1 percent of the retail sales price of the motor fuel which is not more than $3.00 per gallon. (Code 1981, § 48-8-110 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 1989, p. 62, § 11; Ga. L. 1991, p. 87, § 4; Ga. L. 1996, p. 1, § 4; Code 1981, § 48-8-110.1 , as redesignated by Ga. L. 2004, p. 69, § 8; Ga. L. 2007, p. 309, § 8/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 24/HB 1221; Ga. L. 2015, p. 236, § 5-10/HB 170.)

The 2015 amendment, effective July 1, 2015, substituted "Except as provided in subsection (d) of this Code section, any" for "Any" at the beginning of the first sentence of subsection (c) and added subsection (d). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8 (this Code section), 9, 10, 11, 12, 13, 14, and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

JUDICIAL DECISIONS

Subjects of taxation. - Intent of the provision that no item or transaction which is not subject to taxation by the state sales and use tax shall be subject to the tax levied pursuant to the local sales and use tax provisions was to restrict taxation under the local sales and use tax statutes to the same types of items and transactions defined as subject to taxation by the state sales and use tax law; thus, the fact that no state use tax was due on the taxpayer's construction equipment did not mean that no local use taxes could be imposed. Collins v. C.W. Matthews Contracting Co., 213 Ga. App. 109 , 444 S.E.2d 100 (1994).

Cited in Dickey v. Storey, 262 Ga. 452 , 423 S.E.2d 650 (1992).

OPINIONS OF THE ATTORNEY GENERAL

Proceeds not payable directly to cities. - Special county one percent sales and use tax is a county tax, and the state revenue commissioner is authorized to disburse the proceeds of this tax only to the county so that a portion of this tax cannot be paid directly to a city by the commissioner for the city's use in making capital improvements to the city's water system. 1989 Op. Att'y Gen. U89-15.

Specificity of referendum questions relative to the special county one percent sales and use tax. - Referendum questions relative to the special county one percent sales and use tax provided for under O.C.G.A. § 48-8-110 (see now O.C.G.A. § 48-8-110.1 ) et seq. must only be so specific as to place the electorate on fair notice as to which projects the tax proceeds will be devoted, and when there is municipal participation in such projects, identification of the municipalities and projects involved would be required. 1990 Op. Att'y Gen. No. U90-18.

48-8-111. Procedure for imposition of tax; resolution or ordinance; notice to county election superintendent; election.

  1. Prior to the issuance of the call for the referendum and prior to the vote of a county governing authority within a special district to impose the tax under this part, such governing authority may enter into an intergovernmental agreement with any or all of the qualified municipalities within the special district. Any county that desires to have a tax under this part levied within the special district shall deliver or mail a written notice to the mayor or chief elected official in each qualified municipality located within the special district. Such notice shall contain the date, time, place, and purpose of a meeting at which the governing authorities of the county and of each qualified municipality are to meet to discuss the possible projects for inclusion in the referendum, including municipally owned or operated projects. The notice shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 30 days prior to the issuance of the call for the referendum. Following such meeting, the governing authority of the county within the special district voting to impose the tax authorized by this part shall notify the county election superintendent by forwarding to the superintendent a copy of the resolution or ordinance of the governing authority calling for the imposition of the tax. Such ordinance or resolution shall specify eligible expenditures identified by the county and any qualified municipality for use of proceeds distributed pursuant to subsection (b) of Code Section 48-8-115. Such ordinance or resolution shall also specify:
    1. The purpose or purposes for which the proceeds of the tax are to be used and may be expended, which purpose or purposes may consist of capital outlay projects located within or outside, or both within and outside, any incorporated areas in the county in the special district or outside the county, as authorized by subparagraph (B) of this paragraph for regional facilities, and which may include any of the following purposes:
      1. A capital outlay project consisting of road, street, and bridge purposes, which purposes may include sidewalks and bicycle paths;
      2. A capital outlay project or projects in the special district and consisting of a courthouse; administrative buildings; a civic center; a local or regional jail, correctional institution, or other detention facility; a library; a coliseum; local or regional solid waste handling facilities as defined under paragraph (27.1) or (35) of Code Section 12-8-22, as amended, excluding any solid waste thermal treatment technology facility, including, but not limited to, any facility for purposes of incineration or waste to energy direct conversion; local or regional recovered materials processing facilities as defined under paragraph (26) of Code Section 12-8-22, as amended; or any combination of such projects;
      3. A capital outlay project or projects which will be operated by a joint authority or authorities of the county and one or more qualified municipalities within the special district;
      4. A capital outlay project or projects, to be owned or operated or both either by the county, one or more qualified municipalities within the special district, one or more local authorities within the special district, or any combination thereof;
      5. A capital outlay project consisting of a cultural facility, a recreational facility, or a historic facility or a facility for some combination of such purposes;
      6. A water capital outlay project, a sewer capital outlay project, a water and sewer capital outlay project, or a combination of such projects, to be owned or operated or both by a county water and sewer district and one or more qualified municipalities in the county;
      7. The retirement of previously incurred general obligation debt of the county, one or more qualified municipalities within the special district, or any combination thereof;
      8. A capital outlay project or projects within the special district and consisting of public safety facilities, airport facilities, or related capital equipment used in the operation of public safety or airport facilities, or any combination of such purposes;
      9. A capital outlay project or projects within the special district, consisting of capital equipment for use in voting in official elections or referendums;
      10. A capital outlay project or projects within the special district consisting of any transportation facility designed for the transportation of people or goods, including but not limited to railroads, port and harbor facilities, mass transportation facilities, or any combination thereof;
      11. A capital outlay project or projects within the special district and consisting of a hospital or hospital facilities that are owned by a county, a qualified municipality, or a hospital authority within the special district and operated by such county, municipality, or hospital authority or by an organization which is tax exempt under Section 501(c)(3) of the Internal Revenue Code, which operates the hospital through a contract or lease with such county, municipality, or hospital authority;
      12. The repair of capital outlay projects, including, but not limited to, roads, streets, and bridges, located, in part or in whole, within the special district that have been damaged or destroyed by a natural disaster;
      13. A capital outlay project or projects that are owned, operated, or administered by the state and located, in part or in whole, within the special district; or
      14. Any combination of two or more of the foregoing;

        provided, however, that a tax authorized under this part which is submitted to the voters for approval in connection with an equalized homestead option sales tax pursuant to Part 2 of Article 2A of this chapter shall be used for transportation purposes which shall include roads, bridges, public transit, rails, airports, buses, seaports, and including without limitation road, street, and bridge purposes pursuant to paragraph (1) of subsection (b) of Code Section 48-8-121, for public safety facilities and related capital equipment used in the operation thereof, for debt service purposes for which a municipality used proceeds from the homestead option sales and use tax, and for the repair of capital outlay projects; provided, however, that the amount of proceeds used for the repair of capital outlay projects shall not exceed 15 percent of the total proceeds which are collected under this part for a capital outlay project or projects authorized under this paragraph;

    2. The maximum period of time, to be stated in calendar years or calendar quarters and not to exceed five years, unless the provisions of paragraph (1) of subsection (b) or subparagraph (b)(2)(A) of Code Section 48-8-115 are applicable, in which case the maximum period of time for which the tax may be levied shall not exceed six years;
    3. The estimated cost of the project or projects which will be funded from the proceeds of the tax, which estimated cost shall also be the estimated amount of net proceeds to be raised by the tax, unless the provisions of paragraph (1) of subsection (b) or subparagraph (b)(2)(A) of Code Section 48-8-115 are applicable, in which case the final day of the tax shall be based upon the length of time for which the tax was authorized to be levied by the referendum; and
    4. If general obligation debt is to be issued in conjunction with the imposition of the tax, the principal amount of the debt to be issued, the purpose for which the debt is to be issued, the local government issuing the debt, the interest rate or rates or the maximum interest rate or rates which such debt is to bear, and the amount of principal to be paid in each year during the life of the debt.
  2. Upon receipt of the resolution or ordinance, the election superintendent shall issue the call for an election for the purpose of submitting the question of the imposition of the tax to the voters of the county within the special district. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The election superintendent shall cause the date and purpose of the election to be published once a week for four weeks immediately preceding the date of the election in the official organ of the county. If general obligation debt is to be issued by the county or any qualified municipality within the special district in conjunction with the imposition of the tax, the notice published by the election superintendent shall also include, in such form as may be specified by the county governing authority or the governing authority or authorities of the qualified municipalities imposing the tax within the special district, the principal amount of the debt, the purpose for which the debt is to be issued, the rate or rates of interest or the maximum rate or rates of interest the debt will bear, and the amount of principal to be paid in each year during the life of the debt; and such publication of notice by the election superintendent shall take the place of the notice otherwise required by Code Section 36-80-11 or by subsection (b) of Code Section 36-82-1, which notice shall not be required.
    1. The ballot submitting the question of the imposition of the tax authorized by this part to the voters of the county within the special district shall have written or printed thereon the following:
    2. If debt is to be issued, the ballot shall also have written or printed thereon, following the language specified by paragraph (1) of this subsection, the following:
  4. All persons desiring to vote in favor of imposing the tax shall vote "Yes" and all persons opposed to levying the tax shall vote "No." If more than one-half of the votes cast are in favor of imposing the tax, then the tax shall be imposed as provided in this part; otherwise, the tax shall not be imposed and the question of imposing the tax shall not again be submitted to the voters of the county within the special district until after 12 months immediately following the month in which the election was held; provided, however, that if an election date authorized under Code Section 21-2-540 occurs during the twelfth month immediately following the month in which such election was held, the question of imposing the tax may be submitted to the voters of the county within the special district on such date. The election superintendent shall hold and conduct the election under the same rules and regulations as govern special elections. The superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from county funds.
    1. If the proposal includes the authority to issue general obligation debt and if more than one-half of the votes cast are in favor of the proposal, then the authority to issue such debt in accordance with Article IX, Section V, Paragraph I or Article IX, Section V, Paragraph II of the Constitution is given to the proper officers of the county or qualified municipality within the special district issuing such debt; otherwise, such debt shall not be issued. If the authority to issue such debt is so approved by the voters, then such debt may be issued without further approval by the voters.
    2. If the issuance of general obligation debt is included and approved as provided in this Code section, then the governing authority of the county or qualified municipality within the special district issuing such debt may incur such debt either through the issuance and validation of general obligation bonds or through the execution of a promissory note or notes or other instrument or instruments. If such debt is incurred through the issuance of general obligation bonds, such bonds and their issuance and validation shall be subject to Articles 1 and 2 of Chapter 82 of Title 36 except as specifically provided otherwise in this part. If such debt is incurred through the execution of a promissory note or notes or other instrument or instruments, no validation proceedings shall be necessary and such debt shall be subject to Code Sections 36-80-10 through 36-80-14 except as specifically provided otherwise in this part. In either event, such general obligation debt shall be payable first from the separate account in which are placed the proceeds received by the county or qualified municipality within the special district issuing such debt from the tax authorized by this part. Such general obligation debt shall, however, constitute a pledge of the full faith, credit, and taxing power of the county or qualified municipality within the special district issuing such debt; and any liability on such debt which is not satisfied from the proceeds of the tax authorized by this part shall be satisfied from the general funds of the county or qualified municipality within the special district issuing such debt. (Code 1981, § 48-8-111 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 1985, p. 868, § 1; Ga. L. 1986, p. 10, § 48; Ga. L. 1987, p. 1322, § 1; Ga. L. 1992, p. 6, § 48; Ga. L. 1992, p. 2998, § 1; Ga. L. 1994, p. 1668, §§ 1-4; Ga. L. 1995, p. 10, § 48; Ga. L. 1995, p. 172, §§ 1, 2; Ga. L. 1995, p. 288, § 1; Ga. L. 1996, p. 230, § 1; Ga. L. 1996, p. 1643, § 4; Ga. L. 1997, p. 969, § 1; Ga. L. 1997, p. 1412, § 3; Ga. L. 1998, p. 585, § 1; Ga. L. 1999, p. 781, § 1; Ga. L. 2000, p. 1375, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2002, p. 576, § 2; Ga. L. 2004, p. 69, § 9; Ga. L. 2015, p. 200, § 1/SB 122; Ga. L. 2017, p. 530, § 3/SB 156; Ga. L. 2017, p. 774, § 48/HB 323.)

"( ) YES Shall a special 1 percent sales and use tax be imposed in the special district of ______________ County for a period of time not ( ) NO to exceed ____________ and for the raising of an estimated amount of $________ for the purpose of ______________?"

"If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of __________ in the principal amount of $________ for the above purpose."

The 2015 amendment, effective July 1, 2015, in subsection (a), deleted "or" at the end of subparagraph (a)(1)(K), added subparagraphs (a)(1)(L) and (a)(1)((M), and redesignated former subparagraph (a)(1)(L) as present subparagraph (a)(1)(N).

The 2017 amendments. The first 2017 amendment, effective May 8, 2017, added the ending undesignated paragraph in paragraph (a)(1). See Editor's notes for applicability. The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (d) and paragraph (e)(1).

Editor's notes. - Former subsection (c.1), relating to the validity of an election held pursuant to an ordinance or resolution with respect to taxes imposed or to be imposed under this article, was repealed by its own terms December 31, 1999.

Ga. L. 2002, p. 576, § 3, not codified by the General Assembly, provides in part that the amendments to this Code section "shall apply with respect to taxes imposed or to be imposed under resolutions or ordinances adopted on or after July 1, 2002."

Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8, 9 (the amendment to this Code section), 10, 11, 12, 13, 14, and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

Ga. L. 2017, p. 530, § 4(c)/SB 156, not codified by the General Assembly, provides: "Sections 1 and 3 of this Act shall apply to all equalized homestead option sales and use taxes which are implemented on and after the effective date specified in subsection (a) of this section and to all county special purpose local option sales taxes which are implemented in conjunction with an equalized homestead option sales and use tax implemented on and after such date." Subsection (a) of this section provides that the Act becomes effective upon approval of the Governor which occurred on May 8, 2017.

JUDICIAL DECISIONS

Termination of tax. - Unmistakable and unambiguous meaning of the provisions of O.C.G.A. § 48-8-112 as it existed in 1987 was that a special purpose local option sales tax that was not limited to purposes other than road, street, and bridge purposes, and that did not provide in its resolution for general obligation debt, was to be measured by the period of time specified in the resolution. Jackson v. Shadix, 272 Ga. 631 , 533 S.E.2d 706 (2000), reversing Shadix v. Carroll County, 239 Ga. App. 191 , 521 S.E.2d 99 (1999).

Cited in Gwinnett County v. Bolin, 262 Ga. 67 , 414 S.E.2d 225 (1992); City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Retiring earlier incurred indebtedness. - Tax under O.C.G.A. Art. 3, Ch. 8, T. 48 may not be imposed to retire bonded indebtedness incurred in conjunction with capital outlay projects which were not planned contemporaneously with the imposition of the tax. 1986 Op. Att'y. Gen. No. U86-6.

Special county one percent sales and use tax may be levied for the purpose of retiring county general obligation debt which was incurred prior to the imposition of the tax in order to purchase a hospital used by or benefiting the citizens of the entire county. 1991 Op. Att'y Gen. No. U91-1.

Annual payments to hospital authority. - Jefferson County may not levy a special county one percent sales and use tax under O.C.G.A. § 48-8-111 for the purpose of obtaining funds to make certain annual payments to the Hospital Authority of Jefferson County and the City of Louisville. 1986 Op. Att'y. Gen. No. U86-6.

Water and sewer project operated by county board of utilities commissioners. - Water or sewer project operated in whole or in part by the Board of Utilities Commissioners of Catoosa County would not fall within O.C.G.A. § 48-8-111(a)(1)(C), and the local government attorneys would have to review the particular contract and project to determine whether or not the ownership and operation requirement and the power to contract prerequisite of O.C.G.A. § 48-8-111(a)(1)(D) can be met in this instance. 1985 Op. Att'y Gen. No. U85-24.

Purpose in O.C.G.A. § 48-8-111(a)(1)(F) as added by the 1987 amendment to the special county one percent sales and use tax law does not replace the purposes in O.C.G.A. § 48-8-111(a)(1)(C) and (a)(1)(D) but is in addition thereto. 1989 Op. Att'y Gen. U89-15.

Payments to city for project not identified in tax resolution not authorized. - To the extent the question of whether a city can use a portion of "the money" for the construction of a civic center which can be used by both the residents of the city and all the county residents relates to a flow-through of tax proceeds under the Act directly to cities for usage on another project independent of the purpose identified in the resolution of the county calling for imposition of the tax, such payments or usage of the taxes, apart from payments under appropriate contracts, would not be authorized. 1985 Op. Att'y Gen. No. U85-24.

Use of proceeds to repay loan from state revolving fund. - Local government may improve the local sewer and water systems by means of a loan from a state revolving fund and repay with funds derived from a special, county one percent sales tax, when voters have approved the tax and the capital project, but the referendum ballot did not state that the debt would be used to finance the work. 1990 Op. Att'y Gen. No. U90-7.

It is an expenditure for an authorized capital outlay project although proceeds (proceeds paid to a city) are spent in repaying loans rather than in paying project costs directly. 1990 Op. Att'y Gen. No. U90-7.

Loans by the Department of Natural Resources pursuant to O.C.G.A. § 12-5-38.1 and loans by the Georgia Environmental Facilities Authority pursuant to O.C.G.A. § 50-23-1 et seq. do not cause a city or county to incur debt in accordance with Ga. Const. 1983, Art. IX, Sec. V, Para. I. The constitutional underpinning of these programs is in the intergovernmental contract clause, Ga. Const. 1983, Art. IX, Sec. III, Para. I(a). Thus, the procedural requirements in O.C.G.A. § 48-8-111 for submitting a debt question are not triggered when proceeds derived from the sales tax are to be applied to repayment of the loans by the Department of Natural Resources or the Georgia Environmental Facilities Authority. 1990 Op. Att'y Gen. No. U90-7.

Specificity of referendum questions relative to the special county one percent sales and use tax. - Referendum questions relative to the special county one percent sales and use tax provided for under O.C.G.A. § 48-8-110 (see now O.C.G.A. § 48-8-110.1 ) et seq. must only be so specific as to place the electorate on fair notice as to which projects the tax proceeds will be devoted, and when there is municipal participation in such projects, identification of the municipalities and projects involved would be required. 1990 Op. Att'y Gen. No. U90-18.

General obligations of municipalities which were incurred under a constitutionally authorized joint contract with the county may not be retired with proceeds from the special county one percent sales and use tax. Excess proceeds from the tax first must be used to reduce other county indebtedness, and then must be paid into the county general fund. 1991 Op. Att'y Gen. No. U91-1.

Borrowing from tax proceeds. - County may not borrow from the Special Purpose Local Option Sales Tax (SPLOST) proceeds to fund expenditures other than voter-approved capital projects authorized in the SPLOST statutes. 2007 Op. Att'y Gen. No. 2007-5.

48-8-111.1. Application of part to consolidated government.

  1. With respect to any consolidated government created by the consolidation of a county and one or more municipalities, the provisions of this Code section shall control over any conflicting provisions of this part.
  2. The tax authorized by this part, if imposed by a consolidated government, shall not be subject to any maximum period of time for which the tax may be levied if general obligation debt is to be issued in conjunction with the imposition of the tax. In such case the resolution or ordinance calling for the imposition of the tax shall not be required to state a maximum period of time for which the tax is to be levied; and the language relating to the maximum period of time for which the tax is to be levied shall be omitted from the ballot. The resolution or ordinance calling for the imposition of the tax shall state the maximum amount of revenue to be raised by the tax, and the tax shall terminate as provided in paragraph (1) or (3) of subsection (b) of Code Section 48-8-112.
  3. A consolidated government shall be authorized to levy a tax for any capital outlay project provided for in subparagraphs (a)(1)(C), (a)(1)(D), and (a)(1)(F) of Code Section 48-8-111, or any combination thereof, without the necessity of operating such project jointly with a qualified municipal governing authority, owning or operating such projects with one or more qualified municipalities, or entering into a contract with one or more qualified municipalities with respect to such project.
  4. In all respects not otherwise provided for in this Code section, the levy of a tax under this part by a consolidated government shall be in the same manner as the levy of the tax by any other county. (Code 1981, § 48-8-111.1 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 1995, p. 172, § 3; Ga. L. 2004, p. 69, § 10; Ga. L. 2013, p. 141, § 48/HB 79.)

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8, 9, 10 (the amendment to this Code section), 11, 12, 13, 14, and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

48-8-112. Effective date of tax; termination of tax; limitation on taxation; continuation of tax.

  1. If the imposition of the tax is approved at the special election, the tax shall be imposed on the first day of the next succeeding calendar quarter which begins more than 80 days after the date of the election at which the tax was approved by the voters. With respect to services which are regularly billed on a monthly basis, however, the resolution shall become effective with respect to and the tax shall apply to services billed on or after the effective date specified in the previous sentence.
  2. The tax shall cease to be imposed on the earliest of the following dates:
    1. If the resolution or ordinance calling for the imposition of the tax provided for the issuance of general obligation debt and such debt is the subject of validation proceedings, as of the end of the first calendar quarter ending more than 80 days after the date on which a court of competent jurisdiction enters a final order denying validation of such debt;
    2. On the final day of the maximum period of time specified for the imposition of the tax; or
    3. As of the end of the calendar quarter during which the commissioner determines that the tax will have raised revenues sufficient to provide to the county and qualified municipalities within the special district net proceeds equal to or greater than the amount specified as the estimated amount of net proceeds to be raised by the tax, unless the provisions in paragraph (1) of subsection (b) or subparagraph (b)(2)(A) of Code Section 48-8-115 are applicable, in which case the final day of the tax shall be based upon the length of time for which the tax was authorized to be levied by the referendum.
    1. At any time no more than a single 1 percent tax under this part may be imposed within a special district.
    2. The governing authority of a county in a special district in which a tax authorized by this part is in effect may, while the tax is in effect, adopt a resolution or ordinance calling for the reimposition of a tax as authorized by this part upon the termination of the tax then in effect; and a special election may be held for this purpose while the tax is in effect. Proceedings for the reimposition of a tax shall be in the same manner as proceedings for the initial imposition of the tax, but the newly authorized tax shall not be imposed until the expiration of the tax then in effect; provided, however, that in the event of emergency conditions under which a county is unable to conduct a referendum so as to continue the tax then in effect without interruption, the commissioner may, if feasible administratively, waive the limitations of subsection (a) of this Code section to the minimum extent necessary so as to permit the reimposition of a tax, if otherwise approved as required under this Code section, without interruption, upon the expiration of the tax then in effect.
    3. Following the expiration of a tax under this part, the governing authority of a county within a special district may initiate proceedings for the reimposition of a tax under this part in the same manner as provided in this part for initial imposition of such tax. (Code 1981, § 48-8-112 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 1987, p. 1322, § 2; Ga. L. 1995, p. 172, § 4; Ga. L. 1997, p. 519, § 1; Ga. L. 2002, p. 415, § 48; Ga. L. 2004, p. 69, § 11.)

Editor's notes. - Ga. L. 1997, p. 519, § 2, not codified by the General Assembly, provides that this Act shall apply with respect to taxes imposed or to be imposed under resolutions or ordinances adopted on or after April 14, 1997.

Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004."'

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8, 9, 10, 11 (the amendment to this Code section), 12, 13, 14, and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

Former subsection (d) was repealed on its own terms effective December 31, 2008.

Law reviews. - For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000).

JUDICIAL DECISIONS

Termination of tax. - Unmistakable and unambiguous meaning of the provisions of O.C.G.A. § 48-8-112 as it existed in 1987 was that a special purpose local option sales tax that was not limited to purposes other than road, street, and bridge purposes, and that did not provide in its resolution for general obligation debt was to be measured by the period of time specified in the resolution. Jackson v. Shadix, 272 Ga. 631 , 533 S.E.2d 706 (2000), reversing Shadix v. Carroll County, 239 Ga. App. 191 , 521 S.E.2d 99 (1999).

48-8-113. Administration and collection by commissioner; application; deduction to dealers.

A tax levied pursuant to this part shall be exclusively administered and collected by the commissioner for the use and benefit of the county and qualified municipalities within such special district imposing the tax. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter except that the sales and use tax provided in this part shall be applicable to sales of motor fuels as prepaid local tax as that term is defined in Code Section 48-8-2; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state; and provided, further, that the commissioner may rely upon a representation by or in behalf of the county and qualified municipalities within the special district or the Secretary of State that such a tax has been validly imposed, and the commissioner and the commissioner's agents shall not be liable to any person for collecting any such tax which was not validly imposed. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Code 1981, § 48-8-113 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 1992, p. 815, § 3; Ga. L. 1992, p. 2998, § 2; Ga. L. 2004, p. 69, § 12; Ga. L. 2007, p. 309, § 9/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 25/HB 1221; Ga. L. 2013, p. 141, § 48/HB 79.)

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8, 9, 10, 11, 12 (the amendment to this Code section), 13, 14, and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

JUDICIAL DECISIONS

County action against companies prohibited. - Provision that taxes are to be exclusively administered and collected by the commissioner precluded an action by a county against companies for damages resulting from the improper remittance of local sales taxes. Cellular One, Inc. v. Emanuel County, 227 Ga. App. 197 , 489 S.E.2d 50 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Proceeds not payable directly to cities. - Special county one percent sales and use tax is a county tax, and the State Revenue Commissioner is authorized to disburse the proceeds of this tax only to the county so that a portion of this tax cannot be paid directly to a city by the State Revenue Commissioner for the city's use in making capital improvements to its water system. 1989 Op. Att'y Gen. U89-15.

48-8-114. Sales tax return requirements.

Each sales tax return remitting taxes collected under this part shall separately identify the location of each retail establishment at which any of the taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all taxes imposed by this part are collected and distributed according to situs of sale.

(Code 1981, § 48-8-114 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 2013, p. 141, § 48/HB 79.)

48-8-115. Disbursement of tax proceeds.

  1. The proceeds of the tax collected by the commissioner in each county within a special district under this part shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
    2. Except for the percentage provided in paragraph (1) of this Code section, the remaining proceeds of the tax shall be distributed to the governing authority of the county within the special district imposing the tax as specified in subsection (b) of this Code section.
  2. The county within the special district shall distribute any such proceeds as follows:
    1. To the county governing authority and any qualified municipalities as specified in an intergovernmental agreement. Where an intergovernmental agreement has been entered into, the agreement shall, at a minimum, include the following:
      1. The specific capital outlay project or projects to be funded pursuant to the agreement;
      2. The estimated or projected dollar amounts allocated for each project from tax proceeds from the tax authorized by this part;
      3. The procedures for distributing proceeds from the tax authorized by this part to qualified municipalities;
      4. A schedule for distributing proceeds from the tax authorized by this part to qualified municipalities which schedule shall include the priority or order in which projects will be fully or partially funded;
      5. A provision that all capital outlay projects included in the agreement shall be funded from proceeds from the tax authorized by this part except as otherwise agreed;
      6. A provision that proceeds from the tax authorized by this part shall be maintained in separate accounts and utilized exclusively for the specified purposes;
      7. Record-keeping and audit procedures necessary to carry out the purposes of this part; and
      8. Such other provisions as the county and participating municipalities choose to address; or
    2. Where an intergovernmental agreement has not been entered into pursuant to paragraph (1) of this subsection, the county within the special district shall distribute the proceeds of the tax authorized by this part as follows:
        1. To the governing authority of the county for one or more level one county-wide projects specified by the governing authority of the county in the ordinance or resolution required by subsection (a) of Code Section 48-8-111 ; provided, however, that any tax levied under this part that funds level one county-wide projects where an intergovernmental agreement has not been entered into pursuant to paragraph (1) of this subsection shall be levied for a five-year period. In the event that any or all level one county-wide projects are estimated to cost an amount which exceeds the proceeds projected to be collected during a 24 month period of the levy of the tax, the tax shall be levied for a six-year period.
        2. In the event that no level one county-wide project is included in the ordinance or resolution required by subsection (a) of Code Section 48-8-111 , to the governing authority of the county for one or more level two county-wide projects specified by the governing authority of the county in the ordinance or resolution required by subsection (a) of Code Section 48-8-111. In the event no level one county-wide project is included in the ordinance or resolution required by subsection (a) of Code Section 48-8-111 and the governing authority of the county has specified one or more municipal projects as level two county-wide projects in the ordinance or resolution required by subsection (a) of Code Section 48-8-111, to the governing authority of the appropriate municipality or municipalities for such level two county-wide projects specified in the ordinance or resolution required by subsection (a) of Code Section 48-8-111. The total estimated cost of all level two county-wide projects specified under this division shall not exceed 20 percent of the proceeds projected to be collected during the period specified in the ordinance or resolution required by subsection (a) of Code Section 48-8-111; or
      2. In the event that no county-wide project is included in the resolution or ordinance calling for the imposition of the tax or in the event that tax proceeds exceed that amount required to fund the county-wide project or projects, the remaining proceeds shall be distributed in the following manner:
        1. As specified in an intergovernmental agreement other than the agreement specified in paragraph (1) of this subsection. The intergovernmental agreement shall include, at a minimum, the information required in paragraph (1) of this subsection; or
        2. To the qualified municipalities within the special district based upon the ratio that the population of each qualified municipality bears to the total population of the county within the special district. If any qualified municipality is located in more than one county, only that portion of its population that is within the special district shall be counted. The remainder of such proceeds shall be distributed to the governing authority of the county within the special district. Capital outlay projects included in the referendum ballot by the county or any qualified municipalities within the special district shall be based upon the anticipated proceeds and distribution of the tax. The governing authority of the county within the special district shall distribute all proceeds received by the county for the tax levied pursuant to this part to the qualified municipalities within the special district on a monthly basis where proceeds are distributed in accordance with this division. (Code 1981, § 48-8-115 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 2004, p. 69, § 13; Ga. L. 2005, p. 60, § 48/HB 95.)

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8, 9, 10, 11, 12, 13 (the amendment to this Code section), 14, and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

OPINIONS OF THE ATTORNEY GENERAL

Proceeds not payable directly to cities. - Special county one percent sales and use tax is a county tax, and the State Revenue Commissioner is authorized to disburse the proceeds of this tax only to the county so that a portion of this tax cannot be paid directly to a city by the State Revenue Commissioner for the city's use in making capital improvements to the city's water system. 1989 Op. Att'y Gen. U89-15.

48-8-116. Tax credits.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within the state or in a tax jurisdiction outside the state, the tax may be credited against the tax authorized to be imposed by this part upon the same property. If the amount of sales or use tax so paid is less than the amount of the use tax due under this part, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this part. The commissioner may require such proof of payment in another local tax jurisdiction as he deems necessary and proper. No credit shall be granted, however, against the tax imposed under this part for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the county or in a special district which includes the county; and taxes so paid in another jurisdiction shall be credited first against the tax levied under Article 2 of this chapter, if applicable, and then against the tax levied under this part.

(Code 1981, § 48-8-116 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 2013, p. 141 § 48/HB 79.)

48-8-117. Inapplicability of tax to certain sales of tangible personal property outside taxing county.

No tax provided for in this part shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the county in which the tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier licensed by the Federal Motor Carrier Safety Administration or the Georgia Department of Public Safety.

(Code 1981, § 48-8-117 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 1992, p. 6, § 48; Ga. L. 2012, p. 580, § 21/HB 865; Ga. L. 2013, p. 141, § 48/HB 79.)

48-8-118. "Building and construction materials" defined; inapplicability of tax to certain sales or uses of building and construction materials.

  1. As used in this Code section, the term "building and construction materials" means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract.
  2. No tax provided for in this part shall be imposed upon the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to the voters' approval of the levy of the tax and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to approval of the levy of the tax. (Code 1981, § 48-8-118 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 2013, p. 141, § 48/HB 79.)

48-8-119. Promulgation of rules and regulations by commissioner.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax authorized to be imposed by this part.

(Code 1981, § 48-8-119 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 2013, p. 141, § 48/HB 79.)

48-8-120. Effect of other local sales and use taxes on imposition of tax.

Except as provided in Code Section 48-8-6, the tax authorized by this part shall be in addition to any other local sales and use tax. Except as provided in Code Section 48-8-6, the imposition of any other local sales and use tax within a county or qualified municipality within a special district shall not affect the authority of such a county to impose the tax authorized by this part and the imposition of the tax authorized by this part shall not affect the imposition of any otherwise authorized local sales and use tax within the county within the special district.

(Code 1981, § 48-8-120 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 2004, p. 69, § 14.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, "this part" was substituted for "part" twice in the last sentence.

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8, 9, 10, 11, 12, 13, 14 (the amendment to this Code section), and 15 of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

48-8-121. Use of proceeds; issuance of general obligation debt.

    1. The proceeds received from the tax authorized by this part shall be used by the county and qualified municipalities within the special district receiving proceeds of the sales and use tax exclusively for the purpose or purposes specified in the resolution or ordinance calling for imposition of the tax. Such proceeds shall be kept in a separate account from other funds of such county and each qualified municipality receiving proceeds of the sales and use tax and shall not in any manner be commingled with other funds of such county and each qualified municipality receiving proceeds of the sales and use tax prior to the expenditure.
    2. The governing authority of the county and the governing authority of each qualified municipality within the special district receiving any proceeds from the tax pursuant to this part shall maintain a record of each and every project for which the proceeds of the tax are used. A schedule shall be included in each annual audit which shows for each such project the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The auditor shall verify and test expenditures sufficient to provide assurances that the schedule is fairly presented in relation to the financial statements. The auditor's report on the financial statements shall include an opinion, or disclaimer of opinion, as to whether the schedule is presented fairly in all material respects in relation to the financial statements taken as a whole.
    3. In the event that a qualified municipality fails to comply with the requirements of this part, the county within the special district shall not be held liable for such noncompliance.
    1. If the resolution or ordinance calling for the imposition of the tax specified that the proceeds of the tax are to be used in whole or in part for capital outlay projects consisting of road, street, and bridge purposes, then authorized uses of the tax proceeds shall include:
      1. Acquisition of rights of way for roads, streets, bridges, sidewalks, and bicycle paths;
      2. Construction of roads, streets, bridges, sidewalks, and bicycle paths;
      3. Renovation and improvement of roads, streets, bridges, sidewalks, and bicycle paths, including resurfacing;
      4. Relocation of utilities for roads, streets, bridges, sidewalks, and bicycle paths;
      5. Improvement of surface-water drainage from roads, streets, bridges, sidewalks, and bicycle paths; and
      6. Patching, leveling, milling, widening, shoulder preparation, culvert repair, and other repairs necessary for the preservation of roads, streets, bridges, sidewalks, and bicycle paths.
    2. Storm-water capital outlay projects and drainage capital outlay projects may be funded pursuant to subparagraph (a)(1)(D) of Code Section 48-8-111 or in conjunction with road, street, and bridge capital outlay projects.
  3. No general obligation debt shall be issued in conjunction with the imposition of the tax unless the governing authority of the county or qualified municipalities within special district issuing the debt determines that, and if the debt is to be validated it is demonstrated in the validation proceedings that, during each year in which any payment of principal or interest on the debt comes due the county or qualified municipalities within special district issuing such debt will receive from the tax authorized by this part net proceeds sufficient to fully satisfy such liability. General obligation debt issued under this part shall be payable first from the separate account in which are placed the proceeds received by the county or qualified municipalities within the special district issuing such debt from the tax authorized by this part. Such debt, however, shall constitute a pledge of the full faith, credit, and taxing power of the county or qualified municipalities within the special district issuing such debt; and any liability on said debt which is not satisfied from the proceeds of the tax authorized by this part shall be satisfied from the general funds of the county or qualified municipalities within the special district issuing such debt.
  4. The resolution or ordinance calling for imposition of the tax authorized by this part may specify that all of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. If the resolution or ordinance so provides, then such proceeds shall be used solely for such purpose except as provided in subsection (g) of this Code section.
  5. The resolution or ordinance calling for the imposition of the tax authorized by this part may specify that a part of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. If the ordinance or resolution so provides, it shall specifically state the other purposes for which such proceeds will be used; and such other purposes shall be a part of the capital outlay project or projects for which the tax is to be imposed. In such a case no part of the net proceeds from the tax received in any year shall be used for such other purposes until all debt service requirements of the general obligation debt for that year have first been satisfied from the account in which the proceeds of the tax are placed.
  6. The resolution or ordinance calling for the imposition of the tax may specify that no general obligation debt is to be issued in conjunction with the imposition of the tax. If the ordinance or resolution so provides, it shall specifically state the purpose or purposes for which the proceeds will be used.
      1. If the proceeds of the tax are specified to be used solely for the purpose of payment of general obligation debt issued in conjunction with the imposition of the tax, then any net proceeds of the tax in excess of the amount required for final payment of such debt shall be subject to and applied as provided in paragraph (2) of this subsection.
      2. If the county or qualified municipality within the special district receives from the tax net proceeds in excess of the estimated cost of the capital outlay project or projects stated in the resolution or ordinance calling for the imposition of the tax or in excess of the actual cost of such capital outlay project or projects, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection.
      3. If the tax is terminated under paragraph (1) of subsection (b) of Code Section 48-8-112 by reason of denial of validation of debt, then all net proceeds received by the county or qualified municipality within the special district from the tax shall be excess proceeds subject to paragraph (2) of this subsection.
    2. Unless otherwise provided in this part or in an intergovernmental agreement entered into pursuant to this part, excess proceeds subject to this subsection shall be used solely for the purpose of reducing any indebtedness of the county within the special district other than indebtedness incurred pursuant to this part. If there is no such other indebtedness or, if the excess proceeds exceed the amount of any such other indebtedness, then the excess proceeds shall next be paid into the general fund of the county within the special district, it being the intent that any funds so paid into the general fund of the county be used for the purpose of reducing ad valorem taxes. (Code 1981, § 48-8-121 , enacted by Ga. L. 1985, p. 232, § 1; Ga. L. 1987, p. 1322, § 3; Ga. L. 1990, p. 382, § 1; Ga. L. 1992, p. 2998, § 3; Ga. L. 1994, p. 97, § 48; Ga. L. 1994, p. 1668, §§ 5-7; Ga. L. 1995, p. 10, § 48; Ga. L. 1995, p. 172, § 5; Ga. L. 1996, p. 1643, § 4A; Ga. L. 1997, p. 541, § 1; Ga. L. 1998, p. 579, § 1; Ga. L. 2004, p. 69, § 15.)

Editor's notes. - Ga. L. 1994, p. 1668, § 8, not codified by the General Assembly, provided that §§ 6 and 7 of that Act are applicable with respect to taxes imposed prior to April 19, 1994, as well as with respect to taxes imposed on or after that date.

Ga. L. 1994, p. 1668, § 7, which added subsection (h), relating to the development of a sanitary landfill, also provided for the repeal of that subsection, effective July 1, 1999.

Ga. L. 1997, p. 541, § 2, not codified by the General Assembly, provides that that Act shall apply with respect to taxes imposed prior to April 14, 1997.

Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2004, p. 69, § 23(c), not codified by the General Assembly, provides that this Code section "shall apply with respect to taxes imposed or to be imposed under any resolution or ordinance adopted by a county or municipal governing authority on or after July 1, 2004; and, except as otherwise specifically provided in this Act, Sections 8, 9, 10, 11, 12, 13, 14, and 15 (the amendment to this Code section) of this Act shall not apply with respect to taxes imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2004."

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010).

JUDICIAL DECISIONS

Termination of tax. - Unmistakable and unambiguous meaning of the provisions of O.C.G.A. § 48-8-112 as it existed in 1987 was that a special purpose local option sales tax that was not limited to purposes other than road, street, and bridge purposes, and that did not provide in its resolution for general obligation debt, was to be measured by the period of time specified in the resolution. Jackson v. Shadix, 272 Ga. 631 , 533 S.E.2d 706 (2000), reversing Shadix v. Carroll County, 239 Ga. App. 191 , 521 S.E.2d 99 (1999).

Use of proceeds. - Board of county commissioners was not authorized to use proceeds from SPLOST tax for a purpose entirely different from that contained in the SPLOST budget and account reports; the board was bound by the reports to complete all projects listed therein unless circumstances arose which dictated that projects which initially seemed feasible were no longer so and in this regard the governing authority had discretion to make adjustments in the plans for these projects, but could not abandon the projects altogether. Dickey v. Storey, 262 Ga. 452 , 423 S.E.2d 650 (1992).

Mandamus was not appropriate under O.C.G.A. § 9-6-20 as members of a county board of commissioners did not fail to perform the board's official duties by entering into a 2006 intergovernmental agreement to have $12 million raised by a 1999 Special Local Option Sales Tax (SPLOST) referendum used to upgrade and build two local waste water facilities as the SPLOST funds were insufficient to upgrade the county's existing centralized system of waste water treatment; the 2006 intergovernmental agreement utilized the funds for the purposes specified in the 1999 resolution under O.C.G.A. § 48-8-121(a)(1), just by a different means. Hicks v. Khoury, 283 Ga. 407 , 658 S.E.2d 616 (2008).

Excess proceeds. - Actual cost, rather than estimated cost, established the maximum amount of Special Purpose Local Option Sales Tax (SPLOST) revenue that could have been expended, and when actual cost exceeded estimated cost, actual cost was the determinative standard; when the actual cost of the projects exceeded the maximum cost of the projects stated in the SPLOST resolution, no "excess" proceeds existed so long as the project remained incomplete. Haugen v. Henry County, 277 Ga. 743 , 594 S.E.2d 324 , cert. denied, 543 U.S. 816, 125 S. Ct. 63 , 160 L. Ed. 2 d 22 (2004).

Cited in Anti-Landfill Corp. v. North Am. Metal Co., LLC, 299 Ga. App. 509 , 683 S.E.2d 88 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Interest earned on education taxes and in special county taxes becomes part of the tax proceeds in the account fund, which fund is required to be used exclusively for the purpose(s) specified in the resolution or ordinance calling for the imposition of the tax. 2001 Op. Att'y Gen. No. 2001-3.

Borrowing from tax proceeds. - County may not borrow from Special Purpose Local Option Sales Tax (SPLOST) proceeds to fund expenditures other than voter-approved capital projects authorized in the SPLOST statutes. 2007 Op. Att'y Gen. No. 2007-5.

48-8-122. Record of projects on which tax proceeds are used; annual reporting and newspaper publication of report.

The governing authority of the county and the governing authority of each municipality receiving any proceeds from the tax under this part or under Article 4 of this chapter shall maintain a record of each and every project for which the proceeds of the tax are used. Not later than December 31 of each year, the governing authority of each local government receiving any proceeds from the tax under this part shall publish annually, in a newspaper of general circulation in the boundaries of such local government and in a prominent location on the local government website, if such local government maintains a website, a simple, nontechnical report which shows for each project or purpose in the resolution or ordinance calling for imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, amounts expended in the current year, any excess proceeds which have not been expended for a project or purpose, estimated completion date, and the actual completion cost of a project completed during the current year. In the case of road, street, and bridge purposes, such information shall be in the form of a consolidated schedule of the total original estimated cost, the total current estimated cost if it is not the original estimated cost, and the total amounts expended in prior years and the current year for all such projects and not a separate enumeration of such information with respect to each such individual road, street, or bridge project. The report shall also include a statement of what corrective action the local government intends to implement with respect to each project which is underfunded or behind schedule.

(Code 1981, § 48-8-123 , enacted by Ga. L. 2004, p. 69, § 21; Ga. L. 2012, p. 954, § 2/SB 332.)

Editor's notes. - Former Code Section 48-8-122, concerning the repeal of this article upon an increase of current state sales and use tax rate, was based on Ga. L. 1987, p. 1322, § 4, and Ga. L. 1988, p. 543, § 2, and was repealed by Ga. L. 1989, p. 62, § 12, effective April 1, 1989.

Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Law reviews. - For article on the 2004 amendment of this Code section, see 21 Georgia St. U.L. Rev. 226 (2004).

48-8-123. Modification of projects approved by referendum which have become infeasible in connection with county special purpose local option sales and use tax.

  1. For purposes of this Code section, the term "infeasible" means that the project has, in the judgment of the governing authority as expressed in the resolution or ordinance required by subsection (b) of this Code section, become impracticable, unserviceable, unrealistic, or otherwise not in the best interests of the citizens of the special district or the municipality.
    1. Notwithstanding any other provision of this part to the contrary, if the tax authorized by this part has been imposed within a special district for a purpose or purposes authorized by subsection (a) of Code Section 48-8-111 and one or more projects authorized therein become or are determined to be infeasible, then the provisions of this Code section shall apply. However, this Code section shall not apply until and unless the governing authority or governing authorities specified under paragraph (2) of this subsection adopt a resolution or ordinance determining that such project or projects for which the levy has been approved have become infeasible in accordance with paragraph (2) of this subsection.
      1. If a project that has become infeasible is a project for which the county is responsible, an ordinance or resolution of the county shall be required determining that the project has become infeasible.
      2. If a project that has become infeasible is a municipal project, an ordinance or resolution of the municipality responsible for the project shall be required determining that the project has become infeasible. Upon its approval by the municipality, such ordinance or resolution shall be transmitted to the governing authority of the county. The county governing authority shall rely on the determination by the municipality that the municipal project has become infeasible.
      3. If a project that has become infeasible is a joint project of the county or a county authority and one or more municipalities or a joint project of two or more municipalities, an ordinance or resolution of all of the jurisdictions involved in the joint project shall be required determining that the project has become infeasible.
    3. If the governing authority desiring to determine that a project is infeasible has incurred or entered into financing for such project, whether through an intergovernmental contract, a multiyear lease or purchase contract under Code Section 36-60-13, or other form of indebtedness, no such ordinance or resolution shall be adopted until the governing authority discharges in full the obligation incurred or provides for the defeasance of such obligation.
  3. Upon the adoption of the resolution or ordinance required by subsection (b) of this Code section, the tax shall continue to be imposed for the same period of time and for the raising of the same amount of revenue as originally authorized. Subject to approval in a referendum required by subsection (d) of this Code section, the county, or any municipality if the infeasible project is a project owned or operated by the municipality, or those entities that are part of a joint project, may expend the previously collected and future proceeds of the tax, or such portion thereof as was intended for the purpose that has been determined to be infeasible if the tax were imposed for more than one purpose, to reduce any general obligation indebtedness of the affected jurisdiction within the special district other than indebtedness incurred pursuant to this part, or by paying such proceeds into the general fund of the county or municipality to be used for the purpose of reducing ad valorem taxes, or both. In the event of a joint project in which there is an intergovernmental agreement apportioning the project, the proceeds shall be divided among the entities to such joint agreement according to such apportionment. In the event of a joint project in which there is no agreement apportioning the project, the proceeds shall be divided equally among the entities to the joint project.
    1. Upon the adoption of the resolution or ordinance required by subsection (b) of this Code section, the governing authority of the county shall notify the county election superintendent by forwarding to the superintendent a copy of a resolution or ordinance calling for the modification of the purpose for which proceeds of the tax authorized by this part may be expended. Such ordinance or resolution shall specify the modified purpose for which the balance of proceeds of the tax are to be used and an estimate of the amount of the proceeds available to be used for the modified purpose.
    2. Upon receipt of the resolution or ordinance required by this subsection, the election superintendent shall issue the call for an election for the purpose of submitting to the voters of the county within the special district the question of modifying the project or projects for which the proceeds of the levy may be expended. The election superintendent shall issue the call and shall conduct the election, in conjunction with the next election held, to submit to the electors of the special district the imposition of a tax under this part and shall conduct the election in the manner specified in subsection (b) of Code Section 48-8-111.
    3. The ballot submitting a question of the approval of the modified purpose for a levy previously approved by the electors of the county within the special district as authorized by this Code section shall have written or printed thereon the following:
    4. If there are multiple projects to be submitted to the electors for approval of modified purpose, there shall be one question for all projects of the county or its authorities, one question for all projects of municipalities, and one question for joint projects.
    5. All persons desiring to vote in favor of modifying the project or projects shall vote "Yes," and all persons opposed to modifying the project or projects shall vote "No." If more than one-half of the votes cast are in favor of modifying the project or projects, then the proceeds of the tax imposed as provided in this part shall be used for such modified purpose; otherwise, the proceeds of the tax shall not be used for such modified purpose. The election superintendent shall hold and conduct the election under the same rules and regulations as govern special elections. The superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from county funds.
  5. This Code section shall not apply to a board of education which levies the sales tax for educational purposes pursuant to Part 2 of this article and Article VIII, Section VI, Paragraph IV of the Constitution. (Code 1981, § 48-8-123 , enacted by Ga. L. 2011, p. 294, § 1/HB 240.)

"( ) YES Shall the capital outlay project consisting of ________ approved for use of proceeds of the special 1 percent sales and use tax imposed in the special district of "( ) NO ________ County in a referendum on ________ be modified so as to authorize use of such proceeds for the purpose of (reducing debt, reducing ad valorem taxes, or reducing debt and ad valorem taxes) of the (county) (municipality)?"

48-8-124. Enforcement.

The superior courts of this state shall have jurisdiction to enforce compliance with the provisions of this part, including the power to grant injunctions or other equitable relief. In addition to any action that may be brought by any person or entity, the Attorney General shall have authority to bring enforcement actions, either civil or criminal, in his or her discretion as may be appropriate to enforce compliance with this part.

(Code 1981, § 48-8-124 , enacted by Ga. L. 2012, p. 954, § 3/SB 332.)

PART 2 S ALES TAX FOR EDUCATIONAL PURPOSES (ESPLOST)

Cross references. - Performance audit requirements for projects funded by sales tax for educational purposes, § 20-2-491 .

Editor's notes. - The following local school systems are authorized to impose sales and use tax in addition to the tax authorized by this part pursuant to local Constitutional amendments: Bulloch County School System (Ga. L. 1981, p. 1931); Chattooga County School District/Trion Independent School District (Ga. L. 1982, p. 2675; Ga. L. 1985, p. 4447; Ga. L. 1986, p. 3712); Colquitt County School System (Ga. L. 1980, p. 2127); Habersham County School District (Ga. L. 1982, p. 2566; Ga. L. 1980, p. 2280); Houston County School System (Ga. L. 1982, p. 2600); Mitchell County School District/Pelham Independent School District (Ga. L. 1982, p. 2643); Rabun County School District (Ga. L. 1982, p. 2522); Towns County School District (Ga. L. 1982, p. 2540).

48-8-140. Authority for and legislative intent of article.

This part is enacted pursuant to the authority of Article VIII, Section VI, Paragraph IV of the Constitution of Georgia and it is the intent of the General Assembly in the enactment of this part to further define and implement such provision of the Constitution.

(Code 1981, § 48-8-140 , enacted by Ga. L. 1996, p. 1643, § 5; Ga. L. 1997, p. 157, §§ 2, 3.)

48-8-141. Manner of imposition of tax; report; rate.

  1. Except as otherwise expressly provided in Article VIII, Section VI, Paragraph IV of the Constitution of Georgia, the sales tax for educational purposes which may be levied by a board of education of a county school district or concurrently by the board of education of a county school district and the board of education of each independent school district located within such county shall be imposed and levied by such board or boards of education and collected by the commissioner on behalf of such board or boards of education in the same manner as provided for under Part 1 of this article and the provisions of Part 1 of this article in particular, but without limitation, the provisions regarding the authority of the commissioner to administer and collect this tax, retain the 1 percent administrative fee, and promulgate rules and regulations governing this tax shall apply equally to such board or boards of education. The report required pursuant to Code Section 48-8-122 shall be applicable; provided, however, that in addition to posting such report in a newspaper of general circulation as required by such Code section, such report may be posted on the searchable website provided for under Code Section 50-6-32.
  2. On or after July 1, 2015, such sales and use tax levied on sales of motor fuels as defined in Code Section 48-9-2 shall be at the rate of 1 percent of the retail sales price of the motor fuel which is not more than $3.00 per gallon. (Code 1981, § 48-8-141 , enacted by Ga. L. 1996, p. 1643, § 5; Ga. L. 1997, p. 157, §§ 2, 3; Ga. L. 2010, p. 906, § 1/HB 1013; Ga. L. 2015, p. 236, § 5-11/HB 170.)

The 2015 amendment, effective July 1, 2015, designated the existing provisions as subsection (a) and added subsection (b). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-8-142. Issuance of general obligation debt in conjunction with tax; required contents of resolution and ballot.

If general obligation debt is to be issued in conjunction with the imposition of the sales tax for educational purposes authorized by Article VIII, Section VI, Paragraph IV of the Constitution, the resolution or concurrent resolutions imposing such tax shall specify the principal amount of the debt to be issued, the purpose for which the debt is to be issued, the interest rate or rates or the maximum interest rate or rates which such debt is to bear, and the amount of principal to be paid in each year during the life of the debt. If such general obligation debt is to be issued, the ballot shall have written or printed thereon, in addition to the descriptions required by Article VIII, Section VI, Paragraph IV(c) of the Constitution, the following:

"If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of ____________ in the principal amount of $____________ for the above purpose."

(Code 1981, § 48-8-142 , enacted by Ga. L. 1996, p. 1643, § 5; Ga. L. 1997, p. 157, §§ 2, 3.)

48-8-143. Distribution of sales tax for educational purposes.

The net proceeds of the sales tax for educational purposes shall be distributed in the manner provided under Article VIII, Section VI, Paragraph IV(g) of the Constitution unless another distribution formula is provided for by the enactment of a local Act. Any such local Act providing for an alternate distribution formula shall not be amended during the time period for which the tax was imposed.

(Code 1981, § 48-8-143 , enacted by Ga. L. 1998, p. 591, § 1.)

48-8-144. Local charter schools and state chartered special schools as capital outlay project.

  1. As used in this Code section, the term:
    1. "Local charter school" means a local charter school as defined in paragraph (7) of Code Section 20-2-2062.
    2. "State chartered special school" means a state chartered special school as defined in paragraph (16) of Code Section 20-2-2062 and with respect to which the referendum required under Article VIII, Section V, Paragraph VII of the Constitution has been conducted and approved.
  2. A county or independent board of education shall be authorized to include local charter schools, state chartered special schools, or both as capital outlay projects in projects specified in the ballot language for a proposed tax under Article VIII, Section VI, Paragraph IV of the Constitution and this part. (Code 1981, § 48-8-144 , enacted by Ga. L. 2008, p. 167, § 1/HB 1065.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2008, "of the Constitution" was inserted in paragraph (a)(2).

ARTICLE 3A UNIFORM SALES AND USE TAX ADMINISTRATION

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, this article, which was enacted as Article 4, containing Code Sections 48-8-160 through 48-8-166, was redesignated as Article 3A, containing Code Sections 48-8-160 through 48-8-166.

Editor's notes. - Ga. L. 2004, p. 410, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2004.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 67B Am. Jur. 2d, Sales and Use Taxes, §§ 21, 205 et seq.

48-8-160. Short title.

This article shall be known and may be cited as the "Uniform Sales and Use Tax Administration Act."

(Code 1981, § 48-8-160 , enacted by Ga. L. 2004, p. 410, § 8.)

48-8-161. Definitions.

As used in this article, the term:

  1. "Agent" means a person appointed by a seller to represent the seller before the member states.
  2. "Agreement" means the Streamlined Sales and Use Tax Agreement.
  3. "Certified automated system" means software certified jointly by the states that are signatories to the agreement to calculate the tax imposed by each jurisdiction on a transaction, determine the amount of tax to remit to the appropriate state, and maintain a record of the transaction.
  4. "Certified service provider" means an agent certified jointly by the states that are signatories to the agreement to perform all of the seller's sales tax functions.
  5. "Model 1 seller" means a seller registered under the agreement that has selected a certified service provider as its agent to perform all the seller's sales and use tax functions, other than the seller's obligation to remit tax on its own purchases.
  6. "Model 2 seller" means a seller registered under the agreement that has selected a certified automated system to perform part of its sales and use tax functions, but retains responsibility for remitting the tax.
  7. "Model 3 seller" means a seller registered under the agreement that has sales in at least five member states, has total annual sales revenue of at least $500 million, has a proprietary system that calculates the amount of tax due each jurisdiction, and has entered into a performance agreement with the member states that establishes a tax performance standard for the seller. As used in this definition, a seller includes an affiliated group of sellers using the same proprietary system.
  8. "Model 4 seller" means a seller that is not a Model 1 seller, a Model 2 seller, or a Model 3 seller.
  9. "Person" means an individual, trust, estate, fiduciary, partnership, limited liability company, limited liability partnership, corporation, or any other legal entity.
  10. "Sales tax" means the taxes levied under this chapter.
  11. "Seller" means any person making sales, leases, or rentals of personal property or services.
  12. "State" means any state of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.
  13. "Use tax" means the taxes levied under this chapter. (Code 1981, § 48-8-161 , enacted by Ga. L. 2004, p. 410, § 8; Ga. L. 2010, p. 662, § 26/HB 1221; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2014, p. 866, § 48/SB 340.)

48-8-162. Authorization to enter Streamlined Sales and Use Tax Agreement with other states.

The department is authorized to enter into the Streamlined Sales and Use Tax Agreement with one or more states to simplify and modernize sales and use tax administration in order to substantially reduce the burden of tax compliance for all sellers and for all types of commerce. In furtherance of the agreement, the department is authorized to act jointly with other states that are members of the agreement to establish standards for certification of a certified service provider and certified automated system and establish performance standards for multistate sellers. The department is further authorized to take other actions reasonably required to implement the provisions set forth in this article. Other actions authorized by this Code section include, but are not limited to, the adoption of rules and regulations and the joint procurement, with other member states, of goods and services in furtherance of the cooperative agreement. The department, or its designee, is authorized to represent this state before the other states that are signatories to the agreement.

(Code 1981, § 48-8-162 , enacted by Ga. L. 2004, p. 410, § 8.)

48-8-163. Effect upon other statutory provisions.

No provision of the agreement authorized by this article in whole or part invalidates or amends any provision of the law of this state. Adoption of the agreement by this state does not amend or modify any law of this state. Implementation of any condition of the agreement in this state, whether adopted before, at, or after membership of this state in the agreement, must be by the action of this state.

(Code 1981, § 48-8-163 , enacted by Ga. L. 2004, p. 410, § 8.)

48-8-164. Purpose.

The agreement authorized by this article is an accord among individual cooperating sovereigns in furtherance of their governmental functions. The agreement provides a mechanism among the member states to establish and maintain a cooperative, simplified system for the application and administration of sales and use taxes under the duly adopted law of each member state.

(Code 1981, § 48-8-164 , enacted by Ga. L. 2004, p. 410, § 8.)

48-8-165. Benefit is to the state; no individual right to challenge or contest application.

  1. The agreement authorized by this article binds and inures only to the benefit of this state and the other member states. No person, other than a member state, is an intended beneficiary of the agreement. Any benefit to a person other than a state is established by the law of this state and the other member states and not by the terms of the agreement.
  2. Consistent with subsection (a) of this Code section, no person shall have any cause of action or defense under the agreement or by virtue of this state's approval of the agreement. No person may challenge, in any action brought under any provision of law, any action or inaction by any department, agency, or other instrumentality of this state, or any political subdivision of this state on the ground that the action or inaction is inconsistent with the agreement.
  3. No law of this state, or the application thereof, may be declared invalid as to any person or circumstance on the ground that the provision or application is inconsistent with the agreement. (Code 1981, § 48-8-165 , enacted by Ga. L. 2004, p. 410, § 8.)

JUDICIAL DECISIONS

Cited in Ga. Power Co. v. Cazier, 321 Ga. App. 576 , 740 S.E.2d 458 (2013).

48-8-166. Certified service provider as agent of seller; responsibility for proper functioning of automated systems; failure to meet performance standards by sellers of proprietary systems.

  1. A certified service provider is the agent of a seller, with whom the certified service provider has contracted, for the collection and remittance of sales and use taxes. As the seller's agent, the certified service provider is liable for sales and use tax due each member state on all sales transactions it processes for the seller except as set out in this Code section. A seller that contracts with a certified service provider is not liable to the state for sales or use taxes due on transactions processed by the certified service provider unless the seller misrepresented the type of items it sells or committed fraud. In the absence of probable cause to believe that the seller has committed fraud or made a material misrepresentation, the seller is not subject to audit on the transactions processed by the certified service provider. A seller is subject to audit for transactions not processed by the certified service provider. The member states acting jointly may perform a system check of the seller and review the seller's procedures to determine if the certified service provider's system is functioning properly and the extent to which the seller's transactions are being processed by the certified service provider.
  2. A person that provides a certified automated system is responsible for the proper functioning of that system and is liable to the state for underpayments of taxes attributable to errors in the functioning of the certified automated system. A seller that uses a certified automated system remains responsible and is liable to the state for reporting and remitting tax.
  3. A seller that has a proprietary system for determining the amount of taxes due on transactions and has signed an agreement establishing a performance standard for that system is liable to the state for the failure of the system to meet the performance standard. (Code 1981, § 48-8-166 , enacted by Ga. L. 2004, p. 410, § 8.)

48-8-167. Member of Streamlined Sales Tax Governing Board.

The Georgia members of the Streamlined Sales Tax Governing Board shall be a member of the House of Representatives appointed by the Speaker of the House of Representatives, a member of the Senate appointed by the President Pro Tempore of the Senate, and a designee of the commissioner.

(Code 1981, § 48-8-167 , enacted by Ga. L. 2010, p. 662, § 27/HB 1221.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, Code Section 48-7-167, as enacted by Ga. L. 2010, p. 662, § 27, was redesignated as Code Section 48-8-167.

ARTICLE 4 WATER AND SEWER PROJECTS AND COSTS TAX (MOST)

Editor's notes. - Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 70C Am. Jur. 2d, Special or Local Assessments, § 32.

64 Am. Jur. 2d, Public Utilities, §§ 1 et seq., 122.

71 Am. Jur. 2d, State and Local Taxation, § 550. 72 Am. Jur. 2d, State and Local Taxation, § 635.

C.J.S. - 64A C.J.S., Municipal Corporations, § 2248.

73B C.J.S., Public Utilities, § 1 et seq.

85 C.J.S., Taxation, § 2182.

94 C.J.S., Waters, §§ 531 et seq., 591 et seq.

48-8-200. Definitions.

As used in this article, the term:

  1. "Building and construction materials" means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract.
  2. "Dealer" means a dealer as defined in Code Section 48-8-2.
  3. "Municipality" means a municipality in which the average waste-water flow of such municipality is not less than 85 million gallons per day.
  4. "Water and sewer projects and costs" means:
    1. Any capital outlay project or projects for the development, storage, treatment, purification, or distribution of water;
    2. Any capital outlay project or projects for storm-water and sewage collection and disposal systems;
      1. With respect to any project or projects provided for under subparagraph (A) or (B) of this paragraph:
        1. Any cost of project or cost of any project as defined under paragraph (3) of Code Section 50-23-4 ; and
        2. Any maintenance and operation costs.
      2. In no event shall any expenditure of tax proceeds pursuant to this subparagraph exceed annually an amount equal to the annual debt service payments of such municipality with respect to revenue bond indebtedness incurred for drinking water projects and storm-water and sewage collection and disposal projects; or
    4. Any combination of any of the foregoing. (Code 1981, § 48-8-200 , enacted by Ga. L. 2004, p. 69, § 7; Ga. L. 2010, p. 662, § 28/HB 1221.)

Law reviews. - For article on the 2004 amendment of this Code section, see 21 Georgia St. U.L. Rev. 226 (2004).

48-8-201. Intergovernmental contract for distribution of tax proceeds; approval of referendum by voters; cap on aggregate amount of tax; rate.

    1. In any county in which the provisions of paragraph (2) of subsection (a) of Code Section 48-8-6 will be applicable if the tax under Part 1 of Article 3 of this chapter is imposed pursuant to subparagraph (a)(1)(D) of Code Section 48-8-111 in whole or in part for the purpose or purposes of a water capital outlay project or projects, a sewer capital outlay project or projects, a water and sewer capital outlay project or projects, or a combination of such projects, the governing authority of a municipality, the majority of which is located wholly or partially in such county, may deliver or mail a written copy of a resolution of such municipal governing authority calling for the imposition by the county of the tax under Part 1 of Article 3 of this chapter pursuant to subparagraph (a)(1)(D) of Code Section 48-8-111 in whole or in part for the purpose or purposes of a water capital outlay project or projects, a sewer capital outlay project or projects, a water and sewer capital outlay project or projects, water and sewer projects and costs, or any combination thereof.
    2. Within ten days following the date of delivery of such resolution to the governing authority of such county, the governing authorities of such county and municipality may enter into an intergovernmental contract as authorized by Article IX, Section III of the Constitution which shall specify the allocation of the proceeds of the tax between such county and municipality according to the ratio the population of such municipality bears to the population of such county according to the United States decennial census of 2000 or any future such census so that such municipality's share of the total net proceeds shall be the percentage of the total population of such municipality divided by the total population of such county. Such intergovernmental contract shall specify that the proceeds allocated to the municipality shall only be expended for water and sewer projects and costs.
    3. Immediately following the entering into of the intergovernmental contract under paragraph (2) of this subsection, the governing authority of such county may select the next practicable date authorized under Code Section 21-2-540 for conducting a special election on the question of imposing such tax under Part 1 of Article 3 of this chapter. The governing authority of such county shall notify the county election superintendent by forwarding to the superintendent a copy of the resolution of the governing authority of such municipality calling for the imposition of the tax in such county. Following receipt of the resolution, the election superintendent shall issue the appropriate call for an election for the purpose of submitting the question of the imposition of the tax to the voters of such county in the manner specified in Code Section 48-8-111. If approved in such referendum, the tax shall be levied and imposed as provided in this Code section and Part 1 of Article 3 of this chapter.
  2. If the governing authority of the county takes no action under paragraph (2) or (3) of subsection (a) of this Code section, it shall provide notice thereof by resolution to the governing authority of the municipality not later than ten days following the date of delivery of such municipality's resolution to the county under subsection (a) of this Code section. Upon receipt by the governing authority of the municipality of such county resolution or if timely notice of no action is not provided by the governing authority of the county to the governing authority of the municipality or if the county referendum is conducted but is not approved by the voters, the governing authority of any municipality in this state may, subject to the requirement of referendum approval and the other requirements of this article, immediately commence proceedings to seek to impose within the municipality a special sales and use tax for a limited period of time for the purpose of funding water and sewer projects and costs. Any tax imposed under this article shall be at the rate of 1 percent. Except as otherwise provided in this article, a tax imposed under this article shall correspond to the tax imposed by Article 1 of this chapter.
  3. In the event a tax imposed under this article is imposed only by the municipality:
    1. No item or transaction which is not subject to taxation under Article 1 of this chapter shall be subject to a tax imposed under this article, except that a tax imposed under this article shall apply to:
      1. Sales of motor fuels as prepaid local tax as that term is defined in Code Section 48-8-2;
      2. The sale of food and food ingredients and alcoholic beverages as provided for in Code Section 48-8-3;
      3. The sale of natural or artificial gas used directly in the production of electricity which is subsequently sold, notwithstanding paragraph (70) of Code Section 48-8-3; and
      4. The furnishing for value to the public of any room or rooms, lodgings, or accommodations which is subject to taxation under Article 3 of Chapter 13 of this title; and
    2. A tax imposed under this article shall not apply to the sale of motor vehicles.
  4. On and after July 1, 2007, the aggregate amount of all excise taxes imposed under paragraph (5) of subsection (a) of Code Section 48-13-51 and all sales and use taxes shall not exceed 14 percent.
  5. On or after July 1, 2015, such sales and use tax levied on sales of motor fuels as defined in Code Section 48-9-2 shall be at the rate of 1 percent of the retail sales price of the motor fuel which is not more than $3.00 per gallon. (Code 1981, § 48-8-201 , enacted by Ga. L. 2004, p. 69, § 7; Ga. L. 2007, p. 309, § 10/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 29/HB 1221; Ga. L. 2015, p. 236, § 5-12/HB 170.)

The 2015 amendment, effective July 1, 2015, added subsection (e). See Editor's notes for applicability.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, "expended" was substituted for "expanded" in the last sentence of paragraph (a)(2).

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2015, p. 236, § 5-12/HB 170, purportedly changed subsection (c) but actually reenacted it without change.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-8-202. Requirement of municipal ordinance or resolution authorizing tax; voter approval; form for ballot.

  1. A municipal governing authority voting to impose the tax authorized by this article shall notify the municipal election superintendent by forwarding to the superintendent a copy of the resolution or ordinance of the municipal governing authority calling for the imposition of the tax. Such ordinance or resolution shall specify the following:
    1. The maximum period of time of the tax, to be stated in calendar years or calendar quarters and not to exceed four years;
    2. The aggregate maximum cost of the project or projects and maintenance and operation costs which will be funded from the proceeds of the tax, which aggregate maximum cost shall also be the maximum amount of net proceeds to be raised by the tax; and
    3. If general obligation debt is to be issued in conjunction with the imposition of the tax, as authorized by this article, the principal amount of the debt to be issued, the interest rate or rates or the maximum interest rate or rates which such debt is to bear, and the amount of principal to be paid in each year during the life of the debt.
  2. Upon receipt of the resolution or ordinance, the municipal election superintendent shall issue the call for an election for the purpose of submitting the question of the imposition of the tax to the voters of the municipality. The municipal election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The municipal election superintendent shall cause the date and purpose of the election to be published once a week for four weeks immediately preceding the date of the election in the legal organ of the county in which the majority of the municipal population resides or in a newspaper having general circulation in the municipality at least equal to that of the legal organ. If general obligation debt is to be issued in conjunction with the imposition of the tax, the notice published by the municipal election superintendent shall also include, in such form as may be specified by the municipal governing authority, the principal amount of the debt, the rate or rates of interest or the maximum rate or rates of interest the debt will bear, and the amount of principal to be paid in each year during the life of the debt; and such publication of notice by the municipal election superintendent shall take the place of the notice otherwise required by Code Section 36-80-11 or by subsection (b) of Code Section 36-82-1, which notice shall not be required.
    1. The ballot shall have written or printed thereon the following:
    2. If debt is to be issued, the ballot shall also have written or printed thereon, following the language specified by paragraph (1) of this subsection, the following:
  4. All persons desiring to vote in favor of imposing the tax shall vote "Yes" and all persons opposed to levying the tax shall vote "No." If more than one-half of the votes cast are in favor of imposing the tax, then the tax shall be imposed as provided in this article; otherwise, the tax shall not be imposed and the question of imposing the tax shall not again be submitted to the voters of the municipality until after 12 months immediately following the month in which the election was held; provided, however, that if an election date authorized under Code Section 21-2-540 occurs during the twelfth month immediately following the month in which such election was held, the question of imposing the tax may be submitted to the voters of the municipality on such date. The municipal election superintendent shall hold and conduct the election under the same rules and regulations as govern special elections. The municipal election superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from municipal funds.
    1. If the proposal includes the authority to issue general obligation debt and if more than one-half of the votes cast are in favor of the proposal, then the authority to issue such debt in accordance with Article IX, Section V, Paragraph I of the Constitution is given to the proper officers of the municipality; otherwise such debt shall not be issued. If the authority to issue such debt is so approved by the voters, then such debt may be issued without further approval by the voters.
    2. If the issuance of general obligation debt is included and approved as provided in this Code section, then the governing authority of the municipality may incur such debt either through the issuance and validation of general obligation bonds or through the execution of a promissory note or notes or other instrument or instruments. If such debt is incurred through the issuance of general obligation bonds, such bonds and their issuance and validation shall be subject to Articles 1 and 2 of Chapter 82 of Title 36 except as specifically provided otherwise in this article. If such debt is incurred through the execution of a promissory note or notes or other instrument or instruments, no validation proceedings shall be necessary and such debt shall be subject to Code Sections 36-80-10 through 36-80-14 except as specifically provided otherwise in this article. In either event, such general obligation debt shall be payable first from the separate account in which are placed the proceeds received by the municipality from the tax authorized by this article. Such general obligation debt shall, however, constitute a pledge of the full faith, credit, and taxing power of the municipality; and any liability on such debt which is not satisfied from the proceeds of the tax authorized by this article shall be satisfied from the general funds of the municipality. (Code 1981, § 48-8-202 , enacted by Ga. L. 2004, p. 69, § 7; Ga. L. 2017, p. 774, § 48/HB 323.)

"( ) YES Shall a special 1 percent sales and use tax be imposed in ______________ for a period of time not to exceed __________________ and for the raising of not more than ( ) NO $________ for the purpose of funding water and sewer projects and costs?"

"If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of ______________ in the principal amount of $________ for the above purpose."

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (c)(1).

48-8-203. Imposition of tax following approval; termination of tax.

    1. If the imposition of the tax is approved by referendum, the tax shall be imposed on the first day of the next succeeding calendar quarter which begins more than 80 days after the date of the election at which the tax was approved by the voters.
    2. With respect to services which are regularly billed on a monthly basis, however, the resolution or ordinance imposing the tax shall become effective with respect to and the tax shall apply to the first regular billing period coinciding with or following the effective date specified in paragraph (1) of this subsection. A certified copy of the ordinance or resolution imposing the tax shall be forwarded to the commissioner so that it will be received within five business days after certification of the election results.
  2. The tax shall cease to be imposed on the earliest of the following dates:
    1. If the resolution or ordinance calling for the imposition of the tax provided for the issuance of general obligation debt and such debt is the subject of validation proceedings, as of the end of the first calendar quarter ending more than 80 days after the date on which a court of competent jurisdiction enters a final order denying validation of such debt;
    2. On the final day of the maximum period of time specified for the imposition of the tax; or
    3. As of the end of the calendar quarter during which the commissioner determines that the tax will have raised revenues sufficient to provide to the municipality net proceeds equal to or greater than the amount specified as the maximum amount of net proceeds to be raised by the tax.
    1. No municipality shall impose at any time more than a single 1 percent tax under this article.
    2. A municipality in which a tax authorized by this article is in effect may, while the tax is in effect, adopt a resolution or ordinance calling for a reimposition of a tax as authorized by this article upon the termination of the tax then in effect; and a referendum may be held for this purpose while the tax is in effect. Proceedings for such reimposition shall not be conducted more than six times; shall be in the same manner as proceedings for the initial imposition of the tax as provided for in Code Section 48-8-202 and shall be solely within the discretion of the governing authority of the municipality without regard to any requirement of county participation otherwise specified under subsection (a) of Code Section 48-8-201 . Such newly authorized tax shall not be imposed until the expiration of the tax then in effect; provided, however, that in the event of emergency conditions under which a municipality is unable to conduct a referendum so as to continue the tax then in effect without interruption, the commissioner may, if feasible administratively, waive the limitations of subsection (a) of this Code section to the minimum extent necessary so as to permit the reimposition of a tax, if otherwise approved as required under this Code section, without interruption, upon the expiration of the tax then in effect.
    3. Following the expiration of a tax under this article which has been renewed six times under paragraph (2) of this subsection, a municipality shall not be authorized to initiate proceedings for the reimposition of a tax under this article or to reimpose such tax. (Code 1981, § 48-8-203 , enacted by Ga. L. 2004, p. 69, § 7; Ga. L. 2010, p. 662, § 30/HB 1221; Ga. L. 2010, p. 1163, § 6/HB 1069; Ga. L. 2018, p. 347, § 1/HB 929.)

The 2018 amendment, effective July 1, 2018, substituted "six times" for "three times" in the second sentence of paragraph (c)(2) and near the middle of paragraph (c)(3).

48-8-204. Administration and collection of tax; deduction.

A tax levied pursuant to this article shall be exclusively administered and collected by the commissioner for the use and benefit of the municipality imposing the tax. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter except that the sales and use tax provided in this article shall be applicable to sales of motor fuels as prepaid local tax as that term is defined in Code Section 48-8-2; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state; and provided, further, that the commissioner may rely upon a representation by or in behalf of the municipality or the Secretary of State that such a tax has been validly imposed, and the commissioner and the commissioner's agents shall not be liable to any person for collecting any such tax which was not validly imposed. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Code 1981, § 48-8-204 , enacted by Ga. L. 2004, p. 69, § 7; Ga. L. 2007, p. 309, § 11/HB 219; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 662, § 31/HB 1221.)

48-8-205. Identification of location of retail establishment when submitting sales and use tax return.

Each sales and use tax return remitting sales and use taxes collected under this article shall separately identify the location of each retail establishment at which any of the sales and use taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all sales and use taxes imposed by this article are collected and distributed according to situs of sale.

(Code 1981, § 48-8-205 , enacted by Ga. L. 2004, p. 69, § 7.)

48-8-206. Disbursement of proceeds.

The proceeds of the tax collected by the commissioner in each municipality under this article shall be disbursed as soon as practicable after collection as follows:

  1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
  2. The remaining proceeds of the tax shall be distributed to the governing authority of the municipality imposing the tax. (Code 1981, § 48-8-206 , enacted by Ga. L. 2004, p. 69, § 7; Ga. L. 2005, p. 60, § 48/HB 95.)

48-8-207. Payment of tax on personal property in another local tax jurisdiction; collection of difference.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within the state or in a tax jurisdiction outside the state, the tax may be credited against the tax authorized to be imposed by this article upon the same property. If the amount of sales or use tax so paid is less than the amount of the use tax due under this article, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this article. The commissioner may require such proof of payment in another local tax jurisdiction as the commissioner deems necessary and proper. No credit shall be granted, however, against the tax imposed under this article for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the municipality or in a special district which includes the municipality; and taxes so paid in another jurisdiction shall be credited first against the tax levied under Article 2 of this chapter, if applicable, then against the tax levied under Article 3 of this chapter, if applicable, then against the tax levied under Article 2A of this chapter, if applicable, and then against the tax levied under this article.

(Code 1981, § 48-8-207 , enacted by Ga. L. 2004, p. 69, § 7.)

48-8-208. No tax on products ordered and delivered outside geographical area of municipality.

No tax provided for in this article shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the municipality in which the tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier licensed by the Federal Motor Carrier Safety Administration or the Georgia Department of Public Safety.

(Code 1981, § 48-8-208 , enacted by Ga. L. 2004, p. 69, § 7; Ga. L. 2012, p. 580, § 22/HB 865.)

48-8-209. No tax on construction materials included in bid prior to approval of additional tax.

No tax provided for in this article shall be imposed upon the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to the voters' approval of the levy of the tax and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to approval of the levy of the tax.

(Code 1981, § 48-8-209 , enacted by Ga. L. 2004, p. 69, § 7.)

48-8-210. Commissioner authorized to issue rules and regulations.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax authorized to be imposed by this article.

(Code 1981, § 48-8-210 , enacted by Ga. L. 2004, p. 69, § 7.)

48-8-211. Impact on other taxes.

The tax authorized by this article shall be in addition to any other local sales and use tax. The imposition of any other local sales and use tax within a county, municipality, or special district shall not affect the authority of a municipality to impose the tax authorized by this article and the imposition of the tax authorized by this article shall not affect the imposition of any otherwise authorized local sales and use tax within the county, municipality, or special district.

(Code 1981, § 48-8-211 , enacted by Ga. L. 2004, p. 69, § 7.)

48-8-212. Utilization of tax proceeds by municipality; record keeping; use for general obligation debt.

  1. The proceeds received from the tax authorized by this article shall be used by the municipality exclusively for:
    1. Water and sewer projects and costs;
    2. The repayment of general obligation indebtedness incurred in conjunction with the imposition of the tax authorized by this article; or
    3. The repayment of any loans made to such municipality with respect to such water and sewer projects and costs. Such proceeds shall be kept in a separate account from other funds of the municipality and shall not in any manner be commingled with other funds of the municipality prior to expenditure.
  2. The governing authority of the municipality shall maintain a record of each and every water and sewer project and cost for which the proceeds of the tax are used. In each annual audit a schedule shall be included which shows for each ongoing such project the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The auditor shall verify and test expenditures sufficient to provide assurances that the schedule is fairly presented in relation to the financial statements. The auditor's report on the financial statements shall include an opinion, or disclaimer of opinion, as to whether the schedule is presented fairly in all material respects in relation to the financial statements taken as a whole.
  3. No general obligation debt shall be issued in conjunction with the imposition of the tax unless the municipal governing authority determines that, and if the debt is to be validated it is demonstrated in the validation proceedings that, during each year in which any payment of principal or interest on the debt comes due the municipality will receive from the tax authorized by this article net proceeds sufficient to fully satisfy such liability. General obligation debt issued under this article shall be payable first from the separate account in which are placed the proceeds received by the municipality from the tax authorized by this article. Such debt, however, shall constitute a pledge of the full faith, credit, and taxing power of the municipality; and any liability on said debt which is not satisfied from the proceeds of the tax authorized by this article shall be satisfied from the general funds of the municipality.
  4. The resolution or ordinance calling for imposition of the tax authorized by this article may specify that all of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. If the resolution or ordinance so provides, then such proceeds shall be used solely for such purpose except as provided in subsection (f) of this Code section.
  5. The resolution or ordinance calling for the imposition of the tax authorized by this article may specify that a part of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. In such a case no part of the net proceeds from the tax received in any year shall be used for other water and sewer projects until all debt service requirements of the general obligation debt for that year have first been satisfied from the account in which the proceeds of the tax are placed.
      1. If the proceeds of the tax are specified to be used solely for the purpose of payment of general obligation debt issued in conjunction with the imposition of the tax, then any net proceeds of the tax in excess of the amount required for final payment of such debt shall be subject to and applied as provided in paragraph (2) of this subsection.
      2. If the municipality receives from the tax net proceeds in excess of the maximum cost of the project or projects calling for the imposition of the tax or in excess of the actual cost of such project or projects, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection.
      3. If the tax is terminated under paragraph (1) of subsection (b) of Code Section 48-8-203 by reason of denial of validation of debt, then all net proceeds received by the municipality from the tax shall be excess proceeds subject to paragraph (2) of this subsection.
    2. Excess proceeds subject to this subsection shall be used solely for the purpose of reducing any indebtedness of the municipality other than indebtedness incurred pursuant to this article. If there is no such other indebtedness or, if the excess proceeds exceed the amount of any such other indebtedness, then the excess proceeds shall next be paid into the general fund of the municipality, it being the intent that any funds so paid into the general fund of the municipality be used for the purpose of reducing ad valorem taxes. (Code 1981, § 48-8-212 , enacted by Ga. L. 2004, p. 69, § 7.)

ARTICLE 5 SPECIAL DISTRICT TRANSPORTATION SALES AND USE TAX (TSPLOST)

Editor's notes. - Ga. L. 2010, p. 778, § 1/HB277, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Transportation Investment Act of 2010.'"

PART 1 I N GENERAL

48-8-240. Findings; purpose.

The local governments of the State of Georgia are of vital importance to the state and its citizens. The state has an essential public interest in promoting, developing, sustaining, and assisting local governments. The General Assembly finds that the design and construction of transportation projects is a critical local government service for which adequate funding is not presently available. Many transportation projects cross multiple jurisdictional boundaries and must be coordinated in their design and construction. The General Assembly finds that the most efficient means to coordinate and fund such projects is through the creation of special districts that correspond with the boundaries of existing regional commissions. The purpose of this article is to provide for special districts that will enable the coordinated design and construction of transportation projects that will develop and promote the essential public interests of the state and its citizens at the state, regional, and local levels. The General Assembly intends through the creation of such special districts to enable the citizens within each district to decide in an election whether to authorize the imposition of a special district transportation sales and use tax to fund the projects on an investment list collaboratively developed by the affected local governments and the state. This article shall be construed liberally to achieve its purpose.

(Code 1981, § 48-8-240 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-241. Creation of special districts; tax rate.

  1. There are created within this state 12 special districts. The geographical boundary of each special district shall correspond with and shall be conterminous with the geographical boundary of the applicable region of the 12 regional commissions provided for in subsection (f) of Code Section 50-8-4.
  2. When the imposition of a special district sales and use tax is authorized according to the procedures provided in this article within a special district, subject to the requirement of referendum approval and the other requirements of this article, a special sales and use tax shall be imposed within the special district for a period of ten years which tax shall be known as the special district transportation sales and use tax.
  3. Nothing in this article shall be construed as limiting the establishment of a fund or funds which would provide at least 20 years of maintenance and operation costs from proceeds of the special district transportation sales and use tax used to construct, finance, or otherwise develop transit capital projects; provided, however, that the Metropolitan Atlanta Rapid Transit Authority, created by an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, shall not be authorized to use any proceeds from the special district transportation sales and use tax for expenses of maintenance and operation of such portions of the transportation system of such authority in existence on January 1, 2011.
  4. Except as otherwise provided in subsection (e) of this Code section, any tax imposed under this article shall be at the rate of 1 percent. Except as to rate, a tax imposed under this article shall correspond to the tax imposed by Article 1 of this chapter. No item or transaction which is not subject to taxation under Article 1 of this chapter shall be subject to a tax imposed under this article, and a tax imposed under this article shall not apply to:
    1. The sale or use of any type of fuel used for off-road heavy-duty equipment, off-road farm or agricultural equipment, or locomotives;
    2. The sale or use of jet fuel as such term is defined in Code Section 48-8-2, except to the extent allowed pursuant to Code Section 48-8-3.5;
    3. The sale or use of fuel that is used for propulsion of motor vehicles on the public highways. For purposes of this paragraph, a motor vehicle means a self-propelled vehicle designed for operation or required to be licensed for operation upon the public highways;
    4. The sale or use of energy used in the manufacturing or processing of tangible goods primarily for resale; or
    5. Motor fuel as defined under paragraph (9) of Code Section 48-9-2 for public mass transit.

      The tax imposed pursuant to this article shall only be levied on the first $5,000.00 of any transaction involving the sale or lease of a motor vehicle. The tax imposed pursuant to this article shall be subject to any sales and use tax exemption which is otherwise imposed by law; provided, however, that the tax levied by this article shall be applicable to the sale of food and food ingredients as provided for in paragraph (57) of Code Section 48-8-3.

  5. Any tax imposed under this article on or after July 1, 2015, may be at a rate of up to 1 percent but shall not be more than 1 percent. Any rate less than 1 percent shall be in an increment of .05 percent. This subsection shall not apply to taxes under this article imposed or to be imposed under resolutions and ordinances adopted prior to July 1, 2015.
  6. Any tax imposed under this article on or after July 1, 2015, shall be required to expend at least 30 percent of the estimated revenue on projects included in the state-wide strategic transportation plan as defined in paragraph (6) of subsection (a) of Code Section 32-2-22 . (Code 1981, § 48-8-241 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2015, p. 236, § 7-1/HB 170; Ga. L. 2016, p. 864, § 48/HB 737; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-6/HB 5EX.)

The 2015 amendment, effective July 1, 2015, substituted "Except as otherwise provided in subsection (e) of this Code section, any" for "Any" at the beginning of subsection (d) and added subsections (e) and (f). See Editor's notes for applicability.

The 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "Motor fuel" for "For motor fuel" at the beginning of paragraph (d)(5).

The 2018 Ex. Sess. amendment, effective December 1, 2018, in subsection (d), substituted "and a tax imposed" for "except that a tax imposed" near the end of the introductory paragraph, and rewrote paragraph (d)(2), which read: "The sale or use of jet fuel to or by a qualifying airline at a qualifying airport;".

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2010, in the last sentence [of what is now paragraph (5)], a comma was substituted for a semicolon following "provided", "food ingredients" was substituted for "beverages", and "paragraph (57)" was substituted for "division (57)(D)(i)".

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-8-242. Definitions.

As used in this article, the term:

  1. "Commission" means the Georgia State Financing and Investment Commission;
  2. "Cost of project" means:
    1. All costs of acquisition, by purchase or otherwise, construction, assembly, installation, modification, renovation, extension, rehabilitation, operation, or maintenance incurred in connection with any project of the special district or any part thereof;
    2. All costs of real property or rights in property, fixtures, or personal property used in or in connection with or necessary for any project of the special district or for any facilities related thereto, including but not limited to the cost of all land, interests in land, estates for years, easements, rights, improvements, water rights, and connections for utility services; the cost of fees, franchises, permits, approvals, licenses, and certificates; the cost of securing any such franchises, permits, approvals, licenses, or certificates; the cost of preparation of any application therefor; and the cost of all fixtures, machinery, equipment, furniture, and other property used in or in connection with or necessary for any project of the special district;
    3. All costs of engineering, surveying, planning, environmental assessments, financial analyses, and architectural, legal, and accounting services and all expenses incurred by engineers, surveyors, planners, environmental scientists, fiscal analysts, architects, attorneys, accountants, and any other necessary technical personnel in connection with any project of the special district;
    4. All expenses for inspection of any project of the special district;
    5. All fees of any type charged to the special district in connection with any project of the special district;
    6. All expenses of or incidental to determining the feasibility or practicability of any project of the special district;
    7. All costs of plans and specifications for any project of the special district;
    8. All costs of title insurance and examinations of title with respect to any project of the special district;
    9. Repayment of any loans for the advance payment of any part of any of the foregoing costs, including interest thereon and any other expenses of such loans;
    10. Administrative expenses of the special district and such other expenses as may be necessary or incidental to any project of the special district or the financing thereof; and
    11. The establishment of a fund or funds or such other reserves as the commission may approve with respect to the financing and operation of any project of the special district.

      Any cost, obligation, or expense incurred for any of the purposes specified in this paragraph shall be a part of the cost of the project of the special district and may be paid or reimbursed as otherwise authorized by this article.

  3. "County" means any county created under the Constitution or laws of this state.
  4. "Dealer" means a dealer as defined in paragraph (8) of Code Section 48-8-2.
  5. "Director" means the director of planning provided for in Code Section 32-2-43.
  6. "LARP factor" means the sum of one-fifth of the ratio between the population of a local government's jurisdiction and the total population of the special district in which such local government is located plus four-fifths of the ratio between the paved and unpaved centerline road miles in the local government's jurisdiction and the total paved and unpaved centerline road miles in the special district in which such local government is located.
  7. "Local government" means any municipal corporation, county, or consolidated government created by the General Assembly or pursuant to the Constitution and laws of this state.
  8. "Metropolitan planning organization" or "MPO" means the policy board of an organization created and designated to carry out the metropolitan transportation planning process as defined in 23 C.F.R. Section 450.
  9. "Municipal corporation" means any incorporated city or town in this state.
  10. "Project" means, without limitation, any new or existing airports, bike lanes, bridges, bus and rail mass transit systems, freight and passenger rail, pedestrian facilities, ports, roads, terminals, and all activities and structures useful and incident to providing, operating, and maintaining the same. The term shall also include direct appropriations to a local government for the purpose of serving as a local match for state or federal funding.
  11. "Regional transportation roundtable" or "roundtable" means a conference of the local governments of a special district created pursuant to this article held at a centralized location within the district as chosen by the director for the purpose of establishing the investment criteria and determining projects eligible for the investment list for the special district. The regional transportation roundtable shall consist of the chairperson, sole commissioner, mayor, or chief executive officer of the county governing authority from each county in the special district. In the event any county in the special district has a consolidated government, the consolidated government shall elect a second elected member of the county consolidated government to the regional roundtable. In counties without a consolidated government, the second member of the regional roundtable from that county shall be one mayor elected by the mayors of the county; provided, however, that, in the event such an election ends in a tie, the mayor of the municipal corporation with the highest population determined using the most recently completed United States decennial census shall be deemed to have been elected as a representative unless that mayor is already part of the roundtable. In such case, the mayor of the municipal corporation with the second highest population shall be deemed to have been elected as a representative. If a county has more than 90 percent of its population residing in municipal corporations, such county shall have the mayor of the municipal corporation with the highest population determined using the most recently completed United States decennial census as an additional representative. The regional transportation roundtable shall elect five representatives from among its members to serve as an executive committee. The executive committee shall also include two members of the House of Representatives selected by the chairperson of the House Transportation Committee and one member of the Senate selected by the chairperson of the Senate Transportation Committee. Each member of the General Assembly appointed to the executive committee shall be a nonvoting member of the executive committee and shall represent a district which lies wholly or partially within the region represented by the executive committee. The executive committee shall not have more than one representative from any one county, but any member of the General Assembly serving on the executive committee shall not count as a representative of his or her county.
  12. Reserved.
  13. "State-wide strategic transportation plan" means the official state-wide transportation plan as defined in paragraph (6) of subsection (a) of Code Section 32-2-22.
  14. "State-wide transportation improvement program" means a state-wide prioritized listing of transportation projects as defined in paragraph (7) of subsection (a) of Code Section 32-2-22.
  15. "Transportation improvement program" means a prioritized listing of transportation projects as defined in paragraph (8) of subsection (a) of Code Section 32-2-22 . (Code 1981, § 48-8-242 , enacted by Ga. L. 2010 p. 778, § 6/HB 277 and Ga. L. 2010, p. 818, § 3/SB 520; Ga. L. 2015, p. 236, § 7-2/HB 170.)

The 2015 amendment, effective July 1, 2015, substituted "Reserved" for the former provisions of paragraph (12), which read: "'Special Regional Transportation Funding Election Act' means an Act specifically and exclusively enacted for the purpose of ordering that a referendum be held for the reimposition of the special district transportation sales and use tax within the region that includes the districts, in their entirety or any portion thereof, of the members from a local legislative delegation in the General Assembly. A majority of the signatures of the legislative delegation for a majority of the counties within the region shall be required for the bill to be placed upon the local calendar of each chamber. This method shall be exclusively used for this purpose and no other bill shall be placed or voted upon on the local calendar utilizing this method of qualification for placement thereon. This Act shall be treated procedurally by the General Assembly as a local Act and all counties within the region shall receive the legal notice requirements of a local Act." See Editor's notes for applicability.

Code Commission notes. - The enactment of this Code section by Ga. L. 2010, p. 778, § 6, irreconcilably conflicted with and was treated as superseded by Ga. L. 2010, p. 818, § 3. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

Pursuant to Code Section 28-9-5, in 2010, "paragraph (8)" was substituted for "paragraph (3)" in paragraph (4).

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-8-243. Criteria for development of investment list of projects and programs; report; gridlock.

  1. Within 60 calendar days following approval by the Governor of the state-wide strategic transportation plan, the State Transportation Board shall consider the state-wide strategic transportation plan in accordance with the provisions of subsection (c) of Code Section 32-2-22. Upon approval of the state-wide strategic transportation plan by the State Transportation Board, the director shall provide in written form to the local governments and any MPO's within each special district across the state recommended criteria for the development of an investment list of projects and programs. The establishment of such criteria shall comport with the investment policies provided in subsection (a) of Code Section 32-2-41.1 and the state-wide strategic transportation plan. The recommended criteria shall include performance goals, allocation of investments in alignment with performance, and execution of projects. The state fiscal economist shall develop an estimate of the proceeds of the special district transportation sales and use tax for each special district using financial data supplied by the department. Such estimate shall include reasonable ranges of anticipated growth, if any. The director shall include such estimates and ranges in the recommended criteria for developing the draft investment list. Any local government or MPO desiring to submit comments on the recommended criteria shall make such submission to the director no later than September 30, 2010. On or before November 10, 2010, the mayors in each county shall elect the mayoral representative to the regional transportation roundtable and notify the county commission chairperson and the director of that mayor's name. The director shall accept comments from any MPO located wholly or partially within each special district in finalizing the recommended district criteria in a written report on or before November 15, 2010. Such report shall also include notice of the date, time, and location of the first regional transportation roundtable for each special district for the purpose of considering the recommended district criteria and for electing members of the executive committee for each special district. Any amendment to the recommended criteria, approval of such criteria, and election of the executive committee shall be enacted by a majority vote of the representatives present at the roundtable meeting. Upon approval of the criteria, the director shall promptly deliver a report to the commissioner of transportation, local governments, any MPO located wholly or partially within each special district and the members of the General Assembly whose districts lie wholly or partially within each special district detailing the criteria approved by the roundtable.
  2. With regard to any area of a special district that is not part of an MPO, following receipt of the report provided for in subsection (a) of this Code section, and after receiving comments, if any, from members of the General Assembly whose districts lie wholly or partially within such area, the local governments in such area may submit projects to the director to assemble a list of example investments for such special district that comport with the special district's investment criteria. With regard to any area of a special district that is part of an MPO, following receipt of the report provided for in subsection (a) of this Code section, and after receiving comments, if any, from members of the General Assembly whose districts lie wholly or partially within such area, the local governments may submit projects to the director and to the MPO for the director to use to assemble a list of example investments for such special district that comport with the special district's investment criteria. The list of example investments for each special district shall not be required to be fiscally constrained within the budget of the revenues projected to be generated by each special district's sales and use tax and shall be submitted to the executive committee for each regional transportation roundtable for consideration. The executive committee in collaboration with the director shall choose from the list of example investments to create the draft investment list, which shall be approved by majority vote of the executive committee. Such draft investment list shall be fiscally constrained within the ranges of revenues projected to be generated by the special district sales and use tax, as determined by the state fiscal economist. The special district's draft investment list as approved by the executive committee shall be considered by the regional transportation roundtable. The director shall deliver the draft investment list to the local governments, MPO's, and members of the General Assembly whose districts lie wholly or partially within each special district for each special district not later than August 15, 2011. The director shall include in the draft investment list a statement of the specific public benefits to be expected upon the completion of each project on the investment list and how the special district's investment criteria are furthered by each project. Examples of specific public benefits include, but are not limited to, congestion mitigation, increased lane capacity, public safety, and economic development. The director shall include in such delivery notice of the date, time, and location of each district's executive committee meeting and final regional transportation roundtable. Prior to holding the final regional transportation roundtable, the executive committee shall hold, after proper notice to the public, at least two public meetings in the region for the purpose of receiving public comment on the draft regional investment list. The executive committee shall prepare and deliver to all members of the regional roundtable and the director a summary of the public comment on the regional investment list. The local governments, MPO's, and members of the General Assembly whose districts lie wholly or partially within such special district may submit comments on the draft investment list addressed to both the director and the executive committee no later than two weeks prior to the dates of the final regional transportation roundtable and the executive committee meeting, respectively, for the special district. At the final regional transportation roundtable, the draft investment list approved by the executive committee shall be considered for approval by a majority vote of the representatives present at the roundtable. Should the roundtable reject the draft investment list approved by the executive committee, the roundtable then may negotiate amendments that meet the district's investment criteria to the draft investment list, which shall be chosen from the list of example investments for each special district, each voted on separately and requiring a majority vote of the representatives present at the roundtable for approval. Upon consideration of all offered amendments, upon motion, the roundtable shall vote as to the approval of the amended draft list, requiring a majority vote of the representatives present at the roundtable. The approved investment list, if any, shall be provided to the director. On or before October 15, 2011, the director shall deliver such list to the commission, the commissioner of transportation, the executive director of the Atlanta-region Transit Link "ATL" Authority, local governments, MPO's, and members of the General Assembly whose districts lie wholly or partially within each special district for each special district. The approved investment list shall include:
    1. The specific transportation projects to be funded;
    2. The anticipated schedule of such projects;
    3. The approximate cost of such projects; and
    4. The estimated amount of net proceeds to be raised by the tax including the amount of proceeds to be distributed to local governments pursuant to subsection (e) of Code Section 48-8-249.

      If a roundtable does not approve the original draft investment list or an amended draft investment list on or before October 15, 2011, then a special district gridlock shall be declared by the director and no election shall be held in such special district. The question of levying the tax shall not be submitted to the voters of the special district until after 24 months immediately following the month in which the special district gridlock was reached.

  3. In the event a special district gridlock is declared, the local governments in such special district shall be required to provide a 50 percent match for any local maintenance and improvement grants by the Department of Transportation. Such 50 percent match requirement shall remain in place until the special district roundtable approves an investment list meeting the special district's investment criteria and an election is held within the special district on the levy of the special district transportation sales and use tax. (Code 1981, § 48-8-243 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2018, p. 377, § 4-13/HB 930.)

The 2018 amendment, effective May 3, 2018, substituted "Atlanta-region Transit Link 'ATL' Authority" for "Georgia Regional Transportation Authority" in the next-to-last sentence of subsection (b). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. 377, § 5-1(c)/HB 930, not codified by the General Assembly, provides, in part, that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act becomes effective January 1, 2019.

PART 2 E LECTION, IMPOSITION, AND PROCEDURES

48-8-244. Election; ballot.

  1. Simultaneously with the director's delivery of the approved investment list in accordance with subsection (b) of Code Section 48-8-243, the roundtable shall deliver a notice to the election superintendents of each county within the respective special districts. Upon receipt of the notice, the election superintendents shall issue the call for an election for the purpose of submitting the question of the imposition of the tax to the voters within each special district. The election superintendents shall issue the call and shall conduct the election in the manner authorized under Code Section 21-2-540. The first election shall be held on the date of the general state-wide primary in 2012. The election superintendents shall cause the date and purpose of the election to be published once a week for four weeks immediately preceding the date of the election in the official organs of their respective counties.
  2. The ballot submitting the question of the levy of the special district transportation tax authorized by this article to the voters within each special district shall have written or printed thereon the following:
  3. All persons desiring to vote in favor of levying the tax shall vote "Yes" and all persons opposed to levying the tax shall vote "No." If more than one-half of the votes cast throughout the entire special district are in favor of levying the tax, then the tax shall be levied as provided in this article; otherwise the tax shall not be levied and the question of levying the tax shall not again be submitted to the voters of the special district until after 24 months immediately following the month in which the election was held. Each election superintendent shall hold and conduct the election under the same rules and regulations as govern special elections. Each election superintendent shall canvass the returns from his or her county, declare the result of the election in that county, and certify the result to the Secretary of State. The Secretary of State shall compile the results from each county in the special district, declare the result of the election in the special district, and certify the result to the governing authority of each local government and MPO within the special district and the state revenue commissioner. The expense of the election in each county within each special district shall be paid from funds of each county.
  4. In the event a special district sales and use tax election is held and the voters in a special district do not approve the levy of the special district transportation sales and use tax, the local governments in such special district shall be required to provide a 30 percent match for any local maintenance and improvement grants by the Department of Transportation for transportation projects and programs for at least 24 months and until such time as a special district sales and use tax is approved. In the event the voters in a special district approve the levy of the special district transportation sales and use tax, the local governments in such special district shall be required to provide a 10 percent match for any local maintenance and improvement grants by the Department of Transportation for transportation projects and programs for the duration of the levy of the special district transportation sales and use tax. (Code 1981, § 48-8-244 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2017, p. 774, § 48/HB 323.)

"( ) YES Shall ________ County's transportation system and the transportation network in this region and the state be improved by providing for a 1 percent ( ) NO special district transportation sales and use tax for the purpose of transportation projects and programs for a period of ten years?"

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (b).

48-8-244.1. Effect of special district levy on state allocation of funds under Code Section 32-5-27.

The approval of the levy of the special district transportation sales and use tax in a special district shall not in any way diminish the percentage of funds allocated to a special district or any of the local governments within a special district under the provisions of subsection (c) of Code Section 32-5-27. The amount of funds expended in a special district shall not be decreased due to the use of proceeds from the special district transportation sales and use tax to construct transportation projects that have a high priority in the state-wide strategic transportation plan. If a special district constructs a project on the approved investment list using proceeds from the special district tax, then the state funding under subsection (c) of Code Section 32-5-27 shall not be diverted to priority projects in other special districts.

(Code 1981, § 48-8-244.1 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-245. Collection of tax; cessation of tax.

  1. If the imposition of the special district transportation sales and use tax is approved at the special election, the collection of such tax shall begin on the first day of the next succeeding calendar quarter beginning more than 80 days after the date of the election. With respect to services which are regularly billed on a monthly basis, however, the tax shall become effective with respect to and the tax shall apply to services billed on or after the effective date specified in the previous sentence.
  2. The tax shall cease to be imposed on the earliest of the following dates:
    1. On the final day of the ten-year period of time specified for the imposition of the tax; or
    2. As of the end of the calendar quarter during which the state revenue commissioner determines that the tax has raised revenues sufficient to provide to the special district net proceeds equal to or greater than the amount specified as the estimated amount of net proceeds to be raised by the special district transportation tax.
    1. No more than a single tax under this article may be collected at any time within a special district.
    2. Upon the adoption of resolutions by the governing bodies of a majority of the counties within a special district in which a tax authorized by this article is in effect, an election may be held for the reimposition of the tax while the tax is in effect. Proceedings for the development of an investment list and for the reimposition of a tax shall be in the same manner as provided for in Code Sections 48-8-241 and 48-8-243 .
    3. Following the expiration of the special district transportation sales and use tax under this article, or following a special election in which voters in a special district rejected the imposition of the tax, upon the adoption of resolutions by the governing bodies of a majority of counties within a special district, an election may be held for the imposition of a tax under this article in the same manner as provided in this article for the initial imposition of such tax. The election superintendents shall issue the call and conduct the election in the manner authorized by general law. The development of the investment list for such special district shall follow the dates established in Code Section 48-8-243 with the years adjusted appropriately, and such schedule shall be posted on a website developed by the state revenue commissioner to be used exclusively for matters related to the special district transportation sales and use tax within 30 days of the later of the state revenue commissioner's receipt of notice from the final county governing body required to adopt a resolution. (Code 1981, § 48-8-245 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2015, p. 236, § 7-3/HB 170.)

The 2015 amendment, effective July 1, 2015, deleted "1 percent" preceding "tax" in paragraph (c)(1); in paragraph (c)(2), deleted "enactment by the General Assembly of a Special Regional Transportation Funding Election Act and the" following "Upon the" at the beginning of the first sentence and substituted "Code Sections 48-8-241 and 48-8-243" for "Code Section 48-8-243" at the end of the second sentence; and, in paragraph (c)(3), deleted "passage by the General Assembly of a Special Regional Transportation Funding Election Act and the" preceding "adoption of" in the middle of the first sentence, substituted the present second sentence for the former, which read: "Such subsequent election shall be held on the date of a state-wide general primary.", and deleted "or of the passage of the Special Regional Transportation Funding Election Act by the General Assembly" following "adopt a resolution" at the end of the last sentence. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-8-246. Collection and administration of tax by state revenue commissioner.

A tax levied pursuant to this article shall be exclusively administered and collected by the state revenue commissioner for the use and benefit of the special district imposing the tax. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter; provided, however, that all moneys collected from each taxpayer by the state revenue commissioner shall be applied first to such taxpayer's liability for taxes owed the state; and provided, further, that the state revenue commissioner may rely upon a representation by or in behalf of the special district or the Secretary of State that such a tax has been validly imposed, and the state revenue commissioner and the state revenue commissioner's agents shall not be liable to any person for collecting any such tax which was not validly imposed. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Code 1981, § 48-8-246 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-247. Remittance of taxes.

Each sales tax return remitting taxes collected under this article shall separately identify the location of each retail establishment at which any of the taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the state revenue commissioner that all taxes imposed by this article are collected and distributed according to situs of sale.

(Code 1981, § 48-8-247 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-248. Disbursement of proceeds.

The proceeds of the tax collected by the state revenue commissioner in each special district under this article shall be disbursed as soon as practicable after collection to the Georgia State Financing and Investment Commission to be maintained in a trust fund and administered by the commission on behalf of the special district imposing the tax. Such proceeds for each special district shall be kept separate from other funds of the commission and shall not in any manner be commingled with other funds of the commission.

(Code 1981, § 48-8-248 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-249. Use of proceeds within special district exclusively for projects on approved investment list; contracts.

  1. The proceeds received from the tax authorized by this article shall be used within the special district receiving proceeds of the tax exclusively for the projects on the approved investment list for such district as provided in subsection (b) of Code Section 48-8-243. Authorized uses of tax proceeds in connection with such projects shall include the cost of project defined in paragraph (2) of Code Section 48-8-242.
  2. The commission shall be responsible for the proper application of the proceeds received from the tax authorized by this article for the approved investment list for each special district. The commission shall delegate the management of the budget, schedule, execution, and delivery of the projects contained in the approved investment list as follows:
    1. The commission shall contract with the Department of Transportation for all transportation projects except bus and rail mass transit systems and passenger rail in any special district the boundaries of which are not wholly contained within a single MPO; and
    2. The commission shall contract with the Atlanta-region Transit Link "ATL" Authority only for projects that are bus and rail mass transit systems and passenger rail within any special district the boundaries of which are wholly contained within a single MPO.

      Upon entering into contracts with the Department of Transportation or the Atlanta-region Transit Link "ATL" Authority as provided above, the commission shall dispense funds upon the request of the commissioner of transportation or the executive director of the Atlanta-region Transit Link "ATL" Authority, which request shall include certification of the completion of the project or project element for which funds are requested. Payment shall be made promptly upon approval by the construction division or the financing and investment division of the commission, and such payments shall not require any other official action by the commission. The use of funds so dispensed shall be subject to review and audit by the construction division and the financing and investment division of the commission and action by the commission upon receipt of complaint or if otherwise warranted. The Department of Transportation and Atlanta-region Transit Link "ATL" Authority shall consult with the commission on at least a quarterly basis regarding the progress and performance in the execution, schedule, and delivery of projects on the approved investment list.

  3. In managing the execution, schedule, and delivery of the projects on the approved investment list for a special district, the Department of Transportation or Atlanta-region Transit Link "ATL" Authority, as appropriate, shall determine whether a project should be designed and constructed by the Department of Transportation, by a local government, or by another public or private entity. In making such determination the following shall be considered:
    1. Whether such project is on the state-wide transportation improvement program, the state-wide strategic transportation plan, or a transportation improvement program;
    2. The type and estimated cost of the project;
    3. The location of the project and whether it encompasses multiple jurisdictions;
    4. The experience of a local government or governments or a public or private entity in designing and constructing such project as set forth in an application in a form to be provided by the commissioner of transportation or the executive director of the Atlanta-region Transit Link "ATL" Authority; and
    5. The recommendation of the MPO, if any, for such special district.

      Following the decision, the Department of Transportation, the local government or governments, or another public or private entity as determined under this subsection shall contract for implementing the projects in accordance with applicable state and federal requirements.

  4. The commission shall maintain or cause to be maintained an adequate record-keeping system for each project funded by a special district transportation sales and use tax. An annual audit shall be paid for by each special district and conducted by an independent auditing firm as selected by the commission. Such audit shall include a schedule which shows for each such project the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. Such audit shall verify and test expenditures sufficient to provide assurances that the schedule is fairly presented in relation to the financial statements. The audit report on the financial statements shall include an opinion, or disclaimer of opinion, as to whether the schedule is presented fairly in all material respects in relation to the financial statements taken as a whole.
  5. Twenty-five percent of the proceeds received from the tax authorized by this article shall be distributed to the local governments within the special district in which the tax is imposed if such special district's boundaries are not conterminous with an MPO. Fifteen percent of the proceeds received from the tax authorized by this article shall be distributed to the local governments within the special district in which the tax is imposed if such special district's boundaries are wholly contained within a single MPO. Such percentages shall be allocated to each local government by multiplying the LARP factor of each local government by the total amount of funds to be distributed to all the local governments in the special district. Proceeds described in this subsection shall be distributed to the local governments on an ongoing basis as they are received by the commission. Such proceeds shall be used by the local governments only for transportation projects as defined in paragraph (10) of Code Section 48-8-242 and may also serve as the local match as required for state transportation projects and grants. If a special district receives from the tax net proceeds in excess of the investment list approved by the roundtable for the imposition of the tax or in excess of the actual cost of the project or projects on such investment list, then such excess proceeds shall be distributed among the local governments within the special district in accordance with this subsection. (Code 1981, § 48-8-249 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2018, p. 377, § 4-13/HB 930.)

The 2018 amendment, effective May 3, 2018, substituted "Atlanta-region Transit Link 'ATL' Authority" for "Georgia Regional Transportation Authority" throughout subsections (b) and (c). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. 377, § 5-1(c)/HB 930, not codified by the General Assembly, provides, in part, that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act becomes effective January 1, 2019.

48-8-250. Report.

Not later than December 15 of each year, the state revenue commissioner shall publish, on the website created pursuant to paragraph (3) of subsection (c) of Code Section 48-8-245, a simple, nontechnical report which shows for each project in the investment list approved by the director the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year with respect to each such project. The report shall also include a statement of what corrective action the commissioner of transportation and the executive director of the Atlanta-region Transit Link "ATL" Authority intend to implement with respect to each project which is underfunded or behind schedule and a statement of any surplus funds which have not been expended for a project.

(Code 1981, § 48-8-250 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2018, p. 377, § 4-13/HB 930.)

The 2018 amendment, effective May 3, 2018, substituted "Atlanta-region Transit Link 'ATL' Authority" for "Georgia Regional Transportation Authority" in the middle of the last sentence of this Code section. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. HB930, § 5-1(c)/HB 930, not codified by the General Assembly, provides, in part, that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act becomes effective January 1, 2019.

48-8-251. Citizens Review Panel; membership; vacancy; recommendations; report.

  1. There is created a Citizens Review Panel for each special district in which voters approved the levy of the special district sales and use tax to be composed of three citizen members appointed by the Speaker of the House of Representatives and two citizen members appointed by the Lieutenant Governor. Each member must be a resident of the special district of which Citizens Review Panel they are appointed to serve.
  2. In the event that any vacancy for any cause shall occur in the membership of the committee, such vacancy shall be filled by an appointment made by the official authorized by law to make such appointment within 45 days of the occurrence of such vacancy.
  3. The panel shall, by majority vote of those members present and voting, elect from their number a chairperson and vice chairperson who shall serve at the pleasure of the panel.
  4. The panel shall meet in regular session at least three days each year either at the state capitol in Atlanta or at such other meeting place within the state and may have such other additional meetings as may be called by the chairperson or by a majority of the members of the panel upon reasonable written notice to all members of the panel. Further, the chairperson of the panel is authorized from time to time to call meetings of subcommittees of the panel which are established by panel policy at places inside or outside the state when, in the opinion of the chairperson, the meetings of the subcommittee are needed to attend properly to the panel's business. A majority of the panel shall constitute a quorum for the transaction of all business. Any power of the panel may be exercised by a majority vote of those members present at any meeting at which there is a quorum.
  5. Members shall receive for each day of actual attendance at meetings of the panel and the subcommittee meetings the per diem and transportation costs prescribed in Code Section 45-7-21, and a like sum shall be paid for each day actually spent in studying the transportation needs of the state or attending other functions as a representative of the panel, not to exceed ten days in any calendar year, but no member shall receive such per diem for any day for which such member receives any other per diem pursuant to such Code section. In addition, members shall receive actual transportation costs while traveling by public carrier or the legal mileage rate for the use of a personal automobile in connection with such attendance and study. Such per diem and expense shall be paid from the funds of the special district's revenues from the special district sales and use tax upon presentation, by members of the panel, of vouchers approved by the chairperson.
  6. The panel shall be charged with review of the administration of the projects and programs included on the approved investment list. The panel may make such recommendations to and require such reports from the Department of Transportation, the Atlanta-region Transit Link "ATL" Authority, any other agency or instrumentality of the state, any political subdivision of the state, and any agency or instrumentality of such political subdivisions as it may deem appropriate and necessary from time to time in the interest of the region.
  7. Upon the completion of a project on the investment list, the panel shall annually review the specific public benefits identified in the investment list to ascertain the degree to which such benefits have been attained. This benefit review report shall be delivered to the director and the state revenue commissioner and shall be published on the website created pursuant to paragraph (3) of subsection (c) of Code Section 48-8-245.
  8. Beginning January 1, 2013, and annually thereafter, the panel shall provide a report to the General Assembly of its actions during the previous year. The report shall be available for public inspection on the website created pursuant to paragraph (3) of subsection (c) of Code Section 48-8-245 . The report shall include, but not be limited to, an update on the progress on each project on the investment list for the region, including the amount of funds spent on each project. (Code 1981, § 48-8-251 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2018, p. 377, § 4-13/HB 930.)

The 2018 amendment, effective May 3, 2018, substituted "Atlanta-region Transit Link 'ATL' Authority" for "Georgia Regional Transportation Authority" in the middle of the second sentence of subsection (f). See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. 377, § 5-1(c)/HB 930, not codified by the General Assembly, provides, in part, that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act becomes effective January 1, 2019.

48-8-252. Tax paid in another jurisdiction.

Where a special district transportation sales and use tax under this article has been paid with respect to tangible personal property by the purchaser either in another special district within the state or in a tax jurisdiction outside the state, the tax may be credited against the tax authorized to be imposed by this article upon the same property. If the amount of sales or use tax so paid is less than the amount of the use tax due under this article, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this article. The state revenue commissioner may require such proof of payment in another local tax jurisdiction as he or she deems necessary and proper. No credit shall be granted, however, against the tax imposed under this article for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other sales and use tax levied in the special district.

(Code 1981, § 48-8-252 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-253. Nonimposition of tax on property ordered by and delivered to purchaser outside special district; conditions of delivery.

No tax provided for in this article shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the special district in which the tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier licensed by the Federal Motor Carrier Safety Administration or the Georgia Department of Public Safety.

(Code 1981, § 48-8-253 , enacted by Ga. L. 2010, p. 778, § 6/HB 277; Ga. L. 2012, p. 580, § 23/HB 865.)

48-8-254. "Building and construction materials" defined; inapplicability of tax to certain sales or uses of building and construction materials.

  1. As used in this Code section, the term "building and construction materials" means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract.
  2. No tax provided for in this article shall be imposed upon the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to the voters' approval of the levy of the tax and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to approval of the levy of the tax. (Code 1981, § 48-8-254 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-255. Authority to promulgate rules and regulations.

Subject to the approval of the House and Senate Transportation Committees, the state revenue commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the special district transportation sales and use tax authorized by this article.

(Code 1981, § 48-8-255 , enacted by Ga. L. 2010, p. 778, § 6/HB 277.)

48-8-256. Special district tax not subject to allocation or balancing of state and federal funds.

The tax authorized by this article shall not be subject to any allocation or balancing of state and federal funds provided for by general law, nor may such proceeds be considered or taken into account in any such allocation or balancing.

(Code 1981, § 48-8-256 , enacted by Georgia L. 2010, p. 778, § 6/HB 277.)

ARTICLE 5A SPECIAL DISTRICT MASS TRANSPORTATION SALES AND USE TAX

Effective date. - This article became effective July 1, 2015.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, the enactment of this article by Ga. L. 2015, p. 236, § 7-5/HB 170, was treated as impliedly repealed and superseded by Ga. L. 2015, p. 1443, § 2/HB 106, due to irreconcilable conflict.

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews. - For article on the 2015 enactment of this article, see 32 Ga. St. U.L. Rev. 261 (2015).

PART 1 G ENERAL PROVISIONS

48-8-260. Definitions.

As used in this article, the term:

  1. "Intergovernmental agreement" means a contract entered into pursuant to Article IX, Section III, Paragraph I of the Constitution.
  2. "Mass transportation" means any mode of transportation serving the general public which is appropriate to transport people by highways or rail.
  3. "Qualified municipality" means a qualified municipality as defined in paragraph (4) of Code Section 48-8-110 which is located wholly or partly within a special district.
  4. "Transportation purposes" means and includes:
    1. Roads, bridges, public transit, rails, airports, buses, seaports, including without limitation road, street, and bridge purposes pursuant to paragraph (1) of subsection (b) of Code Section 48-8-121 , and all accompanying infrastructure and services necessary to provide access to these transportation facilities, including new general obligation debt and other multiyear obligations issued to finance such purposes;
    2. The retirement of previously incurred general obligation debt with respect only to such purposes as identified in subparagraph (A) of this paragraph, but only if an intergovernmental agreement has been entered into under this part;
    3. A capital outlay project or projects under subparagraph (a)(1)(M) of Code Section 48-8-111 , with respect only to such purposes as identified in subparagraph (A) of this paragraph; or
    4. Any combination of two or more of the foregoing. (Code 1981, § 48-8-260 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 179, § 1/HB 134.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" at the end of paragraph (5).

The 2017 amendment, effective May 1, 2017, deleted former paragraph (3), which read: " 'Mass transportation regional system participant' means any county within a special district created pursuant to Article 5 of this chapter in which mass transportation service is provided within such special district, to such special district, or from such special district by a multicounty regional transportation authority created by an Act of the General Assembly, including but not limited to the Georgia Regional Transportation Authority or the Metropolitan Atlanta Rapid Transit Authority."; redesignated former paragraphs (4) and (5) as present paragraphs (3) and (4), respectively; and rewrote present paragraph (4).

48-8-261. Creation of special districts; imposition of taxes.

  1. Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, 159 special districts are created within this state. The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of the 159 special districts created.
  2. Any county:
    1. That is not located within a special district levying a special sales and use tax pursuant to Article 5 of this chapter;
    2. That is not defined as a metropolitan county special district that is governed by the provisions of Part 2 of this article; and
    3. In which a tax is currently being levied and collected pursuant to:
      1. Part 1 of Article 3 of this chapter;
      2. A local constitutional amendment for purposes of a metropolitan area system of public transportation set out at Ga. L. 1964, p. 1008, and the laws enacted pursuant to such local constitutional amendment; or
      3. Code Section 48-8-96

        may, by following the procedures required by this part, impose for a limited period of time within the special district under this part a transportation special purpose local option sales and use tax, the proceeds of which shall be used only for transportation purposes.

  3. At any time, more than one tax under this part shall be authorized to be imposed concurrently within a special district as long as the combined rate of the taxes does not exceed 1 percent. (Code 1981, § 48-8-261 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 179, § 2/HB 134.)

The 2016 amendment, effective April 26, 2016, added paragraph (b)(2); redesignated former paragraphs (b)(2) and (b)(3) as present paragraphs (b)(3) and (b)(4), respectively; in the undesignated language at the end of subsection (b), twice substituted "part" for "article"; deleted "and" at the end of paragraph (c)(1); added paragraph (c)(2); redesignated former paragraph (c)(2) as present paragraph (c)(3); and, in the undesignated language at the end of subsection (c), twice substituted "part" for "article".

The 2017 amendment, effective May 1, 2017, substituted "Any county for "On or after July 1, 2016, any" at the beginning of subsection (b); deleted former paragraph (b)(3), which read: "That is a mass transportation regional system participant; and"; redesignated former paragraph (b)(4) as present paragraph (b)(3); and rewrote subsection (c).

48-8-262. Notice; agreement memorializing levy and rate of tax; rate; resolution required.

  1. Prior to the issuance of the call for the referendum required by Code Section 48-8-263, any county that desires to levy a tax under this part shall:
    1. Determine whether the region has proposed a referendum on a tax under Article 5 of this chapter. This determination shall be based on whether, pursuant to paragraphs (2) and (3) of subsection (c) of Code Section 48-8-245, a majority of the governing authorities of counties within the region containing the county proposing the tax have passed resolutions calling for the levy of a tax under Article 5 of this chapter. If a majority of the governing authorities of the counties in the region have passed such a resolution, the county proposing a tax under this part shall postpone the referendum under this part until the regional referendum has been decided. No ballot shall propose a tax under this part and under Article 5 of this chapter at the same election;
    2. After the determination under paragraph (1) of this subsection has been made, if a county is qualified to levy a tax under this part, deliver or mail a written notice to the mayor or chief elected official in each qualified municipality located within the special district. Such notice shall contain the date, time, place, and purpose of a meeting at which the governing authorities of the county and of each qualified municipality are to meet to discuss possible projects for inclusion in the referendum and the rate of tax. The notice shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 30 days prior to the issuance of the call for the referendum.
    1. Following the meeting required by paragraph (2) of subsection (a) of this Code section and prior to any tax being imposed under this part, the county and all qualified municipalities therein may execute an intergovernmental agreement memorializing their agreement to the levy of a tax and the rate of such tax.
    2. If an intergovernmental agreement authorized by paragraph (1) of this subsection is entered into, it shall, at a minimum, include the following:
      1. A list of the projects and purposes qualifying as transportation purposes proposed to be funded from the tax, including an expenditure of at least 30 percent of the estimated revenue from the tax on projects consistent with the state-wide strategic transportation plan as defined in paragraph (6) of subsection (a) of Code Section 32-2-22;
      2. The estimated or projected dollar amounts allocated for each transportation purpose from proceeds from the tax;
      3. The procedures for distributing proceeds from the tax to qualified municipalities;
      4. A schedule for distributing proceeds from the tax to qualified municipalities which shall include the priority or order in which transportation purposes will be fully or partially funded;
      5. A provision that all transportation purposes included in the agreement shall be funded from proceeds from the tax except as otherwise agreed;
      6. A provision that proceeds from the tax shall be maintained in separate accounts and utilized exclusively for the specified purposes;
      7. Record-keeping and audit procedures necessary to carry out the purposes of this part; and
      8. Such other provisions as the county and qualified municipalities choose to address.
    1. If an intergovernmental agreement is entered into by the county and all qualified municipalities, the rate of the tax may be up to 1 percent.
    2. If an intergovernmental agreement is not entered into by the county and all qualified municipalities, the maximum rate of the tax shall not exceed 0.75 percent and such rate shall be determined by the governing authority of the county.
    1. As soon as practicable after the meeting between the governing authorities of the county and qualified municipalities and the execution of an intergovernmental agreement, if applicable, the governing authority of the county shall by a majority vote on a resolution offered for such purpose submit the list of transportation purposes and the question of whether the tax should be approved to electors of the special district in the next scheduled election and shall notify the county election superintendent within the special district by forwarding to the superintendent a copy of such resolution calling for the imposition of the tax. Such list, or a digest thereof, shall be available during regular business hours in the office of the county clerk.
    2. The resolution authorized by paragraph (1) of this subsection shall describe:
      1. The specific transportation purposes to be funded;
      2. The approximate cost of such transportation purposes, which shall also be the maximum amount of net proceeds to be raised by the tax; and
      3. The maximum period of time, to be stated in calendar years, for which the tax may be imposed and the rate thereof. The maximum period of time for the imposition of the tax shall not exceed five years. (Code 1981, § 48-8-262 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 179, § 3/HB 134; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" three times in this Code section; in subsection (a), deleted the paragraph (a)(1) designation, and substituted "Prior to" for "Except as otherwise provided in paragraph (2) of this subsection, prior to" at the beginning; deleted former paragraph (a)(2), which read: "When 90 percent or more of the geographic area of a special district is located within one or more qualified municipalities and when a qualified municipality or combination of qualified municipalities within the special district whose combined population within the special district is 60 percent or more of the aggregate population of all qualified municipalities within the special district desires to levy a tax under this article, such qualified municipality or municipalities may deliver or mail written notice to the chief elected official of the governing authority of the county located within the special district calling for a meeting to discuss projects for inclusion in the referendum and the rate of levy of the tax. Such notice shall contain the date, time, place, and purpose of the meeting and shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 30 days prior to the issuance of the call for a referendum. If the county and all qualified municipalities within the special district do not enter into an intergovernmental agreement meeting the requirements of subsection (b) of this Code section within 30 days after the meeting, when 90 percent or more of the geographic area of a special district is located within one or more qualified municipalities the qualified municipality or combination of qualified municipalities within the special district whose combined population within the special district is 60 percent or more of the aggregate population of all qualified municipalities within the special district may adopt a resolution as provided in subsection (d) of this Code section and issue the call for a referendum on the levy of a tax under this article."; in subdivision (b)(2)(A), substituted "consistent with" for "included in"; and, near the end of paragraph (c)(2), inserted "such rate".

The 2017 amendments. The first 2017 amendment, effective January 1, 2018, substituted the present provisions of subsection (a) for the former provisions, which read: "Prior to the issuance of the call for the referendum required by Code Section 48-8-263, any county that desires to levy a tax under this part shall deliver or mail a written notice to the mayor or chief elected official in each qualified municipality located within the special district. Such notice shall contain the date, time, place, and purpose of a meeting at which the governing authorities of the county and of each qualified municipality are to meet to discuss possible projects for inclusion in the referendum and the rate of tax. The notice shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 30 days prior to the issuance of the call for the referendum."; and inserted "paragraph (2) of" near the beginning of paragraph (b)(1). The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "0.75 percent" for ".75 percent" in the middle of paragraph (c)(2).

48-8-263. Ballot question; expenses of election; resubmission of question; general obligation debt.

    1. The ballot submitting the question of the imposition of the tax to the voters within the special district shall have written or printed thereon the following:      "( )   YES     Shall a special ____ percent sales and use tax  be             imposed in the special district consisting  of         ( ) NO     ____________ County for a period of time not to exceed             ____________ and for the raising of not more  than             an estimated amount of $____________  for              transportation purposes?"
    2. If debt is to be issued, the ballot shall also have written or printed thereon, following the language specified by paragraph (1) of this subsection, the following:
  2. The election superintendent shall issue the call and conduct the election in the manner authorized by general law. The superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from county funds. All persons desiring to vote in favor of imposing the tax shall vote "Yes," and all persons opposed to imposing the tax shall vote "No." If more than one-half of the votes cast throughout the entire special district are in favor of imposing the tax, then the tax shall be imposed as provided in this part.
  3. Where such question is not approved by the voters, the county may resubmit such question from time to time upon compliance with the requirements of this part.
    1. If the intergovernmental agreement, if applicable, and proposal include the authority to issue general obligation debt and if more than one-half of the votes cast are in favor of the proposal, then the authority to issue such debt in accordance with Article IX, Section V, Paragraph I of the Constitution is given to the proper officers of the county or qualified municipality; otherwise, such debt shall not be issued. If the authority to issue such debt is so approved by the voters, then such debt may be issued without further approval by the voters.
    2. If the issuance of general obligation debt is included and approved as provided in this Code section, then the governing authority of the county or qualified municipality may incur such debt either through the issuance and validation of general obligation bonds or through the execution of a promissory note or notes or other instrument or instruments. If such debt is incurred through the issuance of general obligation bonds, such bonds and their issuance and validation shall be subject to Articles 1 and 2 of Chapter 82 of Title 36 except as specifically provided otherwise in this part. If such debt is incurred through the execution of a promissory note or notes or other instrument or instruments, no validation proceedings shall be necessary, and such debt shall be subject to Code Sections 36-80-10 through 36-80-14 except as specifically provided otherwise in this part. In either event, such general obligation debt shall be payable first from the separate account in which are placed the proceeds received by the county or qualified municipality from the tax. Such general obligation debt shall, however, constitute a pledge of the full faith, credit, and taxing power of the county or qualified municipality; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the county or qualified municipality. (Code 1981, § 48-8-263 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 179, § 4/HB 134.)

"If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of ____________ in the principal amount of $____________ for the above purpose."

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" throughout this Code section.

The 2017 amendment, effective May 1, 2017, deleted "County" preceding "in the principal" near the end of the form in paragraph (a)(2); and substituted "county or qualified municipality" for "county" throughout subsection (d).

48-8-264. Timing of tax.

    1. If the imposition of the tax is approved at the election, the tax shall be imposed on the first day of the next succeeding calendar quarter which begins more than 80 days after the date of the election at which the tax was approved by the voters.
    2. With respect to services which are regularly billed on a monthly basis, however, the resolution shall become effective with respect to and the tax shall apply to services billed on or after the effective date specified in paragraph (1) of this subsection.
  2. The tax shall cease to be imposed on the earliest of the following dates:
    1. If the resolution calling for the imposition of the tax provided for the issuance of general obligation debt and such debt is the subject of validation proceedings, as of the end of the first calendar quarter ending more than 80 days after the date on which a court of competent jurisdiction enters a final order denying validation of such debt;
    2. On the final day of the maximum period of time specified for the imposition of the tax; or
    3. As of the end of the calendar quarter during which the commissioner determines that the tax will have raised revenues sufficient to provide to the special district net proceeds equal to or greater than the amount specified as the maximum amount of net proceeds to be raised by the tax.
      1. At any time, more than a single tax under this part may be imposed within a special district as long as the combined rate of such taxes does not exceed 1 percent.
      2. Any single tax imposed under this part may, subject to the requirements of subsection (c) of Code Section 48-8-262 , be imposed at a rate of up to 1 percent but shall not exceed 1 percent.
      3. Any single tax imposed under this part at a rate of less than 1 percent shall be in an increment of 0.05 percent.
    2. In any special district in which a tax is in effect under this part, proceedings may be commenced, while the tax is in effect, calling for the reimposition of the tax upon the termination of the tax then in effect; and an election may be held at the next scheduled election for this purpose while the tax is in effect. Such proceedings for the reimposition of a tax under this part shall be in the same manner as proceedings for the initial imposition of the tax, but the newly authorized tax shall not be imposed until the expiration of the tax then in effect.
    3. Following the expiration of a tax under this part, proceedings for the reimposition of a tax under this part may be initiated in the same manner as provided in this part for initial imposition of such tax. (Code 1981, § 48-8-264 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 179, § 5/HB 134; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" throughout this Code section.

The 2017 amendments. The first 2017 amendment, effective May 1, 2017, substituted the present provisions of paragraph (c)(1) for the former provisions, which read: "At any time, no more than a single tax under this part shall be imposed within a special district. Any tax imposed under this part may, subject to the requirements of subsection (c) of Code Section 48-8-262, be imposed at a rate of up to 1 percent but shall not exceed 1 percent. Any tax imposed under this part at a rate of less than 1 percent shall be in an increment of .05 percent." The second 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in paragraph (c)(1) (now subparagraph (c)(1)(C)).

48-8-265. Administration and collection of tax.

A tax levied pursuant to this part shall be exclusively administered and collected by the commissioner for the use and benefit of the county and qualified municipalities within the special district imposing the tax. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state; and provided, further, that the commissioner may rely upon a representation by or on behalf of the special district or the Secretary of State that such a tax has been validly imposed, and the commissioner and the commissioner's agents shall not be liable to any person for collecting any such tax which was not validly imposed. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Code 1981, § 48-8-265 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" near the beginning of the first sentence of this Code section.

48-8-266. Required information on sales tax return.

Each sales tax return remitting taxes collected under this part shall separately identify the location of each retail establishment at which any of the taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all taxes imposed by this part are collected and distributed according to situs of sale.

(Code 1981, § 48-8-266 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" twice in this Code section.

48-8-267. Procedure for disbursement of proceeds from taxation.

  1. The proceeds of the tax collected by the commissioner in each special district under this part shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
    2. Except for the percentage provided in paragraph (1) of this subsection, the remaining proceeds of the tax shall be distributed:
      1. Pursuant to the terms of the intergovernmental agreement, if applicable; or
      2. If no intergovernmental agreement has been entered into, in accordance with subsection (b) of this Code section.
  2. In the event an intergovernmental agreement has not been entered into, then distribution of the proceeds shall be as follows:
    1. The state auditor shall determine the most recent three fiscal years for which an audit under Code Section 36-81-7 has been made;
    2. Utilizing the audit information under paragraph (1) of this subsection, the county and each qualified municipality shall receive a proportional amount of proceeds of the tax based upon the amount of expenditures made for transportation in the most recent three fiscal years. The proportional amount for the county and each qualified municipality shall be determined by dividing the average expended on transportation during the most recent three fiscal years by the county or qualified municipality by the aggregate average expended on transportation by the county and all qualified municipalities in the special district during the most recent three fiscal years. Amounts expended on transportation include transportation maintenance and operation costs and shall correspond with classifications and subclassifications specified in the local government uniform chart of accounts under subsection (e) of Code Section 36-81-3 within section 4200, including noncapital expenditures within sections 4210-4270, and shall be reported in the local government audit. Total general fund expenditures by the local government within these categories shall be specified in the footnotes of the audited financial statement. If such transportation expenditures include maintenance and operation costs to support local government airport and transit operations, reported in functions 7561 and 7563 of the uniform chart, the general fund costs for those functions shall be included in the footnotes of the local government's audited financial report; and
    3. Following the determinations made pursuant to paragraph (2) of this subsection and at least 30 days prior to the referendum, the state auditor shall certify the appropriate distribution percentages to the commissioner and the commissioner shall utilize such percentages for the distribution of proceeds for the term of the tax. (Code 1981, § 48-8-267 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" near the middle of subsection (a).

48-8-268. Impact of tax upon other funding and budgeting considerations.

  1. The proceeds of a tax under this part shall not be subject to any allocation or balancing of state and federal funds provided for by general law, and such proceeds shall not be considered or taken into account in any such allocation or balancing.
  2. The approval of the tax under this part shall not in any way diminish the percentage of state or federal funds allocated to any of the local governments under Code Section 32-5-27 within the special district levying the tax. The amount of state or federal funds expended in the county or any qualified municipality within the special district shall not be decreased or diverted due to the use of proceeds from the tax levied under this part for transportation purposes that have a high priority in the state-wide strategic transportation plan. (Code 1981, § 48-8-268 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" throughout this Code section.

48-8-269. Exemption from taxation.

  1. Except as to rate, a tax imposed under this part shall correspond to the tax imposed by Article 1 of this chapter. No item or transaction which is not subject to taxation under Article 1 of this chapter shall be subject to a tax imposed under this part, and a tax imposed under this part shall not apply to:
    1. The sale or use of any type of fuel used for off-road heavy-duty equipment, off-road farm or agricultural equipment, or locomotives;
    2. The sale or use of jet fuel as such term is defined in Code Section 48-8-2, except to the extent allowed pursuant to Code Section 48-8-3.5;
    3. The sale or use of fuel that is used for propulsion of motor vehicles on the public highways;
    4. The sale or use of energy used in the manufacturing or processing of tangible goods primarily for resale;
    5. The sale or use of motor fuel as defined under paragraph (9) of Code Section 48-9-2 for public mass transit; or
    6. The purchase or lease of any motor vehicle pursuant to Code Section 48-5C-1.
  2. Except as otherwise specifically provided in this part, the tax imposed pursuant to this part shall be subject to any sales and use tax exemption which is otherwise imposed by law; provided, however, that the tax levied by this part shall be applicable to the sale of food and food ingredients as provided for in paragraph (57) of Code Section 48-8-3 . (Code 1981, § 48-8-269 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-7/HB 5EX.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" throughout this Code section.

The 2018 Ex. Sess. amendment, effective December 1, 2018, in subsection (a), substituted "and a tax imposed" for "except that a tax imposed" near the end of the introductory paragraph, and rewrote paragraph (a)(2), which read: "The sale or use of jet fuel to or by a qualifying airline at a qualifying airport;".

48-8-269.1. Credit for other taxes paid in calculating taxes due.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within this state or in a tax jurisdiction outside this state, the tax may be credited against the tax authorized to be imposed by this part upon the same property. If the amount of sales or use tax so paid is less than the amount of the tax due under this part, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this part. The commissioner may require such proof of payment in another local tax jurisdiction as he or she deems necessary and proper. No credit shall be granted, however, against the tax under this part for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the county or in a special district which includes the county.

(Code 1981, § 48-8-269.1 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" throughout this Code section.

48-8-269.2. Delivery outside of geographical area.

No tax shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the special district in which the tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier.

(Code 1981, § 48-8-269.2 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 179, § 6/HB 134.)

The 2017 amendment, effective May 1, 2017, substituted "special district" for "county" near the middle of this Code section.

Editor's notes. - Ga. L. 2016, p. 105, § 2-1/SB 369, effective April 26, 2016, reenacted this Code section without change.

48-8-269.3. Commissioner's authority to promulgate rules and regulations.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax.

(Code 1981, § 48-8-269.3 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369.)

Editor's notes. - Ga. L. 2016, p. 105, § 2-1/SB 369, effective April 26, 2016, reenacted this Code section without change.

48-8-269.4. Impact on other taxes.

Except as provided in Code Section 48-8-6, the tax authorized under this part shall be in addition to any other local sales and use tax. Except as otherwise provided in this part and except as provided in Code Section 48-8-6, the imposition of any other local sales and use tax within a county or qualified municipality within a special district shall not affect the authority of a county to impose the tax authorized under this part, and the imposition of the tax authorized under this part shall not affect the imposition of any otherwise authorized local sales and use tax within the special district.

(Code 1981, § 48-8-269.4 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" throughout this Code section.

48-8-269.5. Accounting required; record-keeping requirements.

    1. The proceeds received from the tax shall be used by the county and qualified municipalities within the special district exclusively for the transportation purposes specified in the resolution calling for imposition of the tax. Such proceeds shall be kept in a separate account from other funds of any county or qualified municipality receiving proceeds of the tax and shall not in any manner be commingled with other funds of any county or qualified municipality prior to the expenditure.
    2. The governing authority of each county and the governing authority of each qualified municipality receiving any proceeds from the tax under this part shall maintain a record of each and every purpose for which the proceeds of the tax are used. A schedule shall be included in each annual audit which shows for each purpose in the resolution calling for imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The auditor shall verify and test expenditures sufficient to provide assurances that the schedule is fairly presented in relation to the financial statements. The auditor's report on the financial statements shall include an opinion, or disclaimer of opinion, as to whether the schedule is presented fairly in all material respects in relation to the financial statements taken as a whole.
  2. No general obligation debt shall be issued in conjunction with the imposition of the tax unless the county or qualified municipality governing authority determines that, and if the debt is to be validated it is demonstrated in the validation proceedings that, during each year in which any payment of principal or interest on the debt comes due, the county or qualified municipality will receive from the tax net proceeds sufficient to fully satisfy such liability. General obligation debt issued under this part shall be payable first from the separate account in which are placed the proceeds received by the county or qualified municipality from the tax. Such debt, however, shall constitute a pledge of the full faith, credit, and taxing power of the county or qualified municipality; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the county or qualified municipality.
  3. The intergovernmental agreement, if applicable, and resolution calling for the imposition of the tax may specify that all of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax, and, in that event, such proceeds shall be solely for such purpose except as otherwise provided in subsection (f) of this Code section.
  4. The intergovernmental agreement, if applicable, and resolution calling for the imposition of the tax may specify that a part of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. The intergovernmental agreement, if applicable, and resolution shall specifically state the other purposes for which such proceeds will be used. In such a case, no part of the net proceeds from the tax received in any year shall be used for such other purposes until all debt service requirements of the general obligation debt for that year have first been satisfied from the account in which the proceeds of the tax are placed.
  5. The resolution calling for the imposition of the tax may specify that no general obligation debt is to be issued in conjunction with the imposition of the tax. The intergovernmental agreement, if applicable, and resolution shall specifically state the purpose or purposes for which the proceeds will be used.
      1. If the proceeds of the tax are specified to be used solely for the purpose of payment of general obligation debt issued in conjunction with the imposition of the tax, then any net proceeds of the tax in excess of the amount required for final payment of such debt shall be subject to and applied as provided in paragraph (2) of this subsection.
      2. If the special district receives from the tax net proceeds in excess of the maximum cost of the transportation projects and purposes stated in the resolution calling for the imposition of the tax or in excess of the actual cost of such projects and purposes, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection unless otherwise specified in the intergovernmental agreement, if applicable.
      3. If the tax is terminated under paragraph (1) of subsection (b) of Code Section 48-8-264 by reason of denial of validation of debt, then all net proceeds received by the special district from the tax shall be excess proceeds subject to paragraph (2) of this subsection.
    2. Excess proceeds subject to this subsection shall be used solely for the purpose of reducing any indebtedness of any county or qualified municipality within the special district other than indebtedness incurred pursuant to this part. If there is no such other indebtedness or if the excess proceeds exceed the amount of any such other indebtedness, then the excess proceeds shall next be paid into the general fund of such county or qualified municipality, it being the intent that any funds so paid into the general fund of such county or qualified municipality be used for the purpose of reducing ad valorem taxes. (Code 1981, § 48-8-269.5 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 179, § 7/HB 134.)

The 2016 amendment, effective April 26, 2016, substituted "part" for "article" throughout this Code section.

The 2017 amendment, effective May 1, 2017, substituted "county or qualified municipality" for "county" throughout subsection (b).

48-8-269.6. Annual publication of report.

Not later than December 31 of each year, the governing authority of each county and each qualified municipality receiving any proceeds from the tax under this part shall publish annually, in a newspaper of general circulation in the boundaries of such county or municipality, a simple, nontechnical report which shows for each purpose in the resolution calling for the imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The report shall also include a statement of what corrective action the county or qualified municipality intends to implement with respect to each purpose which is underfunded or behind schedule and a statement of any surplus funds which have not been expended for a purpose.

(Code 1981, § 48-8-269.6 , enacted by Ga. L. 2015, p. 236, § 7-5/HB 170; Ga. L. 2015, p. 1443, § 2/HB 106; Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2016, p. 864, § 48/HB 737.)

The 2016 amendments. The first 2016 amendment, effective April 26, 2016, in the first sentence, substituted "qualified" for "qualifying" and substituted "part" for "article". The second 2016 amendment, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, substituted "qualified" for "qualifying" near the beginning of this Code section.

PART 2 M ETROPOLITAN COUNTY SPECIAL DISTRICTS

Effective date. - This part became effective April 26, 2016.

48-8-269.7. Levy of a tax for transportation purposes in metropolitan county special districts.

  1. Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, 159 special districts are created within this state. The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of the 159 special districts created.
  2. The provisions of this part shall only be applicable to special districts in which:
    1. A tax is currently being levied and collected pursuant to a local constitutional amendment for purposes of a metropolitan area system of public transportation set out at Ga. L. 1964, p. 1008, and the laws enacted pursuant to such local constitutional amendment; and
    2. Eighty percent or more of the geographic area of the special district is located within one or more qualified municipalities as defined in paragraph (4) of Code Section 48-8-260.
  3. Any special district in this state meeting the qualifications contained in subsection (b) of this Code section shall be known as a metropolitan county special district. (Code 1981, § 48-8-269.7 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

48-8-269.8. Part of metropolitan county special district outside boundaries of metropolitan municipality special district.

  1. After July 1, 2016, any part of a metropolitan county special district that is outside the boundaries of a metropolitan municipality special district, as provided for in Code Section 48-8-269.22, may, by following the procedures required by this part, impose for a limited period of time within such part of the metropolitan county special district a transportation special purpose local option sales and use tax, the proceeds of which shall be used only for transportation purposes.
  2. Prior to the issuance of the call for the referendum required by Code Section 48-8-269.9, the governing authority of the county in which the part of a metropolitan county special district that desires to levy a tax under this part is located shall deliver or mail a written notice to the mayor or chief elected official in each qualified municipality located within such part of the metropolitan county special district. Such notice shall contain the date, time, place, and purpose of a meeting at which the governing authority of such county and of each qualified municipality are to meet to discuss possible projects for inclusion in the referendum and the rate of tax. The notice shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 30 days prior to the issuance of the call for the referendum.
    1. Upon approval of the qualified municipalities or county representing at least 60 percent of the population of the part of the metropolitan county special district not within the boundaries of a metropolitan municipality special district, the governing authority of the county, unless there is a vote against the resolution by a majority plus one of the members of such governing authority of the county, shall sign a resolution offered for such purpose and shall submit the list of transportation purposes, as approved by the qualified municipalities or county representing at least 60 percent of the population of the part of the metropolitan county special district and the question of whether the tax should be approved to electors of the part of the metropolitan county special district not within the boundaries of a metropolitan municipality special district in the next scheduled election and shall notify the county election superintendent by forwarding to the superintendent a copy of such resolution calling for the imposition of the tax. Such list, or a digest thereof, shall be available during regular business hours in the office of the county clerk and in the offices of the governing authorities of the qualified municipalities participating in the election.
    2. The resolution authorized by paragraph (1) of this subsection shall describe:
      1. The specific transportation purposes to be funded;
      2. The approximate cost of such transportation purposes, which shall also be the maximum amount of net proceeds to be raised by the tax;
      3. The maximum period of time, to be stated in calendar years, for which the tax may be imposed and the rate thereof. The maximum period of time for the imposition of the tax shall not exceed five years; and
      4. A list of the projects and purposes qualifying as transportation purposes proposed to be funded from the tax, including an expenditure of at least 30 percent of the estimated revenue from the tax on projects consistent with the state-wide strategic transportation plan as defined in paragraph (6) of subsection (a) of Code Section 32-2-22 . (Code 1981, § 48-8-269.8 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, "Code Section 48-8-269.22" was substituted for "Code Section 48-8-269.995" in subsection (a).

48-8-269.9. Ballot measure.

    1. The ballot submitting the question of the imposition of the tax to the voters within the part of the metropolitan county special district shall have written or printed thereon the following:      "( )   YES     Shall an additional ____ percent sales tax  be             collected in part of  ____________         ( ) NO     County ____________ for  ____________             years for the purpose of  transportation             improvements and congestion reduction?"
    2. If debt is to be issued, the ballot shall also have written or printed thereon, following the language specified by paragraph (1) of this subsection, the following:
  2. The election superintendent shall issue the call and conduct the election in the manner authorized by general law. The superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from county funds. All persons desiring to vote in favor of imposing the tax shall vote "Yes," and all persons opposed to imposing the tax shall vote "No." If more than one-half of the votes cast throughout the part of the metropolitan county special district are in favor of imposing the tax, then the tax shall be imposed as provided in this part.
  3. Where such question is not approved by the voters, the metropolitan county special district may resubmit such question from time to time upon compliance with the requirements of this part.
    1. If the proposal includes the authority to issue general obligation debt and if more than one-half of the votes cast are in favor of the proposal, then the authority to issue such debt in accordance with Article IX, Section V, Paragraph I of the Constitution is given to the proper officers of the county; otherwise, such debt shall not be issued. If the authority to issue such debt is so approved by the voters, then such debt may be issued without further approval by the voters.
    2. If the issuance of general obligation debt is included and approved as provided in this Code section, then the governing authority of the county may incur such debt either through the issuance and validation of general obligation bonds or through the execution of a promissory note or notes or other instrument or instruments. If such debt is incurred through the issuance of general obligation bonds, such bonds and their issuance and validation shall be subject to Articles 1 and 2 of Chapter 82 of Title 36 except as specifically provided otherwise in this part. If such debt is incurred through the execution of a promissory note or notes or other instrument or instruments, no validation proceedings shall be necessary, and such debt shall be subject to Code Sections 36-80-10 through 36-80-14 except as specifically provided otherwise in this part. In either event, such general obligation debt shall be payable first from the separate account in which are placed the proceeds received by the county from the tax. Such general obligation debt shall, however, constitute a pledge of the full faith, credit, and taxing power of the county; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the county. (Code 1981, § 48-8-269.9 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

"If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of ____________ County in the principal amount of $____________ for the above purpose."

48-8-269.10. Procedures, conditions, and limitations for imposition of tax.

    1. If the imposition of the tax is approved at the election, the tax shall be imposed on the first day of the next succeeding calendar quarter which begins more than 80 days after the date of the election at which the tax was approved by the voters.
    2. With respect to services which are regularly billed on a monthly basis, however, the resolution shall become effective with respect to and the tax shall apply to services billed on or after the effective date specified in paragraph (1) of this subsection.
  2. The tax shall cease to be imposed on the earliest of the following dates:
    1. If the resolution calling for the imposition of the tax provided for the issuance of general obligation debt and such debt is the subject of validation proceedings, as of the end of the first calendar quarter ending more than 80 days after the date on which a court of competent jurisdiction enters a final order denying validation of such debt;
    2. On the final day of the maximum period of time specified for the imposition of the tax; or
    3. As of the end of the calendar quarter during which the commissioner determines that the tax will have raised revenues sufficient to provide to the metropolitan county special district net proceeds equal to or greater than the amount specified as the maximum amount of net proceeds to be raised by the tax.
    1. At any time, no more than a single tax under this part shall be imposed within a metropolitan county special district. Any tax imposed under this part may be imposed at a rate of up to 0.75 percent. Any tax imposed under this part at a rate of less than 0.75 percent shall be in an increment of 0.05 percent.
    2. In any metropolitan county special district in which a tax is currently being levied and collected pursuant to a local constitutional amendment for purposes of a metropolitan area system of public transportation set out at Ga. L. 1964, p. 1008, and the laws enacted pursuant to such local constitutional amendment, and such tax is levied at a percentage over 1 percent, then the combined amount of the percentage over 1 percent of such tax and the tax levied pursuant to this part shall not exceed 1 percent.
    3. In any metropolitan county special district in which a tax is in effect under this part, proceedings may be commenced, while the tax is in effect, calling for the reimposition of the tax upon the termination of the tax then in effect; and an election may be held at the next scheduled election for this purpose while the tax is in effect. Such proceedings for the reimposition of a tax under this part shall be in the same manner as proceedings for the initial imposition of the tax, but the newly authorized tax shall not be imposed until the expiration of the tax then in effect.
    4. Following the expiration of a tax under this part, proceedings for the reimposition of a tax under this part may be initiated in the same manner as provided in this part for initial imposition of such tax. (Code 1981, § 48-8-269.10 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language throughout paragraph (c)(1).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.91, was redesignated as Code Section 48-8-269.10.

48-8-269.11. Administration and collection by commissioner.

A tax levied pursuant to this part shall be exclusively administered and collected by the commissioner for the use and benefit of the county and qualified municipalities within the part of the metropolitan county special district imposing the tax. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state; and provided, further, that the commissioner may rely upon a representation by or on behalf of the metropolitan county special district or the Secretary of State that such a tax has been validly imposed, and the commissioner and the commissioner's agents shall not be liable to any person for collecting any such tax which was not validly imposed. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Code 1981, § 48-8-269.11 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.92, was redesignated as Code Section 48-8-269.11.

48-8-269.12. Remission of taxes collected; location of each retail establishment.

Each sales tax return remitting taxes collected under this part shall separately identify the location of each retail establishment at which any of the taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all taxes imposed by this part are collected and distributed according to situs of sale.

(Code 1981, § 48-8-269.12 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.93, was redesignated as Code Section 48-8-269.12.

48-8-269.13. Disbursement of proceeds.

The proceeds of the tax collected by the commissioner in each metropolitan county special district under this part shall be disbursed as soon as practicable after collection as follows:

  1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
  2. Except for the percentage provided in paragraph (1) of this Code section, the remaining proceeds of the tax shall be distributed pursuant to the terms of an intergovernmental agreement. (Code 1981, § 48-8-269.13 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.94, was redesignated as Code Section 48-8-269.13.

48-8-269.14. Allocation or balancing of state and federal funds.

  1. The proceeds of a tax under this part shall not be subject to any allocation or balancing of state and federal funds provided for by general law, and such proceeds shall not be considered or taken into account in any such allocation or balancing.
  2. The approval of the tax under this part shall not in any way diminish the percentage of state or federal funds allocated to any of the local governments under Code Section 32-5-27 within the metropolitan county special district levying the tax. The amount of state or federal funds expended in the county or any qualified municipality within the metropolitan county special district shall not be decreased or diverted due to the use of proceeds from the tax levied under this part for transportation purposes that have a high priority in the state-wide strategic transportation plan. (Code 1981, § 48-8-269.14 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.95, was redesignated as Code Section 48-8-269.14.

48-8-269.15. Tax imposed.

  1. Except as to rate, a tax imposed under this part shall correspond to the tax imposed by Article 1 of this chapter. No item or transaction which is not subject to taxation under Article 1 of this chapter shall be subject to a tax imposed under this part, and a tax imposed under this part shall not apply to:
    1. The sale or use of any type of fuel used for off-road heavy-duty equipment, off-road farm or agricultural equipment, or locomotives;
    2. The sale or use of jet fuel as such term is defined in Code Section 48-8-2, except to the extent allowed pursuant to Code Section 48-8-3.5;
    3. The sale or use of fuel that is used for propulsion of motor vehicles on the public highways;
    4. The sale or use of energy used in the manufacturing or processing of tangible goods primarily for resale;
    5. The sale or use of motor fuel as defined under paragraph (9) of Code Section 48-9-2 for public mass transit; or
    6. The purchase or lease of any motor vehicle pursuant to Code Section 48-5C-1.
  2. Except as otherwise specifically provided in this part, the tax imposed pursuant to this part shall be subject to any sales and use tax exemption which is otherwise imposed by law; provided, however, that the tax levied by this part shall be applicable to the sale of food and food ingredients as provided for in paragraph (57) of Code Section 48-8-3 . (Code 1981, § 48-8-269.15 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-8/HB 5EX.)

The 2018 Ex. Sess. amendment, effective December 1, 2018, in subsection (a), substituted "and a tax imposed" for "except that a tax imposed" near the end of the introductory paragraph, and rewrote paragraph (a)(2), which read: "The sale or use of jet fuel to or by a qualifying airline at a qualifying airport;".

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.96, was redesignated as Code Section 48-8-269.15.

48-8-269.16. Credit for taxes paid in another tax jurisdiction.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within this state or in a tax jurisdiction outside this state, the tax may be credited against the tax authorized to be imposed by this part upon the same property. If the amount of sales or use tax so paid is less than the amount of the tax due under this part, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this part. The commissioner may require such proof of payment in another local tax jurisdiction as he or she deems necessary and proper. No credit shall be granted, however, against the tax under this part for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the metropolitan county special district.

(Code 1981, § 48-8-269.16 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.97, was redesignated as Code Section 48-8-269.16.

48-8-269.17. No tax upon sale of tangible personal property ordered and delivered outside tax jurisdiction under certain conditions.

No tax shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the county in which the tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier.

(Code 1981, § 48-8-269.17 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.98, was redesignated as Code Section 48-8-269.17.

48-8-269.18. Rules and regulations.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax.

(Code 1981, § 48-8-269.18 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.99, was redesignated as Code Section 48-8-269.18.

48-8-269.19. Tax authorized in addition to other local sales and use taxes.

Except as provided in Code Section 48-8-6, the tax authorized under this part shall be in addition to any other local sales and use tax. Except as otherwise provided in this part and except as provided in Code Section 48-8-6, the imposition of any other local sales and use tax within a county or qualified municipality within a metropolitan county special district shall not affect the authority of a metropolitan county special district to impose the tax authorized under this part, and the imposition of the tax authorized under this part shall not affect the imposition of any otherwise authorized local sales and use tax within the metropolitan county special district.

(Code 1981, § 48-8-269.19 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.991, was redesignated as Code Section 48-8-269.19.

48-8-269.20. Proceeds to be used exclusively for transportation purposes; general obligation debt; intergovernmental agreement; resolution.

    1. The proceeds received from the tax shall be used by the county and qualified municipalities within the part of the metropolitan county special district levying the tax exclusively for the transportation purposes specified in the resolution calling for imposition of the tax. Such proceeds shall be kept in a separate account from other funds of any county or qualified municipality receiving proceeds of the tax and shall not in any manner be commingled with other funds of any county or qualified municipality prior to the expenditure.
    2. The governing authority of each county and the governing authority of each qualified municipality receiving any proceeds from the tax under this part shall maintain a record of each and every purpose for which the proceeds of the tax are used. A schedule shall be included in each annual audit which shows for each purpose in the resolution calling for imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The auditor shall verify and test expenditures sufficient to provide assurances that the schedule is fairly presented in relation to the financial statements. The auditor's report on the financial statements shall include an opinion, or disclaimer of opinion, as to whether the schedule is presented fairly in all material respects in relation to the financial statements taken as a whole.
  2. No general obligation debt shall be issued in conjunction with the imposition of the tax unless the county governing authority determines that, and if the debt is to be validated it is demonstrated in the validation proceedings that, during each year in which any payment of principal or interest on the debt comes due, the county will receive from the tax net proceeds sufficient to fully satisfy such liability. General obligation debt issued under this part shall be payable first from the separate account in which are placed the proceeds received by the county from the tax. Such debt, however, shall constitute a pledge of the full faith, credit, and taxing power of the county; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the county.
  3. The intergovernmental agreement, if applicable, and resolution calling for the imposition of the tax may specify that all of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax, and, in that event, such proceeds shall be solely for such purpose except as otherwise provided in subsection (f) of this Code section.
  4. The intergovernmental agreement, if applicable, and resolution calling for the imposition of the tax may specify that a part of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. The intergovernmental agreement, if applicable, and resolution shall specifically state the other purposes for which such proceeds will be used. In such a case, no part of the net proceeds from the tax received in any year shall be used for such other purposes until all debt service requirements of the general obligation debt for that year have first been satisfied from the account in which the proceeds of the tax are placed.
  5. The resolution calling for the imposition of the tax may specify that no general obligation debt is to be issued in conjunction with the imposition of the tax. The intergovernmental agreement, if applicable, and resolution shall specifically state the purpose or purposes for which the proceeds will be used.
      1. If the proceeds of the tax are specified to be used solely for the purpose of payment of general obligation debt issued in conjunction with the imposition of the tax, then any net proceeds of the tax in excess of the amount required for final payment of such debt shall be subject to and applied as provided in paragraph (2) of this subsection.
      2. If the metropolitan county special district receives from the tax net proceeds in excess of the maximum cost of the transportation projects and purposes stated in the resolution calling for the imposition of the tax or in excess of the actual cost of such projects and purposes, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection unless otherwise specified in the intergovernmental agreement, if applicable.
      3. If the tax is terminated under paragraph (1) of subsection (b) of Code Section 48-8-269.10 by reason of denial of validation of debt, then all net proceeds received by the special district from the tax shall be excess proceeds subject to paragraph (2) of this subsection.
    2. Excess proceeds subject to this subsection shall be used solely for the purpose of reducing any indebtedness of any county or qualified municipality within the metropolitan county special district other than indebtedness incurred pursuant to this part. If there is no such other indebtedness or if the excess proceeds exceed the amount of any such other indebtedness, then the excess proceeds shall next be paid into the general fund of such county or qualified municipality, it being the intent that any funds so paid into the general fund of such county or qualified municipality be used for the purpose of reducing ad valorem taxes. (Code 1981, § 48-8-269.20 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.992, was redesignated as Code Section 48-8-269.20, and in subparagraph (f)(1)(C), "Code Section 48-8-269.10" was substituted for "Code Section 48-8-269.91".

48-8-269.21. Publication of nontechnical report showing costs and expenditures for each purpose for which tax imposed.

Not later than December 31 of each year, the governing authority of the county and each qualified municipality receiving any proceeds from the tax under this part shall publish annually, in a newspaper of general circulation in the boundaries of such metropolitan county special district, a simple, nontechnical report which shows for each purpose in the resolution calling for the imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The report shall also include a statement of what corrective action the metropolitan county special district intends to implement with respect to each purpose which is underfunded or behind schedule and a statement of any surplus funds which have not been expended for a purpose.

(Code 1981, § 48-8-269.21 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.993, was redesignated as Code Section 48-8-269.21.

PART 3 M ETROPOLITAN MUNICIPALITY SPECIAL DISTRICTS

Effective date. - This part became effective April 26, 2016.

48-8-269.22. Creation of 159 special districts conterminous with geographical boundary of each county; applicability.

  1. Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, 159 special districts are created within this state. The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of the 159 special districts created.
  2. The provisions of this part shall only be applicable to special districts in which:
    1. A tax is currently being levied and collected by a municipality that is specifically authorized to levy such tax pursuant to a local constitutional amendment for purposes of a metropolitan area system of public transportation set out at Ga. L. 1964, p. 1008, and the laws enacted pursuant to such local constitutional amendment; and
    2. Such municipality contains within its boundaries 15 percent or more of the geographic area of a metropolitan county special district.
  3. The territory of any municipality in this state meeting the qualifications contained in subsection (b) of this Code section shall be a metropolitan municipality special district, the geographic boundary of which shall be conterminous with the geographic boundary of such municipality. (Code 1981, § 48-8-269.22 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised language in subsection (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.994, was redesignated as Code Section 48-8-269.22.

48-8-269.23. Transportation special purpose local option sales and use tax.

  1. After July 1, 2016, any metropolitan municipality special district may, by following the procedures required by this part, impose for a limited period of time within such metropolitan municipality special district a transportation special purpose local option sales and use tax, the proceeds of which shall be used only for transportation purposes.
    1. Prior to the issuance of the call for the referendum required by Code Section 48-8-269.24 , the governing authority of the metropolitan municipality special district that desires to levy a tax under this part shall by a majority vote on a resolution offered for such purpose approve the submission of a list of transportation purposes and the question of whether the tax should be approved to the governing authority of the county in which the metropolitan municipality special district is located. In the event a metropolitan municipality special district is located in more than one county, such resolution shall be forwarded to the governing authority of the county which contains the highest percentage of the geographic area of the metropolitan municipality special district. The governing authority of the county, unless there is a vote against the resolution by a majority plus one of the members of such governing authority of the county, shall sign a resolution offered for such purpose and shall notify the county election superintendent by forwarding to the superintendent a copy of such resolution calling for the imposition of the tax and for the proposal to be presented to the qualified voters in the metropolitan municipality special district at the next scheduled election. Such resolution, or a digest thereof, shall be available during regular business hours in the office of the county clerk and in the offices of the metropolitan municipality special district calling for the election.
    2. The resolution authorized by paragraph (1) of this subsection shall describe:
      1. The specific transportation purposes to be funded;
      2. The approximate cost of such transportation purposes, which shall also be the maximum amount of net proceeds to be raised by the tax;
      3. The maximum period of time, to be stated in calendar years, for which the tax may be imposed and the rate thereof. The maximum period of time for the imposition of the tax shall not exceed five years; and
      4. A list of the projects and purposes qualifying as transportation purposes proposed to be funded from the tax, including an expenditure of at least 30 percent of the estimated revenue from the tax on projects consistent with the state-wide strategic transportation plan as defined in paragraph (6) of subsection (a) of Code Section 32-2-22 . (Code 1981, § 48-8-269.23 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.995, was redesignated as Code Section 48-8-269.23, and in paragraph (b)(1), "Code Section 48-8-269.24" was substituted for "Code Section 48-8-269.996".

48-8-269.24. Ballot measure.

    1. The ballot submitting the question of the imposition of the tax to the voters within the metropolitan municipality special district shall have written or printed thereon the following:      "( )   YES     Shall an additional ________ percent sales tax  be             collected in the City of  ________________         ( ) NO     for ____________________________  years             for the purpose of  transportation             improvements and congestion reduction?"
    2. If debt is to be issued, the ballot shall also have written or printed thereon, following the language specified by paragraph (1) of this subsection, the following:

      "If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of ____________ the municipality in the principal amount of $____________ for the above purpose."

  2. The election superintendent shall issue the call and conduct the election in the manner authorized by general law. The superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from municipal funds. All persons desiring to vote in favor of imposing the tax shall vote "Yes," and all persons opposed to imposing the tax shall vote "No." If more than one-half of the votes cast throughout the metropolitan municipality special district are in favor of imposing the tax, then the tax shall be imposed as provided in this part.
  3. Where such question is not approved by the voters, the metropolitan municipality special district may resubmit such question from time to time upon compliance with the requirements of this part.
    1. If the proposal includes the authority to issue general obligation debt and if more than one-half of the votes cast are in favor of the proposal, then the authority to issue such debt in accordance with Article IX, Section V, Paragraph I of the Constitution is given to the proper officers of the municipality; otherwise, such debt shall not be issued. If the authority to issue such debt is so approved by the voters, then such debt may be issued without further approval by the voters.
    2. If the issuance of general obligation debt is included and approved as provided in this Code section, then the governing authority of the municipality may incur such debt either through the issuance and validation of general obligation bonds or through the execution of a promissory note or notes or other instrument or instruments. If such debt is incurred through the issuance of general obligation bonds, such bonds and their issuance and validation shall be subject to Articles 1 and 2 of Chapter 82 of Title 36 except as specifically provided otherwise in this part. If such debt is incurred through the execution of a promissory note or notes or other instrument or instruments, no validation proceedings shall be necessary, and such debt shall be subject to Code Sections 36-80-10 through 36-80-14 except as specifically provided otherwise in this part. In either event, such general obligation debt shall be payable first from the separate account in which are placed the proceeds received by the municipality from the tax. Such general obligation debt shall, however, constitute a pledge of the full faith, credit, and taxing power of the municipality; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the municipality. (Code 1981, § 48-8-269.24 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.996, was redesignated as Code Section 48-8-269.24.

48-8-269.25. Procedures, conditions, and limitations for imposition of tax.

    1. If the imposition of the tax is approved at the election, the tax shall be imposed on the first day of the next succeeding calendar quarter which begins more than 80 days after the date of the election at which the tax was approved by the voters.
    2. With respect to services which are regularly billed on a monthly basis, however, the resolution shall become effective with respect to and the tax shall apply to services billed on or after the effective date specified in paragraph (1) of this subsection.
  2. The tax shall cease to be imposed on the earliest of the following dates:
    1. If the resolution calling for the imposition of the tax provided for the issuance of general obligation debt and such debt is the subject of validation proceedings, as of the end of the first calendar quarter ending more than 80 days after the date on which a court of competent jurisdiction enters a final order denying validation of such debt;
    2. On the final day of the maximum period of time specified for the imposition of the tax; or
    3. As of the end of the calendar quarter during which the commissioner determines that the tax will have raised revenues sufficient to provide to the metropolitan municipality special district net proceeds equal to or greater than the amount specified as the maximum amount of net proceeds to be raised by the tax.
    1. At any time, no more than a single tax under this part shall be imposed within a metropolitan municipality special district. Any tax imposed under this part may be imposed at a rate of up to 0.75 percent. Any tax imposed under this part at a rate of less than 0.75 percent shall be in an increment of 0.05 percent.
    2. In any metropolitan municipality special district in which a tax is currently being levied and collected pursuant to a local constitutional amendment for purposes of a metropolitan area system of public transportation set out at Ga. L. 1964, p. 1008, and the laws enacted pursuant to such local constitutional amendment, and such tax is levied at a percentage over 1 percent, then the combined amount of the percentage over 1 percent of such tax and the tax levied pursuant to this part shall not exceed 1 percent.
    3. In any metropolitan municipality special district in which a tax is in effect under this part, proceedings may be commenced, while the tax is in effect, calling for the reimposition of the tax upon the termination of the tax then in effect; and an election may be held at the next scheduled election for this purpose while the tax is in effect. Such proceedings for the reimposition of a tax under this part shall be in the same manner as proceedings for the initial imposition of the tax, but the newly authorized tax shall not be imposed until the expiration of the tax then in effect.
    4. Following the expiration of a tax under this part, proceedings for the reimposition of a tax under this part may be initiated in the same manner as provided in this part for initial imposition of such tax. (Code 1981, § 48-8-269.25 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 7, 2017, part of an Act to revise, modernize, and correct the Code, revised language throughout paragraph (c)(1), and revised punctuation at the end of paragraph (c)(2).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.997, was redesignated as Code Section 48-8-269.25.

48-8-269.26. Administration and collection by commissioner.

A tax levied pursuant to this part shall be exclusively administered and collected by the commissioner for the use and benefit of the metropolitan municipal special district imposing the tax. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state; and provided, further, that the commissioner may rely upon a representation by or on behalf of the metropolitan municipal special district or the Secretary of State that such a tax has been validly imposed, and the commissioner and the commissioner's agents shall not be liable to any person for collecting any such tax which was not validly imposed. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Code 1981, § 48-8-269.26 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.998, was redesignated as Code Section 48-8-269.26.

48-8-269.27. Remission of taxes collected; location of each retail establishment.

Each sales tax return remitting taxes collected under this part shall separately identify the location of each retail establishment at which any of the taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each establishment for the period covered by the return in order to facilitate the determination by the commissioner that all taxes imposed by this part are collected and distributed according to situs of sale.

(Code 1981, § 48-8-269.27 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.999, was redesignated as Code Section 48-8-269.27.

48-8-269.28. Disbursement of tax proceeds.

The proceeds of the tax collected by the commissioner in each metropolitan municipality special district under this part shall be disbursed as soon as practicable after collection; provided, however, that 1 percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration.

(Code 1981, § 48-8-269.28 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9991, was redesignated as Code Section 48-8-269.28.

48-8-269.29. Allocation or balancing of state and federal funds.

  1. The proceeds of a tax under this part shall not be subject to any allocation or balancing of state and federal funds provided for by general law, and such proceeds shall not be considered or taken into account in any such allocation or balancing.
  2. The approval of the tax under this part shall not in any way diminish the percentage of state or federal funds allocated to any municipality under Code Section 32-5-27 . The amount of state or federal funds expended in the metropolitan municipality special district shall not be decreased or diverted due to the use of proceeds from the tax levied under this part for transportation purposes that have a high priority in the state-wide strategic transportation plan. (Code 1981, § 48-8-269.29 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9992, was redesignated as Code Section 48-8-269.29.

48-8-269.30. Tax imposed.

  1. Except as to rate, a tax imposed under this part shall correspond to the tax imposed by Article 1 of this chapter. No item or transaction which is not subject to taxation under Article 1 of this chapter shall be subject to a tax imposed under this part, and a tax imposed under this part shall not apply to:
    1. The sale or use of any type of fuel used for off-road heavy-duty equipment, off-road farm or agricultural equipment, or locomotives;
    2. The sale or use of jet fuel as such term is defined in Code Section 48-8-2, except to the extent allowed pursuant to Code Section 48-8-3.5;
    3. The sale or use of fuel that is used for propulsion of motor vehicles on the public highways;
    4. The sale or use of energy used in the manufacturing or processing of tangible goods primarily for resale;
    5. The sale or use of motor fuel as defined under paragraph (9) of Code Section 48-9-2 for public mass transit; or
    6. The purchase or lease of any motor vehicle pursuant to Code Section 48-5C-1.
  2. Except as otherwise specifically provided in this part, the tax imposed pursuant to this part shall be subject to any sales and use tax exemption which is otherwise imposed by law; provided, however, that the tax levied by this part shall be applicable to the sale of food and food ingredients as provided for in paragraph (57) of Code Section 48-8-3 . (Code 1981, § 48-8-269.30 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369; Ga. L. 2018, Ex. Sess., p. HB5EX, § 3-9/HB 5EX.)

The 2018 Ex. Sess. amendment, effective December 1, 2018, in subsection (a), substituted "and a tax imposed" for "except that a tax imposed" near the end of the introductory paragraph, and rewrote paragraph (a)(2), which read: "The sale or use of jet fuel to or by a qualifying airline at a qualifying airport;".

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9993, was redesignated as Code Section 48-8-269.30.

48-8-269.31. Credit for taxes paid in another tax jurisdiction.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within this state or in a tax jurisdiction outside this state, the tax may be credited against the tax authorized to be imposed by this part upon the same property. If the amount of sales or use tax so paid is less than the amount of the tax due under this part, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this part. The commissioner may require such proof of payment in another local tax jurisdiction as he or she deems necessary and proper. No credit shall be granted, however, against the tax under this part for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the county or in a metropolitan municipality special district which includes the county.

(Code 1981, § 48-8-269.31 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9994, was redesignated as Code Section 48-8-269.31.

48-8-269.32. No tax upon sale of tangible personal property ordered and delivered outside tax jurisdiction under certain conditions.

No tax shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the metropolitan county special district in which the tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier.

(Code 1981, § 48-8-269.32 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9995, was redesignated as Code Section 48-8-269.32.

48-8-269.33. Rules and regulations.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax.

(Code 1981, § 48-8-269.33 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9996, was redesignated as Code Section 48-8-269.33.

48-8-269.34. Tax authorized in addition to other local sales and use taxes.

Except as provided in Code Section 48-8-6, the tax authorized under this part shall be in addition to any other local sales and use tax. Except as otherwise provided in this part and except as provided in Code Section 48-8-6, the imposition of any other local sales and use tax within a metropolitan municipality special district shall not affect the imposition of any otherwise authorized local sales and use tax within the metropolitan municipality special district.

(Code 1981, § 48-8-269.34 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9997, was redesignated as Code Section 48-8-269.34.

48-8-269.35. Proceeds to be used exclusively for transportation purposes; general obligation debt; resolution.

    1. The proceeds received from the tax shall be used by the metropolitan municipality special district levying the tax exclusively for the transportation purposes specified in the resolution calling for imposition of the tax. Such proceeds shall be kept in a separate account from other funds of the municipality receiving proceeds of the tax and shall not in any manner be commingled with other funds.
    2. The governing authority of any municipality receiving any proceeds from the tax under this part shall maintain a record of each and every purpose for which the proceeds of the tax are used. A schedule shall be included in each annual audit which shows for each purpose in the resolution calling for imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The auditor shall verify and test expenditures sufficient to provide assurances that the schedule is fairly presented in relation to the financial statements. The auditor's report on the financial statements shall include an opinion, or disclaimer of opinion, as to whether the schedule is presented fairly in all material respects in relation to the financial statements taken as a whole.
  2. No general obligation debt shall be issued in conjunction with the imposition of the tax unless the municipal governing authority determines that, and if the debt is to be validated it is demonstrated in the validation proceedings that, during each year in which any payment of principal or interest on the debt comes due, the municipality will receive from the tax net proceeds sufficient to fully satisfy such liability. General obligation debt issued under this part shall be payable first from the separate account in which are placed the proceeds received by the municipality from the tax. Such debt, however, shall constitute a pledge of the full faith, credit, and taxing power of the municipality; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the municipality.
  3. The resolution calling for the imposition of the tax may specify that all of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax, and, in that event, such proceeds shall be solely for such purpose except as otherwise provided in subsection (f) of this Code section.
  4. The resolution calling for the imposition of the tax may specify that a part of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. The resolution shall specifically state the other purposes for which such proceeds will be used. In such a case, no part of the net proceeds from the tax received in any year shall be used for such other purposes until all debt service requirements of the general obligation debt for that year have first been satisfied from the account in which the proceeds of the tax are placed.
  5. The resolution calling for the imposition of the tax may specify that no general obligation debt is to be issued in conjunction with the imposition of the tax. The resolution shall specifically state the purpose or purposes for which the proceeds will be used.
      1. If the proceeds of the tax are specified to be used solely for the purpose of payment of general obligation debt issued in conjunction with the imposition of the tax, then any net proceeds of the tax in excess of the amount required for final payment of such debt shall be subject to and applied as provided in paragraph (2) of this subsection.
      2. If the metropolitan municipality special district receives from the tax net proceeds in excess of the maximum cost of the transportation projects and purposes stated in the resolution calling for the imposition of the tax or in excess of the actual cost of such projects and purposes, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection.
      3. If the tax is terminated under paragraph (1) of subsection (b) of Code Section 48-8-269.25 by reason of denial of validation of debt, then all net proceeds received by the metropolitan municipality special district from the tax shall be excess proceeds subject to paragraph (2) of this subsection.
    2. Excess proceeds subject to this subsection shall be used solely for the purpose of reducing any indebtedness of the metropolitan municipality special district other than indebtedness incurred pursuant to this part. If there is no such other indebtedness or if the excess proceeds exceed the amount of any such other indebtedness, then the excess proceeds shall next be paid into the general fund of such municipality, it being the intent that any funds so paid into the general fund of such municipality be used for the purpose of reducing ad valorem taxes. (Code 1981, § 48-8-269.35 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9998, was redesignated as Code Section 48-8-269.35, and in subparagraph (f)(1)(C), "Code Section 48-8-269.25" was substituted for "Code Section 48-8-269.997".

48-8-269.36. Publication of nontechnical report showing costs and expenditures for each purpose for which tax imposed.

Not later than December 31 of each year, the governing authority of the municipality receiving any proceeds from the tax under this part shall publish annually, in a newspaper of general circulation in the boundaries of such municipality, a simple, nontechnical report which shows for each purpose in the resolution calling for the imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The report shall also include a statement of what corrective action the municipality intends to implement with respect to each purpose which is underfunded or behind schedule and a statement of any surplus funds which have not been expended for a purpose.

(Code 1981, § 48-8-269.36 , enacted by Ga. L. 2016, p. 105, § 2-1/SB 369.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2016, this Code section, enacted as Code Section 48-8-269.9999, was redesignated as Code Section 48-8-269.36.

ARTICLE 5B SPECIAL DISTRICTS FOR TRANSIT PURPOSES (TRANSIT SPLOST)

Effective date. - This article becomes effective January 1, 2019. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. 377, § 5-1(c)/HB 930, not codified by the General Assembly, provides, in part, that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act becomes effective January 1, 2019.

PART 1 G ENERAL PROVISIONS

48-8-269.40. (Effective January 1, 2019) Definitions.

As used in this article, the term:

  1. "Authority" means the Atlanta-region Transit Link "ATL" Authority created pursuant to Chapter 39 of Title 50.
  2. "County" means any county created under the Constitution or laws of this state.
  3. "Dealer" shall have the same meaning as provided for in paragraph (8) of Code Section 48-8-2.
  4. "Intergovernmental agreement" means a contract entered into pursuant to Article IX, Section III, Paragraph I of the Constitution.
  5. "Nonattainment area" means those counties currently having or previously designated as having excess levels of ozone, carbon monoxide, or particulate matter in violation of the standards in the federal Clean Air Act, as amended in 1990 and codified at 42 U.S.C.A. Sections 7401 to 7671q and which fall under the jurisdiction exercised by the Atlanta-region Transit Link "ATL" Authority or any predecessor authority as described in Article 2 of Chapter 39 of Title 50.
  6. "Qualified municipality" means a qualified municipality as defined in paragraph (4) of Code Section 48-8-110 and which is located wholly or partly within a special district.
  7. "Regional transit plan" means the official multiyear plan for transit services and facilities adopted pursuant to Code Section 50-39-12.
  8. "Transit" means regular, continuing shared-ride or shared-use surface transportation services that are made available by a public entity and are open to the general public or open to a segment of the general public defined by age, disability, or low income. Such term includes services or systems operated by or under contract with the state, a public agency or authority, a county or municipality, a community improvement district, or any other similar public entity of this state and all accompanying infrastructure and services necessary to provide access to these modes of transportation. Such term excludes charter or sightseeing services, school bus services, courtesy shuttle and intra-facility or terminal services, limousine carriers, and ride share network services, transportation referral services, and taxi services not paid for by a public entity.
  9. "Transit projects" means and includes purposes to establish, enhance, operate, and maintain, or improve access to transit, including general obligation debt and other multiyear obligations issued to finance such projects, the operations and maintenance of such projects once constructed, and the contracted purchase of transit services from providers without direct capital investment. (Code 1981, § 48-8-269.40 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.41. (Effective January 1, 2019) Transit special purpose local option sales and use tax.

  1. Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, 159 special districts are created within this state. The geographical boundary of each county shall correspond with and shall be conterminous with the geographical boundary of the 159 special districts created.
    1. Any two or more neighboring counties which are not located within a nonattainment area may, by following the procedures required by Part 2 of this article, impose within their respective special districts a transit special purpose local option sales and use tax, the proceeds of which shall be used only for transit projects.
    2. Any county located in a nonattainment area may, by following the procedures required by Part 3 of this article, impose within the special district a transit special purpose local option sales and use tax, the proceeds of which shall be used only for transit projects. (Code 1981, § 48-8-269.41 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.42. (Effective January 1, 2019) Referendum on taxes; impact of passage of resolution.

Prior to the issuance of any call for the referendum by any county that desires to levy a tax for transit projects authorized under this article, the county shall determine whether the region has proposed a referendum on a tax under Article 5 of this chapter. This determination shall be based on whether, pursuant to paragraphs (2) and (3) of subsection (c) of Code Section 48-8-245, a majority of the governing authorities of counties within the region containing the county proposing the tax have passed resolutions calling for the levy of a tax under Article 5 of this chapter. If a majority of the governing authorities of the counties in the region have passed such a resolution, the county proposing a tax under this article shall postpone the referendum under this part until the regional referendum has been decided. No ballot shall propose a tax under this article and under Article 5 of this chapter at the same election.

(Code 1981, § 48-8-269.42 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

PART 2 N EIGHBORING COUNTIES AND SPECIAL DISTRICTS OUTSIDE NONATTAINMENT AREAS

48-8-269.43. (Effective January 1, 2019) Notice for the referendum; meeting; requirements for intergovernmental agreements; requirements for resolutions; unanimous approval.

  1. Any two or more neighboring counties qualified to levy a tax pursuant to paragraph (1) of subsection (b) of Code Section 48-8-269.41 shall deliver or mail a written notice to the mayor or chief elected official in each qualified municipality located within its respective special district prior to the issuance of the call for the referendum. Such notice shall contain the date, time, place, and purpose of a meeting at which the governing authorities of the counties and of each qualified municipality therein are to meet to discuss possible transit projects for inclusion in the referendum and the rate of tax. The notice shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 60 days prior to any issuance of the call for the referendum.
  2. At the meeting required by subsection (a) of this Code section, the two or more neighboring counties and all qualified municipalities therein may select transit projects to be funded by the proceeds of the tax authorized by this article. Each county planning to participate in the selected transit project or projects shall enter into intergovernmental agreements which shall include, at a minimum:
    1. A list of the transit projects proposed to be funded from the tax;
    2. An agreement identifying the operator of any transit projects proposed if such project or projects are services which require an operator;
    3. The estimated or projected dollar amounts allocated for each transit project from proceeds from the tax;
    4. The procedures for distributing proceeds from the tax to each county;
    5. A schedule for distributing proceeds from the tax to each county, which shall include the priority or order in which transit projects will be fully or partially funded;
    6. A provision that all transit projects included in the agreement shall be funded from proceeds from the tax except as otherwise agreed;
    7. A provision that proceeds from the tax shall be maintained in separate accounts and utilized exclusively for the specified purposes;
    8. Record-keeping and audit procedures necessary to carry out the purposes of this part; and
    9. Such other provisions as the counties choose to address.
    1. As soon as practicable after the meeting required in subsection (a) of this Code section and the execution of an intergovernmental agreement, the governing authority of each county calling for a referendum shall, by a majority vote on a resolution offered for such purpose, submit the list of transit projects and the question of whether the tax should be approved to electors of the special district in the next scheduled election and shall notify the county election superintendent within the special district by forwarding to the superintendent a copy of such resolution calling for the imposition of the tax. Such list, or a digest thereof, shall be available during regular business hours in the office of the county clerk.
    2. The resolution authorized by paragraph (1) of this subsection shall describe or identify:
      1. The specific transit projects to be funded;
      2. The approximate cost of such transit projects;
      3. The operator selected for any transit project or projects proposed if such project or projects are services which require an operator; and
      4. The maximum period of time, to be stated in calendar years, for which the tax may be imposed and the rate thereof. The maximum period of time for the imposition of the tax shall not exceed 30 years.
  4. Unless the referendum required in Code Section 48-8-269.44 is approved in each of the participating counties, the tax shall not be imposed. (Code 1981, § 48-8-269.43 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.44. (Effective January 1, 2019) Ballot language; conduct of election; impact of approval or rejection of question.

    1. The ballot submitting the question of the imposition of a tax for transit projects to the voters within the special district shall have written or printed thereon the following:                "(   ) YES  Shall a special ________ percent sales and use tax be imposed in the special district consisting of ____________ County for a period of time not to exceed ____________                 (   ) NO    and for the raising of funds for transit projects?"
    2. The ballot shall have written and printed thereon the following:
    3. If debt is to be issued, the ballot shall also have written or printed thereon, following the language specified by paragraph (1) of this subsection, the following:

      "If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of ____________ in the principal amount of $ __________ for the above purpose."

  2. The election superintendent shall issue the call and conduct the election in the manner authorized by general law. Each such election shall be governed, held, and conducted in accordance with the provisions of law from time to time governing the holding of special elections as provided in Code Section 21-2-540. The superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from county funds. All persons desiring to vote in favor of imposing the tax shall vote "Yes," and all persons opposed to imposing the tax shall vote "No." If more than one-half of the votes cast throughout the entire special district are in favor of imposing the tax in each of the special districts that have elected to hold the referendum, then the tax shall be imposed as provided in this article.
  3. Where such question is not approved by the voters, the county may resubmit such question from time to time upon compliance with the requirements of this article.
    1. If the intergovernmental agreement and proposal include the authority to issue general obligation debt and if more than one-half of the votes cast throughout the entire special district and in each of the special districts that have elected to hold the referendum are in favor of the proposal, then the authority to issue such debt in accordance with Article IX, Section V, Paragraph I of the Constitution is given to the proper officers of the county or qualified municipality; otherwise, such debt shall not be issued. If the authority to issue such debt is so approved by the voters as required in this subsection, then such debt may be issued without further approval by the voters.
    2. If the issuance of general obligation debt is included and approved as provided in this Code section, then the governing authority of the county may incur such debt either through the issuance and validation of general obligation bonds or through the execution of a promissory note or notes or other instrument or instruments. If such debt is incurred through the issuance of general obligation bonds, such bonds and their issuance and validation shall be subject to Articles 1 and 2 of Chapter 82 of Title 36 except as specifically provided otherwise in this article. If such debt is incurred through the execution of a promissory note or notes or other instrument or instruments, no validation proceedings shall be necessary, and such debt shall be subject to Code Sections 36-80-10 through 36-80-14 except as specifically provided otherwise in this article. In either event, such general obligation debt shall be payable first from the separate account in which are placed the proceeds received by the county from the tax. Such general obligation debt shall, however, constitute a pledge of the full faith, credit, and taxing power of the county; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the county. (Code 1981, § 48-8-269.44 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

"NOTICE TO ELECTORS: Unless the tax is approved in (list each county that has selected the project) for the transit projects, the tax shall not become effective."

PART 3 S PECIAL DISTRICTS WITHIN NONATTAINMENT AREAS

48-8-269.45. (Effective January 1, 2019) Notice to local officials; approval or denial of projects; requirements for resolution.

    1. Any county qualified to levy a tax pursuant to paragraph (2) of subsection (b) of Code Section 48-8-269.41 shall deliver or mail a written notice to the mayor or chief elected official in each qualified municipality located within the special district prior to the issuance of the call for the referendum. Such notice shall contain the date, time, place, and purpose of a meeting at which the governing authorities of the county and of each qualified municipality are to meet to discuss possible transit projects from the regional transit plan for inclusion in the referendum and the rate of tax. The notice shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 60 days prior to any issuance of the call for the referendum.
    2. At the meeting the county and all qualified municipalities may select transit projects for the county from the regional transit plan to be funded by the proceeds of the tax authorized by this article.
  2. Following the meeting required by subsection (a) of this Code section, the county shall deliver or mail a written notice to the authority of the intent to call for a referendum to impose the tax authorized by this article. Such notice shall include a list of transit projects located within such county chosen from the regional transit plan which the county intends to fund with proceeds from the tax authorized under this article and the proposed operator of any such transit projects if such project or projects are services which require an operator.
  3. Upon receipt of such notice from a county, the authority shall approve or deny any or all projects within a submitted transit project list and the proposed operator of any transit projects if such project or projects are services which require an operator. In making a determination upon whether to approve transit projects, the authority shall take into consideration any other transit projects the authority has approved for any neighboring counties, any transit projects in progress in any neighboring counties, and any additional federal or state funding that may be available for any projects. The authority shall make a determination and send notification to a county approving or denying the submitted transit projects and operators, if applicable, no later than 20 days from the receipt of such list.
    1. As soon as practicable after receipt of notice from the authority, the governing authority of the county desiring to call for a referendum shall, by a majority vote on a resolution offered for such purpose, submit the list of transit projects and the question of whether the tax should be approved to electors of the special district in the next scheduled election and shall notify the county election superintendent within the special district by forwarding to the superintendent a copy of such resolution calling for the imposition of the tax. Such list, or a digest thereof, shall be available during regular business hours in the office of the county clerk.
    2. The resolution authorized by paragraph (1) of this subsection shall describe or identify:
      1. The specific transit projects to be funded which shall have been selected from the regional transit plan and approved by the authority;
      2. The approximate cost of such transit projects;
      3. The operator selected for any transit project or projects proposed if such project or projects are services which require an operator; and
      4. The maximum period of time, to be stated in calendar years, for which the tax may be imposed and the rate thereof. The maximum period of time for the imposition of the tax shall not exceed 30 years. (Code 1981, § 48-8-269.45 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.46. (Effective January 1, 2019) Ballot form for imposition of tax for transit projects; conduct of election; impact of approval or rejection of question.

    1. The ballot submitting the question of the imposition of a tax for transit projects to the voters within the special district shall have written or printed thereon the following:                "(   ) YES  Shall a special ________ percent sales and use tax be imposed in the special district consisting of ____________ County for a period of time not to exceed                (   ) NO    ____________ and for the raising of funds for transit projects?"
    2. If debt is to be issued, the ballot shall also have written or printed thereon, following the language specified by paragraph (1) of this subsection, the following:

      "If imposition of the tax is approved by the voters, such vote shall also constitute approval of the issuance of general obligation debt of ____________ in the principal amount of $ __________ for the above purpose."

  2. The election superintendent shall issue the call and conduct the election in the manner authorized by general law. Each such election shall be governed, held, and conducted in accordance with the provisions of law from time to time governing the holding of special elections as provided in Code Section 21-2-540. The superintendent shall canvass the returns, declare the result of the election, and certify the result to the Secretary of State and to the commissioner. The expense of the election shall be paid from county funds. All persons desiring to vote in favor of imposing the tax shall vote "Yes," and all persons opposed to imposing the tax shall vote "No." If more than one-half of the votes cast throughout the entire special district are in favor of imposing the tax, then the tax shall be imposed as provided in this article.
  3. Where such question is not approved by the voters, the county may resubmit such question from time to time upon compliance with the requirements of this article.
    1. If the proposal includes the authority to issue general obligation debt and if more than one-half of the votes cast throughout the entire special district are in favor of the proposal, then the authority to issue such debt in accordance with Article IX, Section V, Paragraph I of the Constitution is given to the proper officers of the county; otherwise, such debt shall not be issued. If the authority to issue such debt is so approved by the voters, then such debt may be issued without further approval by the voters.
    2. If the issuance of general obligation debt is included and approved as provided in this Code section, then the governing authority of the county may incur such debt either through the issuance and validation of general obligation bonds or through the execution of a promissory note or notes or other instrument or instruments. If such debt is incurred through the issuance of general obligation bonds, such bonds and their issuance and validation shall be subject to Articles 1 and 2 of Chapter 82 of Title 36 except as specifically provided otherwise in this article. If such debt is incurred through the execution of a promissory note or notes or other instrument or instruments, no validation proceedings shall be necessary, and such debt shall be subject to Code Sections 36-80-10 through 36-80-14 except as specifically provided otherwise in this article. In either event, such general obligation debt shall be payable first from the separate account in which are placed the proceeds received by the county from the tax. Such general obligation debt shall, however, constitute a pledge of the full faith, credit, and taxing power of the county; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the county. (Code 1981, § 48-8-269.46 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

PART 4 P ROCEDURES FOR LEVY OF A TAX FOR TRANSIT PROJECTS

48-8-269.47. (Effective January 1, 2019) Tax rate; procedure for imposition of tax.

  1. Any tax approved under this article shall be at a rate of up to 1 percent and may be in increments of 0.05 percent.
    1. If the imposition of a tax under this article is approved at the election as provided for pursuant to this article, the tax shall be imposed on the first day of the next succeeding calendar quarter which begins more than 80 days after the date of the election at which the tax was approved by the voters.
    2. With respect to services which are regularly billed on a monthly basis, however, the resolution shall become effective with respect to and the tax shall apply to services billed on or after the effective date specified in paragraph (1) of this subsection.
  3. The tax shall cease to be imposed on the final day of the maximum period of time specified for the imposition of the tax.
  4. At any point in time within two years of the expiration date of a tax under this article, proceedings for the reimposition of a tax under this article may be initiated in the same manner as provided in this article for initial imposition of such tax. (Code 1981, § 48-8-269.47 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.48. (Effective January 1, 2019) Administration and collection of tax.

A tax levied pursuant to this article shall be exclusively administered and collected by the commissioner to be used within the special district or special districts imposing the tax for the transit projects specified in the resolution calling for the imposition of the tax. Such administration and collection shall be accomplished in the same manner and subject to the same applicable provisions, procedures, and penalties provided in Article 1 of this chapter; provided, however, that all moneys collected from each taxpayer by the commissioner shall be applied first to such taxpayer's liability for taxes owed the state; and provided, further, that the commissioner may rely upon a representation by or on behalf of the special district or the Secretary of State that such a tax has been validly imposed, and the commissioner and the commissioner's agents shall not be liable to any person for collecting any such tax which was not validly imposed. Dealers shall be allowed a percentage of the amount of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The deduction shall be at the rate and subject to the requirements specified under subsections (b) through (f) of Code Section 48-8-50.

(Code 1981, § 48-8-269.48 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.49. (Effective January 1, 2019) Sales tax return; requirements.

Each sales tax return remitting taxes collected under this article shall separately identify the location of each transaction at which any of the taxes remitted were collected and shall specify the amount of sales and the amount of taxes collected at each such location for the period covered by the return in order to facilitate the determination by the commissioner that all taxes imposed by this article are collected and distributed according to situs of sale.

(Code 1981, § 48-8-269.49 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.50. (Effective January 1, 2019) Disbursement of proceeds.

  1. The proceeds of the tax collected by the commissioner in each special district qualified to levy the tax under Part 2 of this article shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
    2. Except for the percentage provided in paragraph (1) of this subsection, the remaining proceeds of the tax shall be distributed pursuant to the terms of the intergovernmental agreement.
  2. The proceeds of the tax collected by the commissioner in each special district qualified to levy the tax under Part 3 of this article shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
    2. Except for the percentage provided in paragraph (1) of this subsection, the remaining proceeds of the tax shall be distributed to the special district for the transit projects specified in the resolution calling for the imposition of the tax. (Code 1981, § 48-8-269.50 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.51. (Effective January 1, 2019) Allocation or balancing of funds.

  1. The proceeds of a tax under this article shall not be subject to any allocation or balancing of state and federal funds provided for by general law, and such proceeds shall not be considered or taken into account in any such allocation or balancing.
  2. The approval of the tax under this article shall not in any way diminish the percentage of state or federal funds allocated to any of the local governments under Code Section 32-5-27 or Chapter 39 of Title 50 within the special district levying the tax. (Code 1981, § 48-8-269.51 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.52. (Effective January 1, 2019) Exemption from taxation.

  1. Except as to rate, a tax imposed under this article shall correspond to the tax imposed by Article 1 of this chapter. No item or transaction which is not subject to taxation under Article 1 of this chapter shall be subject to a tax imposed under this article, except that a tax imposed under this article shall not apply to:
    1. The sale or use of any type of fuel used for off-road heavy-duty equipment, off-road farm or agricultural equipment, or locomotives;
    2. The sale or use of jet fuel;
    3. The sale or use of fuel that is used for propulsion of motor vehicles on the public highways;
    4. The sale or use of energy used in the manufacturing or processing of tangible goods primarily for resale, as such sale or use is described in Code Section 48-8-3.2;
    5. The sale or use of motor fuel, as defined under paragraph (9) of Code Section 48-9-2, for public mass transit; or
    6. The purchase or lease of any motor vehicle pursuant to Code Section 48-5C-1.
  2. Except as otherwise specifically provided in this article, the tax imposed pursuant to this article shall be subject to any sales and use tax exemption which is otherwise imposed by law; provided, however, that the tax levied by this article shall be applicable to the sale of food and food ingredients as provided for in paragraph (57) of Code Section 48-8-3 . (Code 1981, § 48-8-269.52 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.53. (Effective January 1, 2019) Tax credits.

Where a local sales or use tax has been paid with respect to tangible personal property by the purchaser either in another local tax jurisdiction within this state or in a tax jurisdiction outside this state, the tax may be credited against the tax authorized to be imposed by this article upon the same property. If the amount of sales or use tax so paid is less than the amount of the tax due under this article, the purchaser shall pay an amount equal to the difference between the amount paid in the other tax jurisdiction and the amount due under this article. The commissioner may require such proof of payment in another local tax jurisdiction as he or she deems necessary and proper. No credit shall be granted, however, against the tax under this article for tax paid in another jurisdiction if the tax paid in such other jurisdiction is used to obtain a credit against any other local sales and use tax levied in the county or in a special district which includes the county.

(Code 1981, § 48-8-269.53 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.54. (Effective January 1, 2019) Purchases outside geographical area.

No tax shall be imposed upon the sale of tangible personal property which is ordered by and delivered to the purchaser at a point outside the geographical area of the special district in which the tax is imposed regardless of the point at which title passes, if the delivery is made by the seller's vehicle, United States mail, or common carrier or by private or contract carrier.

(Code 1981, § 48-8-269.54 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.55. (Effective January 1, 2019) Regulatory authority.

The commissioner shall have the power and authority to promulgate such rules and regulations as shall be necessary for the effective and efficient administration and enforcement of the collection of the tax.

(Code 1981, § 48-8-269.55 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.56. (Effective January 1, 2019) Provisions create additional tax.

Except as provided in Code Section 48-8-6, the tax authorized under this part shall be in addition to any other local sales and use tax. Except as otherwise provided in this article and except as provided in Code Section 48-8-6, the imposition of any other local sales and use tax within a county or qualified municipality within a special district shall not affect the authority of a county to impose the tax authorized under this article, and the imposition of the tax authorized under this article shall not affect the imposition of any otherwise authorized local sales and use tax within the special district.

(Code 1981, § 48-8-269.56 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.57. (Effective January 1, 2019) Exclusive use of tax proceeds; audits; payment of debt.

    1. The proceeds received from the tax shall be used by the special district or special districts exclusively for the transit projects specified in the resolution calling for imposition of the tax. When the proceeds are received by a special district authorized to levy the tax pursuant to Part 2 of this article, such proceeds shall be kept in a separate account from other funds of any county receiving proceeds of the tax and shall not in any manner be commingled with other funds of any county prior to the expenditure.
    2. The governing authority of each county receiving any proceeds from the tax under this article shall maintain a record of each and every purpose for which the proceeds of the tax are used. A schedule shall be included in each annual audit which shows for each purpose in the resolution calling for imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The auditor shall verify and test expenditures sufficient to provide assurances that the schedule is fairly presented in relation to the financial statements. The auditor's report on the financial statements shall include an opinion, or disclaimer of opinion, as to whether the schedule is presented fairly in all material respects in relation to the financial statements taken as a whole.
  2. No general obligation debt shall be issued in conjunction with the imposition of the tax unless the county governing authority determines that, and if the debt is to be validated it is demonstrated in the validation proceedings that, during each year in which any payment of principal or interest on the debt comes due, the county will receive from the tax net proceeds sufficient to fully satisfy such liability. General obligation debt issued under this article shall be payable first from the separate account in which are placed the proceeds received by the county from the tax. Such debt, however, shall constitute a pledge of the full faith, credit, and taxing power of the county; and any liability on such debt which is not satisfied from the proceeds of the tax shall be satisfied from the general funds of the county.
  3. The resolution calling for the imposition of the tax may specify that all of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax, and, in that event, such proceeds shall be solely for such purpose except as otherwise provided in subsection (f) of this Code section.
  4. The resolution calling for the imposition of the tax may specify that a part of the proceeds of the tax will be used for payment of general obligation debt issued in conjunction with the imposition of the tax. The resolution shall specifically state the other purposes for which such proceeds will be used. In such a case, no part of the net proceeds from the tax received in any year shall be used for such other purposes until all debt service requirements of the general obligation debt for that year have first been satisfied from the account in which the proceeds of the tax are placed.
  5. The resolution calling for the imposition of the tax may specify that no general obligation debt is to be issued in conjunction with the imposition of the tax. The resolution shall specifically state the purpose or purposes for which the proceeds will be used.
      1. (i)  If the proceeds of the tax are specified to be used solely for the purpose of payment of general obligation debt issued in conjunction with the imposition of the tax authorized to be levied pursuant to Part 2 of this article, then any net proceeds of the tax in excess of the amount required for final payment of such debt may be used for additional transit projects, provided that a subsequent intergovernmental agreement meeting the requirements set forth in subsection (b) of Code Section 48-8-269.43 has been entered into. If a subsequent intergovernmental agreement required by this division is not entered into, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection. (ii) If the proceeds of the tax are specified to be used solely for the purpose of payment of general obligation debt issued in conjunction with the imposition of the tax authorized to be levied pursuant to Part 3 of this article, then any net proceeds of the tax in excess of the amount required for final payment of such debt may be used for additional transit projects, provided that such projects are selected from the regional transit plan and approved by the authority. If approval from the authority regarding additional transit projects to be funded with any excess net proceeds is not obtained, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection.
        1. If the special district receives from the tax net proceeds in excess of the maximum cost of the transit projects stated in the resolution calling for the imposition of the tax or in excess of the actual cost of such projects when the tax was authorized to be levied pursuant to Part 2 of this article, then such excess proceeds may be used for additional transit projects, provided that a subsequent intergovernmental agreement meeting the requirements set forth in subsection (b) of Code Section 48-8-269.43 has been entered into. If a subsequent intergovernmental agreement required by this division is not entered into, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection.
        2. If the special district receives from the tax net proceeds in excess of the maximum cost of the transit projects stated in the resolution calling for the imposition of the tax or in excess of the actual cost of such projects when the tax was authorized to be levied pursuant to Part 3 of this article, then such excess proceeds may be used for additional transit projects, provided that such projects are selected from the regional transit plan and approved by the authority. If approval from the authority regarding additional transit projects to be funded with any excess net proceeds is not obtained, then such excess proceeds shall be subject to and applied as provided in paragraph (2) of this subsection.
    2. Except as provided in paragraph (1) of this subsection, excess proceeds shall be used solely for the purpose of reducing any indebtedness of any county within the special district other than indebtedness incurred pursuant to this article. If there is no such other indebtedness or if the excess proceeds exceed the amount of any such other indebtedness, then the excess proceeds shall next be paid into the general fund of such county, it being the intent that any funds so paid into the general fund of such county be used for the purpose of reducing ad valorem taxes. (Code 1981, § 48-8-269.57 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

48-8-269.58. (Effective January 1, 2019) Annual reporting to public via newspaper.

Not later than December 31 of each year, the governing authority of the county receiving any proceeds from the tax under this part shall publish annually, in a newspaper of general circulation in the boundaries of such county, a simple, nontechnical report which shows for each transit project in the resolution calling for the imposition of the tax the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year. The report shall also include a statement of what corrective action the county intends to implement with respect to each project which is underfunded or behind schedule and a statement of any surplus funds which have not been expended for a purpose.

(Code 1981, § 48-8-269.58 , enacted by Ga. L. 2018, p. 377, § 1-3/HB 930.)

ARTICLE 6 GEORGIA TOURISM DEVELOPMENT

Editor's notes. - Ga. L. 2011, p. 302, § 3/HB234, not codified by the General Assembly, provides for severability.

Administrative Rules and Regulations. - Georgia Tourism Development Act Program, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Community Affairs, Ch. 110-32.

48-8-270. Short title.

This article shall be known and may be cited as the "Georgia Tourism Development Act."

(Code 1981, § 48-8-270 , enacted by Ga. L. 2011, p. 302, § 2/HB 234.)

48-8-271. Definitions.

As used in this article, the term:

  1. "Agreement" means an agreement for a tourism attraction project between the Department of Community Affairs and an approved company pursuant to Code Section 48-8-275.
  2. "Annual sales and use tax" means those state and local sales and use taxes generated by sales to the general public at the approved tourism attraction during the calendar year immediately preceding the date of filing the sales and use tax refund claim.
  3. "Approved company" means the entity that has submitted an application to undertake a tourism attraction project, which has been approved pursuant to Code Section 48-8-274. For each tourism attraction project, only one company may be approved under this article.
  4. "Approved costs" means:
    1. For new tourism attractions:
      1. Obligations incurred for labor and to vendors, contractors, subcontractors, builders, suppliers, deliverymen, and materialmen in connection with the acquisition, construction, equipping, and installation of a new tourism attraction project;
      2. The costs of acquiring real property or rights in real property and any costs incidental thereto;
      3. All costs for construction materials and equipment installed at the new tourism attraction project;
      4. The cost of contract bonds and of insurance of all kinds that may be required or necessary during the course of the acquisition, construction, equipping, and installation of a new tourism attraction project which is not paid by the vendor, supplier, deliveryman, or contractor or otherwise provided;
      5. All costs of architectural and engineering services, including, but not limited to, estimates, plans and specifications, preliminary investigations, and supervision of construction and installation, as well as for the performance of all the duties required by or consequent to the acquisition, construction, equipping, and installation of a new tourism attraction project;
      6. All costs required to be paid under the terms of any contract for the acquisition, construction, equipping, and installation of a new tourism attraction project;
      7. All costs required for the installation of utilities, including, but not limited to, water, sewer, sewage treatment, gas, electricity, communications, and similar facilities; and off-site construction of utility extensions if paid for by the approved company; and
      8. All other costs comparable with those described in this subparagraph; or
    2. For existing tourism attractions, any approved costs otherwise specified in subparagraph (A) of this paragraph; provided, however, that such costs are limited to the expansion only of an existing tourism attraction and not the renovation of an existing tourism attraction.
  5. "Approved tourism attraction" means a project that was approved pursuant to Code Section 48-8-274 and that has since opened to the public and become operational as a tourism attraction.
  6. "Expansion" means the addition of equipment, facilities, or real estate to an existing tourism attraction for the purpose of increasing its size, scope, or visitor capacity.
  7. "Incremental sales and use tax" means state and local sales and use taxes generated by sales to the general public at the approved tourism attraction from the date on which construction of the expansion project is completed through the end of the calendar year immediately preceding the date of filing the incremental sales and use tax refund claim, less the state and local sales and use taxes that were generated by sales to the general public at the approved tourism attraction during the 12 month period immediately preceding the commencement of construction of the expansion project.
  8. "Incremental sales and use tax refund" means the amount equal to the lesser of the incremental sales and use tax or 2.5 percent of the total of all approved costs incurred at any time prior to January 1 of the year during which the claim for the incremental sales and use tax refund is filed.
  9. "Local sales and use tax" means any sales and use tax, excluding the sales tax for educational purposes levied pursuant to Part 2 of Article 3 of this chapter and Article VIII, Section VI, Paragraph IV of the Constitution, that is levied and imposed in an area consisting of less than the entire state, however authorized.
  10. "Renovation" means the restoration, rebuilding, redesign, repair, or replacement of worn elements so that the functionality, quality, or attractiveness of buildings or structures is equivalent to a former state.
  11. "Sales and use tax refund" means the amount equal to the lesser of the annual sales and use tax or 2.5 percent of the total of all approved costs incurred at any time prior to January 1 of the year during which the claim for the sales and use tax refund is filed.
  12. "Tourism attraction" means a cultural or historical site; a recreation or entertainment facility; a convention hotel and conference center; an automobile race track, including, but not limited to, Atlanta Motor Speedway, with other tourism amenities; a golf course facility with other tourism amenities; marinas and water parks with lodging and restaurant facilities designed to attract tourists to the State of Georgia; or a Georgia crafts and products center. A tourism attraction shall not be primarily devoted to the retail sale of goods, shopping centers, restaurants, or movie theaters.
  13. "Tourism attraction project" or "project" includes the real estate acquisition, including the acquisition of real estate by a leasehold interest with a minimum term of 30 years, construction, and equipping of a tourism attraction; the construction and installation of improvements to facilities necessary or desirable for the acquisition, construction, and installation of a tourism attraction, including, but not limited to, surveys; installation of utilities, which may include water, sewer, sewage treatment, gas, electricity, communications, and similar facilities; and off-site construction of utility extensions if paid for by the approved company. Such term shall not include the renovation of an existing tourism attraction. (Code 1981, § 48-8-271 , enacted by Ga. L. 2011, p. 302, § 2/HB 234; Ga. L. 2013, p. 243, § 7/HB 318.)

48-8-272. Purpose of article; legislative findings.

The General Assembly finds and declares that the general welfare and material well-being of the citizens of this state depend in large measure upon the development of tourism in the state; that it is in the best interest of this state to induce the creation of tourism attractions or expansion of existing tourism attractions within this state in order to advance the public purposes of relieving unemployment by preserving and creating jobs that would not exist if not for the sales and use tax refund offered by the State of Georgia to approved companies and preserving and creating sources of tax revenues for the support of public services provided by the state; that the purposes to be accomplished under the provisions of this article are proper governmental and public purposes for which public moneys may be expended; and that the inducement of the creation of tourism attraction projects is of paramount importance to the economy of the state, mandating that the provisions of this article are to be liberally construed and applied in order to advance public purposes.

(Code 1981, § 48-8-272 , enacted by Ga. L. 2011, p. 302, § 2/HB 234.)

48-8-273. Tourism attractions agreements; execution; 10-year term; sales and use tax refund; administrative regulations.

  1. In the discretion of the commissioner of economic development and the commissioner of community affairs, in consideration of the execution of the agreement and subject to the approved company's compliance with the terms of the agreement, an approved company shall be granted a sales and use tax refund for new projects or an incremental sales and use tax refund for expansions of existing tourism attractions.
  2. The approved company shall have no obligation to refund or otherwise return any amount of this sales and use tax refund to the persons from whom the sales and use tax was collected.
  3. The term of the agreement granting a refund under this article shall be ten years, commencing on the date the tourism attraction opens for business and begins to collect sales and use taxes or, for an expansion, the date construction is complete.
  4. For each calendar year or partial calendar year occurring during the term of the agreement, an approved company shall file with the Department of Revenue a claim for a refund under this article by March 31 of the following year.
  5. The Department of Revenue, in consultation with the Department of Community Affairs and other appropriate state agencies, shall promulgate administrative regulations and require the filing of a refund form designed by the Department of Revenue to reflect the intent of this article.
  6. No sales and use tax refund shall be granted to an approved company that is during a tax year simultaneously receiving any other state tax incentive associated with any one tourism attraction project.
  7. Any sales and use tax refund shall be first applied to any outstanding tax obligation of the approved company that is due and payable to the state.
  8. By resolution and at the discretion of the county and city, if any, where the tourism attraction project is to be located, the local sales and use tax may be refunded under the same terms and conditions as any refund of state sales and use taxes.
  9. Refunds under this article shall be made without interest. (Code 1981, § 48-8-273 , enacted by Ga. L. 2011, p. 302, § 2/HB 234; Ga. L. 2013, p. 243, § 8/HB 318.)

48-8-274. Standards for filing tourism attraction project applications; analysis of projects by independent consultants; conditions of eligibility and approval.

  1. The commissioner of community affairs, in consultation with other appropriate state agencies, shall establish standards for the filing of an application for tourism attraction projects by the promulgation of administrative regulations.
  2. In addition to any standards set forth pursuant to subsection (a) of this Code section, an application for a tourism attraction project filed with the Department of Community Affairs shall include:
    1. Marketing plans for the tourism attraction that target individuals who are not residents of this state;
    2. A description and location of the tourism attraction project;
    3. Capital and other specific expenditures for the tourism attraction project and the anticipated sources of funding for such project;
    4. The anticipated employment and wages to be paid at the tourism attraction;
    5. Business plans that indicate the average number of days in a year in which the tourism attraction will be in operation and open to the public;
    6. The anticipated revenues to be generated by the tourism attraction; and
    7. Resolutions from the governing authority of the county or the city, if any, in which the tourism attraction will be located endorsing the tourism attraction project and, where applicable, including appropriate affirmative clauses regarding permitting, land use, local incentives, and the provision of local public infrastructure.
  3. Following the filing of the application, the Department of Community Affairs shall submit the application to an independent consultant who shall perform an in depth analysis of the proposed project. All costs associated with such application and analysis shall be paid for by the approved company.
  4. The commissioner of economic development and the commissioner of community affairs may grant approval to the tourism attraction project if the project shall:
    1. Have approved costs in excess of $1 million and such project is to be a tourism attraction;
    2. Have a significant and positive economic impact on the state considering, among other factors, the extent to which the tourism attraction project will compete directly with tourism attractions in this state;
    3. Produce sufficient revenues and public demand to be operating and open to the public for a minimum of 100 days per year, including the first year of operation;
    4. Not adversely affect existing employment in this state; and
    5. For each year following the third year of operation, attract a minimum of 25 percent of its visitors from nonresidents of this state. (Code 1981, § 48-8-274 , enacted by Ga. L. 2011, p. 302, § 2/HB 234; Ga. L. 2013, p. 243, § 9/HB 318.)

48-8-275. Authority of Department of Community Affairs to enter into agreements with approved companies; required terms and provisions of agreements.

Following approval of a project, the Department of Community Affairs shall enter into an agreement with any approved company. The agreement may include as a partner any local development authority. The terms and provisions of each agreement shall include, but not be limited to:

  1. The projected amount of approved costs;
  2. A date certain by which the approved company shall have completed the tourism attraction project and begun operations. Upon request from any approved company that has received final approval, the Department of Community Affairs shall grant an extension or change, which in no event shall exceed 18 months from the date of final approval, to the completion date as specified in the agreement with an approved company; and
  3. A statement specifying the term of the agreement in accordance with subsection (c) of Code Section 48-8-273 . (Code 1981, § 48-8-275 , enacted by Ga. L. 2011, p. 302, § 2/HB 234; Ga. L. 2013, p. 243, § 10/HB 318.)

48-8-276. Compliance subject to review by Department of Community Affairs; failure to abide by terms of agreement.

  1. Compliance with the agreement is subject to review by the Department of Community Affairs.
  2. In the event an approved company fails to abide by the terms of the agreement, then such agreement shall be void and all sales and use tax proceeds that were refunded shall become immediately due and payable back to the state. (Code 1981, § 48-8-276 , enacted by Ga. L. 2011, p. 302, § 2/HB 234; Ga. L. 2013, p. 243, § 11/HB 318.)

48-8-277. Transfer of rights, duties, and obligations to successor company.

An approved company may, in the discretion of the Governor, transfer its rights, duties, and obligations under the agreement to a successor company if the successor company meets the qualifications of an approved company and, upon such approval by the Governor, such successor approved company shall be authorized to receive the sales and use tax refunds for the remaining duration of the agreement if it abides by the terms of the agreement.

(Code 1981, § 48-8-277 , enacted by Ga. L. 2011, p. 302, § 2/HB 234.)

48-8-278. Article inapplicable to sales tax levied for educational purposes.

Repealed by Ga. L. 2013, p. 243, § 12/HB 318, effective April 29, 2013.

Editor's notes. - This Code section was based on Code 1981, § 48-8-278 , enacted by Ga. L. 2011, p. 302, § 2/HB 234.

CHAPTER 9 MOTOR FUEL AND ROAD TAXES

Article 1

Motor Fuel Tax.

Article 2

Road Tax on Motor Carriers.

Cross references. - Use of motor fuel taxes for public road purposes, Ga. Const. 1983, Art. III, Sec. IX, Para. VI.

Federal funds for public roads, and as to State Public Transportation Fund, T. 32, C. 5.

Licensing of self-service motor fuel dispensing pumps by counties and municipalities, § 36-60-1 .

Examinations by state auditor of books, records, and accounts of persons required to pay occupational tax as distributors of motor fuels, § 50-6-5 .

Administrative Rules and Regulations. - Motor fuel tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Motor Fuel and Road Taxes, Chapter 560-9-1.

Road tax on motor carriers, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Motor Fuel and Road Taxes, Chapter 560-9-2.

Forms for Motor Fuel and Carrier Taxes, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Motor Fuel and Road Taxes, Chapter 560-9-3.

Powers and procedures for enforcement of fuel tax and license tag laws, Official Compilation of the Rules and Regulations of the State of Georgia, State Department of Transportation, Enforcement of the Provisions in Code Section 32-6-29, O.C.G.A. Relating to Criminal Violations, Sec. 672-4-.05.

ARTICLE 1 MOTOR FUEL TAX

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-14, prior to amendment by Ga. L. 1978, p. 186, § 1, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Nature of tax. - Motor fuel tax laws, found in former Code 1933, Ch. 92-14 and Ga. L. 1968, p. 360 showed that the motor fuel taxes were of the nature of a road use tax. This is true because the funds collected must be used to construct and maintain the highways. 1963-65 Op. Att'y Gen. p. 92 (decided under former Code 1933, Ch. 92-14).

Construction of "use". - Word "use" as applied to motor fuel and as employed in former Code 1933, Ch. 92-14 meant to consume by combustion in a motor or for cleaning purposes or other uses that either consume it or at least render it unsuitable for future use as fuel for a motor. The word "use" as applied to motor fuel does not embrace storage and withdrawal. Thompson v. Eastern Air Lines, 200 Ga. 216 , 39 S.E.2d 225 (1946) (decided under former Code 1933, Ch. 92-14).

Any transfer of possession made by a distributor to a dealer in the course of distributing motor fuel was a taxable event under former Code 1933, Ch. 92-14. 1971 Op. Att'y Gen. No. 71-134 (decided under former Code 1933, Ch. 92-14).

County health department was not exempt from payment of taxes on gasoline imposed by former Code 1933, Ch. 92-14. 1969 Op. Att'y Gen. No. 69-513 (decided under former Code 1933, Ch. 92-14).

Representative from a foreign country was not exempt from former Code 1933, Ch. 92-14 or Ga. L. 1951, p. 360. 1962 Op. Att'y Gen. p. 514 (decided under former Code 1933, Ch. 92-14).

Most favored nation clause of treaty with Belgium exempts Belgian officials from motor fuel taxes. - Exemption of officials does not extend to consular employees, and the exemption would not apply to the officers in the absence of a treaty. 1970 Op. Att'y Gen. No. U70-233 (decided under former Code 1933, Ch. 92-14).

RESEARCH REFERENCES

ALR. - State or political subdivision as subject to license or sales tax, 60 A.L.R. 878 ; 67 A.L.R. 1310 ; 159 A.L.R. 365 .

Constitutionality and construction of gasoline inspection and tax statutes, 84 A.L.R. 839 ; 111 A.L.R. 185 .

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011 .

Deductibility of other taxes or fees in computing excise or license taxes, 148 A.L.R. 263 ; 174 A.L.R. 1263 .

Municipality as subject to state license or excise taxes, 159 A.L.R. 365 .

48-9-1. Short title.

This article shall be known and may be cited as the "Motor Fuel Tax Law."

(Code 1933, § 92-1401, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5001, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 102.)

JUDICIAL DECISIONS

Cited in Tuggle v. IRS, 30 Bankr. 718 (Bankr. N.D. Ga. 1983).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 495 et seq.

48-9-2. Definitions.

As used in this article, the term:

(.1) "Agricultural field use" means the use of motor fuel of a type other than gasoline by vehicles licensed under paragraph (.1) of Code Section 40-2-150. Such term shall include the incidental movement over a highway as well as all off-road operations.

  1. "Aviation gasoline" means gasoline that is designed and sold for use solely for aviation purposes in aircraft engines.
  2. "Aviation gasoline dealer" means any person who sells or consumes aviation gasoline for aviation purposes only.
  3. "Compressed petroleum gas" means all liquid petroleum products composed of propane, propylene, butanes, butylenes, or any mixture thereof as determined by test method ASTMD-216370, Natural Gas Processors Association Liquefied Petroleum Specifications, 1970 revision.
  4. "Consumer distributor" means any person who has both highway and nonhighway use of motor fuel of a type other than gasoline and who elects to become licensed as a distributor to obtain the exemption allowed by this article.
  5. "Distributor" means every person other than the United States or any of its agencies who:
    1. Produces, refines, prepares, distills, manufactures, blends, or compounds motor fuel in this state;
    2. Makes the first sale in this state of any motor fuel imported into this state after the motor fuel has been received in this state;
    3. Consumes or uses in this state any motor fuel imported into this state before the motor fuel has been received by any other person in this state;
    4. Purchases motor fuel for export from this state;
    5. Consumes or uses motor fuel of a type other than gasoline for both highway and nonhighway use and who elects to become licensed as a distributor to obtain the exemption allowed by this article;
    6. Sells motor fuel of a type other than gasoline to consumers who have no highway use of such fuel and who elects to become licensed as a distributor to obtain the exemptions allowed by this article; or
    7. Imports motor fuel into this state for production, refining, preparation, distilling, manufacturing, blending, compounding, consumption, or use within this state.
      1. When motor fuels are sold for export and delivered across the boundaries of this state by or for the seller, such action is presumed to be an export from the place of origin and an import into the destination state or country by the seller; and
      2. When motor fuels are purchased for export and transported across the boundaries of this state by or for the purchaser, such action is presumed to be an export from the place of origin and an import into the destination state or country by the purchaser.

    (5.1) "Dyed fuel oils" means any fuel oil dyed pursuant to regulations issued by either the United States Environmental Protection Agency or the Internal Revenue Service.

    (5.2) "Export and import" means:

  6. "Fuel oils" means all liquid petroleum products including, but not limited to, kerosene, but does not mean gasoline, compressed petroleum gas, or special fuel.
  7. "Gasoline" means all products commonly or commercially known or sold as gasoline.
  8. "Highway use" means:
    1. The consumption or use of motor fuel other than gasoline in or upon a motor vehicle which is operated on the public highways;
    2. The placing of motor fuel other than gasoline in the running tank or power cells of a motor vehicle designed for use and used on the public highways; or
    3. The use of motor fuel other than gasoline in the construction, reconstruction, maintenance, or repair of public highways.

    (8.1) "Loading rack" means that part of a terminal facility by which motor fuels are physically removed from the terminal facility into transport tank trucks, marine vessels, or rail cars.

  9. "Motor fuel" means any source of energy that can be used for propulsion of motor vehicles on the public highways including, but not limited to:
    1. Gasoline;
    2. Fuel oils;
    3. Compressed petroleum gas; and
    4. Special fuel.
  10. "Motor vehicle" means:
    1. Every self-propelled vehicle designed for operation or required to be licensed for operation upon the public highways; and
    2. Any other machine or mechanical contrivance using motor fuel to the extent that the machine or contrivance is operated upon the public highways.
  11. "Public highway" means every way or place of whatever nature generally open to the use of the public as a matter of right for the purpose of vehicular travel even though such way or place may never have been so open or may be temporarily closed for the purpose of construction, reconstruction, maintenance, or repair.
  12. "Purchase" means any acquisition of ownership.
  13. "Received," in addition to its ordinary meaning, means:
    1. Motor fuel produced, refined, prepared, distilled, manufactured, blended, or compounded within this state; or
    2. Motor fuel imported into the territorial boundaries of this state which is held for sale or use or is stored in any receptacle which has withdrawal facilities for sale or use in this state.
  14. "Sale" means any exchange, gift, consignment, bailment, or any other accounted for or unaccounted for disposition.
  15. "Special fuel" means all sources of energy other than gasoline, fuel oils, or compressed petroleum gas.

    (15.1) "Terminal" means a motor fuel storage and distribution facility that is supplied by pipeline or marine vessel and from which motor fuels may be removed by either a loading rack or user pipeline. However, the term does not include any facility at which petroleum blend stocks and additives are used to manufacture products other than motor fuel and from which no motor fuel is removed.

  16. "Transport tank truck" means any tank truck used to transport motor fuel in bulk quantities.

    (Code 1933, § 92-1402, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5002, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 102; Ga. L. 1990, p. 799, § 1; Ga. L. 1993, p. 1502, §§ 1-3; Ga. L. 1995, p. 359, § 1; Ga. L. 1998, p. 1580, § 1; Ga. L. 2002, p. 1074, § 5.)

Editor's notes. - Ga. L. 2002, p. 1074, § 8, not codified by the General Assembly, provides that: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of this Act." This Act became effective July 1, 2002.

JUDICIAL DECISIONS

Automobile manufacturer could not be exporter of motor fuel since the sale of the manufacturer's automobiles - and of the motor fuel within the automobiles - took place within the state. Ford Motor Co. v. Collins, 257 Ga. 310 , 357 S.E.2d 567 (1987).

Clearing and grading for road construction is highway use. - Fuel used by machinery engaged in the clearing and grading processes necessary for the construction of a public highway within a right of way is motor fuel used for the purpose of construction of public highways within the meaning of "highway use." Green Constr. of Ind., Inc. v. State, 123 Ga. App. 422 , 181 S.E.2d 389 (1971).

OPINIONS OF THE ATTORNEY GENERAL

So-called "economy" gasolines are taxed in the same manner as other grades of gasoline and the fact that they are sold at a lower rate to a consumer would not affect the eligibility for refund of the tax when other refund conditions are met. 1962 Op. Att'y Gen. p. 518.

Transfer from bulk tank to retail tank by one operating both is not a sale. - Transfer of gasoline from a bulk plant tank to a retail tank, when the distributor is operating both businesses, is not a disposition within the definition of "sale" and, hence, the tax accrues when the gasoline is sold from the distributor's retail tank to a purchaser. 1960-61 Op. Att'y Gen. p. 536.

Meaning of "or any other accounted for or unaccounted for disposition" in definition of "sale". - When the General Assembly added the phrase "or any other accounted for or unaccounted for disposition" the legislature meant to include in the definition of the taxable event any delivery made by the distributor to a dealer in the course of distributing gasoline. 1960-61 Op. Att'y Gen. p. 533.

RESEARCH REFERENCES

C.J.S. - 39A C.J.S., Highways, §§ 1, 3. 53 C.J.S., Licenses, §§ 5, 55, 103. 60 C.J.S., Motor Vehicles, §§ 1 et seq., 65.

ALR. - What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap 31), 93 A.L.R.2d 1120.

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

48-9-3. Levy of excise tax; rate; taxation of motor fuels not commonly sold or measured by gallon; rate; prohibition of tax on motor fuel by political subdivisions; exception; exempted sales.

    1. An excise tax is imposed at the rate of 26› per gallon on distributors who sell or use motor fuel, other than diesel fuel, within this state. An excise tax is imposed at the rate of 29› per gallon on distributors who sell or use diesel fuel within this state. It is the intention of the General Assembly that the legal incidence of the tax be imposed upon the distributor.

      (1.1) (A) Beginning on July 1, 2016, and annually thereafter, the amount of this excise tax per gallon on distributors shall be automatically adjusted on an annual basis in accordance with this paragraph.

      (B) Using 2014 as a base year, the department shall determine the average miles per gallon of all new vehicles registered in this state pursuant to Code Section 48-5C-1 using the average of combined miles per gallon published in the United States Department of Energy Fuel Economy Guide. Beginning on July 1, 2016, and each year thereafter, the department shall calculate the average miles per gallon of all new vehicles registered in this state in the previous year. The excise tax rate shall be multiplied by the percentage increase or decrease in fuel efficiency from the previous year, and the resulting increase or decrease shall be added to the excise tax rate to determine the preliminary excise tax rate.

      (C) Once the preliminary excise tax rate is established, it shall be multiplied by the annual percentage of increase or decrease in the Consumer Price Index. The resulting calculation shall be added to the preliminary excise tax rate, and the result of such calculation shall be the new excise tax rate for motor fuels for the next calendar year. The Consumer Price Index shall no longer be used after July 1, 2022.

    2. In the event any motor fuels which are not commonly sold or measured by the gallon are used in any motor vehicles on the public highways of this state, the commissioner may assess, levy, and collect a tax upon such fuels, under such regulations as the commissioner may promulgate, in accordance with and measured by the nearest power potential equivalent to that of one gallon of regular grade gasoline. Any determination by the commissioner of the power potential equivalent of such motor fuels shall be prima-facie correct. Upon each such quantity of such fuels used upon the public highways of this state, a tax at the same rate per gallon imposed on motor fuel under paragraph (1) of this subsection shall be assessed and collected.
    3. No county, municipality, or other political subdivision of this state shall levy any fee, license, or other excise tax on a gallonage basis upon the sale, purchase, storage, receipt, distribution, use, consumption, or other disposition of motor fuel. Nothing contained in this article shall be construed to prevent a county, municipality, or other political subdivision of this state from levying license fees or taxes upon any business selling motor fuel.
      1. For purposes of this subsection, and notwithstanding the provisions of paragraph (2) of this subsection and any provision contained in the National Bureau of Standards Handbook or any other national standard that may be adopted by law or regulation, the gallon equivalent of compressed natural gas shall be not less than 110,000 British thermal units and the gallon equivalent of liquefied natural gas shall not be less than 6.06 pounds.
      2. As used in this paragraph, the term:
        1. "Compressed natural gas" means a mixture of hydrocarbon gases and vapors, consisting principally of methane in gaseous form, that has been compressed for use as a motor fuel.
        2. "Liquefied natural gas" means methane or natural gas in the form of a cryogenic or refrigerated liquid for use as a motor fuel.
  2. No tax is imposed by this article upon or with respect to the following sales by duly licensed distributors:
    1. Bulk sales to a duly licensed distributor;
    2. Sales of motor fuel for export from this state when exempted by any provisions of the Constitutions of the United States or this state;
    3. Sales of motor fuel to a licensed distributor for export from this state;
    4. Sales of motor fuel to the United States for the exclusive use of the United States when the motor fuel is purchased and paid for by the United States;
    5. Sales of aviation gasoline to a duly licensed aviation gasoline dealer, except for 1› per gallon of the tax imposed by paragraph (1) of subsection (a) of this Code section;
    6. Bulk sales of compressed petroleum gas or special fuel to a duly licensed consumer distributor;
      1. Sales of compressed petroleum gas or special fuel to a consumer who has no highway use of the fuel at the time of the sale and does not resell the fuel. Consumers of compressed petroleum gas or special fuel who have both highway and nonhighway use of the fuel and resellers of such fuel must be licensed as distributors in order for sales of the fuel to be tax exempt. Each type of motor fuel is to be considered separately under this exemption.
        1. In instances where a sale of compressed petroleum gas has been made to an ultimate consumer who has both highway and nonhighway use of that type of motor fuel and no tax has been paid by the distributor on the sale, the consumer shall become licensed as a consumer distributor of that type of motor fuel. After the consumer is licensed as a consumer distributor and if it is demonstrated to the satisfaction of the commissioner that the motor fuel purchased prior to the licensee's becoming licensed as a consumer distributor was used for nonhighway purposes, such sales shall be exempt from the tax imposed by this article; provided, however, that, if at the time of demonstration the ultimate consumer does not have both highway and nonhighway use of such fuel but it can be demonstrated by the distributor to the satisfaction of the commissioner that the motor fuel was used for nonhighway purposes, the sales shall be exempt from the tax imposed by this article; and
        2. (I) Any special fuel sold by a distributor to a purchaser who has a storage receptacle which has a connection to a withdrawal outlet that may be used for highway use, as defined in paragraph (8) of Code Section 48-9-2, is not exempt from the motor fuel and road taxes imposed by this article unless: (1) the purchaser is at the time of sale a valid licensed distributor of that type of motor fuel, or (2) an exemption certificate has been obtained from the purchaser on forms furnished by the Department of Revenue showing that the purchaser has no highway use of such fuels and is not a reseller of such fuels. Each exemption certificate shall be valid for a period of not more than three years and shall be kept by the distributor as one of the records specified in Code Section 48-9-8. It shall be the responsibility of the purchaser to notify the distributor when the purchaser is no longer qualified for the nonhighway exemption. All applicable taxes must be charged the purchaser until the purchaser is granted a valid distributor's license for that type of motor fuel.

          (II) Any such purchaser granted an exemption under subdivision (I) of this division who falsely claims the exemption or fails to rescind the purchaser's exemption certificate to the distributor in writing when he or she is no longer eligible for the exemption shall be deemed a distributor for purposes of taxation and is subject to all provisions of this article relating to distributors. This division in no way shall restrict the option of the purchaser to become licensed as a distributor. If the distributor sells special fuel to a purchaser who has a storage receptacle which has a connection to a withdrawal outlet that may be used for highway use, as defined in paragraph (8) of Code Section 48-9-2, and the purchaser is not a valid licensed distributor and has not executed a valid signed exemption certificate, the taxes imposed by this article are due from the distributor and not the purchaser on all sales of that type of fuel to that purchaser;

    8. Sales of fuel oils, compressed petroleum gas, or special fuel directly to an ultimate consumer to be used for heating purposes only. The delivery of fuel oils, compressed petroleum gas, or special fuel directly to an ultimate consumer to be used for heating purposes only shall be made directly into the storage receptacle of the heating unit of the consumer by the licensed distributor. To qualify for this exemption, sales must be delivered into storage receptacles that are not equipped with any secondary withdrawal outlets for the motor fuel;
    9. Sales of dyed fuel oils to a consumer for other than highway use as defined in paragraph (8) of Code Section 48-9-2;
      1. During the period of July 1, 2012, through June 30, 2015, sales of motor fuel, as defined in paragraph (9) of Code Section 48-9-2, for public mass transit vehicles which are owned by public transportation systems which receive or are eligible to receive funds pursuant to 49 U.S.C. Sections 5307 and 5311 for which passenger fares are routinely charged and which vehicles are used exclusively for revenue generating purposes which motor fuel sales occur at bulk purchase facilities approved by the department.
      2. During the period of July 1, 2012, through June 30, 2015, sales of motor fuel, as defined in paragraph (9) of Code Section 48-9-2, for vehicles operated by a public campus transportation system, provided that such system has a policy which provides for free transfer of passengers from the public transportation system operated by the jurisdiction in which the campus is located; makes the general public aware of such free transfer policy; and receives no state or federal funding to assist in the operation of such public campus transportation system and which motor fuel sales occur at bulk purchase facilities approved by the department.
      3. For purposes of this paragraph, the term "vehicle" or "vehicles" means buses, vans, minibuses, or other vehicles which have the capacity to transport seven or more passengers; or
    11. For the period of time beginning July 1, 2013, and ending June 30, 2015, sales of motor fuel to public school systems in this state for the exclusive use of the school system in operating school buses when the motor fuel is purchased and paid for by the school system.
  3. Fuel oils, compressed petroleum gas, or special fuel used by a duly licensed distributor for nonhighway purposes is exempt from the tax imposed by this article.
  4. No export from this state shall be recognized as being exempt from tax under paragraphs (2) and (3) of subsection (b) of this Code section unless the exporter informs the seller and the terminal operator of the intention to export and causes to be set out the minimum information specified in subsection (e) of Code Section 48-9-17 on the bill of lading or equivalent documentation under which the motor fuel is transported. In the event that the motor fuel is delivered to any point other than that which is set out on the bill of lading or equivalent documentation, the legal incidence of the tax shall continue to be imposed exclusively upon the exporter who caused the export documentation to be issued and no exemption shall be recognized until suitable proof of exportation has been provided to the commissioner.

    (Code 1933, § 92-1403, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5003, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 102; Ga. L. 1979, p. 1274, §§ 1, 3; Ga. L. 1980, p. 10, § 30; Ga. L. 1985, p. 1644, § 1; Ga. L. 1986, p. 10, § 48; Ga. L. 1993, p. 811, § 2; Ga. L. 1993, p. 1502, § 4; Ga. L. 1994, p. 569, § 1; Ga. L. 1995, p. 10, § 48; Ga. L. 1995, p. 359, § 2; Ga. L. 2004, p. 425, § 2; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2005, p. 505, § 1/HB 384; Ga. L. 2006, p. 523, § 1/HB 1244; Ga. L. 2008, p. 889, § 2/HB 1035; Ga. L. 2010, p. 813, § 2/HB 1393; Ga. L. 2012, p. 1348, § 1/HB 743; Ga. L. 2013, p. 786, § 1/HB 211; Ga. L. 2013, p. 869, § 1/HB 371; Ga. L. 2015, p. 236, § 5-13/HB 170; Ga. L. 2018, p. 152, § 3/HB 150.)

The 2015 amendment, effective July 1, 2015, in paragraph (a)(1), in the first sentence, substituted "26 › per gallon" for "7 1/2 › per gallon" and inserted ", other than diesel fuel,", and added the second sentence; added paragraph (a)(1.1); and deleted "and all of the tax imposed by Code Section 48-9-14" following "Code section" at the end of paragraph (b)(5). See Editor's notes for applicability.

The 2018 amendment, effective July 1, 2018, substituted "2022" for "2018" at the end of the last sentence in subparagraph (a)(1.1)(C).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "is exempt" was substituted for "are exempt" in subsection (c).

Pursuant to Code Section 28-9-5, in 1986, a hyphen was inserted in "prima facie" in the second sentence of paragraph (a)(2) and "ultimate" was substituted for "utlimate" in the second sentence of division (b)(7)(B)(i).

Editor's notes. - Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

JUDICIAL DECISIONS

Section is constitutional. Road Bldrs., Inc. v. Hawes, 228 Ga. 608 , 187 S.E.2d 287 (1972).

Classification for taxation of distributors of motor fuels is not arbitrary, unreasonable, or unnatural because the classification seeks to place in the same class and tax under one head distributors of motor fuel engaged in business as an occupation and for profit, and a political subdivision of the state not engaged in business, which uses such fuels for a purely governmental purpose. Wright v. Fulton County, 169 Ga. 354 , 150 S.E. 262 (1929).

Intent and purpose. - It is manifest from the terms of this section that the General Assembly did not intend to impose motor fuel tax on fuels if those fuels were neither sold for use nor used in the propulsion of motor vehicles on the public highways. The scheme of former Code 1933, Ch. 92-14 afforded to the distributor, the dealer, and the ultimate consumer the means of ascertaining the taxability or nontaxability of such motor fuels, the means of reporting the sales and paying the tax, or claiming the exemption, and when the exemption is drawn in question, of proving the exemption. Undercofler v. Standard Oil Co., 111 Ga. App. 592 , 142 S.E.2d 298 (1965).

Local sales and use taxes separate and distinct and not motor fuel taxes. - Trial court did not err in dismissing the plaintiffs' complaint that local sales and use taxes on motor fuels were not allocated to the maintenance and construction of public roads and bridges as the Motor Fuel Provision revealed that motor fuel taxes were limited to per-gallon taxes on distributors of motor fuel, and did not include sales and use taxes imposed on retail sales of motor fuels because the local sales and use taxes authorized by Ga. L. 2015, pp. 236, 241-264, §§ 5-8 (HB 170) were separate and distinct from the taxes on distributors and were not "motor fuel taxes" as that term was used in the Motor Fuel Provision; and, as a result, the defendants had no duty to appropriate for public roads an amount of revenue equal to the proceeds from local sales and use taxes. Ga. Motor Trucking Ass'n v. Georgia Dep't of Revenue, 301 Ga. 354 , 801 S.E.2d 9 (2017).

Consumer may personally acquire a distributor's license. - This serves to release the dealer from responsibility for the payment of motor fuel taxes while at the same time assuring the consumer that the consumer need pay taxes only on that portion of fuel relegated to highway uses. Scott v. Blackmon, 132 Ga. App. 578 , 208 S.E.2d 589 (1974).

Tax assessments are made when one has the potential for highway use, that is, whether one owns or operates a vehicle capable of highway use at the time of the sale. Scott v. Blackmon, 132 Ga. App. 578 , 208 S.E.2d 589 (1974).

Tax not part of retail sales price for sales and use tax purposes. - Tax imposed by this section is upon the incident of the sale to the consumer and should not be included as a part of the retail sales price for calculating the sales and use tax. State v. Thoni Oil Magic Benzol Gas Stations, Inc., 121 Ga. App. 454 , 174 S.E.2d 224 , aff'd, 226 Ga. 883 , 178 S.E.2d 173 (1970).

Municipal tax based on storage capacity violates section. - Under the provision prohibiting municipalities from the levy of any fee, license, privilege, or excise tax or taxes upon the sale, purchase, storage, receipt, distribution, use, consumption, or other disposition of motor fuel, but not proscribing the levying by municipalities of reasonable license fees or taxes upon the business of selling motor fuel, a license and tax ordinance imposing graduated taxes on gasoline stations having storage capacities within various limits is void, since, although clothed in the language of merely imposing a tax on the gasoline storage capacity of filling stations, its necessary effect was to tax the storage of the fuel itself; and consequently to impose a prohibited additional tax on the commodity itself. Southern Oil Stores, Inc. v. City of Macon, 188 Ga. 544 , 4 S.E.2d 243 (1939).

Exemption of instrumentalities of United States government. - Federal Land Bank and other corporations composing the Farm Credit Administration of Columbia are instrumentalities of the United States government, within the meaning of this section, and by the express terms of this section no tax is levied in respect to sale of gasoline made to them. An action for injunction brought by such corporations against the commissioner states a cause of action, and should not have been dismissed on demurrer (now motion to dismiss). Federal Land Bank v. Forrester, 192 Ga. 446 , 15 S.E.2d 517 (1941).

OPINIONS OF THE ATTORNEY GENERAL

American National Red Cross was not liable for the second motor fuel tax on its purchases of motor fuel because it was a federal instrumentality for purposes of immunity from state taxation; and former Code 1933, § 92-1420 imposing the tax adopted the exemption of the original Motor Fuel Tax Act under former Code 1933, § 92-1403 for sales of motor fuel to the United States. 1980 Op. Att'y Gen. No. 80-28.

So-called "economy" gasolines are taxed in the same manner as other grades of gasoline and the fact that those gasolines are sold at a lower rate to the consumer would not affect the eligibility for refund of the tax when other refund conditions are met. 1962 Op. Att'y Gen. p. 518.

Sales by United States to private citizens nonexempt. - While this section exempts from taxation the sale of motor fuel to the United States when the fuel is purchased and paid for by the United States, the statute does not cover any sales by the United States to private citizens of this gasoline or the use by private citizens of this gasoline after having been purchased from the United States government or any of the U.S. government's instrumentalities. 1945-47 Op. Att'y Gen. p. 576.

Exemption provided under certain conditions for the United States or its instrumentalities does not extend to this state. 1945-47 Op. Att'y Gen. p. 576.

No exemption for motor fuel purchased with funds appropriated by the federal government for use of the Georgia National Guard since the fuel is not paid for by the United States. 1963-65 Op. Att'y Gen. p. 92.

Municipalities are not exempt from the tax on motor fuel. 1950-51 Op. Att'y Gen. p. 188.

Municipal corporation is not exempt from payment of the motor fuel tax. 1945-47 Op. Att'y Gen. p. 583.

Proof by aviation gasoline distributors of refund claims. - Refunds may be made to the distributor when satisfactory proof submitted by the distributor that aviation gasoline for which refund is claimed was sold to the ultimate consumer. Such refunds may be refused when the accounting records of the distributor are not maintained in such manner as will readily permit verification of claims for refund by the commissioner's field auditors. 1962 Op. Att'y Gen. p. 492.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 95 et seq., 142 et seq., 504 et seq.

C.J.S. - 53 C.J.S., Licenses, §§ 5, 56, 57.

ALR. - Municipal tax imposed upon or measured by sales of gasoline of one conducting business within city limits as payable in respect of sales or deliveries beyond city limits, 106 A.L.R. 1332 .

Validity of privilege tax as applied to contractor performing contract with federal government, 114 A.L.R. 347 .

Tax exemptions and the contract clause, 173 A.L.R. 15 .

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in Constitution, 61 A.L.R.2d 1031.

What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap 31), 93 A.L.R.2d 1120.

48-9-4. Requirement of distributor's license; validity and nonassignability; application; procedure; contents; filing fee; bond; amount; conditions; release and discharge of surety.

  1. It is unlawful for any person to act as a distributor unless the person holds an uncanceled distributor's license issued by the commissioner. Any license issued under this article shall indicate the type of motor fuel the distributor is licensed to distribute. The license issued by the commissioner under this article is not assignable and is valid only for the distributor to whom issued. The license shall remain in force until canceled by the commissioner. Any distributor who holds a valid license on January 1, 1980, shall not be required to obtain a new license under this article.
    1. To obtain a license, every distributor shall file with the commissioner an application under oath and in such form as required by the commissioner.
    2. The application shall contain, but not be limited to, the following information:
      1. The name of the legal entity;
      2. The trade name of the legal entity;
      3. The location or locations, with street address, of all principal office or business locations of the legal entity within and outside this state; and
      4. The name and address of the owner or owners of the legal entity or, in the case of a corporation, trust, or association, the principal officers of the corporation, trust, or association.
    3. Upon filing of the application, a filing fee of $10.00 shall be paid to the commissioner.
    1. Concurrent with the filing of an application for a license, a surety bond shall be filed with the commissioner:
      1. In an amount of three times the average monthly motor fuel taxes due during the preceding 12 months and in no case shall the bond be in an amount of less than $1,000.00 or more than $150,000.00;
      2. With a surety company approved by the commissioner;
      3. Upon which the distributor shall be the principal obligor and the state shall be the obligee; and
      4. Conditioned upon the timely filing of true reports and payments by the distributor to the commissioner of all motor fuel taxes together with all penalties and interest imposed by this article and upon faithful compliance with all provisions of this article.
    2. Every bond shall be continuous. Each year shall constitute a separate obligation in the amount of taxes, penalty, and interest imposed or levied by this state while the bond is in force.
    3. Any surety may be released and discharged from all liability to the state occurring on a bond filed as provided in this subsection after the expiration of 60 days from the date upon which the surety lodges with the commissioner a written request to be released and discharged. The request shall not relieve, release, or discharge a surety from any tax, penalty, or interest accrued before the expiration of the 60 day period.
    4. The commissioner shall promptly notify the distributor in writing of the surety request for release from the bond and unless the distributor files a new bond with an approved surety within the 60 day period the commissioner shall cancel the license of the distributor.
    5. In the event that the surety for the distributor has become unacceptable in the opinion of the commissioner, the commissioner may require the distributor to file a new bond with an acceptable surety in the same amount and for the same period of time. Upon failure by the distributor to comply within 30 days, the commissioner shall cancel the license of the distributor. If acceptable surety is furnished, the commissioner shall cancel the bond that was unacceptable and substitute the new bond.
    6. In the discretion of the commissioner, in lieu of a bond executed by a surety, a distributor may furnish his bond not so executed if the distributor concurrently deposits and pledges with the commissioner direct obligations of the United States, bonds guaranteed by the United States, bonds of this state, bonds of any public authority created by the General Assembly, or bonds issued pursuant to Article 3 of Chapter 82 of Title 36, in an amount equal to three times the full amount of the bond or bonds otherwise required by this Code section.
    7. In lieu of a surety bond or a bond under paragraph (6) of this subsection, a distributor may, at the discretion of the commissioner, furnish an irrevocable letter of credit.  Such letter of credit shall be:
      1. In an amount equal to three times the full amount of the surety bond or surety bonds otherwise required by this Code section;
      2. Issued by a financial institution approved by the commissioner; and
      3. Conditioned upon the timely filing of true reports and payments by the distributor to the commissioner of all motor fuel taxes together with all penalties and interest imposed by this article and upon faithful compliance with all provisions of this article.

        (Code 1933, § 92-1405, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, §§ 91A-5005, 91A-5006, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5004, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1980, p. 10, § 31; Ga. L. 1990, p. 799, § 2.)

OPINIONS OF THE ATTORNEY GENERAL

Licensing of state agencies as distributors. - State agency may be required to become licensed as a motor fuel distributor when the agency makes taxable use of a portion of fuel purchased. 1960-61 Op. Att'y Gen. p. 534.

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, §§ 8 et seq., 56 et seq.

ALR. - Right to enjoin business competitor from unlicensed or otherwise illegal acts or practices, 90 A.L.R.2d 7.

48-9-5. Licensing as distributors of fuel oils, compressed petroleum gas, or special fuel persons having both highway and nonhighway use of such fuel and resellers; purchases of such fuel by licensees exempt.

  1. Any person who has both highway and nonhighway use of compressed petroleum gas or special fuel may elect to become licensed as a distributor of that type of motor fuel. The distributor shall be qualified to purchase motor fuel of that type exempt from the taxes imposed by this article only after becoming licensed; provided, however, that no license shall be required from a person whose only nonhighway use is of dyed fuel oils. The distributor shall be subject to this article.
  2. Any person who resells fuel oils, compressed petroleum gas, or special fuel may elect to become licensed as a distributor of that type of motor fuel. The distributor shall be qualified to purchase motor fuel of that type exempt from the taxes imposed by this article. The distributor shall be subject to this article.

    (Code 1933, § 92-1406, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5003, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5005, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1995, p. 359, § 3; Ga. L. 2004, p. 425, § 3.)

RESEARCH REFERENCES

ALR. - What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

48-9-6. Licensing of sellers and consumers of aviation gasoline as aviation gasoline dealers; application; contents; filing fee; validity and nonassignability of license.

  1. Sellers or consumers of aviation gasoline shall be eligible to become licensed as aviation gasoline dealers. To obtain an aviation gasoline dealer license, the person shall pay a $10.00 fee to and shall file with the commissioner an application as prescribed by the commissioner.
  2. The application required by subsection (a) of this Code section shall include, but not be limited to, the following information:
    1. Name of the legal entity;
    2. Trade name of the legal entity;
    3. The location or locations, with street address, of all principal office or business locations of the legal entity within or outside this state; and
    4. The name and address of the owner or owners of the legal entity or, in the case of a corporation, trust, or association, the principal officers of the corporation, trust, or association.
  3. The license issued by the commissioner under this Code section is not assignable and is valid only for the person to whom the license is issued. The license shall remain in force until canceled by the commissioner. Any aviation gasoline dealer who holds a valid license on January 1, 1980, shall not be required to obtain a new license under this Code section.

    (Code 1933, § 92-1407, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5005, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5006, enacted by Ga. L. 1979, p. 5, § 102.)

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, §§ 8 et seq., 50, 52, 58, 59, 101.

48-9-7. Discontinuance, sale, or transfer of distributor's operations; notice to commissioner; time; contents; payment of taxes concurrent with discontinuance, sale, or transfer; effect of failure to give notice.

  1. When any distributor ceases his operations or has a change in legal entity, the distributor shall notify the commissioner in writing at least ten days prior to the discontinuance, sale, or transfer of the operations. The notice shall give the date of discontinuance, sale, or transfer and shall give the name of the entity acquiring the operations. All taxes, penalties, and interest due and payable under this article shall be paid concurrently with the discontinuance, sale, or transfer of the operations.
  2. Failure to give the notice required by this Code section shall make the purchaser or transferee liable to the state for all taxes, penalties, and interest due, but only to the extent of the value of the assets acquired from the distributor.

    (Code 1933, § 92-1408, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5016, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5007, enacted by Ga. L. 1979, p. 5, § 102.)

48-9-8. Tax reports from distributors; quarterly or annual; contents; payment; time; business records of distributors, resellers, and retailers; inspection; dyed fuel oil notices.

  1. For the purpose of determining the amount of tax imposed by paragraph (1) of subsection (a) of Code Section 48-9-3, each distributor shall file with the commissioner by the twentieth day of each calendar month a report for the preceding month's activities.  By regulation, the commissioner may permit distributors having a quarterly or annual tax not in excess of amounts set by the commissioner to file quarterly or annual reports.
  2. At the time of submitting the report required by subsection (a) of this Code section, the distributor shall pay to the commissioner the tax imposed by paragraph (1) of subsection (a) of Code Section 48-9-3 on all gasoline, fuel oils, compressed petroleum gas, special fuel, and aviation gasoline sold or used in this state during the preceding calendar month, less an allowance of 1 percent of the tax as compensation to cover losses and expenses incurred in reporting the tax to the state. The allowance shall not be deductible unless the report and payment of tax are made on or before the twentieth day of the month as required by this article.
    1. Each distributor and each aviation gasoline dealer licensed by the commissioner shall keep such records as the commissioner shall require for the effective administration of this article and for the reporting and justification of the amount of tax liability. The records shall include, but are not limited to, all motor fuel received, sold, delivered, or used within this state and all motor fuel exported from this state for a period of three years. Invoices, bills of lading, and other papers shall be maintained in an auditable manner to support the reports filed with the commissioner. When an exemption from the taxes imposed by this article has been taken by the distributor, the records and papers of the distributor must account for the motor fuel and the exemption from the taxes imposed.
    2. All other persons receiving motor fuel in bulk quantities for sale, distribution, use, or consumption and not specifically covered by this article shall maintain and keep records of motor fuel received and all invoices, bills of lading, and other records required by the commissioner for a period of three years.
    3. Every person who sells motor fuel at retail shall make the sales through pumps equipped with meters or totalizers. Every person making sales must maintain for a period of three years records of gallons received and sold to account for all motor fuel.
    4. The commissioner or his authorized agents shall have the right during regular business hours to inspect the books and records of any distributor, aviation gasoline dealer, or any other person who receives, sells, uses, or consumes motor fuel. The commissioner or his agents may inspect the books and records of any person who the commissioner may believe has information that could be necessary to the enforcement of any revenue law of this state.
    5. Every person who sells or delivers dyed fuel oil shall put on the face of the delivery document or invoice, or both if both are used, a notice that the product is dyed and is not for highway use. The commissioner may by regulation provide that any notice conforming to regulations promulgated by either the United States Environmental Protection Agency or Internal Revenue Service will be sufficient notice for purposes of this Code section.

      (Code 1933, § 92-1409, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, §§ 91A-5007, 91A-5013, 91A-5014, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5008, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1980, p. 10, §§ 32, 33; Ga. L. 1990, p. 799, § 3; Ga. L. 1995, p. 359, § 4; Ga. L. 2004, p. 425, § 4; Ga. L. 2005, p. 159, § 25/HB 488.)

Editor's notes. - Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2005.'"

JUDICIAL DECISIONS

Cited in Strickland v. Phillips Petro. Co., 248 Ga. 582 , 284 S.E.2d 271 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 507, 509.

48-9-9. Reports of motor fuel deliveries; persons required to report; procedure; restrictions on delivery; reports of unlicensed purchasers.

    1. A report of all deliveries of motor fuel shall be made to the commissioner by:
      1. Each of the following companies and carriers transporting motor fuel either in interstate or in intrastate commerce to points within this state:
        1. Every railroad company;
        2. Every street, suburban, or interurban railroad company;
        3. Every pipeline company;
        4. Every water transportation company;
        5. Every common or contract carrier; and
        6. Every operator of a terminal;
      2. Every person transporting motor fuel by whatever manner to a point in this state from any point outside this state; and
      3. Every person transporting motor fuel from a point in this state to a point outside this state.
    2. Each report required by this subsection shall be:
      1. Made under oath on forms prescribed by the commissioner; and
      2. Filed by the twentieth day of each calendar month to cover the preceding calendar month's activities.
      3. The true name and address of every person who has received any part of the fuel;
      4. The number of gallons delivered to such persons; and
      5. The city or county and state of destination as represented to the transporter by the person who arranged the transportation.
  2. The commissioner shall assign a tank registration number to each person transporting motor fuel over the public highways or navigable waters of this state and shall furnish a separate tank identification card for each transport tank truck or vessel operated within this state. The registration number shall be displayed continuously and conspicuously on the truck, tank, or vessel operated by persons transporting motor fuel. The identification card issued for each such truck or vessel shall be available for inspection by the commissioner's agents and shall remain with the truck or vessel when transporting motor fuel on the public highways or navigable waters of this state. Tank identification cards are not transferable and are valid only for the transport tank truck or vessel for which issued.
  3. No person shall transport motor fuel in this state except in a transport tank truck or vessel which is visibly marked on each side and on the rear with the words "Motor Fuel," "Flammable," or other indication of the type of product being transported suitable to the commissioner or other regulatory agencies, together with the name and address of the owner of the transport tank truck or vessel and the tank registration number. This subsection shall not apply to vehicles or vessels transporting motor fuel contained in their running tanks and used solely for their propulsion or to vehicles or vessels transporting not more than five gallons of motor fuel for emergency purposes.
    1. Every person transporting motor fuel over the public highways or navigable waters of this state shall have in such person's possession an invoice, bill of sale, or other document which identifies:

      (A) The true name and address of the person from whom the motor fuel was received;

      (B) The number of gallons originally received;

    2. Failure to produce such invoice, bill of sale, or other document when demanded or failure of a document produced upon demand to meet the requirements of this Code section shall be prima-facie evidence of a violation of this article.
    3. The transporter shall leave a copy of the invoice, bill of lading, or other documentation with each person who receives the fuel into bulk storage for resale.
  5. Delivery of motor fuel from a transport tank truck or vessel directly into the fuel tank of any motor vehicle in this state is prohibited except in cases of emergency.
  6. Every person purchasing or otherwise acquiring motor fuel in bulk quantities for sale, use, or other disposition in this state who is not required to be licensed as a distributor by this article may be required to file by the twentieth day of each calendar month a report on forms prescribed by the commissioner to account for all such motor fuel acquired during the preceding calendar month. Every operator of a terminal who receives motor fuel in bulk for storage shall include on a report to the commissioner the names of all persons who are storing fuel in the terminal and the quantity received, stored, and delivered during the month on behalf of each such account. The report shall specify what portion of the deliveries recorded for each account were within the terminal to others and what portion was removed from the terminal facility via the loading rack. The report shall identify the city or county and state of destination of the deliveries as reflected on the bills of lading issued by the terminal operator.

    (Code 1933, § 92-1410, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, §§ 91A-5010, 91A-5011, 91A-5012, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5009, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1981, p. 1019, § 1; Ga. L. 1981, p. 1857, § 42; Ga. L. 1993, p. 1502, §§ 5, 6; Ga. L. 2007, p. 309, § 12/HB 219; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "transporting not more than five gallons of motor fuel" for "transporting motor fuel of not more than five gallons" near the end of the last sentence of subsection (c).

Cross references. - Regulation of size, weight, and other characteristics of motor vehicles operated on highways of state, § 32-6-20 et seq.

Regulation of motor carriers generally, T. 46, C. 7.

48-9-10. Refunds of motor fuel taxes, in general; application for refund permit; contents; refunds to persons using gasoline for agricultural purposes; amount; retailers; separate claims; amount; interest.

    1. Retail dealers and persons using gasoline for agricultural purposes are entitled to a refund of motor fuel taxes as provided by this Code section. The right to receive any refund shall not be assignable and any assignment shall be void and of no effect. No payment shall be made by the commissioner to any person other than the original person entitled to the refund. To enable the commissioner to make the refunds as authorized by this Code section, the Office of the State Treasurer, under warrants drawn by the Governor, shall remit to the commissioner from funds appropriated by law an amount equivalent to the refunds. Before the Governor issues a warrant for the funds, he shall require the commissioner to certify the name of each applicant and the amount to which each applicant is entitled.
    2. In order for any person to be eligible for the refund provided by this Code section, the person must obtain a refund permit issued by the commissioner. The permit application shall state the information required by the commissioner to establish the right of the person to obtain a refund. In order to receive the refund, the applicant shall file with the commissioner a claim as prescribed by the commissioner and shall attach invoices to show proof of purchase, payment of tax, and total accountability of the motor fuel handled, consumed, or sold. Invoices submitted for proof of purchase shall contain no alterations or corrections of the name or dates originally shown on the invoice. No invoice that bears a date falling within a period of time covered by a previously paid refund claim shall be accepted to support the refund claim.
    3. Businesses engaged in the sale and field application of fertilizers, crop protection chemicals, and poultry litter which operate vehicles licensed for agricultural field use as defined in paragraph (.1) of Code Section 48-9-2 are entitled to a refund of motor fuel taxes paid on purchases of diesel fuel. The commissioner shall prescribe a simplified method of filing the proper records of taxable diesel fuel purchases used exclusively for agricultural field use vehicles which shall serve as the basis for the refund. The refund shall be computed by multiplying the total annual volume of taxable diesel fuel purchases used exclusively for agricultural field use vehicles, times the combined total of the current state motor fuel tax and the second motor fuel tax, with the resulting product further multiplied by a factor of .90. The commissioner shall adopt such additional rules and regulations as may be necessary to provide for the proper administration of this paragraph.
    1. Every person who purchases gasoline in quantities of 25 gallons or more, when the gasoline is used in operating farm tractors and other equipment used for the production of agricultural crops on land owned or leased by such person, shall be entitled to a refund of all of the taxes imposed on gasoline by paragraph (1) of subsection (a) of Code Section 48-9-3 except 1› per gallon, subject to the rules and regulations adopted by the commissioner. All applications for refunds must be filed with the commissioner within 18 months from the date of purchase of the gasoline on which the refund is claimed.
    2. Every person who purchases fuel oils, except those dyed fuel oils as defined in Code Section 48-9-2, in quantities of 25 gallons or more, when the fuel oils are used in operating equipment used for nonhighway purposes, shall be entitled to a refund of all of the taxes imposed on fuel oils by paragraph (1) of subsection (a) of Code Section 48-9-3 except that no interest shall be paid. All applications for refunds must be filed with the commissioner within 18 months from the date of purchase of the fuel oils on which the refund is claimed.
  3. Every person who purchases motor fuel in bulk quantities and sells the motor fuel at retail shall be entitled to a refund of 2 percent of the first 5 1/2› per gallon of the motor fuel taxes as compensation to cover losses for evaporation, shrinkage, and spillage. A licensed distributor of a type of motor fuel is not entitled to this refund on fuel for which the distributor holds a license. All applications for refunds must be filed with the commissioner within six months from the date of purchase of the motor fuel on which the refund is claimed. Separate claims shall be made to reflect the operations of each retail location at which motor fuel is sold at retail if more than one retail location is operated by the applicant.
  4. Refunds claimed and paid pursuant to this Code section shall not bear interest.

    (Code 1933, § 92-1411, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, §§ 91A-5007, 91A-5018, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5010, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1980, p. 10, § 34; Ga. L. 1982, p. 3, § 48; Ga. L. 1990, p. 799, § 4; Ga. L. 1992, p. 2095, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 1998, p. 1580, § 2; Ga. L. 2004, p. 425, § 5; Ga. L. 2010, p. 863, § 2/SB 296.)

Law reviews. - For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 92-1403 and 92-1407, prior to amendment by Ga. L. 1978, p. 186, § 1, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Refunds are to be made to taxpayers. - Retailer, like the distributor, of gasoline is not a taxpayer in the capacity of collecting the motor fuel taxes and turning the taxes over to the commissioner. Maynard v. Thrasher, 77 Ga. App. 316 , 48 S.E.2d 473 (1948) (decided under former Code 1933, § 92-1407, prior to amendment by Ga. L. 1978, p. 186, § 1).

Who qualifies as a retailer. - Gasoline supplier, selling at tank wagon price, when the station premises are leased to a lessee-dealer and the gasoline is consigned to the dealer, would not be considered a retailer so as to qualify for the 2 percent refund. 1963-65 Op. Att'y Gen. p. 268 (decided under former Code 1933, § 92-1407, prior to amendment by Ga. L. 1978, p. 186, § 1).

Tax refund for gasoline used for agricultural purposes. - In order to qualify for the refund, the claimant must be using the gasoline in the operation of tractors or other farm equipment which is used exclusively for agricultural purposes and farm operations. Therefore, to be entitled to a refund, the claimant must be engaged in agriculture, that is, tilling the soil for the production of "crops" as that term was defined at common law. These crops must be of the type which owe the crops' existence to the cultivation of the land by the yearly labor of people. Perennial trees, bushes, and grasses do not qualify. 1963-65 Op. Att'y Gen. p. 191 (decided under former Code 1933, § 92-1403, prior to amendment by Ga. L. 1978, p. 186, § 1).

As to livestock and poultry, the eligibility for gasoline tax refund should be limited to where the actual production thereof was a part of a bona fide farm operation. In other words, if cattle were placed in a pen and no use of the land was made to grow any part of the feed nor any part of the land used for the purpose of grazing, then the cattle production would not be a farm operation and, therefore, not eligible for a gasoline tax refund. But when livestock is produced as a bona fide part of the farm operation, when the production of the land and the agricultural pursuit is marketed or used through the means of livestock, the person should be entitled to the refund and not be penalized and denied a refund because of livestock production. 1962 Op. Att'y Gen. p. 8 (decided under former Code 1933, § 92-1403, prior to amendment by Ga. L. 1978, p. 186, § 1).

Person engaged in the production of poultry is farming within the language of this section, and in the event the person otherwise fulfills the terms and conditions prescribed by the statute, the person would be entitled to a gasoline tax refund. 1962 Op. Att'y Gen. p. 16 (decided under former Code 1933, § 92-1403, prior to amendment by Ga. L. 1978, p. 186, § 1).

When a person takes another's poultry and another's feed and in effect sells services in caring for and feeding the poultry, when no part of the acreage is used to produce any feed or grazing for the poultry produced, the person should not be entitled to the refund, but when a person owns acreage that is used for the production of the feed, or to provide grazing for the poultry, that person should not be denied the refund. 1962 Op. Att'y Gen. p. 18 (decided under former Code 1933, § 92-1403, prior to amendment by Ga. L. 1978, p. 186, § 1).

Nurseries. - As to nurseries, a refund should be allowed to the extent that the gasoline is used in the production of nursery products that is in truth and in fact a farm operation. 1962 Op. Att'y Gen. p. 8; 1962 Op. Att'y Gen. p. 516 (decided under former Code 1933, § 92-1403, prior to Ga. L. 1978, p. 186, § 1).

Foreign farm operators also entitled to refund. - Foreign farm operator otherwise qualifying for gasoline tax refund for gasolines purchased for farm use would not be denied a refund simply because the operator is not a resident of this state. 1962 Op. Att'y Gen. p. 518 (decided under former Code 1933, § 92-1403, prior to amendment by Ga. L. 1978, p. 186, § 1).

Tractors used for plowing firebreaks. - Turpentine company which utilizes tractors for the purpose of plowing firebreaks is not entitled to a vendee's tax refund permit for the gasoline used in such tractors. 1952-53 Op. Att'y Gen. p. 460 (decided under former Code 1933, § 92-1403, prior to amendment by Ga. L. 1978, p. 186, § 1).

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 112 et seq.

ALR. - Right to interest on tax refund or credit, 112 A.L.R. 1183 ; 88 A.L.R.2d 823.

Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778 .

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

48-9-10.1. Refunds of sales and use taxes to credit card issuers.

  1. As used in this Code section, the term:
    1. "Credit card issuer" means the party that extends credit, through the issuance of a credit card, to the qualified governmental tax-exempt entity that purchases "motor fuel" for "highway use" as those terms are defined under Code Section 48-9-2 for a qualified governmental tax-exempt entity's exclusive use.
    2. "Qualified governmental tax-exempt entity" means a government entity that is exempt from sales and use tax under Chapter 8 of this title, or other provision of general law.
  2. In the event that a sale of motor fuel for highway use is made to a qualified governmental tax-exempt entity by means of a credit card issued by a credit card issuer to the qualified governmental tax-exempt entity when such credit card issuer invoices and bills such qualified governmental tax-exempt entity net of the applicable taxes, such credit card issuer may obtain a refund for the sales and use taxes paid on such sales.
  3. In order for a credit card issuer to be eligible to claim a refund of sales and use taxes provided under this Code section, the credit card issuer must be registered with the Internal Revenue Service under Section 4101 of the Internal Revenue Code as a credit card issuer; establish that it has not collected the tax from the qualified governmental tax-exempt entity that purchased the motor fuel; establish that it repaid the amount of the tax to the dealer in full with all applicable taxes included; and has obtained the written consent of the dealer for the allowance of the credit or refund or has otherwise made arrangements which directly or indirectly provide the dealer with reimbursement of the tax.
  4. Refunds of sales and use tax pursuant to this Code section shall be made without interest.
  5. The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section. (Code 1981, § 48-9-10.1 , enacted by Ga. L. 2009, p. 813, § 2/HB 441; Ga. L. 2013, p. 141, § 48/HB 79.)

48-9-11. Falsely swearing on application for refund of gasoline tax under Code Section 48-9-10; penalty.

  1. It shall be unlawful for any person falsely to swear to a refund application, information statement, or any sworn statement made in connection with the procurement of a refund of gasoline tax under Code Section 48-9-10 when such person knows that any statement contained in the statement or application is false.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1946, p. 19, § 1; Code 1933, § 91A-9944, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - False swearing generally, § 16-10-71 .

RESEARCH REFERENCES

C.J.S. - 70 C.J.S., Perjury, §§ 2, 3, 5 et seq.

48-9-12. Powers of the commissioner; notice of cancellation of license; retention of bonds; public inspection of records; assessment based on commissioner's estimate; agreements for time extension; list of licensed distributors.

  1. In addition to his other duties and responsibilities to administer this article, the commissioner is empowered and authorized to do, but is not limited to, the following:
    1. Deny or cancel any distributor's or aviation gasoline dealer's license if the commissioner is of the opinion that the license application is not filed in good faith or is filed by some person as a subterfuge for any other person;
    2. Cancel any distributor's or aviation gasoline dealer's license for failure to comply with any provision of this article or with rules and regulations adopted by the commissioner;
    3. Cancel a license upon receipt of a written request from any distributor or aviation gasoline dealer licensed under this article to cancel the license issued to the distributor or aviation gasoline dealer. The distributor or aviation gasoline dealer shall surrender to the commissioner the license certificate issued;
    4. Cancel the license of a distributor if, upon investigation or information obtained from the distributor's monthly report, the commissioner ascertains that any distributor to whom a license has been issued is no longer engaged in the receipt, use, or sale of motor fuel and has not been so engaged for a period of six months, or no longer qualifies as a distributor under this article. Written notice of the cancellation shall be mailed to the last known address of the distributor, in which event the license certificate previously issued to the distributor shall be surrendered to the commissioner;
    5. Reinstate a canceled license when information is provided at a hearing or otherwise within 30 days of cancellation which satisfies the commissioner that the license should be reinstated;
    6. Decline to approve a refund payment until the applicant has complied with the laws of this state if in the opinion of the commissioner the refund application filed by an applicant contains a false statement or if the applicant is indebted to the state;
    7. Suspend the right of the refund privilege of a person for a term of not more than 12 months if the commissioner concludes that any retail dealer, any person using gasoline for agricultural purposes, or any foreign government official has willfully violated this article or has willfully failed to comply with the rules and regulations adopted by the commissioner for the administration of this article;
    8. Waive the bond and the report required of a licensed distributor of fuel oils, compressed petroleum gas, or special fuel if the distributor has no taxable sales of the fuel and his receipts do not exceed 12,000 gallons per year and with respect to such distributors waive requirements for record keeping on sales that do not exceed 25 gallons in one transaction;
    9. Enter into agreements with appropriate authorities of other jurisdictions having statutes similar to this article for the cooperative audit of any taxpayer's reports and refunds. In performing the audits or parts of audits, the officers and employees of other jurisdictions shall be deemed authorized agents of the commissioner for the agreed upon purpose; and
    10. Appoint revenue agents for the enforcement of this article. The appointed agents shall have all powers of a police officer of this state when engaged in the enforcement of this article.
  2. The commissioner shall notify the distributor or aviation gasoline dealer in writing of any cancellation of a license as provided in subsection (a) of this Code section by certified mail or statutory overnight delivery to the last known address of the distributor or aviation gasoline dealer appearing in the files of the commissioner.
  3. In the event that the license of any distributor is canceled by the commissioner under the authority of this article, the commissioner shall hold the bonds of the distributor for a period of three years against any liabilities of the distributor. In no event shall any bonds surrendered remove any liability.
  4. The commissioner shall make the motor fuel tax records available for inspection by the public at reasonable times. The commissioner may charge a fee for special requests of prepared information based on the cost to prepare the information.
  5. When any distributor neglects or refuses to file the required reports or fails to maintain auditable records that account for tax exemptions taken on motor fuel as required by this article or files an incorrect or fraudulent report, the commissioner or his authorized agents shall determine from the best information available the number of gallons of motor fuel to be taxed. The commissioner shall impose the tax, penalty, and interest due. Estimates by the commissioner or his authorized agents shall be prima-facie evidence of the claim of the state and the burden of proof to establish the accountability of motor fuel shall be on the distributor to show that the assessment is incorrect and contrary to law.
  6. Before the expiration of the time prescribed by this article for assessments and refunds of taxes, the commissioner or his delegates may enter into an agreement in writing with the taxpayer to extend such time. The period so agreed upon may be extended by subsequent agreements made in writing before the expiration of the period previously agreed upon.
  7. The commissioner shall prepare and furnish to each known selling licensed distributor a list showing the name and address of each licensed distributor of motor fuels as of the beginning of each fiscal year and shall thereafter during each year supplement the list monthly.

    (Code 1933, § 92-1413, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, §§ 91A-5003, 91A-5005, 91A-5006, 91A-5007, 91A-5008, 91A-5009, 91A-5017, 91A-5019, 91A-5020, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5011, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1985, p. 1644, § 2; Ga. L. 1992, p. 6, § 48; Ga. L. 2000, p. 1589, § 3.)

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that that Act shall apply with respect to notices delivered on or after July 1, 2000.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-1418, prior to amendment by Ga. L. 1978, p. 186, § 1, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Commissioner has reasonable discretion to waive penalties and interest. 1948-49 Op. Att'y Gen. p. 681 (decided under former Code 1933, § 92-1418 prior to amendment by Ga. L. 1978, p. 186, § 1).

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 13 et seq.

48-9-13. Assessments of deficiencies; time limits; timely return; false or fraudulent return; no return; filing of statement by sheriff, receiver, or other officer upon sale of distributor's property; contents.

    1. Except as otherwise provided in paragraph (2) of this subsection, any assessment for taxes due under this article shall be made within the time limits specified in Code Section 48-2-49.
    2. If the distributor has filed a report under this article which contains fraudulent statements or omissions of material facts the effect of which makes the taxpayer's report a fraudulent representation, the commissioner may reopen the tax period and make any additional assessment of taxes due at any time within seven years from the last date on which the report could have been timely filed by the taxpayer.
  2. At the time of advertising for sale the property or franchise of any person who is a distributor, any sheriff, receiver, assignee, master, or other officer shall file with the commissioner a statement containing the following information:
    1. Name or names of the plaintiff or party at whose instance or upon whose account the sale is made;
    2. Name of the person whose property or franchise is to be sold;
    3. The time and place of sale; and
    4. The nature and location of the property.

      (Code 1933, § 92-1414, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, §§ 91A-5015, 91A-5017, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5012, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1985, p. 1350, § 4.)

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 92-1418, prior to amendment by Ga. L. 1978, p. 186, § 1, which was subsequently repealed but was succeeded by provisions of this Code section, are included in the annotations for this Code section.

Priority of lien of prior judgment creditor. - Lien which the state has under this section upon the property of a distributor for excise taxes collected by the distributor on the sale or use of motor fuel or kerosene does not have priority over the lien of a judgment creditor when the rights of such creditor attached prior to the time the commissioner files notice of the state's lien in the office of the superior court. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383 , 73 S.E.2d 205 (1952) (decided under former Code 1933, § 92-1418, prior to amendment by Ga. L. 1978, p. 186, § 1).

No greater rights than state acquired by distributor's surety upon subrogation. - When a surety upon the distributor's bond to the state becomes subrogated to the rights of the state by payment of such taxes to the state, the surety takes the position of the state and acquires no greater rights with respect thereto than the state has at the time the surety became subrogated. Royal Indem. Co. v. Mayor of Savannah, 209 Ga. 383 , 73 S.E.2d 205 (1952) (decided under former Code 1933, § 92-1418, prior to amendment by Ga. L. 1978, p. 186, § 1).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 507.

C.J.S. - 53 C.J.S., Licenses, § 106.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

48-9-14. Second motor fuel tax; rate; exemptions; applicability of Article 1 of Chapter 8 of this title.

Reserved. Repealed by Ga. L. 2015, p. 236, § 5-14/HB 170, effective July 1, 2015.

Editor's notes. - This Code section was based on Code 1933, § 92-1420, enacted by Ga. L. 1979, p. 1274, § 2; Code 1933, § 91A-5015, enacted by Ga. L. 1979, p. 1274, § 4; Ga. L. 1992, p. 815, § 4; Ga. L. 1993, p. 995, § 2; Ga. L. 2003, p. 355, § 6; Ga. L. 2003, p. 665, § 16; Ga. L. 2009, p. 8, § 48/SB 46.

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Law reviews. - For article on the 2015 repeal of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-9-15. Officers required to assist in enforcing article; powers.

The commissioner of public safety, each sheriff, and each peace officer shall assist in enforcing this article. Each officer shall have the powers necessary for the enforcement and administration of this article including the power to make arrests, serve process, and appear in court.

(Code 1933, § 92-1416, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5020, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5014, enacted by Ga. L. 1979, p. 5, § 102.)

48-9-16. Penalties and interest; untimely return; failure to pay; false or fraudulent returns; failure to file returns; dyed fuel oil violations.

  1. When any distributor or other person required to file a report as provided by this article fails to file the report within the time prescribed, he shall be subject to a penalty of $50.00 for each such failure.
  2. When any distributor fails to pay the tax or any part of the tax due under Code Section 48-9-3, the distributor shall be subject to a penalty of 10 percent of the amount of unpaid taxes due.
  3. In the case of a false or fraudulent return or of a failure to file a return, a specific penalty of 50 percent of the tax due shall be assessed.
  4. When any distributor fails to pay the tax or any part of the tax due under Code Section 48-9-3, the distributor shall pay interest on the unpaid tax at the rate specified in Code Section 48-2-40 from the time the tax became due until paid.
  5. When any person:
    1. Sells or delivers any dyed fuel oil when such person knows or has reason to know that the fuel will be consumed in a highway use; or
    2. Consumes any dyed fuel oil for a highway use when such consumer knows or has reason to know that the fuel oil was dyed,

      such person shall be subject to a penalty of $1,000.00 or $10.00 per gallon of dyed fuel oil involved in such sale, delivery, or consumption, whichever amount is greater, and such amount shall be multiplied by the number of prior penalties imposed on such violator under this subsection, and the resulting product shall be the penalty to be imposed.

  6. When any person sells or delivers any dyed fuel oil without the notices required under paragraph (5) of subsection (c) of Code Section 48-9-8, such person shall be subject to a penalty which shall be the greater of the following:
    1. One hundred dollars per month for each month or part of a month in which such sale or delivery occurred; or
    2. One dollar per gallon of dyed fuel oil involved in such sale or delivery.

      Upon a showing of no highway use and reasonable cause, at the commissioner's discretion the penalty under this subsection may be reduced to 10 percent of the amount which ordinarily would have been due or payment of the tax may be accepted in lieu of such penalty.

      (Code 1933, § 92-1415, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-5007, enacted by Ga. L. 1978, p. 309, § 2; Code 1933, § 91A-5013, enacted by Ga. L. 1979, p. 5, § 102; Ga. L. 1980, p. 10, § 35; Ga. L. 1980, p. 1759, § 2; Ga. L. 1995, p. 359, § 5; Ga. L. 2002, p. 415, § 48; Ga. L. 2003, p. 355, § 7; Ga. L. 2003, p. 665, § 17; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, deleted "or 48-9-14" following "Code Section 48-9-3" in subsections (b) and (d), and revised punctuation in the ending undesignated paragraph of subsection (e).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-1407, prior to amendment by Ga. L. 1978, p. 186, § 1, which was subsequently repealed but was succeeded by provisions of this Code section, are included in the annotations for this Code section.

This section is self-executing. 1963-65 Op. Att'y Gen. p. 25 (decided under former Code 1933, § 92-1407, prior to amendment by Ga. L. 1978, p. 186, § 1).

Section does not, either directly or indirectly, provide that the penalty and interest become a part of the tax. 1948-49 Op. Att'y Gen. p. 681 (decided under former Code 1933, § 92-1407, prior to amendment by Ga. L. 1978, p. 186, § 1).

RESEARCH REFERENCES

ALR. - Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 96 A.L.R. 925 ; 147 A.L.R. 142 .

Penalty for nonpayment of taxes when due as affected by lack of notice to taxpayer, 102 A.L.R. 405 .

Doubt as to liability for, or as to person to whom to pay, tax, as affecting liability for penalties and interest, 137 A.L.R. 306 .

Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

48-9-17. Violations of article; penalties.

    1. With respect to this article, it shall be unlawful for any person to:
      1. Refuse or neglect to make any required statement, report, or return;
      2. Knowingly make, or aid or assist any other person in making, a false statement in a return or report to the commissioner;
      3. Knowingly collect or attempt to collect or cause to be paid to him or to any other person either directly or indirectly any refund of the tax without being entitled to the refund;
      4. Fail to remit the tax to the state;
      5. Engage in business in this state as a distributor without being licensed as required; or
      6. Sell, import, or use any motor fuel which was purchased by such person from any person other than a duly licensed distributor and upon which the tax imposed and not exempted by law has not been paid.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000.00 nor more than $10,000.00 or by imprisonment for a term of not less than 30 days nor more than 12 months, or both. Each day or part of a day during which any person engages in business as a distributor without being the holder of an uncanceled license shall constitute a separate offense under this subsection.
    1. It shall be unlawful for any person to purchase tax-exempt motor fuel from a licensed distributor for nonhighway use and to use or permit the motor fuel to be used for highway purposes.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000.00 nor more than $10,000.00 or by imprisonment for not less than 30 days nor more than 12 months, or both.
    1. It shall be unlawful for any person not required by this article to be licensed as a distributor of motor fuel but who is required to file reports as provided by this article willfully to fail to file the report by the twentieth day of the succeeding month for its activities or willfully to fail to remit in the monthly reports the data required by the commissioner for proper administration of this article.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100.00 for the first offense and not less than $1,000.00 for each subsequent offense.
    1. It shall be unlawful for any person to violate any provision of this article, including, but not limited to, record keeping, or to fail to do any other act required by this article.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $1,000.00 or by imprisonment for not more than 12 months, or both.
    1. It shall be unlawful for any person to import or export motor fuels across the boundaries of this state without a bill of lading from the terminal of origin or equivalent documentation setting out, in addition to the information required by subsection (d) of Code Section 48-9-9, at least the location of the terminal of origin and state or country of destination.  The form, procedure, acceptable equivalent documentation, and any additional information shall be set out in rules and regulations as adopted by the commissioner.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor.
    1. It shall be unlawful for any retail dealer, distributor, or bulk user in this state knowingly to accept delivery of motor fuel that is not accompanied by a bill of lading, invoice, or other shipping document, as specified in paragraph (3) of subsection (d) of Code Section 48-9-9, issued by the terminal operator which sets out on its face Georgia as the state of destination.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor and become jointly liable with the distributor of the motor fuels for the taxes due under this article.
    3. In the event the shipment of motor fuel did not originate from a terminal whose operator is obligated to set out this information, the commissioner is authorized to adopt by rules or regulations equivalent documentation requirements.  The commissioner is further authorized to adopt rules and regulations setting out procedures to amend such documentation should the shipment have to be diverted from its original destination.

      (Code 1933, § 92-1418, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-9918, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 111; Ga. L. 1993, p. 1502, § 7.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 1862 et seq., 1932.

48-9-18. Operation without distributor's license; assessment of penalty in lieu of taxes.

If any person required by this article to hold an uncanceled distributor's license engages in business in this state as a distributor without such a license, thereby incurring a tax liability under this article which, but for the fact that such person was unlicensed, would not have been incurred, the commissioner may in his discretion waive such tax liability, including any applicable penalties and interest thereon, and assess in lieu thereof a penalty under this Code section. Such penalty shall be equal to 10 percent of the tax liability which, but for the fact that such person was unlicensed, would not have been incurred, but shall not be less than $100.00 for each monthly tax period involved. No taxes shall be waived under this Code section where the commissioner determines that such person failed to become properly licensed prior to operating as a distributor in this state, that such person knew or should have known of the requirement that he be licensed prior to so operating, and that such person failed to remit to the state such taxes under this article as are due from licensed distributors.

(Code 1981, § 48-9-18 , enacted by Ga. L. 1990, p. 799, § 5.)

48-9-19. Cooperative agreements with other states.

  1. The commissioner may enter into cooperative agreements with other states for exchange of information in administering the tax imposed by this article.  No agreement, arrangement, declaration, or amendment to an agreement shall be effective until stated in writing and approved by the commissioner.
  2. An agreement may provide for determining the base state for motor carriers; records requirements; audit procedures; exchange of information; persons eligible for tax licensing; defining qualified motor vehicles; determining if bonding is required; specifying reporting requirements and periods, including defining uniform penalty and interest rates for late reporting; determining methods for collecting and forwarding of gasoline or other motor fuel taxes and penalties to another jurisdiction; and such other provisions as will facilitate the administration of the agreement.
  3. The commissioner may, as required by the terms of an agreement, forward to officials of another state any information in the department's possession relative to the use of gasoline or other motor fuels by any motor carrier.  The commissioner may disclose to officials of another state the location of offices, motor vehicles, and other real and personal property of motor carriers.
  4. An agreement may provide for each state to audit the records of motor carriers based in that state to determine if the gasoline or other motor fuel taxes due each state are properly reported and paid.  Each state shall forward the findings of the audits performed on motor carriers based in that state to each state in which the motor carrier has taxable use of gasoline or other motor fuels.  For motor carriers not based in this state who have taxable use of gasoline or other motor fuels in this state, the commissioner may utilize the audit findings received from another state as the basis upon which to propose assessments of gasoline or other motor fuel taxes against the motor carrier as though the audit had been conducted by the commissioner.  Penalties and interest shall be assessed at the rates provided in the agreement.
  5. No agreement entered into pursuant to this Code section may preclude the department from auditing the records of any motor carrier covered by this chapter.
  6. Any assessment or order made under this Code section shall be governed by all provisions of this title applicable to assessments and orders under this chapter generally, except to the extent that different treatment is specifically required by this Code section or any agreement entered into pursuant to the authority of this Code section.
  7. If the commissioner enters into any agreement under the authority of this Code section and the provisions set forth in the agreement are in conflict with any provision of any rule or regulation promulgated by the commissioner, the provisions of such agreement shall prevail. (Code 1981, § 48-9-19 , enacted by Ga. L. 1990, p. 799, § 5.)

48-9-20. Temporary exemption of motor fuels from state sales and use tax, excise tax, and second motor fuel tax.

Repealed by Ga. L. 2005, p. ES 3, § 2/HB 1EX, effective October 1, 2005.

Editor's notes. - This Code section was based on Code 1981, § 48-9-20 , enacted by Ga. L. 2005, p. ES 3, § 2/HB 1EX.

ARTICLE 2 ROAD TAX ON MOTOR CARRIERS

Cross references. - Motor carriers generally, T. 46, C. 7.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under Ga. L. 1937, p. 167, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

Nature of tax. - Motor fuel tax laws found in former Code 1933, Ch. 92-14 and Ga. L. 1968, p. 360 showed that the motor fuel taxes are of the nature of a road use tax. This was true because the funds collected must be used to construct and maintain the highways. 1963-65 Op. Att'y Gen. p. 92 (decided under Ga. L. 1937, p. 167).

RESEARCH REFERENCES

ALR. - Constitutionality of statutes or ordinances for taxation of common carriers by automobile, 75 A.L.R. 13 .

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011 .

48-9-30. Definitions.

As used in this article, the term:

  1. "Motor carrier" means any person who operates or causes to be operated any motor vehicle, as defined in this Code section, on any highway in this state.
  2. "Motor fuel" means any liquid, regardless of its composition or properties, used to propel a motor vehicle.
  3. "Motor vehicle" means any passenger vehicle that has seats for more than 20 passengers in addition to the driver and any vehicle or combination of vehicles used, designed, or maintained for transportation of property and having two axles and a gross vehicle weight exceeding 26,000 pounds or having three or more axles regardless of weight.  The term "motor vehicle" does not mean:
    1. School buses;
    2. Vehicles operated by the state, any political subdivision of the state, or the United States; or
    3. Transit buses operated exclusively within this state.
  4. "Operations" means operation of any motor vehicle, whether loaded or empty, whether or not for compensation, and whether owned by or leased to the motor carrier who operates it or causes it to be operated.

    (Ga. L. 1968, p. 360, § 1; Code 1933, § 91A-5101, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 103; Ga. L. 1981, p. 1857, § 43; Ga. L. 1992, p. 2095, § 2.)

RESEARCH REFERENCES

C.J.S. - 60 C.J.S., Motor Vehicles, § 1 et seq.

48-9-31. Road tax on motor carriers; rate; basis of calculation; additional tax.

A road tax for the privilege of using the streets and highways of this state is imposed upon every motor carrier. The tax shall be equivalent to the taxes imposed by Article 1 of this chapter and shall be calculated on the amount of motor fuel used by the motor carrier in its operations within this state. Except as credit for certain taxes as provided in this article, the tax imposed on motor carriers by this Code section is in addition to taxes imposed on motor carriers by any other law.

(Ga. L. 1968, p. 360, § 2; Code 1933, § 91A-5102, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 36.)

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Highways, § 457 et seq.

48-9-32. Payment of road tax; time; calculation on amount of motor fuel used in state; formula.

For the purposes of making payment of taxes and filing reports pursuant to this article, the year is divided into four quarters of three consecutive months each. The first quarter of the year shall consist of the months of January, February, and March. The road tax shall be paid by each motor carrier to the commissioner on or before the last day of the month immediately following the quarter with respect to which tax liability under this article accrues and shall be calculated upon the amount of motor fuel used by the motor carrier in its operations within this state during the quarter ending on the last day of the preceding month. The amount of motor fuel used in the operations of any motor carrier within this state shall be the proportion of the total amount of motor fuel used in its entire operations within and outside this state which the total number of miles traveled within this state bears to the total number of miles traveled within and outside this state.

(Ga. L. 1968, p. 360, § 3; Code 1933, § 91A-5103, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Highways, § 464.

48-9-33. Reports of motor carriers; time; exemption.

Every motor carrier subject to the road tax imposed by this article shall make to the commissioner on or before the last day of April, July, October, and January such reports of its operations during the quarter of the year ending on the last day of the preceding month as the commissioner requires. The commissioner may by regulation permit motor carriers having an annual road tax not in excess of an amount set by the commissioner to file annual reports. The commissioner by regulation may exempt from the reporting requirements of this Code section motor carriers all of whose operations are within this state.

(Ga. L. 1968, p. 360, § 6; Code 1933, § 91A-5106, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 799, § 6.)

48-9-34. Joint reports by passenger motor carriers; basis of calculation of taxes due; liability; contents of reports; credits and refunds; required inclusion of certain motor carriers.

  1. Two or more motor carriers regularly engaged in the transportation of passengers on through buses and on through tickets in pool service, at their option and with the consent of the commissioner, may make joint reports of their entire operations in this state. The road taxes imposed by this article shall be calculated on the basis of the joint reports as though the motor carriers were a single motor carrier. The motor carriers making the reports shall be jointly and severally liable for the taxes.
  2. Joint reports authorized by this Code section shall show the total number of miles traveled in this state and the total number of gallons of motor fuel purchased in this state by the reporting motor carriers. Credits or refunds to which the motor carriers are entitled shall not be allowed as credits or refunds to any other motor carrier. Motor carriers filing joint reports, however, shall permit all motor carriers engaged in this state in pool operations with them to join in filing joint reports.

    (Ga. L. 1968, p. 360, § 8; Code 1933, § 91A-5108, enacted by Ga. L. 1978, p. 309, § 2.)

48-9-35. Credit against road tax for payment of motor fuel tax; evidence of payments; subsequent application of credit exceeding amount of road tax; limit.

Every motor carrier subject to the road tax shall be entitled to a credit on the tax equivalent to the amount of motor fuel tax imposed by Article 1 of this chapter on all motor fuel purchased by the motor carrier during the quarter within this state for use in operations either within or outside this state when the motor fuel tax imposed by this state has been paid by the motor carrier. Evidence of the payments of the motor fuel tax in the form required by the commissioner shall be furnished by each motor carrier claiming the credit allowed. When the amount of the credit to which any motor carrier is entitled for any quarter exceeds the amount of the road tax for which the carrier is liable for same quarter, the excess may be allowed pursuant to regulations promulgated by the commissioner as a credit on the road tax for which the motor carrier would be otherwise liable for the subsequent quarter or quarters. Allowed credits may be carried forward and utilized no later than the succeeding two calendar years.

(Ga. L. 1968, p. 360, § 4; Code 1933, § 91A-5104, enacted by Ga. L. 1978, p. 309, § 2.)

48-9-36. Refunds to motor carriers; minimum credit refundable; applications; procedure; bond; audit of applicant's records; procedure for issuance of refunds; interest.

  1. Any motor carrier which accrues credits in excess of 2,000 gallons in any quarter under Code Section 48-9-35 shall be entitled to a refund of the credits subject to the conditions set forth in this Code section.
  2. All applications for refunds must be filed with the commissioner within 180 days from the end of any quarter in which credits are accumulated. Applications shall be in the form prescribed by the commissioner, shall be sworn to, and shall be supported by evidence satisfactory to the commissioner.
  3. Any motor carrier entitled to a refund may give a bond in an amount of not less than $1,000.00 payable to the state and conditioned that the motor carrier will pay all road taxes due and to become due under this article. As long as the bond remains in force, the commissioner may issue refunds to the motor carrier in the amounts appearing to be due on applications without first auditing the records of the motor carrier. The bond shall be in the form and with such surety as required by the commissioner.
  4. The commissioner shall not issue refunds in excess of the amount of the bond or bonds except after audit of the applicant's records. Except as otherwise provided by the commissioner, sufficient records must be produced in this state for audit.
  5. To enable the commissioner to make the refunds authorized by this Code section, the Office of the State Treasurer, under warrants drawn by the Governor, shall remit to the commissioner, from funds appropriated by law for that purpose, an amount equivalent to the refunds. Before the Governor issues a warrant for this purpose, he shall require that the commissioner certify the name of each applicant and the amount to which he is entitled. The refunds provided by this Code section shall be nonassignable.
  6. Refunds claimed and paid pursuant to this Code section shall bear no interest.

    (Ga. L. 1968, p. 360, § 5; Ga. L. 1971, p. 684, § 1; Code 1933, § 91A-5105, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 104; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

Law reviews. - For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 112 et seq.

ALR. - Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778 .

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

48-9-37. Lessee and lessor of motor vehicles as motor carriers; determination of status; primary liability; effect of failure to discharge liability.

  1. The lessee of a motor vehicle, but not the lessor of a motor vehicle, shall be deemed a motor carrier for the purposes of this article unless otherwise specifically provided in this Code section.
  2. A lessor of motor vehicles may be deemed a motor carrier with respect to motor vehicles leased to others by him and with respect to motor fuel consumed by the motor vehicles when the lessor supplies or pays for the motor fuel consumed by the motor vehicles or makes rental or other charges calculated to include the cost of the motor fuel. The commissioner shall provide by rules and regulations for the presentation to other motor carriers and to the general public of satisfactory evidence and identification of the motor carrier status. Any lessee motor carrier may exclude from his reports pursuant to this article motor vehicles of which he is the lessee when the motor vehicles have been leased from a lessor who is a motor carrier pursuant to this Code section.
  3. Subsections (a) and (b) of this Code section shall govern primary liability of lessors and lessees of motor vehicles pursuant to this article. If a lessor or lessee who is primarily liable fails in whole or in part to discharge this liability, the failing party or other lessor or lessee party to the transaction shall be jointly and severally responsible and liable for compliance with this article and for the payment of any tax due pursuant to this article. The aggregate amount of any taxes collected by the state pursuant to this article, however, shall not exceed the total amount of tax due on the account of the transaction in question together with any costs and penalties imposed.

    (Ga. L. 1968, p. 360, § 7; Code 1933, § 91A-5107, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

ALR. - Construction and effect of motor vehicle leasing contracts, 43 A.L.R.3d 1283.

48-9-38. Requirement of motor vehicle registration card and identification marker; validity; renewal; fee; temporary authorizations; temporary permits; fee.

  1. Unless otherwise excluded from the scope of this article, no motor carrier shall operate or cause to be operated in this state any motor vehicle unless and until he has:
    1. Registered with the commissioner and secured a motor carrier registration card. A duplicate of the registration card shall be carried in each motor vehicle at all times in this state; and
    2. Secured from the commissioner an identification marker for each motor vehicle. The identification marker shall be attached or affixed to the motor vehicle in the place and manner prescribed by the commissioner so that the marker is clearly displayed at all times.
  2. Registration cards and identification markers shall be issued on an annual basis as of January 1 of each year and shall be valid until the next succeeding December 31.  The commissioner, in his discretion, may authorize renewal of registration cards and identification markers without the necessity of issuing new cards and markers.  All registration cards and identification markers issued by the commissioner shall remain the property of the state and may be recalled for any violation of this article or of the regulations promulgated under this article.  The commissioner shall not issue a registration card or an identification marker to any motor carrier who has outstanding motor carrier, motor fuel, sales, or income tax liabilities or other penalties or fees owed to the Department of Transportation of this state unless the liabilities are being appealed as provided by law.
  3. Prior to the issuance of each identification marker, a fee of $3.00 shall be paid to the commissioner. Upon application for identification markers by a motor carrier, the applicant shall declare the type of fuel used in vehicles for which identification markers are to be issued and any other information that the commissioner may require for the effective administration of this article.
  4. The commissioner may authorize a motor vehicle to be operated in an emergency without a registration card and identification marker for a period not in excess of 30 days. The authorization shall be granted by letter or facsimile message.
  5. A motor carrier may obtain a temporary permit which shall be good for one motor vehicle for a period of ten consecutive days beginning and ending on the dates specified on the face of the permit. Temporary permits are to be obtained by motor carriers having only infrequent trips into and through this state. The fee for the permit shall be $16.00 and no reports shall be required from such motor carriers. Temporary permits shall be issued in lieu of annual registration required under this article. A temporary permit shall be carried in the vehicle for which it was issued at all times when the vehicle is in this state. The commissioner may issue a temporary permit by facsimile message or letter.

    (Ga. L. 1968, p. 360, § 9; Code 1933, § 91A-5109, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1978, p. 1609, § 1; Ga. L. 1979, p. 5, § 105; Ga. L. 1981, p. 1857, § 44; Ga. L. 1992, p. 2095, § 3.)

48-9-39. Violation of Code Section 48-9-38; penalty.

  1. It shall be unlawful for any person to operate or cause to be operated on any highway in this state any motor vehicle that does not carry the registration card required by Code Section 48-9-38 or any motor vehicle that does not display in the manner prescribed by the commissioner the identification marker that Code Section 48-9-38 requires to be displayed.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $50.00 nor more than $200.00. Each day's operation in violation of this Code section shall constitute a separate offense.

    (Ga. L. 1968, p. 360, § 18; Code 1933, § 91A-9920, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 60A C.J.S., Motor Vehicles, § 812.

48-9-40. Keeping and preservation of records; inspection; estimate of amount of road tax due; prima-facie evidence; burden of proof; agreements with certain jurisdictions for cooperative audits.

  1. Every motor carrier shall keep such records as may be necessary for the effective administration of this article and for the reporting and justification of the amount of tax liability pursuant to this article. All such records shall be kept in the form required by the commissioner and shall be safely preserved for a period of three years in such a manner as to ensure their security and availability for inspection by the commissioner or his authorized agents. Upon application in writing after an audit of the motor carrier's records has been made, the commissioner may consent to the destruction of the records within the three-year period.
  2. The commissioner and his authorized agents and representatives may inspect during regular business hours the books and records of any motor carrier subject to the road tax imposed by this article.
  3. Whenever any motor carrier neglects or refuses to file any report or neglects or refuses to keep records as prescribed by this article, the commissioner, using the best information available, shall estimate, determine, and fix the amount of taxes and penalties payable by the motor carrier under this article. In any action or proceeding under this Code section, any assessment by the commissioner shall constitute prima-facie evidence of the claim of the state. The burden of proof shall be upon the motor carrier to show that the assessment was incorrect or contrary to law.
  4. The commissioner may enter into agreements with the appropriate authorities of other jurisdictions having statutes similar to this article for the cooperative audit of motor carriers' reports and returns. In performing any such audit or part of an audit, the officers and employees of the other jurisdiction or jurisdictions shall be deemed authorized agents of this state for such purpose.

    (Ga. L. 1968, p. 360, § 10; Code 1933, § 91A-5110, enacted by Ga. L. 1978, p. 309, § 2.)

48-9-41. Assessment of deficiencies; time limits; timely report; false or fraudulent report; no report; procedures for collection.

    1. When any motor carrier is in default in the payment of any road taxes due under this article, the commissioner shall assess the road taxes due in the manner provided by law. Except as otherwise provided in paragraph (2) of this subsection, any assessment for road taxes due under this article shall be made within the time limits specified in Code Section 48-2-49.
    2. When the motor carrier has filed a report under this article which contains fraudulent statements or omissions of material facts, the effect of which is to make the taxpayer's report a fraudulent representation, the commissioner may reopen the tax period and make any additional assessment of taxes due at any time within seven years from the last date on which the report could have been timely filed by the taxpayer.
  2. The commissioner shall collect any deficiencies and road taxes due under this article by levy, garnishment, attachment, or action or by any other provision of law for collection of delinquent state taxes.

    (Ga. L. 1968, p. 360, § 11; Ga. L. 1972, p. 834, § 1; Code 1933, § 91A-5111, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 1350, § 5.)

RESEARCH REFERENCES

C.J.S. - 40 C.J.S., Highways, §§ 462, 463.

ALR. - Construction and application of statute prohibiting or restricting reassessment after assessment and payment of taxes, 85 A.L.R. 107 .

48-9-42. Secretary of State as agent of nonresident motor carriers for service of process or notice.

The acceptance by a nonresident motor carrier of the rights and privileges conferred by law permitting the operation of motor vehicles on the public highways of this state, as evidenced by the operation of a motor vehicle by the nonresident either personally or through an agent or employee on the public highways of this state, or by the operation by the nonresident either personally or through an agent or employee of a motor vehicle on the public highways of this state other than as so permitted or regulated, shall be deemed equivalent to the appointment by the nonresident motor carrier of the Secretary of State or his successor in office as his agent for service of process or notice in any action, assessment proceedings, or other proceeding against him or his personal representative arising out of or by reason of any provision of this article relating to the motor vehicle or relating to the liability for road tax with respect to operation of the motor vehicle on the highways of this state. The acceptance or operation shall be an acknowledgment by the nonresident motor carrier of his agreement that any such process against or notice to him or his personal representative shall be of the same legal force and validity as if the process or notice were served on him personally or on his personal representative.

(Ga. L. 1968, p. 360, § 13; Code 1933, § 91A-5113, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48.)

RESEARCH REFERENCES

C.J.S. - 72 C.J.S., Process, § 76.

48-9-43. Assistance by Department of Public Safety in administration and enforcement of article; powers.

The commissioner of public safety shall utilize the personnel of the Department of Public Safety as necessary to assist in enforcing this article. The officers of the Department of Public Safety shall have the powers of peace officers including, but not limited to, the powers of making arrests, serving process, and appearing in court in all matters relating to the administration and enforcement of this article.

(Ga. L. 1968, p. 360, § 14; Code 1933, § 91A-5114, enacted by Ga. L. 1978, p. 309, § 2.)

48-9-44. Powers of revenue agents in enforcement of article.

Each person appointed by the commissioner as a special agent or enforcement officer of the department shall have all the powers of a police officer of this state when engaged in the enforcement of this article.

(Ga. L. 1972, p. 381, § 1; Code 1933, § 91A-5115, enacted by Ga. L. 1978, p. 309, § 2.)

48-9-45. Penalties; violation of registration provisions; untimely reports; failure to pay; interest; other punitive measures.

  1. Whenever any motor carrier operates a motor vehicle in violation of the registration provisions of this article, the motor carrier shall be subject to a penalty of $25.00 for each motor vehicle in violation.
  2. Whenever any motor carrier required to file a report as provided by this article fails to file the report within the time prescribed, he shall be subject to a penalty of $25.00 for each failure to file.
  3. Whenever any motor carrier fails to pay the road taxes or any part of the road taxes due pursuant to this article, the motor carrier shall be subject to a penalty of $10.00 or 10 percent of the amount of the unpaid tax due, whichever is greater, and to interest on the unpaid tax at the rate specified in Code Section 48-2-40 from the time the road tax became due until the tax is paid.
  4. Any penalties and interest imposed by this Code section shall be assessed and collected by the commissioner in the manner provided by law. In addition to imposing penalties and interest, the commissioner may suspend or revoke any certificate, permit, or other evidence of right issued by the commissioner and held by the motor carrier found to be in default.

    (Ga. L. 1968, p. 360, § 12; Code 1933, § 91A-5112, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 1759, § 3.)

48-9-46. Making false statement for purpose of obtaining credit, refund, or reduction of liability for tax imposed by article; willful failure to file report; penalty.

  1. It shall be unlawful for any person willfully and knowingly to make a false statement orally or in writing or in the form of a receipt for the sale of motor fuel for the purpose of obtaining or attempting to obtain or assisting any other person to obtain or attempt to obtain a credit, refund, or reduction of liability for taxes under this article.
  2. It shall be unlawful for any person required by this article to make a report willfully to fail to make such report at the time required by law.
  3. Any person who violates subsection (a) or subsection (b) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1968, p. 360, § 17; Code 1933, § 91A-9919, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 12.)

CHAPTER 10 MOTOR VEHICLE LICENSE FEES AND PLATES

Editor's notes. - This chapter, which formerly consisted of Code Sections 48-10-1 through 48-10-16, was redesignated as Article 7 of Chapter 2 of Title 40 by Ga. L. 2002, p. 1074, §§ 1 and 2.

48-10-1 through 48-10-16.

Reserved. Redesignated by Ga. L. 2002, p 1074, § 1, effective July 1, 2002.

Editor's notes. - Code Section 48-10-5, concerning transfers of annual license fees, licenses, and plates, etc. which was repealed by Ga. L. 1997, p. 419, § 39, effective May 1, 1997, and which was based on Ga. L. 1937-38, Ex. Sess. p. 259, § 4; Ga. L. 1970, p. 281, § 1; Code 1933, § 91A-5305, enacted by Ga. L. 1978, p. 309, § 2, was stricken and not redesignated by Ga. L. 2002, p. 1074, § 1.

Code Section 48-10-11, concerning the prohibition of operation of two-axle trailers of four or more wheels without certain brakes, which was repealed by Ga. L. 2000, p. 809, § 3, effective July 1, 2000, and which was based on Ga. L. 1937-38, Ex. Sess. p. 259, § 9A; Code 1933, § 91A-5311, enacted by Ga. L. 1978, p. 309, § 2, was stricken and not redesignated by Ga. L. 2002, p. 1074, § 1.

Ga. L. 2002, p. 1074, § 8, not codified by the General Assembly, provides that: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of this Act." This Act became effective July 1, 2002.

CHAPTER 11 TAXES ON TOBACCO PRODUCTS

Sec.

Cross references. - Procedural enhancements to the Master Settlement Agreement, § 10-13A-1 et seq.

Required marking of cigarettes, § 25-14-5 .

Examination by state auditor of books, records, and accounts of persons required to pay tax upon retail sales price of cigars and cigarettes, § 50-6-5 .

Administrative Rules and Regulations. - Dealer provisions, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Alcohol and Tobacco Tax Division, Chapter 560-8-2.

Distributor provisions, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Alcohol Tobacco Tax Division, Chapter 560-8-3.

Manufacturer/Importer provisions, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Alcohol and Tobacco Tax Division, Chapter 560-8-4.

Vending machines, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Alcohol and Tobacco Tax Division, Chapter 560-8-5.

Administrative hearings, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Alcohol and Tobacco Tax Division, Chapter 560-8-6.

Reporting - Administrative forms, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Alcohol and Tobacco Tax Division, Administrative Forms, § 560-8-7-.02.

Law reviews. - For note on the 2003 amendments to various sections throughout this chapter, see 20 Georgia St. U.L. Rev. 233 (2003).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-22, which was subsequently repealed but was succeeded by provisions in this chapter, are included in the annotations for this chapter.

What transactions and persons liable. - Former Code 1933, Ch. 92-22 as it stood provided for the imposition of an excise tax liability upon each separate transaction and event in the process of distribution and consumption. The distributor was required initially to advance or pay the tax which in due course was collected from the ultimate purchaser or consumer. The ultimate purchaser or consumer was the taxpayer. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973) (decided under former Code 1933, § 92-22).

When distributor's liability fixed. - Under former Code 1933, Ch. 92-22, taken as a whole, the liability of the distributor was fixed and absolute the moment the distributor came into the possession of cigarettes for the first time. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973) (decided under former Code 1933, Ch. 92-22).

RESEARCH REFERENCES

ALR. - Tax on cigarettes or tobacco, or dealers therein, as violating requirement of uniformity or equality in taxation, 62 A.L.R. 105 .

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011 .

Deductibility of other taxes or fees in computing excise or license taxes, 148 A.L.R. 263 ; 174 A.L.R. 1263 .

Validity, construction, and application of state statutes forbidding possession, transportation, or sale of unstamped or unlicensed cigarettes or other tobacco products, 46 A.L.R.3d 1342.

48-11-1. Definitions.

As used in this chapter, the term:

  1. "Cigar" means any roll for smoking made wholly or in part of tobacco when the cover of the roll is also tobacco. Such term shall include a little cigar.
  2. "Cigar dealer" means any person located within the borders of this state who sells or distributes cigars to a consumer in this state.
  3. "Cigar distributor" means any person, whether located within or outside the borders of this state, other than a cigar dealer, who sells or distributes cigars within or into the boundaries of this state and who:
    1. Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on cigar dealers; and
    2. Is engaged in the business of:
      1. Importing cigars into this state or purchasing cigars from other cigar manufacturers or cigar distributors; and
      2. Selling the cigars to cigar dealers in this state for resale but is not in the business of selling the cigars directly to the ultimate consumer of the cigars.
  4. "Cigar importer" means any person who imports into or who brokers within the United States, either directly or indirectly, a finished cigar for sale or distribution.
  5. "Cigar manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels a finished cigar.
  6. "Cigarette" means any roll for smoking made wholly or in part of tobacco when the cover of the roll is paper or any substance other than tobacco.
  7. "Cigarette dealer" means any person located within the borders of this state who sells or distributes cigarettes to a consumer in this state.
  8. "Cigarette distributor" means any person, whether located within or outside the borders of this state, other than a cigarette dealer, who sells or distributes cigarettes within or into the boundaries of this state and who:
    1. Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on cigarette dealers; and
    2. Is engaged in the business of:
      1. Importing cigarettes into this state or purchasing cigarettes from other cigarette manufacturers or cigarette distributors; and
      2. Selling the cigarettes to cigarette dealers in this state for resale but is not in the business of selling the cigarettes directly to the ultimate consumer of the cigarettes.

        Such term shall not include any cigarette manufacturer, export warehouse proprietor, or cigarette importer with a valid permit under 26 U.S.C. Section 5712, if such person sells or distributes cigarettes in this state only to cigarette distributors who hold valid and current licenses under Code Section 48-11-4 or to an export warehouse proprietor or another cigarette manufacturer with a valid permit under 26 U.S.C. Section 5712.

  9. "Cigarette importer" means any person who imports into or who brokers within the United States, either directly or indirectly, a finished cigarette for sale or distribution.
  10. "Cigarette manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels a finished cigarette.
  11. "Counterfeit cigarette" means cigarettes that are manufactured, fabricated, assembled, processed, packaged, or labeled by any person other than the trademark owner of a cigarette brand or the owner's designated agent.
  12. "Dealer" means any person who is a cigar dealer, a cigarette dealer, or a loose or smokeless tobacco dealer.
  13. "Distributor" means any person who is a cigar distributor, a cigarette distributor, or a loose or smokeless tobacco distributor.
  14. "First transaction" means the first sale, receipt, purchase, possession, consumption, handling, distribution, or use of cigars, cigarettes, or loose or smokeless tobacco within this state.
  15. "Little cigar" means any cigar weighing not more than three pounds per thousand.
  16. "Loose or smokeless tobacco" means granulated, plug cut, crimp cut, ready rubbed, and other smoking tobacco; snuff or snuff flour; cavendish; plug and twist tobacco; fine-cut and other chewing tobaccos; shorts; refuse scraps, clippings, cuttings, and sweepings of tobacco; and other kinds and forms of tobacco, prepared in such manner as to be suitable for chewing or smoking in a pipe or otherwise, or both for chewing and smoking, but does not include cigarettes or cigars or tobacco purchased for the manufacture of cigarettes or cigars by cigarette manufacturers or cigar manufacturers.
  17. "Loose or smokeless tobacco dealer" means any person located within the borders of this state who sells or distributes loose or smokeless tobacco to a consumer in this state.
  18. "Loose or smokeless tobacco distributor" means any person who:
    1. Maintains a warehouse, warehouse personnel, and salespersons who regularly contact and call on loose or smokeless tobacco dealers; and
    2. Is engaged in the business of:
      1. Importing loose or smokeless tobacco into this state or purchasing loose or smokeless tobacco from other loose or smokeless tobacco manufacturers or loose or smokeless tobacco distributors; and
      2. Selling the loose or smokeless tobacco to loose or smokeless tobacco dealers in this state for resale but is not in the business of selling the loose or smokeless tobacco directly to the ultimate consumer of the loose or smokeless tobacco.
  19. "Loose or smokeless tobacco importer" means any person who imports into or who brokers within the United States, either directly or indirectly, finished loose or smokeless tobacco for sale or distribution.
  20. "Loose or smokeless tobacco manufacturer" means any person who manufactures, fabricates, assembles, processes, or labels finished loose or smokeless tobacco.
  21. "Related machinery" means any item, device, conveyance, or vessel of any kind or character used in manufacturing, packaging, labeling, stamping, transporting, distributing, selling, or possessing counterfeit cigarettes.
  22. "Sale" means any sale, transfer, exchange, theft, barter, gift, or offer for sale and distribution in any manner or by any means whatever.
  23. "Stamp" means any impression, device, stamp, label, or print manufactured, printed, made, or affixed as prescribed by the commissioner.
  24. "Vending machine" means any coin-in-the-slot device used for the automatic merchandising of cigars, cigarettes, or loose or smokeless tobacco.

    (Ga. L. 1955, p. 268, § 2; Ga. L. 1960, p. 125, § 1; Ga. L. 1967, p. 563, § 1; Code 1933, § 91A-5501, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 18; Ga. L. 2004, p. 384, § 1; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2012, p. 831, § 1/HB 1071.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

JUDICIAL DECISIONS

Tax not included in cost or price for sales or use tax purposes. - State cigarette tax is not an element of the "cost of the property sold" and is not, therefore, included in "gross sales" and "sales price" upon which the sales and use tax imposed under Ga. L. 1951, p. 360 (see O.C.G.A. Art. 1, Ch. 8, T. 48) is calculated. Blackmon v. Coastal Serv., Inc., 125 Ga. App. 28 , 186 S.E.2d 441 (1971), aff'd, 229 Ga. 471 , 192 S.E.2d 372 (1972).

Cited in Carolina Tobacco Co. v. Baker, 295 Ga. App. 115 , 670 S.E.2d 811 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Cigarettes must be stamped even though stolen or lost. - Ga. L. 1955, p. 268, § 13 (see now O.C.G.A. § 48-11-1 2) read in conjunction with Ga. L. 1955, p. 268, § 2 (see now O.C.G.A. § 48-11-1 ) requires that cigarettes be stamped even though the cigarettes are stolen or lost. 1963-65 Op. Att'y Gen. p. 779.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 434, 439, 492.

C.J.S. - 53 C.J.S., Licenses, § 55.

ALR. - What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap. 31), 93 A.L.R.2d 1120.

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

48-11-2. Excise tax; rate on tobacco products; retail selling price before addition of tax; exemptions; collection and payment on first transaction; dealers or distributors; tax separately identified; collection.

  1. An excise tax, in addition to all other taxes of every kind imposed by law, is imposed upon the sale, receipt, purchase, possession, consumption, handling, distribution, or use of cigars, cigarettes, and loose or smokeless tobacco in this state at the following rates:
    1. Little cigars: two and one-half mills each;
    2. All cigars other than little cigars: 23 percent of the wholesale cost price, exclusive of any trade, cash, or other discounts or any promotion, advertising, display, or similar allowances;
    3. Cigarettes: 37› per pack of 20 cigarettes and a like rate, pro rata, for other size packages; and
    4. Loose or smokeless tobacco: 10 percent of the wholesale cost price, exclusive of any trade, cash, or other discounts or any promotion, advertising, display, or similar allowances.
  2. When the retail selling price is referred to in this chapter as the basis for computing the tax, it is intended to mean the ordinary retail selling price of the article to the consumer before adding the amount of the tax.
  3. The taxes imposed by this chapter are levied on the purchase or use of cigars, cigarettes, or loose or smokeless tobacco by the state or any department, institution, or agency of the state and by the political subdivisions of the state and their departments, institutions, and agencies. The taxes imposed by this chapter are not imposed on cigars, cigarettes, or loose or smokeless tobacco purchased exclusively for use by the patients at the Georgia War Veterans Home and the Georgia War Veterans Nursing Home.
  4. The taxes imposed by this chapter are not levied on cigars, cigarettes, or loose or smokeless tobacco the purchase or use of which this state is prohibited from taxing under the Constitution or statutes of the United States.
  5. The taxes imposed by this chapter shall be advanced and paid by the dealer or distributor licensed pursuant to this chapter to the commissioner for deposit and distribution as provided in this chapter upon the first transaction within this state, whether or not the transaction involves the ultimate purchaser or consumer. The licensed dealer or distributor shall collect the tax on the first transaction within this state from the purchaser or consumer, and the purchaser or consumer shall pay the tax to the dealer or distributor. The dealer or distributor shall be responsible for the collection of the tax and the payment of the tax to the commissioner. Whenever cigars, cigarettes, or loose or smokeless tobacco is shipped from outside this state to anyone other than a distributor, the person receiving the cigars, cigarettes, or loose or smokeless tobacco shall be deemed to be a distributor and shall be responsible for the tax on the cigars, cigarettes, or loose or smokeless tobacco and the payment of the tax to the commissioner. No tobacco products shall be received in, sold in, or shipped into this state unless lawfully obtained from a person licensed pursuant to this chapter or from an importer with a valid permit issued pursuant to 26 U.S.C. Section 5712.
  6. The amount of taxes advanced and paid to the state as provided in this Code section shall be added to and collected as a part of the sales price of the cigars, cigarettes, or loose or smokeless tobacco sold or distributed. The amount of the tax shall be stated separately from the price of the cigars, cigarettes, or loose or smokeless tobacco.
  7. The cigars, cigarettes, and loose or smokeless tobacco tax imposed shall be collected only once upon the same cigars, cigarettes, or loose or smokeless tobacco.

    (Ga. L. 1955, p. 268, § 3; Ga. L. 1955, Ex. Sess., p. 48, § 1; Ga. L. 1964, p. 50, § 1; Ga. L. 1967, p. 563, §§ 2-4; Ga. L. 1971, p. 36, §§ 1, 2; Ga. L. 1971, p. 346, § 1; Code 1933, § 91A-5502, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 13; Ga. L. 1986, p. 468, § 1; Ga. L. 2003, p. 665, § 19; Ga. L. 2012, p. 831, § 2/HB 1071.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2003, "; and" was substituted for a period at the end of paragraph (a)(3).

Editor's notes. - Ga. L. 1986, p. 468, § 2, not codified by the General Assembly, provided that that Act would become effective July 1, 1986, and would apply to taxable events and transactions occurring on or after that date.

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Law reviews. - For article, "Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government," see 28 Georgia St. U.L. Rev. 217 (2011).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 83, § 1, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Tax does not violate commerce clause. - Cigarette tax laid not upon the privilege of receiving cigarettes in this state, but levied upon the privilege of retaining, keeping, holding, or possessing cigarettes for personal use, after the cigarettes have been received, acquired, or brought into this state, is not violative of the commerce clause, U.S. Const., Art. I, Sec. 8, Cl. 3. Head v. Cigarette Sales Co., 188 Ga. 452 , 4 S.E.2d 203 (1939) (decided under Ga. L. 1937, p. 83, § 1).

Tax is an excise tax, not ad valorem, and not unconstitutional for nonuniformity. - Tax imposed upon every person who received by means in this state, and who held or possessed for his or her own personal use in this state, or for the use of any member of their family, cigarettes which had been stamped as required, is an excise upon the privilege of holding or possessing such cigarettes for personal use, and not a direct or ad valorem tax upon such articles, and accordingly, does not violate Ga. Const. 1877, Art. VII, Sec. II, Para. I because it was not uniform with an ad valorem tax levied by the state upon tangible property. Head v. Cigarette Sales Co., 188 Ga. 452 , 4 S.E.2d 203 (1939) (decided under Ga. L. 1937, p. 83, § 1).

Different treatment of those holding stamped or unstamped cigarettes constitutional. - State does not create an unreasonable classification in violation of the uniformity clause, Ga. Const. 1877, Art. VII, Sec. II, Para. I, in levying a tax upon persons who hold or possess for personal use unstamped cigarettes, while exempting those who hold or possess cigarettes for such purpose which have been stamped by a dealer as required by law. Head v. Cigarette Sales Co., 188 Ga. 452 , 4 S.E.2d 203 (1939) (decided under Ga. L. 1937, p. 83, § 1).

Tax is not part of cost of property sold for sales and use tax purposes. - If the imposition of taxes, such as those on cigarettes, falls upon the consumer or the incident of the sale by the retailer to the consumer they are not included as part of the retail sale price for calculating the sales and use tax. If, however, the tax is imposed at a time prior to the point of retail sale or other consumer transaction, it is an element of the cost of the property sold and must be included as part of the retail sale price for purposes of calculating the sales and use tax imposed by Ga. L. 1951, p. 360 (see O.C.G.A. Art. 1, Ch. 8, T. 48). The state cigarette tax is not an element of the "cost of the property sold" and is not, therefore, included in "gross sales" and "sales price" upon which the sales and use tax is calculated. Blackmon v. Coastal Serv., Inc., 125 Ga. App. 28 , 186 S.E.2d 441 (1971), aff'd, 229 Ga. 471 , 192 S.E.2d 372 (1972).

Tax collected once, but imposed on every step in distribution and consumption. - Cigar and cigarette tax is an excise tax, to be collected only once, but nevertheless imposed upon each separate transaction and event in the process of distribution and consumption. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

Cigar and cigarette tax is levied against the distributor. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

There is no substantial independent significance in the distinction between the words "distributor" and "taxpayer." In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

Inability to collect from vendees does not absolve the distributor of the burden to pay the excise tax imposed by this section although the state, in the state's discretion, may pursue whatever entity appears most likely to yield results. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

Under this section, there is no doubt that the distributor's liability is absolute, without regard to whether or not the distributor is able to pass on the economic burden to retail distributors and the ultimate retail consumers. If the cigarettes are destroyed in a fire before the ultimate retail sale, while in the hands of a retail distributor, or if the retail distributor becomes a bankrupt, the distributor's obligation is nevertheless fixed. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

OPINIONS OF THE ATTORNEY GENERAL

Department is not authorized to permit the National Guard to purchase or sell cigarettes or cigars without the payment of the tobacco tax. 1963-65 Op. Att'y Gen. p. 242.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 22, 23, 434, 439, 492.

C.J.S. - 53 C.J.S., Licenses, § 55. 84 C.J.S., Taxation, § 159 et seq.

ALR. - Deductibility of other taxes or fees in computing excise or license taxes, 174 A.L.R. 1263 .

What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap 31), 93 A.L.R.2d 1120.

48-11-3. Collection of tax by stamps; sale at discount to distributors; basis of discount percentage; alternate method of collection of tax on cigars; prohibition of sale or exchange of stamps with another distributor; redemption.

  1. Except as otherwise provided in this Code section, the taxes imposed by Code Section 48-11-2 shall be collected and paid through the use of stamps. The commissioner shall secure stamps of such design and materials as the commissioner deems appropriate to protect the revenue and shall sell the stamps to licensed distributors at a discount of not less than 2 percent and not more than 8 percent of the value of the stamps. The exact percentage of the discount shall be based on brackets according to the volume of cigars, cigarettes, and loose or smokeless tobacco handled by the distributor pursuant to regulations promulgated by the commissioner. The commissioner shall prescribe by regulation the condition, method, and manner in which stamps are to be affixed to containers of cigars, cigarettes, and loose or smokeless tobacco.
  2. The commissioner may prescribe by regulation an alternate method, in lieu of the sale of stamps, of collecting and paying the tax imposed upon cigars and little cigars. The commissioner may also prescribe by regulation an alternate method, in lieu of the sale of stamps, of collecting and paying the tax imposed on loose or smokeless tobacco. Any such regulations shall be promulgated so that use of the alternate method will result in the same revenue to the state as the state would realize through the sale of stamps to the distributors.
  3. No distributor shall sell or exchange with another distributor any stamps issued pursuant to this chapter. The commissioner is authorized to redeem at cost price any stamps presented for redemption by a licensed distributor when the commissioner determines from physical inspection that no cigars, cigarettes, or loose or smokeless tobacco has been sold by the distributor under pretense of the tax imposed by this chapter having been paid through use of the stamps.

    (Ga. L. 1955, p. 268, § 4; Ga. L. 1955, Ex. Sess., p. 48, § 1A; Ga. L. 1960, p. 125, § 2; Ga. L. 1964, p. 50, § 2; Ga. L. 1967, p. 563, § 5; Code 1933, § 91A-5503, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 20.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

JUDICIAL DECISIONS

Purpose of using stamps for collection. - Use of stamps, affixed to each pack of cigarettes affords every party in the chain of distribution a ready method of determining the exact amount of the tax paid by the distributor and which in turn is passed on to the ultimate retail consumer. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 434, 439, 492, 514 et seq.

48-11-4. Licensing of persons engaged in tobacco business; initial and annual fees; suspension and revocation; registration and inspection of vending machines; bond by distributor; jurisdiction; licensing of promotional activities.

  1. No person shall engage in or conduct the business of manufacturing, importing, brokering, purchasing, selling, consigning, vending, dealing in, shipping, receiving, or distributing cigars, cigarettes, or loose or smokeless tobacco in this state without first obtaining a license from the commissioner.
  2. All licenses shall be issued by the commissioner, who shall make rules and regulations with respect to applications for and issuance of the licenses and for other purposes of enforcing this chapter. The commissioner may refuse to issue any license under this chapter when the commissioner has reasonable cause to believe that the applicant has willfully withheld information requested of the applicant or required by the regulations to be provided or reported or when the commissioner has reasonable cause to believe that the information submitted in any application or report is false or misleading and is not given in good faith.
    1. The annual renewal fee for a manufacturer's, importer's, distributor's, or dealer's license shall be $10.00. There shall also be a first year registration fee of $250.00 for a person commencing business as a manufacturer, importer, or distributor. All renewal applications shall be filed at least 30 days in advance of the expiration date shown on the license.
    2. Each license, except a dealer's license, shall begin on July 1 and end on June 30 of the next succeeding year. The prescribed fee shall accompany every application for a license and shall apply for any portion of the annual period.
    3. Each dealer's license shall be valid for 12 months beginning on the date of issue for the initial license, and the first day of the month of issue for subsequent licenses, and shall expire on the last day of the month preceding the month in which the initial license was issued. Any dealer licensed under the provisions of this Code section who is also licensed under Chapter 2 of Title 3 to sell alcoholic beverages may, upon written request to the commissioner, arrange to have both licenses renewed on the same date each year. Any dealer who follows the proper procedure for a renewal of his or her license, including filing the application for renewal at least 30 days in advance of the expiration date of his or her existing license, shall be allowed to continue operating as a dealer under the existing license until the commissioner has issued the new license or denied the application for renewal.
    4. Each manufacturer's, importer's, distributor's, or dealer's license shall be subject to suspension or revocation for violation of any of the provisions of this chapter or of the rules and regulations made pursuant to this chapter or Chapters 13 and 13A of Title 10 or of the rules and regulations made pursuant to those chapters. A separate license shall be required for each place of business. No person shall hold a distributor's license and a dealer's license at the same time.
  4. The commissioner may make rules and regulations governing the sale of cigars, cigarettes, loose or smokeless tobacco, and other tobacco products in vending machines. The commissioner shall require annually a special registration of each vending machine for any operation in this state and charge a license fee for the registration in the amount of $10.00 for each machine. The annual registration shall indicate the location of the vending machine. No vending machine shall be purchased or transported into this state for use in this state when the vending machine is not so designed as to permit inspection without opening the machine for the purpose of determining that all cigars, cigarettes, loose or smokeless tobacco, and other tobacco products contained in the machine bear the tax stamp required under this chapter.
  5. The manufacturer's, importer's, distributor's, or dealer's license shall be exhibited in the place of business for which it is issued in the manner prescribed by the commissioner. The commissioner shall require each licensed distributor to file with the commissioner a bond in an amount of not less than $1,000.00 to guarantee the proper performance of the distributor's duties and the discharge of the distributor's liabilities under this chapter. The bond shall run concurrently with the distributor's license but shall remain in full force and effect for a period of one year after the expiration or revocation of the distributor's license unless the commissioner certifies that all obligations due the state arising under this chapter have been paid.
  6. The jurisdiction of the commissioner in the administration of this chapter shall extend to every person using or consuming cigars, cigarettes, or loose or smokeless tobacco in this state and to every person dealing in cigars, cigarettes, or loose or smokeless tobacco in any way for business purposes and maintaining a place of business in this state. For the purpose of this chapter, the maintaining of an office, store, plant, warehouse, stock of goods, or regular sales or promotional activity, whether carried on automatically or by salespersons or other representatives, shall constitute, among other activities, the maintaining of a place of business. For the purpose of enforcement of this chapter and the rules and regulations promulgated under this chapter, notwithstanding any other provision of law, the commissioner or his or her duly appointed hearing officer is granted authority to conduct hearings which shall at all times be exercised in conformity with rules and regulations promulgated by the commissioner and consistent with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  7. The commissioner may provide for the licensing of promotional activities, not including the sale of cigars, cigarettes, or loose or smokeless tobacco, carried on by the manufacturer. The fee for any such license shall be $10.00 annually.

    (Ga. L. 1955, p. 268, § 5; Ga. L. 1960, p. 125, § 3; Code 1933, § 91A-5504, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 37; Ga. L. 1993, p. 343, § 6; Ga. L. 2003, p. 665, § 21; Ga. L. 2004, p. 384, § 2; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2012, p. 831, § 3/HB 1071; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2015, p. 932, § 1/HB 312; Ga. L. 2016, p. 528, § 4/HB 899; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2015 amendment, effective May 6, 2015, in subsection (e), deleted "manufacturer, importer, or" preceding "distributor" near the beginning of the second sentence and deleted "manufacturer's importer's, or" preceding "distributor's" four times.

The 2016 amendment, effective July 1, 2016, added "Chapters 13 and 13A of Title 10 or of the rules and regulations made pursuant to those chapters" at the end of the first sentence in paragraph (c)(4).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "Any dealer who follows" for "Any dealer that follows" at the beginning of the last sentence of paragraph (c)(3).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, §§ 5, 6, 30.

C.J.S. - 53 C.J.S., Licenses, §§ 1 et seq., 57, 58.

ALR. - Validity, construction, and application of statutes or ordinances prohibiting or regulating automatic vending machines, 111 A.L.R. 755 ; 151 A.L.R. 1195 .

What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

48-11-5. Licensing of nonresident distributors; authorized use of stamps or metering machine; bond; amount; examination of records; service on agent; applicability of chapter to nonresident distributors; reports of shipments.

    1. If the commissioner finds that the collection of the tax imposed by this chapter would be facilitated by such action, the commissioner may authorize any person residing or located outside this state who is engaged in the business of manufacturing cigars, cigarettes, or loose or smokeless tobacco or any person residing or located outside this state who ships cigars, cigarettes, or loose or smokeless tobacco into this state for sale to licensed dealers in this state to be licensed as a distributor and, after the person complies with the commissioner's requirements, to affix or cause to be affixed the stamps required by this chapter on behalf of the purchasers of the cigars, cigarettes, or loose or smokeless tobacco who would otherwise be taxable for the cigars, cigarettes, and loose or smokeless tobacco. The commissioner may sell tax stamps to an authorized person or may authorize the use of a metering machine by the person as provided in Code Section 48-11-3.
    2. The commissioner shall require a bond of a nonresident distributor satisfactory to the commissioner and in an amount of not less than $1,000.00, conditioned upon the payment of the tax and compliance with any other requirements specified by the commissioner. As a condition of authorization as provided in this Code section, a nonresident distributor shall agree to submit the distributor's books, accounts, and records for examination by the commissioner or the commissioner's duly authorized agent during reasonable business hours and shall appoint in writing an agent who resides in this state for the purpose of service. Service upon an agent shall be sufficient service upon the nonresident distributor and made by leaving a duly attested copy of the process with the agent. When legal process against any nonresident distributor is served upon the agent, the agent shall notify the nonresident distributor in the manner specified in Code Section 40-12-2.
    3. Upon the grant of authorization as provided in this subsection and except as may otherwise be determined by the commissioner, a nonresident distributor shall become a licensed distributor within the meaning of this chapter and shall be subject to all provisions of this chapter applicable to licensed distributors.
  2. Every nonresident manufacturer, importer, or distributor of cigars, cigarettes, or loose or smokeless tobacco making shipments of cigars, cigarettes, or loose or smokeless tobacco by common carrier or otherwise for their own account or for the account of others to distributors or dealers of cigars, cigarettes, or loose or smokeless tobacco located within this state shall make reports of the shipments when and as required by rules and regulations of the commissioner.

    (Ga. L. 1955, p. 268, § 6; Ga. L. 1960, p. 125, § 4; Code 1933, § 91A-5505, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 2003, p. 665, § 22; Ga. L. 2004, p. 384, § 3; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation in the first sentence of paragraph (a)(1).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, §§ 21, 34.

C.J.S. - 53 C.J.S., Licenses, § 67 et seq.

48-11-6. Suspension, refusal of renewal, and revocation of licenses; notice; procedures for hearings; appeals; effect of suspension or refusal to renew on other activities by commissioner.

The commissioner may suspend or refuse to renew a license issued to any person under this chapter for violation of any provision of this chapter or Chapters 13 and 13A of Title 10 or of the rules and regulations made pursuant to those chapters. After notice and opportunity for hearing, the commissioner may revoke a license issued to any person under this chapter for violation of any provision of this chapter or of any rule or regulation of the commissioner made pursuant to this chapter or Chapters 13 and 13A of Title 10 or of the rules and regulations made pursuant to those chapters. Any person aggrieved by the suspension of or refusal to renew his or her license may apply to the commissioner for a hearing as provided in subsection (a) of Code Section 48-11-18; and any person aggrieved by the action of the commissioner in revoking or refusing to renew his or her license after hearing may further appeal to the courts as provided in subsection (b) of Code Section 48-11-18. No legal proceedings or other action by the commissioner shall be barred or abated by the suspension, revocation, or expiration of any license issued under this chapter.

(Ga. L. 1955, p. 268, § 7; Code 1933, § 91A-5506, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2016, p. 528, § 5/HB 899.)

The 2016 amendment, effective July 1, 2016, in the first sentence, substituted "or Chapters 13 and 13A of Title 10 or of the rules and regulations made pursuant to those chapters" for "or of any rule or regulation of the commissioner made pursuant to this chapter"; added "or Chapters 13 and 13A of Title 10 or of the rules and regulations made pursuant to those chapters" at the end of the second sentence; and inserted "or her" twice in the third sentence.

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, § 35 et seq.

C.J.S. - 53 C.J.S., Licenses, § 80 et seq.

48-11-7. Execution of bonds by distributor; surety.

Each bond required to be filed pursuant to this chapter shall be executed by the distributor as principal and, as surety, by a corporation authorized to engage in business as a surety company in this state.

(Ga. L. 1955, p. 268, § 8; Code 1933, § 91A-5507, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 67 et seq.

48-11-8. Prohibition of sale or possession of unstamped tobacco products; distributors to affix stamps or otherwise pay tax; payment of tax only once; reports.

    1. No person shall sell, offer for sale, or possess with intent to sell any cigarettes in this state when the cigarette container does not bear the tax stamps required by Code Section 48-11-3.
    2. No person shall sell, offer for sale, or possess with intent to sell in this state any cigars or little cigars upon which the tax has not been paid under the alternate method of collecting the taxes provided in Code Section 48-11-3 or which do not bear tax stamps.
    3. No person shall sell, offer for sale, or possess with intent to sell any loose or smokeless tobacco in this state when the loose or smokeless tobacco container does not bear the tax stamps required by Code Section 48-11-3 or upon which the tax has not been paid under the alternate method of collecting the tax provided under Code Section 48-11-3.
    4. No person shall sell, offer for sale, or possess with intent to sell cigarettes as prohibited by Code Section 10-13A-5.
  2. Each distributor at the location for which such distributor's license is issued and in the manner specified by the commissioner shall affix the stamps required by this Code section to each individual package of cigarettes sold or distributed by such distributor, except as prohibited by Code Section 10-13A-5. Each distributor shall comply with the commissioner's regulations for the payment of the tax on cigars or loose or smokeless tobacco as provided in Code Section 48-11-3 or shall affix to each container of cigars or loose or smokeless tobacco sold by such distributor or from which such distributor sells cigars or loose or smokeless tobacco the stamps required by this chapter. The stamps may be affixed or the tax under the alternate method may be paid by a distributor at any time before the cigars, cigarettes, or loose or smokeless tobacco is transferred out of such distributor's possession.
  3. It is the intent of this chapter that the tax imposed by this chapter be paid only once and that, if the distributor acquires stamped cigarettes, tax-paid cigars, stamped cigars, stamped loose or smokeless tobacco, or tax-paid loose or smokeless tobacco, such distributor is not required to affix additional stamps or provide other evidence of payment of the tax.
  4. Every dealer who comes into possession of cigars, cigarettes, or loose or smokeless tobacco not bearing proper tax stamps or other evidence of the tax imposed by this chapter shall report the cigars, cigarettes, or loose or smokeless tobacco to the commissioner prior to displaying, selling, using, or otherwise disposing of the cigars, cigarettes, and loose or smokeless tobacco. After a report, the commissioner shall authorize a licensed distributor to affix the proper stamps to the cigars, cigarettes, and loose or smokeless tobacco or, in the case of cigars or loose or smokeless tobacco, authorize the dealer to remit the tax by the alternate method promulgated by the commissioner in accordance with Code Section 48-11-3. A licensed distributor shall affix the stamps or comply with the alternate regulations when presented a permit for such action issued by the commissioner. A licensed distributor shall stamp cigarettes or comply with the alternate method provided in this chapter with respect to cigars or loose or smokeless tobacco, other than such distributor's own, only when authorized by the permit issued by the commissioner.
  5. No wholesale or retail distributor or wholesale or retail dealer shall accept deliveries of unstamped cigarettes or loose or smokeless tobacco or nontax-paid cigars or loose or smokeless tobacco which is shipped to such distributor or acquired by such distributor at any place within this state except as authorized and provided in this Code section. All cigars, cigarettes, and loose or smokeless tobacco shall be examined by the distributor or dealer on receipt, and the distributor shall immediately report the cigars, cigarettes, or loose or smokeless tobacco to the commissioner as provided in subsection (d) of this Code section.
  6. The commissioner may prescribe the charges which may be made by a distributor to any person for the services of the distributor as provided in this chapter in affixing the tax stamps to each individual package of cigarettes or loose or smokeless tobacco and may prescribe the charges which may be made by a distributor in complying with the commissioner's alternate regulations for the collection of the tax on cigars and little cigars or loose or smokeless tobacco.
  7. This Code section shall not apply to unstamped cigars and little cigars or loose or smokeless tobacco upon which the tax has been paid in accordance with the alternate regulations promulgated by the commissioner under Code Section 48-11-3.

    (Ga. L. 1955, p. 268, § 9; Ga. L. 1960, p. 125, §§ 5, 6; Ga. L. 1967, p. 563, § 6; Ga. L. 1969, p. 710, § 1; Code 1933, § 91A-5508, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 23; Ga. L. 2003, p. 829, § 2; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "within this state" for "within the state" near the end of the first sentence of subsection (e).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2003, paragraph (a)(3) as added by Ga. L. 2003, p. 829, § 2 was redesignated as paragraph (a)(4), and "or her" and "or she" was deleted wherever added in subsection (b).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Law reviews. - For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 51 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 434, 439.

48-11-9. Seizure as contraband of unstamped tobacco products; exceptions; sale at public auction; procedure; disposition of proceeds; hearing; bond; contraband vending machines.

    1. Any cigars, cigarettes, or loose or smokeless tobacco found at any place in this state without stamps affixed to them as required by this chapter and any cigarettes in violation of subsection (c) of Code Section 10-13A-9 are declared to be contraband articles and may be seized by the commissioner, the commissioner's agents or employees, or any peace officer of this state when directed by the commissioner to do so.
    2. Paragraph (1) of this subsection shall not apply when:
      1. The tax has been paid on the unstamped cigars and little cigars or loose or smokeless tobacco in accordance with the commissioner's regulations promulgated pursuant to Code Section 48-11-3;
      2. The cigars, cigarettes, or loose or smokeless tobacco is in the possession of a licensed distributor;
      3. The cigars, cigarettes, or loose or smokeless tobacco is in course of transit from outside this state and is consigned to a licensed distributor;
      4. The cigars, cigarettes, or loose or smokeless tobacco is in the possession of a transporter who is in compliance with Code Section 48-11-22; or
      5. The cigars, cigarettes, or loose or smokeless tobacco is in the possession of a registered taxpayer as defined in Code Section 48-11-14 and the time for making the report required by Code Section 48-11-14 has not expired.
    3. This subsection shall not be construed to require the commissioner to confiscate unstamped or nontax-paid cigars, cigarettes, and loose or smokeless tobacco or other property when the commissioner has reason to believe that the owner of the cigars, cigarettes, loose or smokeless tobacco, or other property is not willfully or intentionally evading the tax imposed by this chapter.
  2. Any cigars, cigarettes, loose or smokeless tobacco, or other property seized pursuant to this chapter may be offered for sale by the commissioner, at the commissioner's discretion, at public auction to the highest bidder after advertisement as provided in this Code section. The commissioner shall deliver to the Office of the State Treasurer the proceeds of any sale made under this Code section. Before delivering any cigars, cigarettes, or loose or smokeless tobacco sold to a purchaser at the sale, the commissioner shall require the purchaser to affix to the packages the amount of stamps required by this chapter or to comply with the commissioner's alternate method. The seizure and sale of any cigars, cigarettes, loose or smokeless tobacco, or other property pursuant to this chapter shall not relieve any person from a fine, imprisonment, or other penalty for violation of this chapter.
  3. When any cigars, cigarettes, loose or smokeless tobacco, or other property has been seized pursuant to this chapter, the commissioner, at the commissioner's discretion, may advertise it for sale in a newspaper published or having a circulation in the place in which the seizure occurred, at least five days before the sale. Any person claiming an interest in the cigars, cigarettes, loose or smokeless tobacco, or other property may make written application to the commissioner for a hearing. The application shall state the person's interest in the cigars, cigarettes, loose or smokeless tobacco, or other property and such person's reasons why the cigars, cigarettes, loose or smokeless tobacco, or other property should not be forfeited. Further proceedings on the application for hearing shall be taken as provided in subsection (a) of Code Section 48-11-18. No sale of any cigars, cigarettes, loose or smokeless tobacco, or other property seized pursuant to this chapter shall be made while an application for a hearing is pending before the commissioner. The pendency of an appeal under subsection (b) of Code Section 48-11-18 shall not prevent the sale unless the appellant posts a satisfactory bond with surety in an amount double the estimated value of the cigars, cigarettes, loose or smokeless tobacco, or other property and conditioned upon the successful termination of the appeal.
  4. Any vending machine containing or dispensing any cigarettes or loose or smokeless tobacco which does not bear the tax stamps required under this chapter or containing or dispensing any cigars or loose or smokeless tobacco upon which the tax has not been paid either through the purchase of stamps or the alternate procedure provided by the commissioner as required under this chapter shall be a contraband article. The commissioner may seize any such machine and deal with it in the same manner as provided by law for the seizure and sale of unstamped cigarettes or loose or smokeless tobacco and nontax-paid cigars or loose or smokeless tobacco.

    (Ga. L. 1955, p. 268, § 10; Ga. L. 1960, p. 125, § 7; Ga. L. 1967, p. 563, §§ 7, 8; Ga. L. 1969, p. 710, § 2; Code 1933, § 91A-5509, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2002, p. 415, § 48; Ga. L. 2003, p. 665, § 24; Ga. L. 2003, p. 829, § 3; Ga. L. 2010, p. 863, § 2/SB 296; Ga. L. 2016, p. 528, § 6/HB 899; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2016 amendment, effective July 1, 2016, in paragraph (a)(1), substituted "in violation of subsection (c) of Code Section 10-13A-9" for "seized pursuant to subsection (b) of Code Section 10-13A-8".

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "outside this state" for "outside the state" in the middle of subparagraph (a)(2)(C), and substituted "smokeless tobacco, or other property" for "smokeless tobacco, or property" throughout paragraph (a)(3) and subsections (b) and (c).

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2003, "or her" as added by Ga. L. 2003, p. 829, § 3 was deleted in paragraph (a)(1).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Administrative Rules and Regulations. - Loose tobacco, smokeless tobacco, cigar or cigarette vending machines, vending machines, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Alcohol and Tobacco Tax Division, Vending Machines, § 560-8-5-.02.

Law reviews. - For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 51 (2003).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 434, 439, 492.

C.J.S. - 79 C.J.S., Searches and Seizures, §§ 1 et seq., 128 et seq., 217 et seq.

48-11-10. Monthly reports of licensed distributors; contents; authority to require reports from common carriers, warehousemen, and others; penalty for failure to file timely report.

  1. Every licensed distributor shall file with the commissioner, on or before the tenth day of each month, a report in the form prescribed by the commissioner disclosing:
    1. The quantity of cigars, cigarettes, or loose or smokeless tobacco on hand on the first and last days of the calendar month immediately preceding the month in which the report is filed;
    2. Information required by the commissioner concerning the amount of stamps purchased, used, and on hand during the report period; and
    3. Information otherwise required by the commissioner for the report period.
  2. The commissioner may require other reports as the commissioner deems necessary for the proper administration of this chapter, including, but not limited to, reports from common carriers and warehousemen with respect to cigars, cigarettes, and loose or smokeless tobacco delivered to or stored at any point in this state.
  3. Any person who fails to file any report when due shall forfeit as a penalty for each day after the due date until the report is filed the sum of $25.00, to be collected in the manner provided in subsection (c) of Code Section 48-11-24 for the collection of penalties.

    (Ga. L. 1955, p. 268, § 11; Ga. L. 1967, p. 563, § 9; Ga. L. 1969, p. 710, § 3; Code 1933, § 91A-5510, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 25; Ga. L. 2012, p. 831, § 4/HB 1071.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 121 et seq.

48-11-11. Records of distributors and dealers; stock of tobacco products; inspection by commissioner and agents; inspection of records of transportation companies, carriers, and warehouses.

  1. Each distributor and each dealer shall keep complete and accurate records of all cigars, cigarettes, and loose or smokeless tobacco manufactured, produced, purchased, and sold. The original records or a complete and legible photocopy or electronic image shall be safely preserved for three years in an appropriate manner to ensure permanency and accessibility for inspection by the commissioner and the commissioner's authorized agents. The commissioner and the commissioner's authorized agents may examine the books, papers, and records of any distributor or dealer in this state for the purpose of determining whether the tax imposed by this chapter has been fully paid and, for the purpose of determining whether the provisions of this chapter are properly observed, may investigate and examine the stock of cigars, cigarettes, or loose or smokeless tobacco in or upon any premises, including, but not limited to, public and private warehouses where the cigars, cigarettes, or loose or smokeless tobacco is possessed, stored, or sold. Invoices sufficient to cover current inventory at a licensed location shall be maintained at such licensed location and made available for immediate inspection. All other records may be kept at a locality other than the licensed location and shall be provided for inspection within two business days after receipt of notification from the commissioner or an authorized agent of the commissioner to make such records available.
  2. The commissioner and his or her authorized agents may examine the books, papers, and records of any transportation company, any common, contract, or private carrier, and any public or private warehouse for the purpose of determining whether the provisions of this chapter are properly observed.

    (Ga. L. 1955, p. 268, § 12; Code 1933, § 91A-5511, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 26; Ga. L. 2012, p. 831, § 5/HB 1071; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "at such licensed location" for "at that licensed location" near the end of the next to the last sentence of subsection (a).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

48-11-12. Assessment of deficiencies and penalties for incorrect reports, nonpayment of tax, or purchase of insufficient stamps; assumption of illegal sale absent evidence to contrary; penalty for deficiency due to fraud.

    1. The commissioner shall assess a deficiency and may assess a penalty of 10 percent of the deficiency if, after an examination of the invoices, books, and records of a licensed distributor or dealer or of any other information obtained by the commissioner or the commissioner's authorized agents, the commissioner determines that:
      1. The report of the licensed distributor or dealer is incorrect;
      2. The licensed distributor or dealer has not paid the tax in accordance with the alternate regulations promulgated by the commissioner under Code Section 48-11-3; or
      3. The licensed distributor or dealer has not purchased sufficient stamps to cover such licensed distributor's or dealer's receipts for sales or other disposition of unstamped cigarettes or loose or smokeless tobacco and nontax-paid cigars or loose or smokeless tobacco.
    2. In any case where a licensed distributor or dealer cannot produce evidence of sufficient stamps purchased or other payment of the tax to cover the receipt of unstamped cigarettes or loose or smokeless tobacco or nontax-paid cigars or loose or smokeless tobacco, it shall be assumed that the cigars, cigarettes, and loose or smokeless tobacco were sold without having either the proper stamps affixed or the tax paid on unstamped cigars or loose or smokeless tobacco.
  2. If the commissioner determines that the deficiency or any part of the deficiency is due to a fraudulent intent to evade the tax, a penalty of 50 percent of the deficiency shall be added to the amount due.

    (Ga. L. 1955, p. 268, § 13; Ga. L. 1967, p. 563, § 10; Code 1933, § 91A-5512, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 27; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "licensed distributor or dealer" for "licensed distributor or licensed dealer" in subparagraph (a)(1)(A), and revised punctuation in subparagraph (a)(1)(C).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

JUDICIAL DECISIONS

Inability to collect from vendees does not absolve the distributor of the burden to pay the excise tax imposed on cigars and cigarettes by Ga. L. 1955, p. 268; although the state, in the state's discretion, may pursue whatever entity appears most likely to yield results. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

OPINIONS OF THE ATTORNEY GENERAL

Cigarettes must be stamped even though stolen or lost. - Ga. L. 1955, p. 268, § 13 (see now O.C.G.A. § 48-11-1 2) read in conjunction with Ga. L. 1955, p. 268, § 2 (see now O.C.G.A. § 48-11-1 ) requires that cigarettes be stamped even though the cigarettes are stolen or lost. 1963-65 Op. Att'y Gen. p. 779.

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 121 et seq.

48-11-13. Tax on persons having tobacco products on which tax under Code Section 48-11-2 not paid; rate; exemptions.

  1. There is imposed a tax on every person for the privilege of using, consuming, or storing cigars, cigarettes, and loose or smokeless tobacco in this state on which the tax imposed by Code Section 48-11-2 has not been paid. The tax shall be measured by and graduated in accordance with the volume of cigars, cigarettes, and loose or smokeless tobacco used, consumed, or stored as set forth in Code Section 48-11-2.
  2. This Code section shall not apply to:
    1. Cigars, cigarettes, or loose or smokeless tobacco in the hands of a licensed distributor or dealer;
    2. Cigars, cigarettes, or loose or smokeless tobacco in the possession of a carrier complying with Code Section 48-11-22;
    3. Cigars, cigarettes, or loose or smokeless tobacco stored in a public warehouse;
    4. Cigarettes or little cigars in an amount not exceeding 200 cigarettes or little cigars which have been brought into this state on the person;
    5. Cigars in an amount not exceeding 20 cigars which have been brought into this state on the person; or
    6. Loose or smokeless tobacco in an amount not exceeding six containers which has been brought into this state on the person.

      (Ga. L. 1955, p. 268, § 14; Code 1933, § 91A-5513, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 28; Ga. L. 2012, p. 831, § 6/HB 1071; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "this state" for "the state" in paragraphs (b)(4) through (b)(6).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

48-11-14. Registration, reports, and tax payments of persons acquiring tobacco products subject to tax under Code Section 48-11-13; assessment of tax due from person failing to file or filing incorrect report; hearing; penalties.

  1. Before any person acquires cigars, cigarettes, or loose or smokeless tobacco subject to the tax imposed by Code Section 48-11-13, such person shall register with the commissioner as a responsible taxpayer subject to the obligation of maintaining records and making reports in the form prescribed by the commissioner. The report shall be made on or before the tenth day of the month following the month in which the cigars, cigarettes, or loose or smokeless tobacco was acquired and shall be accompanied by the amount of tax due.
  2. If any person subject to the tax imposed by Code Section 48-11-13 fails to make the required report or makes an incorrect report, the commissioner shall assess the correct amount of tax due from that person from the best information available to him or her. A copy of the assessment shall be furnished the person by registered or certified mail or statutory overnight delivery, return receipt requested, or by personal service. Any person aggrieved by any assessment pursuant to this Code section may request a hearing in the manner provided in subsection (a) of Code Section 48-11-18.
  3. Every person subject to the tax imposed by Code Section 48-11-13 who fails to register with the commissioner as a responsible taxpayer, who fails to make a report within the time specified, or who fails to remit the tax within the time specified may be required to pay a penalty of not less than $25.00 nor more than $250.00 in addition to the tax and any other penalties imposed by law and found due by the commissioner. The commissioner may proceed to collect the tax and penalty in the manner provided in subsection (c) of Code Section 48-11-24.
  4. Except as otherwise provided in this Code section, the sanctions and penalties set forth in Code Sections 48-11-15, 48-11-17, 48-11-18, and 48-11-20 through 48-11-24 and in Code Sections 48-7-2 and 48-13-38 shall be imposed where applicable for any violations of this chapter by consumers.

    (Ga. L. 1955, p. 268, §§ 15, 17, 18; Ga. L. 1969, p. 710, § 4; Code 1933, §§ 91A-5514, 91A-5515, 91A-5516, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1993, p. 1292, § 5; Ga. L. 2000, p. 1589, § 3; Ga. L. 2002, p. 1074, § 5; Ga. L. 2003, p. 665, § 29; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "him or her" for "him" at the end of the first sentence of subsection (b).

Editor's notes. - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that that Act shall apply with respect to notices delivered on or after July 1, 2000.

Ga. L. 2002, p. 1074, § 8, not codified by the General Assembly, provides that: "this Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of this Act." This Act became effective July 1, 2002.

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

JUDICIAL DECISIONS

Inability to collect from vendees does not absolve the distributor of the burden to pay the excise tax imposed on cigars and cigarettes by state statutes; although the state, in the state's discretion, may pursue whatever entity appears most likely to yield results. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 121 et seq.

ALR. - Liability for license fee or occupation tax of one who has conducted business without required license or payment, 5 A.L.R. 1312 ; 107 A.L.R. 652 .

48-11-15. Procedure for refund of taxes, cost price of affixed stamps, and tax on tobacco products unfit for sale, use, or consumption and destroyed or exported.

The Office of the State Treasurer is authorized to pay, on the order of the commissioner, claims for refunds of cigar, cigarette, or loose or smokeless tobacco taxes found by the commissioner or the courts to be due any distributor, dealer, or taxpayer. The commissioner, upon proof satisfactory to the commissioner and in accordance with regulations promulgated by the commissioner, shall refund the cost price of stamps affixed to any package of cigars, cigarettes, or loose or smokeless tobacco or shall refund the tax paid on cigars or loose or smokeless tobacco under the alternate method when the cigars, cigarettes, or loose or smokeless tobacco has become unfit for use, consumption, or sale and has been destroyed or shipped out of this state.

(Ga. L. 1955, p. 268, § 21; Ga. L. 1964, p. 50, § 3; Ga. L. 1967, p. 563, § 11; Code 1933, § 91A-5518, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2003, p. 665, § 30; Ga. L. 2010, p. 863, § 2/SB 296; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "shipped out of this state" for "shipped out of the state" at the end of the last sentence.

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Law reviews. - For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 72.

ALR. - Right to interest on tax refund or credit, 112 A.L.R. 1183 ; 88 A.L.R.2d 823.

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

48-11-16. Purchase of tax stamps on account by licensed distributors; permit; time of payment; bond; cancellation of permit without notice for failure or refusal to comply with Code section; annual payment of any liability outstanding.

  1. The commissioner may permit licensed distributors to purchase tax stamps from the department on account. Permits may be granted only to licensed distributors who post bonds with the commissioner in amounts sufficient in the opinion of the commissioner to secure payment for stamps delivered on account. Tax stamps purchased by licensed distributors shall be paid for in full on or before the twentieth day of the month next succeeding the purchase. The bond provided in this Code section shall be secured by cash which shall bear no interest, by negotiable securities approved by the Office of the State Treasurer, or by a surety bond executed by a surety company licensed to do business in this state and approved by the commissioner.
  2. The commissioner may cancel without notice any permit issued under this Code section if the licensed distributor fails or refuses to comply with the requirements of this Code section or with the rules and regulations adopted under authority of this Code section.
  3. On or before June 30 of each fiscal year, the licensed distributor shall pay in its entirety any liability for the purchase of tax stamps due at that time.

    (Ga. L. 1970, p. 146, § 1; Code 1933, § 91A-5525, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

48-11-17. Amount of unpaid tax as lien against property of violators; seizure and sale; recording of lien.

The amount of any unpaid tax shall be a lien against the property of any distributor or dealer who sells cigars, cigarettes, or loose or smokeless tobacco without collecting the tax and against the property of any person using or consuming cigars, cigarettes, or loose or smokeless tobacco without proper stamps affixed to the cigars, cigarettes, or loose or smokeless tobacco or without the tax paid on the cigars or loose or smokeless tobacco as otherwise provided in this chapter. The commissioner or the commissioner's authorized agents are authorized to seize the property of a delinquent distributor, dealer, or taxpayer and sell it as provided by law to satisfy the claim for taxes due under this chapter; or the commissioner may record the commissioner's lien specifying and describing the property against which the lien is effective, and the lien shall be good as against any other person until the claim for taxes is satisfied.

(Ga. L. 1955, p. 268, § 24; Ga. L. 1964, p. 50, § 4; Ga. L. 1967, p. 563, § 15; Code 1933, § 91A-5523, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 31.)

Cross references. - Liens generally, § 44-14-320 et seq.

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 104.

48-11-18. Procedure for hearing by persons aggrieved by action of commissioner; initiation of hearings by commissioner; production of evidence; appeals; bond; grounds for not sustaining commissioner's action; costs.

  1. Any person aggrieved by any action of the commissioner or the commissioner's authorized agent may apply to the commissioner, in writing within ten days after the notice of the action is delivered or mailed to the commissioner, for a hearing. The application shall set forth the reasons why the hearing should be granted and the manner of relief sought. The commissioner shall notify the applicant of the time and place fixed for the hearing. After the hearing, the commissioner may make an order as may appear to the commissioner to be just and lawful and shall furnish a copy of the order to the applicant. The commissioner at any time by notice in writing may order a hearing on the commissioner's own initiative and require the taxpayer or any other person whom the commissioner believes to be in possession of information concerning any manufacture, importation, use, consumption, storage, or sale of cigars, cigarettes, or loose or smokeless tobacco which has escaped taxation to appear before the commissioner or the commissioner's duly authorized agent with any specific books of account, papers, or other documents for examination under oath relative to the information.
  2. Any person aggrieved because of any final action or decision of the commissioner, after hearing, may appeal from the decision to the superior court of the county in which the appellant resides. The appeal shall be returnable at the same time and shall be served and returned in the same manner as required in the case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond of recognizance to the state, with surety, conditioned to prosecute the appeal and to effect and comply with the orders and decrees of the court. The action of the commissioner shall be sustained unless the court finds that the commissioner misinterpreted this chapter or that there is no evidence to support the commissioner's action. If the commissioner's action is not sustained, the court may grant equitable relief to the appellant. Upon all appeals which are denied, costs may be taxed against the appellant at the discretion of the court. No costs of any appeal shall be taxed against the state.

    (Ga. L. 1955, p. 268, §§ 19, 20; Code 1933, § 91A-5517, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 32; Ga. L. 2012, p. 831, § 7/HB 1071.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 109 et seq.

48-11-19. Powers and duties of special agents and enforcement officers of department; bond; duties following arrests; retention of weapon and badge upon retirement.

  1. Each person appointed by the commissioner as a special agent or enforcement officer of the department for the enforcement of the laws of this state with respect to the manufacture, transportation, distribution, sale, possession, and taxation of cigars, cigarettes, little cigars, and loose or smokeless tobacco shall have the authority throughout this state to:
    1. Obtain and execute warrants for arrest of persons charged with violations of such laws;
    2. Obtain and execute search warrants in the enforcement of such laws;
    3. Arrest without warrant any person violating such laws in the officer's presence or within such officer's immediate knowledge when there is likely to be a failure of enforcement of such laws for want of a judicial officer to issue a warrant;
    4. Make investigations in the enforcement of such laws and, in connection with such investigations, to go upon any property outside buildings, whether posted or otherwise, in the performance of such officer's duties;
    5. Seize and take possession of all property which is declared contraband under such laws; and
    6. Carry firearms while performing such officer's duties.
  2. Each special agent or enforcement officer shall file with the commissioner a public official's bond in the amount of $1,000.00, the cost of the bond to be borne by the department. Nothing in this chapter shall be construed to relieve agents and officers, after making an arrest, from the duties imposed generally to obtain a warrant promptly and to return arrested persons without undue delay before a person authorized to examine, commit, or receive bail as required by general law.
  3. After a special agent or enforcement officer has accumulated 25 years of service with the department, upon leaving the department under honorable conditions, such special agent or enforcement officer shall be entitled as part of such officer's compensation to retain his or her weapon and badge pursuant to regulations promulgated by the commissioner.
  4. As used in this subsection, the term "disability" means a disability that prevents an individual from working as a law enforcement officer. When a special agent or enforcement officer leaves the department as a result of a disability arising in the line of duty, such special agent or enforcement officer shall be entitled as part of such officer's compensation to retain his or her weapon and badge in accordance with regulations promulgated by the commissioner.

    (Ga. L. 1967, p. 577, § 1; Code 1933, § 91A-5524, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1996, p. 1074, § 2; Ga. L. 2003, p. 665, § 33; Ga. L. 2004, p. 1058, § 5; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "this state" for "the state" at the end of subsection (a).

Cross references. - Powers and duties of agents of Georgia Bureau of Investigation relating to enforcement of laws pertaining to manufacture, transportation of cigars, cigarettes, or little cigars, § 35-3-8 .

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

48-11-20. Venue as to violations of chapter; commissioner's certificate as prima-facie evidence.

The failure to do any act required by this chapter shall be deemed an act committed in part at the office of the commissioner in Atlanta. The certificate of the commissioner to the effect that any act required by this chapter has not been done shall be prima-facie evidence that the act has not been done.

(Ga. L. 1955, p. 268, § 23; Code 1933, § 91A-5521, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B. J. 254 (1972).

48-11-21. Jurisdiction of superior courts of criminal violations of chapter.

The superior courts of this state shall have jurisdiction of offenses against this chapter which are punishable by fine or imprisonment, or both.

(Ga. L. 1955, p. 268, § 23; Code 1933, § 91A-5522, enacted by Ga. L. 1978, p. 309, § 2.)

48-11-22. Transportation of unstamped tobacco products; requirement of invoices or delivery tickets; contents; confiscation and disposition absent invoice or ticket; penalty; applicability.

  1. Every person who transports upon the public highways, roads, and streets of this state cigars, cigarettes, or loose or smokeless tobacco not stamped or on which tax has not been paid in accordance with the alternate regulations provided by the commissioner under Code Section 48-11-3 shall have in such person's actual possession invoices or delivery tickets for the cigars, cigarettes, and loose or smokeless tobacco which show the true name and address of the consignor or seller, the true name of the consignee or purchaser, the quantity and brands of the cigars, cigarettes, or loose or smokeless tobacco transported, and the name and address of the person who has assumed or shall assume the payment of the tax at the point of ultimate destination. In the absence of the invoices or delivery tickets, the cigars, cigarettes, or loose or smokeless tobacco being transported and the vehicles in which the cigars, cigarettes, or loose or smokeless tobacco is being transported shall be confiscated and disposed of as provided in Code Section 48-11-9; and the transporter may be liable for a penalty of not more than $50.00 for each individual carton of little cigars or cigarettes, $50.00 for each individual box of cigars, and $50.00 for each individual container of loose or smokeless tobacco being transported by such person. The penalty shall be recovered as provided in subsection (c) of Code Section 48-11-24.
  2. This Code section shall apply only to the transportation of more than 200 cigarettes, more than 200 little cigars, more than 20 cigars, or more than six containers of loose or smokeless tobacco.

    (Ga. L. 1955, p. 268, § 22; Ga. L. 1967, p. 563, § 12; Code 1933, § 91A-5519, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 34; Ga. L. 2012, p. 831, § 8/HB 1071.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

48-11-23. Transporting tobacco products in violation of Code Section 48-11-22; penalty.

  1. It shall be unlawful for any person, with the intent to evade the tax imposed by this chapter, to transport cigars, cigarettes, or loose or smokeless tobacco in violation of Code Section 48-11-22.
  2. Any person who violates Code Section 48-11-22, with the intent to evade the tax imposed by this chapter, shall, upon conviction, be subject to the following punishments:
    1. If such person is transporting more than 20 but fewer than 60 cigars, more than 200 but fewer than 600 cigarettes or little cigars, or more than six but fewer than 18 containers of loose or smokeless tobacco, such person shall be guilty of a misdemeanor;
    2. If such person is transporting 60 or more but fewer than 200 cigars, 600 or more but fewer than 2,000 cigarettes or little cigars, or 18 or more but fewer than 60 containers of loose or smokeless tobacco, such person shall be guilty of a misdemeanor of a high and aggravated nature; or
    3. If such person is transporting 200 or more cigars, 2,000 or more cigarettes or little cigars, or 60 or more containers of loose or smokeless tobacco, such person shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than three years nor more than ten years.

      (Ga. L. 1969, p. 710, § 5; Code 1933, § 91A-9926, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 35; Ga. L. 2012, p. 831, § 9/HB 1071.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 434, 439, 492.

48-11-23.1. Additional requirements on the sale of tobacco products; seizure and forfeiture of contraband; revocation of licenses.

  1. As used in this Code section, the term "package" means a pack, carton, or container of any kind in which cigarettes or loose or smokeless tobacco is offered for sale, sold, or otherwise distributed, or intended for distribution, to consumers.
  2. No tax stamp may be affixed to, or made upon, any package of cigarettes or loose or smokeless tobacco if:
    1. The package differs in any respect with the requirements of the federal Cigarette Labeling and Advertising Act, 15 U.S.C. Section 1331, et seq., for the placement of labels, warnings, or any other information upon a package of cigarettes or loose or smokeless tobacco that is to be sold within the United States;
    2. The package is labeled "For Export Only," "U.S. Tax Exempt," "For Use Outside U.S.," or similar wording indicating that the manufacturer did not intend that the product be sold in the United States;
    3. The package, or a package containing individually stamped packages, has been altered by adding or deleting the wording, labels, or warnings described in paragraph (1) or (2) of this subsection;
    4. The package has been imported into the United States after January 1, 2000, in violation of 26 U.S.C. Section 5754;
    5. The package in any way violates federal trademark or copyright laws; or
    6. The package in any way violates Code Section 10-13A-5.
  3. Any person who sells or holds for sale a cigarette or loose or smokeless tobacco package to which is affixed a tax stamp in violation of subsection (b) of this Code section shall be guilty of a misdemeanor.
  4. Notwithstanding any other provision of law, the commissioner may revoke any license issued under this chapter to any person who sells or holds for sale a cigarette or loose or smokeless tobacco package to which is affixed a tax stamp in violation of subsection (b) of this Code section.
  5. Notwithstanding any other provision of law, the commissioner may seize and destroy or sell to the manufacturer, only for export, packages that do not comply with subsection (b) of this Code section.
  6. A violation of subsection (b) of this Code section shall constitute an unfair and deceptive act or practice under Part 2 of Article 15 of Chapter 1 of Title 10, the "Fair Business Practices Act of 1975." (Code 1981, § 48-11-23.1 , enacted by Ga. L. 1999, p. 156, § 1; Ga. L. 2003, p. 665, § 36; Ga. L. 2003, p. 829, § 4; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised capitalization and substituted "15 U.S.C. Section 1331" for "15 U.S.C. Sec. 1331" in paragraph (b)(1), and substituted "26 U.S.C. Section 5754" for "26 U.S.C. Sec. 5754" in paragraph (b)(4).

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2017, p. 774, § 48(60)/HB 323, which amended this Code section, purported to amend paragraphs (a)(1) and (a)(4) but actually amended paragraphs (b)(1) and (b)(4).

U.S. Code. - Section 5754 of Title 26 U.S.C., referred to in this Code section, concerns the restriction on importation of previously exported tobacco products.

Law reviews. - For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 51 (2003).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprintable offenses. - Violation of O.C.G.A. § 48-11-23.1 is not designated as an offense for which fingerprinting is required. 1999 Op. Att'y Gen. No. 99-17.

48-11-24. Penalties for possession of unstamped tobacco products; penalty for operation of unlicensed business or activity; procedure for enforcement and collection of penalties; costs and expenses.

  1. Any person who possesses unstamped cigarettes or nontax-paid cigars, or little cigars, or loose or smokeless tobacco in violation of this chapter shall be liable for a penalty of not more than $50.00 for each individual carton of unstamped cigarettes and $50.00 for each individual nontax-paid carton of little cigars, box of cigars or container of loose or smokeless tobacco in his or her possession.
  2. Any person who engages in any business or activity for which a license is required by this chapter without first having obtained a license to do so or any person who continues to engage in or conduct the business after the person's license has been revoked or during a suspension of the license shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be subject to imprisonment for up to 12 months, a fine of not more than $5,000.00, or both. Each day that the business is engaged in or conducted shall be deemed a separate offense.
  3. Proceedings to enforce and collect the penalties provided by this chapter shall be brought by and in the name of the commissioner. With respect to offenses committed within the territorial jurisdiction of the court, each superior court shall have jurisdiction to enforce and collect the penalty. The costs recoverable in any such proceeding shall be recovered by the commissioner in the event of judgment in the commissioner's favor. If the judgment is for the defendant, it shall be without costs against the commissioner. All expenses incident to the recovery of any penalty pursuant to this Code section shall be paid in the same manner as any other expense incident to the administration of this chapter.

    (Ga. L. 1955, p. 268, § 23; Ga. L. 1967, p. 563, § 13; Code 1933, § 91A-5520, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 37; Ga. L. 2012, p. 831, § 10/HB 1071.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 51 Am. Jur. 2d, Licenses and Permits, § 44 et seq.

C.J.S. - 53 C.J.S., Licenses, § 121 et seq.

48-11-25. Violations of chapter; penalties.

    1. It shall be unlawful for any person, with the intent to evade the tax imposed by this chapter, to possess unstamped cigarettes or loose or smokeless tobacco or nontax-paid cigars or loose or smokeless tobacco.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a misdemeanor.
    1. It shall be unlawful for any person, with the intent to evade the tax imposed by this chapter, to:
      1. Sell cigarettes or loose or smokeless tobacco without the stamps required by this chapter being affixed to the cigarettes or loose or smokeless tobacco; or
      2. Sell cigars or loose or smokeless tobacco without the stamp or stamps required by this chapter or without the tax being paid on the cigars or loose or smokeless tobacco in accordance with the alternate method.
    2. Any person who violates paragraph (1) of this subsection shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than one year nor more than ten years.

      (Ga. L. 1955, p. 268, § 23; Ga. L. 1967, p. 563, § 14; Ga. L. 1969, p. 710, §§ 6, 7; Code 1933, § 91A-9921, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 38.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 434, 439, 492, 516.

C.J.S. - 53 C.J.S., Licenses, § 128.

48-11-26. Failure to file report or filing false report required by chapter; penalty.

  1. With respect to this chapter, it shall be unlawful for any person, with the intent to defraud the state or evade the payment of any tax, penalty, or interest or any part of a payment when due, to:
    1. Willfully fail or refuse to file any report or statement required to be filed pursuant to this chapter or by the commissioner's rules and regulations; or
    2. Aid or abet another in the filing with the commissioner of any false or fraudulent report or statement.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be subject to a fine of not more than $1,000.00 for each separate offense.

    (Ga. L. 1955, p. 268, § 23; Code 1933, § 91A-9922, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2012, p. 831, § 11/HB 1071.)

RESEARCH REFERENCES

C.J.S. - 37 C.J.S., Fraud, §§ 12 et seq., 115, 123 et seq. 84 C.J.S., Taxation, §§ 623, 628. 85 C.J.S., Taxation, §§ 1854, 1855, 1865 et seq., 1932.

48-11-27. False entries on invoices or records pursuant to chapter; penalty.

  1. It shall be unlawful for any person to:
    1. Make a false entry upon any invoices or any record relating to the purchase, possession, or sale of cigarettes or loose or smokeless tobacco; or
    2. With intent to evade any tax imposed by this chapter, present any false entry upon any such invoice or record for the inspection of the commissioner or the commissioner's authorized agents.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $250.00 for each separate offense.

    (Ga. L. 1955, p. 268, § 23; Code 1933, § 91A-9923, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 39.)

Editor's notes. - Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 128.

48-11-28. Possession, use, manufacture, or other unlawful activities involving counterfeited stamps or tampering with metering machine pursuant to chapter; penalty.

  1. With respect to this chapter, it shall be unlawful for any person to:
    1. Fraudulently make, utter, forge, or counterfeit any stamp prescribed by the commissioner;
    2. Cause or procure a violation of paragraph (1) of this subsection to be done;
    3. Willfully utter, publish, pass, or render as true any false, altered, forged, or counterfeited stamp;
    4. Knowingly possess any false, altered, forged, or counterfeited stamp;
    5. For the purpose of evading the tax imposed, use more than once any stamp required by this chapter; or
    6. Tamper with or cause to be tampered with any metering machine authorized to be used.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be imprisoned for not less than three years nor more than ten years.

    (Ga. L. 1955, p. 268, § 23; Code 1933, § 91A-9924, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2012, p. 831, § 12/HB 1071.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 434, 439, 492.

48-11-29. Swearing and testifying falsely with respect to matters governed by chapter; penalty.

Reserved. Repealed by Ga. L. 2012, p. 831, § 13/HB 1071, effective January 1, 2013.

Editor's notes. - This Code section was based on Ga. L. 1955, p. 268, § 23; Code 1933, § 91A-9925, enacted by Ga. L. 1978, p. 309, § 2.

48-11-30. Penalty for sale or possession of counterfeit cigarettes.

  1. Notwithstanding any other provision of law, the sale or possession for sale of counterfeit cigarettes by any person shall result in the seizure of the product and related machinery by the commissioner or his or her authorized agents and any law enforcement agency at the direction of the commissioner and shall be punishable as follows:
    1. A first violation with a total quantity of less than two cartons of cigarettes shall be punishable by a fine of $1,000.00 or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both the fine and imprisonment;
    2. A subsequent violation with a total quantity of less than two cartons of cigarettes shall be punishable by a fine of $5,000.00 or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both the fine and imprisonment;
    3. A first violation with a total quantity of two cartons of cigarettes or more shall be punishable by a fine of $2,000.00 or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both the fine and imprisonment; and
    4. A subsequent violation with a quantity of two cartons of cigarettes or more shall be punishable by a fine of $50,000.00 or five times the retail value of the cigarettes involved, whichever is greater, or imprisonment not to exceed five years, or both the fine and imprisonment.
  2. An act committed by or on behalf of a licensed cigarette manufacturer, cigarette importer, cigarette distributor, or cigarette dealer in violation of paragraph (2) or (4) of subsection (a) of this Code section shall also result in the revocation of the license by the department pursuant to Code Section 48-11-6.
  3. Any counterfeit cigarette seized by or at the direction of the commissioner shall be destroyed by the commissioner or his or her designee. Any related machinery seized by or at the direction of the commissioner may be sold by the commissioner at public auction in accordance with the requirements of Code Section 48-11-9 . (Code 1981, § 48-11-30 , enacted by Ga. L. 2004, p. 384, § 4; Ga. L. 2009, p. 8, § 48/SB 46.)

CHAPTER 12 ESTATE TAX

Sec.

Cross references. - Probate, T. 53, C. 5.

Editor's notes. - Ga. L. 2014, p. 762, § 1/HB 658, effective April 28, 2014, repealed the Code sections formerly codified at this chapter and enacted the current chapter. The former chapter consisted of Code Sections 48-12-1 , 48-12-1 .1, 48-12-2 through 48-12-6, relating to estate tax, and was based on Ga. L. 1925, p. 63, §§ 1, 3, 4; Ga. L. 1926, Ex. Sess., p. 15, § 1; Ga. L. 1927, p. 103, § 1; Ga. L. 1931, p. 7, § 15; Code 1933, § 92-3401a, enacted by Ga. L. 1941, p. 221, § 1; §§ 92-3401, 92-3403, 92-3404, § 92-3402, enacted by Ga. L. 1961, p. 455, § 1; Ga. L. 1960, p. 835, § 1; Ga. L. 1976, p. 624, §§ 1-2; § 92-3404.1, enacted by Ga. L. 1976, p. 624, §§ 3, 4; §§ 91A-5702 through 91A-5706, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, §§ 38, 39; Ga. L. 1987, p. 191, § 8; Code 1981, § 48-12-1.1, enacted by Ga. L. 2005, p. 159, § 26/HB 488.

Administrative Rules and Regulations. - Estates, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Substantive Regulations, § 560-7-3-.12.

Law reviews. - For article, "Probate and Tax Checklist for Estates in Georgia," see 23 Ga. St. B. J. 140 (1987).

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 616.

Surcharge of Executor for Nonpayment of Estate's Tax Liabilities, 26 POF2d 663.

C.J.S. - 85 C.J.S., Taxation, § 2080 et seq.

ALR. - Time as of which value of property is to be computed for purpose of estimating inheritance tax, 13 A.L.R. 127 ; 86 A.L.R. 1030 ; 160 A.L.R. 1059 .

Inheritance or succession tax on property covered by power of appointment, 18 A.L.R. 1470 ; 23 A.L.R. 738 ; 64 A.L.R. 740 ; 124 A.L.R. 653 ; 141 A.L.R. 954 ; 150 A.L.R. 730 ; 174 A.L.R. 635 .

Retrospective operation of succession tax, 26 A.L.R. 1461 ; 66 A.L.R. 404 ; 109 A.L.R. 858 ; 114 A.L.R. 518 .

Tombstone and funeral expenses as deductible items in computation of inheritance or succession tax, 28 A.L.R. 671 ; 83 A.L.R. 931 .

Income during administration as part of value of estate on which succession tax is to be computed, 32 A.L.R. 850 .

Succession or estate tax in its application to dower and statutory allowances, 37 A.L.R. 541 ; 105 A.L.R. 380 ; 122 A.L.R. 181 .

Constitutionality of discrimination in succession tax based on relationship or amount of estate, 39 A.L.R. 504 .

Applicability of succession tax law to antenuptial contract, 44 A.L.R. 1475 .

When transfer deemed to take effect in possession or enjoyment at or after death within Inheritance Tax Law, 49 A.L.R. 864 ; 67 A.L.R. 1247 ; 100 A.L.R. 1244 ; 121 A.L.R. 359 ; 155 A.L.R. 850 ; 167 A.L.R. 438 .

Power to impose tax on estate in respect to property transferred in contemplation of death or by a conveyance intended to take effect in possession or enjoyment at death, 52 A.L.R. 1091 .

Exemption of government securities from succession or inheritance tax, 55 A.L.R. 867 .

Construction and effect of provisions in succession tax law for deduction on account of property received by decedent from estate of another decedent, 57 A.L.R. 1099 ; 114 A.L.R. 1306 .

Life insurance as affecting transfer or succession tax, 63 A.L.R. 394 ; 92 A.L.R. 943 ; 118 A.L.R. 324 ; 150 A.L.R. 1268 .

Questions arising under state legislation to take advantage of provisions of Federal Revenue Act allowing credits on account of inheritance, legacy, or succession taxes paid to state, 63 A.L.R. 1096 ; 147 A.L.R. 467 .

Subsequent developments as authorizing increase of amount of succession tax fixed by taxing authorities, 64 A.L.R. 1281 .

Succession tax at domicile of debtor or corporation as to credits or corporate stock belonging to estate of nonresident, 65 A.L.R. 1008 ; 72 A.L.R. 1310 ; 77 A.L.R. 1411 ; 139 A.L.R. 1458 .

Situs for property taxation as between different states or countries, of personal property, or interests therein, held by trustees, executors, or administrators, 67 A.L.R. 393 ; 127 A.L.R. 379 ; 172 A.L.R. 341 .

Doctrine as to possibility of issue extinct as affecting property rights or taxation, 67 A.L.R. 538 ; 146 A.L.R. 794 ; 98 A.L.R.2d 1285.

Community property as subject of succession tax, 69 A.L.R. 780 .

Reciprocity provisions of succession tax laws, 69 A.L.R. 949 ; 139 A.L.R. 1062 .

Gift or trust for benefit of employees of corporation or business as within exemption or deduction provisions of succession tax or income tax law, 71 A.L.R. 870 .

When transfer deemed to be one in contemplation of death within the meaning of the Inheritance Tax Law, 75 A.L.R. 544 ; 120 A.L.R. 170 ; 148 A.L.R. 1051 .

Succession tax in respect of interest or right incident to an executory contract for the sale of land in a state other than that of the vendor's domicile, 78 A.L.R. 793 .

Succession tax at domicile of decedent as to personal property located elsewhere, or the obligations of nonresidents or foreign corporations, 86 A.L.R. 741 .

Succession tax in state or country in which personal property (or evidence thereof) belonging to the estate of a nonresident decedent is found, 86 A.L.R. 760 .

Deductibility in computing state income tax of amount paid or payable in respect of succession, inheritance, or estate tax, 108 A.L.R. 1401 .

Succession, estate, or gift tax in respect of or as affected by conveyance or transfer restoring to original owner property transferred by him to defraud or delay creditors, 108 A.L.R. 1508 .

Discrimination in succession or estate tax statute between estates closed and those not closed at date of its passage of effective operation, 109 A.L.R. 737 .

Deduction of indebtedness of insolvent estate in computing estate or inheritance tax in respect of assets exempt from debts, 110 A.L.R. 1255 .

Deductibility in computing estate or succession tax of decedent's liability as surety, guarantor, or endorser, 113 A.L.R. 368 .

Deductibility in computation of succession, inheritance, or estate tax of debt secured by mortgage upon real estate situated outside of jurisdiction, 113 A.L.R. 389 .

Burden of estate or succession tax in respect of inter vivos gift or trust, 115 A.L.R. 916 ; 15 A.L.R.2d 1216.

Burden, as between corpus and income, of inheritance, estate, or succession tax, 117 A.L.R. 121 .

Legacy or devise to or for benefit of municipality as subject to payment of inheritance, succession, or estate taxes, 120 A.L.R. 1388 .

Diverse adjudications, actual or potential, by courts of different states, as to domicile of decedent as regards taxation, administration, or distribution of estates, 121 A.L.R. 1200 .

Pendency of administration on the estate of a decedent at time of death of beneficiary as affecting inheritance or succession tax in respect of the latter's estate, 122 A.L.R. 935 .

Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597 .

Personal liability of executor, administrator, or trustee for succession tax, 128 A.L.R. 123 .

Aggregation of two or more transfers or gifts to same person, in computing inheritance, succession, or estate tax, 136 A.L.R. 340 .

Computation and burden of estate tax as affected by a residuary bequest to a religious, educational, or charitable institution, 140 A.L.R. 833 .

Gift tax, 141 A.L.R. 452 .

Construction and application of statutory provisions taxing legatees, heirs, or trust beneficiaries on income distributable or distributed to them, 141 A.L.R. 1055 .

Succession, inheritance, or estate tax in respect of decedent's interest in partnership, 144 A.L.R. 1134 .

Questions arising under state legislation to take advantage of provisions of Federal Revenue Act allowing credits on account of inheritance, legacy, or succession taxes paid to state, 147 A.L.R. 467 .

Discretion, provided for in will, as to making of charitable bequest, or as to its amount, as affecting its exemption or deduction for purposes of estate, succession, or inheritance tax, 149 A.L.R. 1333 .

Meaning and application of word "representation" within inheritance, succession, or estate tax law, 156 A.L.R. 404 .

Inheritance, succession, or estate tax in respect of bond or other obligation purchased by decedent but payable either absolutely, or in a specified event, to a third person, 156 A.L.R. 559 .

Entire corpus or only value of reserved interest as taxable, under provision of estate or inheritance tax law relating to transfers intended to take effect at death, 159 A.L.R. 233 .

Classification for purposes of inheritance or succession or estate tax of one who takes by virtue of lapsed legacy statute, 168 A.L.R. 271 .

Rights and remedies of executor or administrator as regards estate or succession tax paid or payable by him on property not passing under will or coming into his possession, 1 A.L.R.2d 978.

Succession or estate tax as affecting or as affected by estate by entirety or other joint estate with right of survivorship, 1 A.L.R.2d 1101.

Illegitimate child as "lineal descendant" and "child" within the provisions of inheritance, succession, or estate tax statutes respecting exemption and tax rates, 3 A.L.R.2d 166.

Time as of which rate of tax applicable to transfer in contemplation of death, or to take effect on death, is determined, 5 A.L.R.2d 1065.

Valuation of property for purposes of estate, succession, or gift tax as affected by contract or bylaw specifying price at which property may or must be sold, purchased, or offered, 5 A.L.R.2d 1122.

Transfer in trust divesting donor of all interest and control, but withholding ultimate distribution until his death, as subject to estate or inheritance tax, 6 A.L.R.2d 223.

Liability of life insurer which pays proceeds of policy direct to beneficiary, for the portion of estate or succession tax attributable to such proceeds, 10 A.L.R.2d 657.

Inheritance, succession, or estate tax on property covered by power of appointment as affected by location of property, or residence of parties, outside the taxing state or country, 19 A.L.R.2d 1415.

Valuation of corporate stock for purposes of succession, inheritance, or estate tax, as affected by quantity involved, 23 A.L.R.2d 775.

Death or divorce of blood relative as affecting relationship by affinity for purposes of inheritance, succession, or estate tax, 26 A.L.R.2d 271.

Deductibility of attorney's fees, as administrative expenses and the like, in computing succession or estate tax, 30 A.L.R.2d 1108.

Succession, estate, or inheritance tax as affected by compromise of will contest, 36 A.L.R.2d 917.

Construction and effect of provisions of will relied upon as affecting the burden of taxation, 37 A.L.R.2d 7; 70 A.L.R.3d 630.

Taxability of trustor's estate for retention of power to designate persons who shall possess or enjoy, 39 A.L.R.2d 461.

State inheritance, estate, or succession tax on United States savings bonds, 39 A.L.R.2d 698.

Deduction of exemption as affecting rate and computation of inheritance, taxes, 40 A.L.R.2d 630.

Statutory provision that specified fund or property shall be "exempt from taxation," "exempt from any tax," or the like, as exempting such property from estate or succession taxes, 47 A.L.R.2d 999.

Children of adopted child, or adopted children of natural child, as "lineal descendants" within provisions of inheritance, succession, or estate tax statutes respecting exemption and tax rates, 51 A.L.R.2d 854.

Applicability of dead man statute to proceedings to determine liability for succession, estate, or inheritance tax, 66 A.L.R.2d 714.

Succession and estate tax: construction of statute or regulation exempting gifts to foreign charitable, educational, or religious body on reciprocal basis, 12 A.L.R.3d 918.

Inter vivos settlement of disputed claim as consideration within statutes excepting transfers for consideration from estate, succession, or inheritance tax, 13 A.L.R.3d 657.

Renunciation of inheritance, devise, or legacy as affecting state inheritance, estate, or succession tax, 27 A.L.R.3d 1354.

Construction and effect of Uniform Gifts to Minors Act, 50 A.L.R.3d 528.

Deduction of federal gift tax in computing state inheritance tax, 56 A.L.R.3d 1322.

Valuation of corporate stock for purposes of state gift, inheritance, or estate tax, as affected by predetermined price in buy-out or first-option agreement among stockholders or with corporation, 58 A.L.R.3d 1104.

Surviving spouse taking elective share as chargeable with estate or inheritance tax, 67 A.L.R.3d 199.

Liability of income beneficiary of trust for proportionate share of estate or inheritance tax in absence of specific direction in statute, will, or other instrument, 67 A.L.R.3d 273.

Construction and effect of will provisions expressly relating to the burden of estate or inheritance taxes, 69 A.L.R.3d 122.

Construction and application of statutes apportioning or prorating estate taxes, 71 A.L.R.3d 247.

Remedies and practice under estate tax apportionment statutes, 71 A.L.R.3d 371.

Modern status of law as to equitable adoption or adoption by estoppel, 97 A.L.R.3d 347.

Valuation of closely held stock for federal estate tax purposes under sec. 2031(b) of Internal Revenue Code of 1954 (26 USCS sec. 2031(b)), and implementing regulations, 22 A.L.R. Fed 31.

48-12-1. Elimination of estate taxes and returns; prior taxable years not applicable.

  1. On and after July 1, 2014, there shall be no estate taxes levied by the state and no estate tax returns shall be required by the state.
  2. Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the enactment of this Code section and shall continue to be governed by the provisions of general law as it existed immediately prior to July 1, 2014.
  3. This Code section shall not abate any prosecution, punishment, penalty, administrative proceeding or remedy, or civil action related to any violation of law committed prior to July 1, 2014. (Code 1981, § 48-12-1 , enacted by Ga. L. 2014, p. 762, § 1/HB 658.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, §§ 2080, 2081, 2117 et seq., 2192.

ALR. - Judgment in suit to recover overpayment of estate or succession tax as res judicata, 118 A.L.R. 1065 .

CHAPTER 13 SPECIFIC, BUSINESS, AND OCCUPATION TAXES

Article 1

General Provisions.

Article 2

Nonresident Contractors.

Article 3

Excise Tax on Rooms, Lodgings, and

Accommodations.

Article 4

Corporate Net Worth Tax.

Article 5

Excise Taxes on Rental Motor Vehicles.

Article 6

Excise Tax On Sale Or Use Of Energy.

Article 7

Taxation of Consumer Fireworks.

RESEARCH REFERENCES

ALR. - Liability for license fee or occupation tax of one who has conducted business without required license or payment, 5 A.L.R. 1312 ; 107 A.L.R. 652 .

Validity of privilege or occupation tax on business of severing natural resources from soil, 32 A.L.R. 827 ; 52 A.L.R. 187 ; 60 A.L.R. 101 .

Power to lay privilege tax on occupation or business of selling or manufacturing product which is itself exempt from tax, 56 A.L.R. 498 .

Rights as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 93 A.L.R. 1485 ; 119 A.L.R. 542 .

Constitutionality of statute regulating or imposing tax or license fee upon newspapers or magazines, 110 A.L.R. 327 .

Intoxicating liquor business as subject to a tax imposed generally on occupations or business, 117 A.L.R. 686 .

Reasonableness of fee required of places where food is served for consumption upon the premises, and basis for fixing amount, 117 A.L.R. 1319 .

Occupation or license tax upon business or activities that are in violation of law, 118 A.L.R. 827 .

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011 .

Deductibility of other taxes or fees in computing excise or license taxes, 148 A.L.R. 263 ; 174 A.L.R. 1263 .

Validity, construction, and application of statutes or ordinances prohibiting or regulating automatic vending machines, 151 A.L.R. 1195 .

Payment of taxes to prevent closing of, or interference with, business as involuntary so as to permit recovery, 80 A.L.R.2d 1040.

Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90.

Validity and construction of license tax or fee, or business privilege or occupational tax, on persons renting or leasing out real estate, 93 A.L.R.2d 1136.

Exemption of agricultural activities or occupations from business or occupation license or tax, 38 A.L.R.4th 1074.

Validity of state or municipal tax or license fee upon occupation of practicing law, 50 A.L.R.4th 467.

ARTICLE 1 GENERAL PROVISIONS

Cross references. - Annual occupational license taxes on distillers, brewers, wineries, retail dealers of distilled spirits, beer, wine, or other alcoholic products, §§ 3-4-20 , 3-5-20 , 3-6-20 .

Editor's notes. - Ga. L. 1995, p. 419, § 2, not codified by the General Assembly, provides if a local government repeals, amends, or revises its ordinance or resolution relating to occupation taxes or regulatory fees during the tax year 1995, such a local government is authorized but not required to allow by ordinance or resolution businesses and practitioners of professions and occupations to pay for the tax year 1995 the lesser of: (1) Taxes and fees computed in accordance with the ordinance or resolution which was in effect on January 1, 1995; or (2) Taxes and fees computed in accordance with the ordinance or resolution which became effective after April 11, 1995, but before January 1, 1996.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 92-3, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

Reasonableness of occupation tax. - Reasonableness of an occupation tax is not dependent upon the amount of business conducted or on the profit received by a particular individual but is determined by the conditions in the municipality as a whole as justifying the tax upon the business or occupation in question. National Linen Serv. Corp. v. City of Gainesville, 181 Ga. 397 , 182 S.E. 610 (1935) (decided under former Code 1933, Ch. 92-3).

48-13-1. "In towns or cities" defined.

Reserved. Repealed by Ga. L. 1999, p. 749, § 1, effective July 1, 1999.

Editor's notes. - This Code section was based on Ga. L. 1927, p. 56, § 15; Code 1933, § 92-301; Ga. L. 1935, p. 11, § 2; Code 1933, § 91A-6009, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1995, p. 419, § 1.

48-13-2. Prohibition of export tax on state products.

No export tax shall be imposed upon any item manufactured or produced in this state and shipped by the manufacturer or producer for sale outside the state.

(Ga. L. 1960, p. 806, § 1; Code 1933, § 91A-6001, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1995, p. 419, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 69.

ALR. - What constitutes manufacturing and who is a manufacturer under tax laws, 17 A.L.R.3d 7.

48-13-3. Prohibition of capitation tax; exception.

No county, municipality, or district shall levy or collect any capitation tax whatever, except street tax.

(Laws 1842, Cobb's 1851 Digest, p. 1074; Code 1863, § 739; Code 1868, § 806; Ga. L. 1869, p. 162, § 1; Ga. L. 1870, p. 432, § 1; Code 1873, § 809; Code 1882, § 809; Civil Code 1895, § 775; Civil Code 1910, § 1015; Code 1933, § 92-109; Code 1933, § 91A-6002, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 40; Ga. L. 1995, p. 419, § 1.)

Cross references. - Exemption from street tax for members of organized militia, § 38-2-276 .

JUDICIAL DECISIONS

Taxes upon professions and occupations of skill are not violative of the law. Burch v. Mayor of Savannah, 42 Ga. 596 (1871).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 17.

C.J.S. - 85 C.J.S., Taxation, §§ 1947, 1948, 1949.

48-13-4. Prohibition of tax on activities involving air commerce; exceptions.

  1. It shall be unlawful for the state or any county, municipality, airport authority, district, or other political subdivision to levy or collect a tax, fee, head charge, or other charge, directly or indirectly, on:
    1. Persons traveling in air commerce, whether on regularly scheduled commercial airlines, chartered air flights, or in privately owned civil aircraft;
    2. The carriage of persons traveling in air commerce; or
    3. The sale of air transportation or on the gross receipts derived from air transportation.
  2. This Code section shall not be construed to prohibit the state or any county, municipality, airport authority, district, or other political subdivision:
    1. From levying or collecting any property, income, franchise, sale, use, or other tax otherwise authorized by law; or
    2. Which owns or operates an airport from levying or collecting reasonable rental charges, landing fees, license fees, permit fees, and other service charges for the use of airport facilities and related facilities from aircraft owners, operators, persons selling or providing goods or services to the owners or operators or to the public, and others, when otherwise allowed by law.

      (Ga. L. 1973, p. 483, § 1; Code 1933, § 91A-6003, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1995, p. 419, § 1.)

48-13-5. Definitions.

As used in this article, the term:

  1. "Administrative fee" means a component of an occupation tax which approximates the reasonable cost of handling and processing the occupation tax.

    (1.1) (A) Except as otherwise provided in subparagraph (B) of this paragraph, "employee" means an individual whose work is performed under the direction and supervision of the employer and whose employer withholds FICA, federal income tax, or state income tax from such individual's compensation or whose employer issues to such individual for purposes of documenting compensation a form I.R.S. W-2 but not a form I.R.S. 1099.

    (B) An individual who performs work under the direction and supervision of one business or practitioner in accordance with the terms of a contract or agreement with another business which recruits such individual is an employee of the business or practitioner which issues to such individual for purposes of documenting compensation a form I.R.S. W-2.

    1. "Gross receipts" means total revenue of the business or practitioner for the period, including without being limited to the following:
      1. Total income without deduction for the cost of goods sold or expenses incurred;
      2. Gain from trading in stocks, bonds, capital assets, or instruments of indebtedness;
      3. Proceeds from commissions on the sale of property, goods, or services;
      4. Proceeds from fees charged for services rendered; and
      5. Proceeds from rent, interest, royalty, or dividend income.
    2. Gross receipts shall not include the following:
      1. Sales, use, or excise taxes;
      2. Sales returns, allowances, and discounts;
      3. Interorganizational sales or transfers between or among the units of a parent-subsidiary controlled group of corporations, as defined by 26 U.S.C. Section 1563(a)(1), between or among the units of a brother-sister controlled group of corporations, as defined by 26 U.S.C. Section 1563(a)(2), between or among a parent corporation, wholly owned subsidiaries of such parent corporation, and any corporation in which such parent corporation or one or more of its wholly owned subsidiaries owns stock possessing at least 30 percent of the total value of shares of all classes of stock of such partially owned corporation, or between or among wholly owned partnerships or other wholly owned entities;
      4. Payments made to a subcontractor or an independent agent for services which contributed to the gross receipts in issue;
      5. Governmental and foundation grants, charitable contributions, or the interest income derived from such funds, received by a nonprofit organization which employs salaried practitioners otherwise covered by this chapter, if such funds constitute 80 percent or more of the organization's receipts; and
      6. Proceeds from sales of goods or services which are delivered to or received by customers who are outside the state at the time of delivery or receipt.
  3. "Location or office" shall include any structure or vehicle where a business, profession, or occupation is conducted, but shall not include a temporary or construction work site which serves a single customer or project or a vehicle used for sales or delivery by a business or practitioner of a profession or occupation which has a location or office. The renter's or lessee's location which is the site of personal property which is rented or leased from another does not constitute a location or office for the personal property's owner, lessor, or the agent of the owner or lessor. The site of real property which is rented or leased to another does not constitute a location or office for the real property's owner, lessor, or the agent of the owner or lessor unless the real property's owner, lessor, or the agent of the owner or lessor, in addition to showing the property to prospective lessees or tenants and performing maintenance or repair of the property, otherwise conducts the business of renting or leasing the real property at such site or otherwise conducts any other business, profession, or occupation at such site.
  4. "Occupation tax" means a tax levied on persons, partnerships, corporations, or other entities for engaging in an occupation, profession, or business and enacted by a local government as a revenue-raising ordinance or resolution.
  5. "Practitioners of professions and occupations" shall not include a practitioner who is an employee of a business, if the business pays an occupation tax.
  6. "Regulatory fees" means payments, whether designated as license fees, permit fees, or by another name, which are required by a local government as an exercise of its police power and as a part of or as an aid to regulation of an occupation, profession, or business. The amount of a regulatory fee shall approximate the reasonable cost of the actual regulatory activity performed by the local government. A regulatory fee may not include an administrative fee or registration fee. No local government is authorized to require any administrative fee, registration fee, or fee by any other name in connection with a regulatory fee, except an occupation tax, as defined in paragraph (4) of this Code section. Regulatory fees do not include development impact fees as defined by paragraph (8) of Code Section 36-71-2 or other costs or conditions of zoning or land development. (Code 1981, § 48-13-5 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 2; Ga. L. 2003, p. 596, § 1.)

JUDICIAL DECISIONS

City responsible for occupation tax. - In a declaration suit, a city was properly determined not to be a local authority as that term is used in O.C.G.A. § 48-13-13(5) and, thus, was subject to the levy of occupation taxes by another municipality for the city's proprietary operations at the city's airport, which was in the other municipality's city limits, because the terms local authority and municipality were not the same under the statute. City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

Temporary work site exception. - Trial court erred in ruling that the exhibitors did not fall under the "temporary work site" as the exhibitors occupied a temporary work site for two days during the town's fair and were not automatically invited back. Because that exception applied, the town was not authorized to levy an occupation tax on the exhibitors under O.C.G.A. § 48-13-6(b) . Cotton Pickin' Fairs, Inc. v. Town of Gay, 346 Ga. App. 327 , 816 S.E.2d 160 (2018).

48-13-6. Levy of occupation tax by counties and municipalities on businesses and practitioners of professions and occupations; hearing on tax increase.

  1. Except as to those businesses and practitioners of professions and occupations excluded by subsection (a) of Code Section 48-13-16 and except as to those persons excluded by Code Section 43-12-1, the governing authority of each county is authorized but not required to provide by local ordinance or resolution for the levy, assessment, and collection of occupation tax on those businesses and practitioners of professions and occupations with one or more locations or offices in the unincorporated part of the county and to provide for the punishment of violation of such a local ordinance or resolution. The governing authority of each county is authorized to classify businesses and practitioners of professions and occupations and to assess different taxes on different classes of businesses and practitioners. The governing authority of each county is authorized to provide by local ordinance or resolution for requiring information from businesses and practitioners of professions and occupations doing business in the unincorporated part of the county regarding the site of any location or office and payment of occupation taxes or regulatory fees to other local governments and to provide for the punishment for violation of such a local ordinance or resolution. This article supersedes any provision of local law authorizing such taxes.
  2. Except as to those businesses and practitioners of professions and occupations excluded by subsection (a) of Code Section 48-13-16 and except as to those persons excluded by Code Section 43-12-1, the governing authority of each municipal corporation is authorized but not required to provide by local ordinance or resolution for the levy, assessment, and collection of occupation tax on those businesses and practitioners of professions and occupations which have one or more locations or offices within the corporate limits and to provide for the punishment of violation of such a local ordinance or resolution. The governing authority of each municipal corporation is authorized to classify businesses and practitioners of professions and occupations and to assess different taxes on different classes of businesses and practitioners. The governing authority of each municipal corporation is authorized to provide by local ordinance or resolution for requiring information from businesses and practitioners of professions and occupations doing business within the corporate limits regarding the site of any location or office and payment of occupation taxes or regulatory fees to other local governments and to provide for the punishment for violation of such a local ordinance or resolution. This article supersedes any provision of local law or city charter authorizing such taxes.
  3. After April 11, 1995, any local government shall conduct at least one public hearing before adopting any ordinance or resolution regarding the occupation tax. (Code 1981, § 48-13-6 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1994, p. 366, § 1; Ga. L. 1995, p. 419, § 1; Ga. L. 1996, p. 1268, § 2.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1995, "April 11, 1995" was substituted for "the effective date of this Act" in subsection (c).

Editor's notes. - Ga. L. 1993, p. 1292, § 7, effective January 1, 1995, renumbered former Code Section 48-13-6 as present Code Section 48-13-17.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1953, Jan.-Feb. Sess., p. 207, and former Code Section 48-13-5, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Unconstitutional regulation of practice of law. - Occupational tax ordinance levied on professionals and requiring registration and a fee payment at the beginning of each year prior to the transaction of business operated as an unconstitutional precondition on the practice of law. Sexton v. City of Jonesboro, 267 Ga. 571 , 481 S.E.2d 818 (1997).

Individually-licensed CPA in CPA firm subject to revenue ordinance. - When a licensed certified public accountant is employed full-time by a firm of CPAs and is listed in the telephone directory as a CPA and employs business letterhead or business cards of a firm of certified public accountants, then such a person is practicing public accounting for the purposes of a revenue ordinance imposed pursuant to this section which applied to persons who practice the profession of public accounting. Anything to the contrary in City of Atlanta v. Day, 159 Ga. App. 476 , 283 S.E.2d 692 (1981) is disapproved. Mayor of Savannah v. Canady, 255 Ga. 23 , 334 S.E.2d 693 (1985) (decided under former Code Section 48-13-5 ).

"Public accounting" interpreted. - Statutory term "public accounting" must be interpreted to encompass the performance of any or all of those activities within the specialized competence of persons who are licensed by the state as certified public accountants, even if those persons are performing work which could be done by persons who are not certified public accountants. City of Atlanta v. Daley, 257 Ga. 674 , 362 S.E.2d 348 (1987) (decided under former Code Section 48-13-5 ).

"Public" interpreted. - Statutory modifier "public" (in "public accounting") refers to the profession itself, and not to the specific duties of a single practitioner - whether those duties are performed on behalf of the public generally, or exclusively for a single employer. City of Atlanta v. Daley, 257 Ga. 674 , 362 S.E.2d 348 (1987) (decided under former Code Section 48-13-5 ).

Maintenance of "principal office". - Statutory language limiting assessment of occupational tax to a person who "maintains his principal office" in the taxing municipality evinces no implied intent to tax only those who are responsible for the overall business and who determine the fee to be charged for the professional service. City of Atlanta v. Shrader, 185 Ga. App. 691 , 365 S.E.2d 449 , cert. denied, 185 Ga. App. 909 , 365 S.E.2d 449 (1988) (decided under former Code Section 48-13-5 ).

Licensed embalmers and funeral directors who performed embalming tasks and directed funerals while in the employ of a funeral home "maintained an office" in Atlanta within the meaning of this Code section, even though they did not own or have any interest in the premises of the business and did not take the tax into consideration when determining the charges for services. City of Atlanta v. Shrader, 185 Ga. App. 691 , 365 S.E.2d 449 , cert. denied, 185 Ga. App. 909 , 365 S.E.2d 449 (1988) (decided under former Code Section 48-13-5 ).

Municipal corporations may not tax absent plain and unmistakable authority from state. - Municipal corporations can levy no tax, general or special, upon the inhabitants of the municipality, or upon property therein, unless the power to do so be plainly and unmistakably granted by the state, and the burden is upon every political subdivision of the state which demands taxes from the people to show authority to exercise it in the manner in which it has been imposed by a valid law of this state. City of Atlanta v. Gower, 216 Ga. 368 , 116 S.E.2d 738 (1960) (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Authority to collect occupation tax. - First city lacked authority to collect an occupation tax on professional or business activities within a second city's limits because the first city did not identify any constitutional provision or general law that authorized the first city to levy, assess, and collect an occupation tax on businesses and practitioners that were not located in that city's limits, and to the extent an agreement between the cities purported to vest in the first city the authority to collect an occupation tax on businesses located within the second city's limits, the contract was unenforceable; a contract between municipalities, however, is not a general law. City of Atlanta v. City of College Park, 311 Ga. App. 62 , 715 S.E.2d 158 (2011).

Occupation tax may show a relation to the income of the taxpayer although not itself an income tax. Coolidge v. Mayor of Savannah, 128 Ga. App. 704 , 197 S.E.2d 773 (1973) (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Exhibitors argument on occupational tax. - Exhibitors had standing to argue an occupational tax could not be levied against the exhibitors because the town sought money damages directly from the exhibitors. Cotton Pickin' Fairs, Inc. v. Town of Gay, 346 Ga. App. 327 , 816 S.E.2d 160 (2018).

Ordinance imposing tax exceeding limits is ultra vires and void. - General tax ordinance, as amended, of the City of Atlanta, approved March 23, 1960, insofar as the ordinance purports to tax professions licensed by the state in excess of the amount authorized is ultra vires and void. City of Atlanta v. Gower, 216 Ga. 368 , 116 S.E.2d 738 (1960) (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Taxability requirements. - This section, which permits a municipality to tax certain professions, contains two conditions: (1) the person taxed must be a practitioner of the profession taxed; and (2) such person must maintain an office for the practice of the profession and the principal office must lie within the municipality levying the tax. City of Atlanta v. Georgia Soc'y of Professional Eng'rs, 220 Ga. 62 , 137 S.E.2d 41 (1964) (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Municipality is not precluded from levying a tax on attorneys because of the license fee paid to the State Bar of Georgia. Brown v. City of Atlanta, 221 Ga. 121 , 143 S.E.2d 388 (1965) (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

When attorney is furnished office by an employer as part of the attorney's compensation, the office is nonetheless a principal office and meets the requirements of this section. Holden v. Bartlett, 127 Ga. App. 15 , 192 S.E.2d 392 (1972) (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Taxation of engineers and architects. - City cannot tax engineers and architects pursuant to this section who, although they hold certificates of registration, work as employees in firms in which the principals who are responsible for the final design decisions also hold certificates. City of Atlanta v. Georgia Soc'y of Professional Eng'rs, 220 Ga. 62 , 137 S.E.2d 41 (1964) (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Authority of municipality to collect tax. - Because a second city provided by local ordinance for the levy, assessment, and collection of an occupation tax on businesses and practitioners operating within that city's limits, the second city had the general authority to collect such a tax under O.C.G.A. § 48-13-6(b) , and only the second city was authorized to levy, assess, and collect an occupation tax from businesses and practitioners at the airport that were located within the second city's limits to the extent consistent with Ga. Const. 1983, Art. IX, Sec. IV, Para. I, O.C.G.A. § 48-13-6(b) , other applicable statutes, and that city's own charter, ordinances, and regulations; Atlanta, Ga., Charter, § 7-105(f) is ineffective to the extent it purports to divest College Park, Georgia of the authority to levy, assess, and collect an occupation tax on those businesses and practitioners operating at the airport and within the city limits of College Park. City of Atlanta v. City of College Park, 311 Ga. App. 62 , 715 S.E.2d 158 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under Ga. L. 1953, Jan.-Feb. Sess., p. 207, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Construction with other provisions as to lawyers. - Ga. L. 1963, p. 70, § 1 should not be construed as repealing by implication so much of this section as relates to lawyers. 1963-65 Op. Att'y Gen. p. 381 (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Form of business as affecting taxability. - Law permits a levy upon individuals, whether the individuals practice as sole proprietors or as members of firms. There are, however, highly individual conditions under which the levy could not be made upon employees of firms. 1971 Op. Att'y Gen. No. U71-20 (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Classification of professions for tax purposes. - Municipality may classify professions for the purpose of levying a license, occupational, or professional tax, provided the classification is reasonable and related to the objective for which it is made. There must be uniformity within the classes. 1970 Op. Att'y Gen. No. U70-74 (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Tax may be imposed on persons in part-time service. - When a local government imposes a tax on professional activities, it may impose such tax upon those engaged in part-time service, as well as upon those engaged in full-time employment. 1970 Op. Att'y Gen. No. U70-67 (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Counties and municipalities can legally add penalties for failure to pay the license taxes levied when due. 1957 Op. Att'y Gen. p. 307 (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Tax on attorneys not a license to practice. - Municipalities may levy professional taxes upon attorneys. Such a professional tax is not to be confused with a license to practice since a municipal license fee as a condition precedent to practice has been held invalid. 1972 Op. Att'y Gen. No. U72-48 (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

Pest control business may be taxed wherever business carried on. - Person, business, or company engaged in the pest control business, not being specifically exempt by law, may legally be required to pay a license fee not only in the county where its principal office is located, but also in any county or city in which its business is carried on. 1952-53 Op. Att'y Gen. p. 380 (decided under Ga. L. 1953, Jan.-Feb. Sess., p. 207).

RESEARCH REFERENCES

C.J.S. - 53 C.J.S., Licenses, § 16 et seq.

ALR. - Validity of state or municipal tax or license fee upon occupation of practicing law, 50 A.L.R.4th 467.

48-13-7. Levy of occupation tax by localities on businesses and practitioners of professions and occupations with no location or office in state; superseding of local law; laws applicable to levy; tax payable to only one local government; exemption.

  1. The governing authority of each county is authorized to provide by local ordinance or resolution for the levy, assessment, and collection of occupation tax on those businesses and practitioners of professions and occupations with no location or office in the state in accordance with this Code section and to provide for the punishment of violation of such a local ordinance or resolution if the business or practitioner:
    1. Has one or more employees or agents who exert substantial efforts within the unincorporated part of the county for the purpose of soliciting business or serving customers or clients; or
    2. Owns personal or real property which generates income and which is located in the unincorporated part of the county.
  2. The governing authority of each municipal corporation is authorized to provide by local ordinance or resolution for the levy, assessment, and collection of occupation tax on those businesses and practitioners of professions and occupations with no location or office in the state in accordance with this Code section and to provide for the punishment of violation of such a local ordinance or resolution if the business or practitioner:
    1. Has one or more employees or agents who exert substantial efforts within the corporate limits for the purpose of soliciting business or serving customers or clients; or
    2. Owns personal or real property which generates income and which is located in the corporate limits.
  3. This article supersedes any provisions of local law or city charter authorizing such taxes.
  4. Local governments levying occupation tax according to this Code section shall comply with Code Sections 48-13-10 through 48-13-13, except that: gross receipts of a business or practitioner for purposes of this Code section shall include only those gross receipts reasonably attributable to sales or services in this state; employees shall include only those employees engaged in substantial efforts within this state; and nation-wide profitability ratios shall apply only to types of business transacted within this state.
  5. Businesses and practitioners subject to this Code section shall be required to pay occupation tax to only one local government in this state, the local government for the municipal corporation or county in which the largest dollar volume of business is done or service is performed by the individual business or practitioner.
  6. If a business or practitioner subject to this Code section provides to the local government in this state which is authorized to levy occupation tax on such business or practitioner proof of payment of a local business or occupation tax in another state which purports to tax the business's or practitioner's sales or services in this state, the business or practitioner shall be exempt from local occupation tax in this state. (Code 1981, § 48-13-7 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1.)

Editor's notes. - Ga. L. 1993, p. 1292, § 7, effective January 1, 1995, renumbered former Code Section § 48-13-7 as present Code Section 48-13-18 .

JUDICIAL DECISIONS

City's occupation tax used same combination of criteria for all taxpayers. - Taxpayer claimed a city's occupation tax did not classify different companies by the same "combination of criteria" as required by O.C.G.A. § 48-13-10(a) as some businesses paid taxes based on the businesses' gross receipts, while others paid based on the number of the businesses' employees. This claim failed as § 48-13-10(a) (1) and (a)(3) provided that an occupation tax could be calculated using both the number of employees and gross receipts, and the occupation tax was calculated in the same manner for every company. GMC v. City of Doraville, 284 Ga. 689 , 670 S.E.2d 787 (2008).

48-13-8. Imposition of regulatory fees by counties and municipalities on businesses and practitioners of professions and occupations; classification based on location within or without corporate limits prohibited.

  1. Except as to those persons excluded by Code Section 43-12-1, the governing authority of each county is authorized but not required to provide by local ordinance or resolution for the imposition and collection of regulatory fees on businesses and practitioners of professions and occupations doing business in the unincorporated part of the county and to provide for the punishment of violation of such a local ordinance or resolution. Classifying businesses and practitioners of professions and occupations according to whether such businesses and practitioners have a location within the unincorporated part of the county and imposing and collecting differential regulatory fees on the basis of such a classification is prohibited. This article supersedes any provision of local law authorizing such regulatory fees.
  2. Except as to those persons excluded by Code Section 43-12-1 , the governing authority of each municipal corporation is authorized but not required to provide by local ordinance or resolution for the imposition and collection of regulatory fees on businesses and practitioners of professions and occupations doing business within the corporate limits and to provide for the punishment of violation of such a local ordinance or resolution. Classifying businesses and practitioners of professions and occupations according to whether such businesses and practitioners have a location within the corporate limits and imposing and collecting differential regulatory fees on the basis of such a classification is prohibited. This article supersedes any provision of local law or city charter authorizing such fees. (Code 1981, § 48-13-8 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 1996, p. 1268, § 2.)

Editor's notes. - Ga. L. 1993, p. 1292, § 7, effective January 1, 1995, renumbered former Code Section 48-13-8 as present Code Section 48-13-19.

48-13-9. Limitation on authority of local government to impose regulatory fee; examples of those which may be subject to fees; individuals and entities not subject to fees; general laws not repealed.

  1. A local government is authorized to require a business or practitioner of a profession or occupation to pay a regulatory fee only if the local government customarily performs investigation or inspection of such businesses or practitioners of such profession or occupation as protection of the public health, safety, or welfare or in the course of enforcing a state or local building, health, or safety code, but no local government is authorized to use regulatory fees as a means of raising revenue for general purposes; provided that the amount of a regulatory fee shall approximate the reasonable cost of the actual regulatory activity performed by the local government.
  2. Examples of businesses or practitioners of professions or occupations which may be subject to regulatory fees of local governments include, but are expressly not limited to, the following:
    1. Building and construction contractors, subcontractors, and workers;
    2. Carnivals;
    3. Taxicab and limousine operators;
    4. Tattoo artists;
    5. Stables;
    6. Shooting galleries and firearm ranges;
    7. Scrap metal processors;
    8. Pawnbrokers;
    9. Food service establishments;
    10. Dealers in precious metals;
    11. Firearms dealers;
    12. Peddlers;
    13. Parking lots;
    14. Nursing homes, assisted living communities, and personal care homes;
    15. Newspaper vending boxes;
    16. Modeling agencies;
    17. Massage parlors;
    18. Landfills;
    19. Auto and motorcycle racing;
    20. Boarding houses;
    21. Businesses which provide appearance bonds;
    22. Boxing and wrestling promoters;
    23. Hotels and motels;
    24. Hypnotists;
    25. Handwriting analysts;
    26. Health clubs, gyms, and spas;
    27. Fortunetellers;
    28. Garbage collectors;
    29. Escort services;
    30. Burglar and fire alarm installers; and
    31. Locksmiths.
  3. Examples of businesses and practitioners of professions and occupations which local governments are not authorized to subject to regulatory fees include, but are expressly not limited to, the following:
    1. Lawyers;
    2. Physicians licensed under Chapter 34 of Title 43;
    3. Osteopaths licensed under Chapter 34 of Title 43;
    4. Chiropractors;
    5. Podiatrists;
    6. Dentists;
    7. Optometrists;
    8. Psychologists;
    9. Veterinarians;
    10. Landscape architects;
    11. Land surveyors;
    12. Practitioners of physiotherapy;
    13. Public accountants;
    14. Embalmers;
    15. Funeral directors;
    16. Civil, mechanical, hydraulic, or electrical engineers;
    17. Architects;
    18. Marriage and family therapists, social workers, and professional counselors;
    19. Dealers of motor vehicles, as defined in paragraph (1) of Code Section 10-1-622;
    20. Owners or operators of bona fide coin operated amusement machines, as defined in Code Section 50-27-70, and owners or operators of businesses where bona fide coin operated amusement machines are available for commercial use and play by the public, provided that such amusement machines have affixed current stickers showing payment of annual permit fees, in accordance with Code Section 50-27-78;
    21. Merchants or dealers as defined in Code Section 48-5-354 as to their deliveries to businesses and practitioners of professions and occupations in areas zoned for commercial use; and
    22. Any other business, profession, or occupation for which state licensure or registration is required by state law, unless the state law regulating such business, profession, or occupation specifically allows for regulation by local governments.
  4. This Code section shall not be construed to repeal other general laws which allow or require regulation of businesses, occupations, or professions by local governments.
  5. For each business, profession, or occupation, local governments are authorized to determine the amount of a regulatory fee imposed in accordance with this article only by one of the following methods:
    1. A flat fee for each business or practitioner of a profession or occupation doing business in the jurisdiction as authorized by Code Section 48-13-8 ;
    2. A flat fee for each type of permit or inspection requested;
    3. An hourly rate determined by the hourly wage or salary, including employee benefits, of the person or persons assigned to investigate or inspect multiplied by the number of hours estimated for the investigation or inspection to be performed;
    4. An hourly rate as determined by paragraph (3) of this subsection with the addition of other expenses reasonably related to such regulatory activity, such as administrative and travel expenses, multiplied by the number of hours estimated for the investigation or inspection to be performed;
    5. For construction projects that are classified as new construction, the number of square feet of construction or the number of square feet of construction to be served by the system to be installed, in conjunction with and limited by the building valuation data, as established from time to time by the International Code Council or by similar data, and in conjunction with and limited by the hourly rate described in paragraph (3) or (4) of this subsection; or
    6. For construction projects that are classified as renovation and all other construction projects other than those classified as new construction, the cost of the project in conjunction with and limited by the building valuation data that conforms with the principles and methods established from time to time by the International Code Council or by similar data, and in conjunction with and limited by the hourly rate described in paragraph (3) or (4) of this subsection. (Code 1981, § 48-13-9 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 3; Ga. L. 2006, p. 544, § 2/HB 304; Ga. L. 2011, p. 227, § 28/SB 178; Ga. L. 2013, p. 37, § 2-3/HB 487.)

Editor's notes. - Ga. L. 1993, p. 1292, § 8, provided for the repeal of former Code Section 48-13-9, relating to county license fees for carnivals and other itinerant shows, effective January 1, 1995. That Code section was based on Ga. L. 1955, Ex. Sess., p. 17, § 1; Code 1933, § 91A-6005, enacted by Ga. L. 1978, p. 309, § 2.

Ga. L. 2013, p. 37, § 3-1/HB 487, not codified by the General Assembly, provides, in part, that: "(b) If any section of this Act is determined to be unconstitutional by a final decision of an appellate court of competent jurisdiction or by the trial court of competent jurisdiction if no appeal is made, with the exception of subsection (g) of Code Section 50-27-78 and Section 2-1 of this Act, this Act shall stand repealed by operation of law.

"(c) This Act is not intended to and shall not be construed to affect the legality of the repair, transport, possession, or use of otherwise prohibited gambling devices on maritime vessels within the jurisdiction of the State of Georgia. To the extent that such repair, transport, possession, or use was lawful prior to the enactment of this Act, it shall not be made illegal by this Act; and to the extent that such repair, transport, possession, or use was prohibited prior to the enactment of this Act, it shall remain prohibited." As of May 2018, no such finding has been issued.

JUDICIAL DECISIONS

Unconstitutional regulation of practice of law. - Occupational tax ordinance levied on professionals and requiring registration and a fee payment at the beginning of each year prior to the transaction of business operated as an unconstitutional precondition on the practice of law. Sexton v. City of Jonesboro, 267 Ga. 571 , 481 S.E.2d 818 (1997).

Annual renewal charge on Certificates of Public Necessity and Convenience held by taxicab drivers and companies is a regulatory fee, not a tax, and the charge is lawful because the city is authorized to regulate the business of operating taxicabs and vehicles for hire in which the certificates are used. Hadley v. City of Atlanta, 232 Ga. App. 871 , 502 S.E.2d 784 (1998).

Ordinance imposing an occupational tax. - Provisions in a city ordinance allowing the city to inspect an attorney's financial records and to issue an execution to recover unpaid taxes due constituted neither a precondition to the practice of law nor an attempt to regulate such practice because the city's right to review the financial records did not require the production of material protected by attorney-client privilege and gross revenue statements were specifically protected from disclosure. Moss v. City of Dunwoody, 293 Ga. 858 , 750 S.E.2d 326 (2013).

Excessive fees. - Fact that the county had increased the county's fees for building permits and other real estate development fees when the county had accumulated a two million dollar surplus from those fees was evidence that the fees may have exceeded the reasonable cost of the county's regulatory activity, and summary judgment for the county was reversed in a case alleging a violation of O.C.G.A. § 48-13-9 . Home Builders Ass'n of Savannah v. Chatham County, 276 Ga. 243 , 577 S.E.2d 564 (2003).

48-13-9.1. Civil action; attorney's fees.

A civil action to enforce the limitation on regulatory fees set out in Code Section 48-13-9 may be filed after the exhaustion of administrative remedies. The prevailing party in such an action shall be awarded reasonable attorney's fees.

(Code 1981, § 48-13-9.1 , enacted by Ga. L. 2002, p. 979, § 4A.)

48-13-10. Determining amount of occupation tax; criteria for classification of businesses and practitioners; administrative fee; exemptions or reduction in fees for economic development; election of tax by practitioner.

  1. In determining the amount of occupation tax to be levied on an individual business or practitioner, local governments shall classify all businesses or practitioners by the same criterion or combination of criteria. To assure uniformity, each and every business and practitioner shall be classified by the same criterion or combination of criteria. The criteria used for classification shall be one or more than one of the following criteria:
    1. The number of employees of the business or practitioner as computed on a full-time position basis or full-time position equivalent basis, provided that for the purposes of this computation an employee who works 40 hours or more weekly shall be considered a full-time employee and that the average weekly hours of employees who work less than 40 hours weekly shall be added and such sum shall be divided by 40 to produce full-time position equivalents;
    2. Profitability ratio for the type of business, profession, or occupation as measured by nation-wide averages derived from statistics, classifications, or other information published by the United States Office of Management and Budget, the United States Internal Revenue Service, or successor agencies of the United States;
    3. Gross receipts of the business or practitioner in combination with the profitability ratio for the type of business, profession, or occupation as measured by nation-wide averages derived from statistics, classifications, or other information published by the United States Office of Management and Budget, the United States Internal Revenue Service, or successor agencies of the United States; or
    4. A flat fee classification which is applied uniformly to all businesses and practitioners of professions and occupations, so that each business or practitioner pays the same amount of tax for each office or location.
  2. Local governments which classify businesses and practitioners by the criterion described in paragraph (3) of subsection (a) of this Code section are authorized but not required to limit the geographic area in which gross receipts shall be taxed to that local government's jurisdiction.
  3. Local governments which classify by the criteria described in paragraph (2) or (3) of subsection (a) of this Code section shall rank the businesses and practitioners according to the profitability ratio described in paragraph (2) of subsection (a) of this Code section. After such ranking, the local government shall establish profitability classifications which do not overlap before setting one or more rates of taxation for each classification. Such local governments are not authorized to apply to any classification a rate of taxation greater than the rate applied to another classification which includes a business or practitioner with a higher profitability ratio, except that local governments are authorized but not required to apply different rates of taxation within the same profitability classification by dollar range of gross receipts. Local governments using such different rates of taxation within the same profitability classification shall use the same dollar ranges of gross receipts for each profitability classification and shall not apply to any business or practitioner a rate of taxation greater than the rate applied to the same dollar range of gross receipts in another classification which includes a business or practitioner with a higher profitability ratio.
  4. Local governments which classify by the criterion described in paragraph (1) of subsection (a) of this Code section are authorized but not required to adopt more than one rate of taxation per employee.
  5. The occupation tax may include an administrative fee.
    1. Notwithstanding any other provision of this article, local governments may by ordinance or resolution provide for an exemption or reduction in occupation tax or a credit against occupation tax owed to one or more types of businesses or practitioners of occupations or professions as part of a plan for economic development or attracting, encouraging, or maintaining selected types of businesses or practitioners of selected occupations or professions. Such exemptions or reductions in occupation tax shall not be arbitrary or capricious.
    2. Exemptions or reductions in occupation tax pursuant to paragraph (1) of this subsection may include but shall not be limited to the following:
      1. Absolute dollar amount limitations on the total amount of tax, either by criterion or combination of criteria used for classification or for businesses and practitioners, provided that a jurisdiction which provides an absolute dollar amount limitation on the total amount of tax shall levy and collect such maximum tax only once on each business entity or practitioner even if a business or practitioner has more than one office or location within the jurisdiction;
      2. Tax credits for the retention or creation of jobs, or for jobs of a specific description, including but not limited to entry level jobs or jobs with compensation of a specified range;
      3. Tax credits for other taxes paid to the local government, including but not limited to ad valorem taxes;
      4. A tax exemption or a lower rate of taxation for sales to customers outside the jurisdiction of the local government;
      5. A credit or rebate to businesses or practitioners who paid occupation taxes in the previous year;
      6. A limitation on the dollar or percentage amount of increase in tax from a base year to a subsequent year, provided that the limitation is made applicable to new businesses or practitioners by imputing the gross receipts, profitability ratio, or number of employees of the subsequent year to the base year in calculating tax for the base year, tax for the subsequent year, and the increase in tax; and
      7. A credit or reduction as an adjustment for seasonal fluctuations in the number of employees, other fluctuations in the number of employees, increases or decreases in the number of employees, or temporary employees.
  7. Practitioners of professions and occupations who are listed in paragraphs (1) through (18) of subsection (c) of Code Section 48-13-9 shall elect as their entire occupation tax one of the following:
    1. The occupation tax resulting from application of the other provisions of this article; or
    2. A fee to be set by the local government, not to exceed $400.00 per practitioner who is licensed to provide the service, such tax to be paid at that practitioner's office or location; provided, however, that a practitioner paying according to this paragraph shall not be required to provide information to the local government relating to the gross receipts of the business or practitioner.
  8. Notwithstanding any other provision in this article, any local government levying an occupation tax is authorized to request payment of such occupation tax from and accept payment from a partnership, corporation, or other business entity composed of practitioners subject to the election set out in subsection (g) of this Code section for each such practitioner. (Code 1981, § 48-13-10 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 4.)

Editor's notes. - Ga. L. 1993, p. 1292, § 8, provided for the repeal of former Code Section 48-13-10, relating to unlawful operation of an itinerant show without a license, effective January 1, 1995. That Code section was based on Ga. L. 1955, Ex. Sess., p. 17, § 2; Code 1933, § 91A-9928, enacted by Ga. L. 1978, p. 309, § 2.

JUDICIAL DECISIONS

City's occupation tax used same combination of criteria for all taxpayers. - Taxpayer claimed a city's occupation tax did not classify different companies by the same "combination of criteria" as required by O.C.G.A. § 48-13-10(a) as some businesses paid taxes based on the businesses' gross receipts, while others paid based on the number of employees. This claim failed as § 48-13-10(a) (1) and (a)(3) provided that an occupation tax could be calculated using both the number of employees and gross receipts, and the occupation tax was calculated in the same manner for every company. GMC v. City of Doraville, 284 Ga. 689 , 670 S.E.2d 787 (2008).

Ordinance imposing an occupational tax on attorneys. - City ordinance imposing an occupational tax on attorneys who maintain an office and practice law in the city did not violate constitutional equal protection because the tax was paid for a variety of city services that benefited all citizens within the city, including attorneys, it was reasonable for the city to require attorneys with offices inside city limits to help pay for city services from which the attorneys benefit, and all attorneys subject to the ordinance were taxed uniformly. Moss v. City of Dunwoody, 293 Ga. 858 , 750 S.E.2d 326 (2013).

City ordinance imposing an occupational tax on attorneys who maintained an office and practiced law in the city did not operate as an unconstitutional precondition on the practice of law nor was it an improper attempt to regulate the practice of law in violation of O.C.G.A. § 15-19-30 because the ordinance did not authorize the city to withhold a certificate from any attorney who failed to comply with the ordinance and attorneys were clearly exempted from regulatory treatment under the ordinance. Moss v. City of Dunwoody, 293 Ga. 858 , 750 S.E.2d 326 (2013).

Ordinance requiring financial disclosure of attorney's records. - Provisions in a city ordinance allowing the city to inspect an attorney's financial records and to issue an execution to recover unpaid taxes due constituted neither a precondition to the practice of law nor an attempt to regulate such practice because the city's right to review the financial records did not require the production of material protected by attorney-client privilege and gross revenue statements were specifically protected from disclosure. Moss v. City of Dunwoody, 293 Ga. 858 , 750 S.E.2d 326 (2013).

48-13-10.1. Restriction on authority of counties and municipalities to impose business license fee or occupational tax on wrecker services.

Repealed by Ga. L. 1993, p. 1292, § 8, effective January 1, 1995.

Editor's notes. - This Code section was based on Ga. L. 1981, p. 654, §§ 1-3.

48-13-11. Prohibited criteria or methods in determining amount of occupation tax.

In determining the amount of occupation tax to be levied on an individual business or practitioner, local governments shall not use the following criteria or methods:

  1. Dividing a business into its constituent parts and imposing a separate occupation tax on each part or portion of the business, except that businesses or practitioners with more than one type of activity or product shall be taxed in accordance with Code Section 48-13-12;
  2. The size or square footage of the space occupied by the business or practitioner; or
  3. Any criterion other than those described in Code Section 48-13-10 . (Code 1981, § 48-13-11 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1.)

Editor's notes. - Ga. L. 1993, p. 1292, § 9, effective January 1, 1995, renumbered former Code Section 48-13-11 as present Code Section 48-13-20.

48-13-12. Classification rules for businesses or practitioners with more than one type of service or product.

For businesses or practitioners with more than one type of service or product, the following classification rules shall apply:

  1. Local governments which do not use the criterion described in paragraph (3) of subsection (a) of Code Section 48-13-10 shall classify the business or practitioner for occupation tax purposes according to the dominant service or product, unless such local governments use only the criterion described in paragraph (4) of subsection (a) of Code Section 48-13-10; and
  2. Local governments which use the criterion described in paragraph (3) of subsection (a) of Code Section 48-13-10 shall set out in their local ordinances or resolutions for occupation taxes whether the local government will:
    1. Classify the entire gross receipts by dominant service or product; or
    2. Apportion the gross receipts by category of service or product in proportion to the gross receipts generated by each service or product, taxing each portion of the gross receipts according to the profitability ratio for that particular type of business and adding the tax for all portions to arrive at the total occupation tax. (Code 1981, § 48-13-12 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1.)

Editor's notes. - Ga. L. 1993, p. 1292, § 9, effective January 1, 1995, renumbered former Code Section 48-13-12 as present Code Section 48-13-21.

48-13-13. Prohibitions on occupation tax levies by local governments.

Local governments are not authorized to:

  1. Require a business or practitioner to pay more than one occupation tax for each office or location, except that businesses or practitioners with multiple services or products shall be taxed in accordance with Code Section 48-13-12;
  2. Levy occupation tax on more than 100 percent of the total gross receipts of the business or practitioner, when occupation taxes of all local governments are added together;
  3. Levy occupation tax on any practitioner whose office is maintained by and who is employed in practice exclusively by the United States, the state, a municipality or county of the state, or instrumentalities of the United States, the state, or a municipality or county of the state;
  4. Require the payment of a fee by whatever name in any amount by a business or practitioner for the cost of ascertaining whether such a business or practitioner has paid occupation tax to another local government; or
  5. Levy any occupation tax, regulatory fee, or administrative fee on any state or local authority, nonprofit organization, or vendor operating under a contract with a tax-exempt agricultural fair, as that term is defined in Code Section 2-2-8 . (Code 1981, § 48-13-13 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 1996, p. 1268, § 3; Ga. L. 1997, p. 143, § 48.)

Editor's notes. - Ga. L. 1993, p. 1292, § 9, effective January 1, 1995, renumbered former Code Section 48-13-13 as present Code Section 48-13-22.

JUDICIAL DECISIONS

Local authority explained. - In enacting O.C.G.A. § 48-13-13 , the General Assembly did not intend the term "local authority" in O.C.G.A. § 48-13-13(5) to refer to a local government corporation, that is, a municipality or a county, but only to a local authority in the narrower sense, and therefore, § 48-13-13(5) does not prohibit one municipality from levying, assessing, and collecting an occupation tax from another municipality that conducts proprietary (nongovernmental) revenue-generating activities within the geographical corporate limits of the first municipality; use of the phrase "local authority" shows that the General Assembly views a local government, that is, a county or municipality, and a local authority as distinct categories, and a "local authority" means an agency created by one or more local governments to carry out certain discrete governmental functions for a local purpose. City of Atlanta v. City of College Park, 311 Ga. App. 62 , 715 S.E.2d 158 (2011).

City was not a local authority. - Trial court erred in determining that a first city was a local authority that was statutorily exempt from liability to a second city for any occupation tax for the first city's proprietary business operations because the first city was not a local authority within the meaning of O.C.G.A. § 48-13-13(5) , such that the second city was prohibited from taxing the first city; in enacting O.C.G.A. § 48-13-13 , the General Assembly did not intend the term "local authority" in § 48-13-13(5) to refer to a local government corporation, that is, a municipality or a county, but only to a local authority in the narrower sense, and therefore, § 48-13-13 (5) does not prohibit one municipality from levying, assessing, and collecting an occupation tax from another municipality that conducts proprietary (nongovernmental) revenue-generating activities within the geographical corporate limits of the first municipality. City of Atlanta v. City of College Park, 311 Ga. App. 62 , 715 S.E.2d 158 (2011).

In a declaration suit, a city was properly determined not to be a local authority as that term is used in O.C.G.A. § 48-13-13(5) and, thus, was subject to the levy of occupation taxes by another municipality for the city's proprietary operations at the city's airport, which was in the other municipality's city limits, because the terms local authority and municipality were not the same under the statute. City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

48-13-14. Levy on business or practitioner with location or office in more than one jurisdiction; methods of allocating gross receipts; information provided by business or practitioner; limits on levies by local governments using criteria for taxation.

  1. In levying occupation tax upon a business or practitioner with a location or office situated in more than one jurisdiction, including businesses or practitioners with one or more locations or offices in Georgia and one or more locations outside the state, local governments which use the criterion described in paragraph (3) of subsection (a) of Code Section 48-13-10 shall allocate the gross receipts as defined in paragraph (2) of Code Section 48-13-5 of the business or practitioner for occupation tax purposes in accordance with one of the following methods:
    1. Where the business or practitioner can reasonably allocate the dollar amount of gross receipts of the business or practitioner to one or more of the locations or offices on the basis of product manufactured in that location or office or the sales or other services provided in that location or office, each local government is authorized to tax the gross receipts generated by the location or office within the jurisdiction of the local government; or
    2. Where the business or practitioner cannot reasonably allocate the dollar amount of gross receipts among multiple locations or offices, the business or practitioner shall divide the gross receipts reported to all local governments in this state by the number of locations or offices of the business or practitioner which contributed to the gross receipts reported to any local government in this state, and shall allocate an equal percentage of such gross receipts of the business or practitioner to each location or office.
  2. In no instance shall the sum of the portions of the total gross receipts of a business or practitioner taxed by all local governments exceed 100 percent of the total gross receipts of the business or practitioner.
  3. In the event of a dispute between the business or practitioner and the local government as to the allocation under this Code section, the business or practitioner shall have the burden of proof as to the reasonableness of this allocation.
  4. Upon request, businesses or practitioners with a location or office situated in more than one jurisdiction shall provide to any local government authorized to levy an occupation tax upon such business or practitioner the following:
    1. Financial information necessary to allocate the gross receipts of the business or practitioner; and
    2. Information relating to the allocation of the business's or practitioner's gross receipts by other local governments.
  5. When more than one local government levies occupation tax on a business or practitioner which has locations encompassed by more than one local government and the local governments use different criteria for taxation in accordance with subsection (a) of Code Section 48-13-10 , local governments which use the criterion described in paragraph (3) of subsection (a) of Code Section 48-13-10 are not authorized to tax any greater proportion of the gross receipts than authorized by subsection (a) of this Code section, and local governments which use the number of employees as a criterion for taxation are authorized to tax the number of employees who are employed within the local government's geographic jurisdiction. In the case of an employee who works for the same business or practitioner in more than one municipal corporation or county, the municipal corporation or county in which the employee works for the longest period of time within the calendar year shall be authorized to count the individual as an employee who is employed within the local government's geographic jurisdiction for purposes of occupation tax. (Code 1981, § 48-13-14 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 5.)

Editor's notes. - Ga. L. 1993, p. 1292, § 9, effective January 1, 1995, renumbered former Code Section 48-13-14 as present Code Section 48-13-23.

48-13-15. Confidentiality of information provided by business or practitioner; violation; when disclosure allowed.

  1. Except as provided in subsection (c) of this Code section, information on gross receipts received by a business or practitioner of an occupation or profession provided to a local government for the purpose of determining the amount of occupation tax for the business or practitioner is confidential and exempt from inspection or disclosure under Article 4 of Chapter 18 of Title 50.
  2. Violation of the confidentiality provision of subsection (a) of this Code section shall be unlawful and upon conviction shall be punished as a misdemeanor.
  3. Information on gross receipts received by a business or practitioner of an occupation or profession provided to a local government for the purpose of determining the amount of occupation tax for the business or practitioner may be disclosed to the governing authority of another local government for occupation tax purposes or pursuant to court order or for the purpose of collection of occupation tax or prosecution for failure or refusal to pay occupation tax.
  4. In the event a taxpayer completes one or more forms in order to comply with a local government's ordinance or resolution imposing either an occupation tax or a regulatory fee and any such form fails to disclose the social security number or the appropriate federal or state taxpayer identification number, or other identification numbers, if required by the local government, such omission shall be reported in a timely manner to the state revenue commissioner. (Code 1981, § 48-13-15 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 6.)

Editor's notes. - Ga. L. 1993, p. 1292, § 9, effective January 1, 1995, renumbered former Code Section 48-13-15 as present Code Section 48-13-24.

JUDICIAL DECISIONS

Ordinance allowing inspection of attorney's financial records. - Provisions in a city ordinance allowing the city to inspect an attorney's financial records and to issue an execution to recover unpaid taxes due constituted neither a precondition to the practice of law nor an attempt to regulate such practice because the city's right to review the financial records did not require the production of material protected by attorney-client privilege and gross revenue statements were specifically protected from disclosure. Moss v. City of Dunwoody, 293 Ga. 858 , 750 S.E.2d 326 (2013).

RESEARCH REFERENCES

ALR. - Recovery of damages under § 7431(c)(1)(B) of Internal Revenue Code (26 USCA § 7431(c)(1)(B)) based on improper release of confidential tax return information, 154 A.L.R. Fed. 537.

48-13-16. Excluded businesses or practitioners; other laws on occupation taxes or registration fees of local governments not repealed.

  1. The following businesses or practitioners shall be excluded from occupation tax, registration fees, or regulatory fees under the provisions of this article but shall be subject to taxation and regulation as otherwise provided by general law and municipal charters:
    1. Those businesses regulated by the Public Service Commission and the Department of Public Safety;
    2. Those electrical service businesses organized under Chapter 3 of Title 46; and
    3. Any farm operation for the production from or on the land of agricultural products, but not including any agribusiness.
  2. This article shall not be construed to repeal other provisions of general law relating to local governments' occupation tax, registration fees, or regulatory fees for businesses or practitioners of professions or occupations. (Code 1981, § 48-13-16 , enacted by Ga. L. 1993, p. 1292, § 7; Ga. L. 1994, p. 366, § 2; Ga. L. 1995, p. 419, § 1; Ga. L. 2012, p. 580, § 24/HB 865; Ga. L. 2013, p. 141, § 48/HB 79.)

Editor's notes. - Ga. L. 1993, p. 1292, § 9, effective January 1, 1995, renumbered former Code Section 48-13-16 as present Code Section 48-13-25.

JUDICIAL DECISIONS

Authority and municipality do not have same meaning. - In a declaration suit, a city was properly determined not to be a local authority as that term is used in O.C.G.A. § 48-13-13(5) and, thus, was subject to the levy of occupation taxes by another municipality for the city's proprietary operations at the city's airport, which was in the other municipality's city limits, because the terms local authority and municipality were not the same under the statute. City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

48-13-17. Levy of license, occupation, or professional tax by counties and municipalities upon real estate brokers.

  1. No county or municipal corporation shall levy or collect any fixed amount license, occupation, or professional tax upon real estate brokers, except at the place where any such real estate broker shall maintain a principal or branch office. The license, occupation, or professional tax shall permit the broker and the broker's affiliated associate brokers and salespersons to engage in all of the brokerage activities described in Code Section 43-40-1 without further licensing or taxing other than the state licenses issued pursuant to Chapter 40 of Title 43. No additional license, occupation, or professional tax shall be required of the broker's affiliated associate brokers or salespersons; provided, however, that, subject to the limitations of subsection (b) of this Code section, a municipality or county which levies a general occupation or business license tax on a gross receipts basis shall have the power to levy and collect an occupation, license, or professional tax upon real estate brokers transacting business within the boundaries of the taxing jurisdiction, which tax shall be based upon gross receipts derived from transactions with respect to property located within the boundaries of the taxing jurisdiction.
  2. A municipal corporation may impose an occupation, license, or professional tax upon real estate brokers based upon gross receipts only for real estate transactions with respect to property located within its corporate limits and a county governing authority may impose such a tax based upon gross receipts only for real estate transactions with respect to property located in the unincorporated area of the county. (Code 1933, § 84-1425, enacted by Ga. L. 1977, p. 344, § 1; Ga. L. 1990, p. 644, § 1; Code 1981, § 48-13-6 ; Code 1981, § 48-13-17 , as redesignated by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1.)

48-13-18. Levy by municipalities of occupation taxes on licensed businesses, trades, and professions; limitation; prohibition of municipal licensing or taxation of businesses, trades, or operations operating registered vehicles.

  1. When otherwise authorized by law to levy occupation taxes on businesses, trades, and professions, a municipality shall be permitted to levy the taxes on businesses, trades, and professions which are licensed by or registered with the state. This Code section shall not be construed to repeal any express limitations on such municipal authority contained in general law.
  2. Nothing contained in this Code section shall be construed to authorize the municipal licensing or taxation of businesses, trades, or occupations operating motor vehicles required to be registered with the Department of Public Safety of this state. (Code 1933, § 91A-6015, enacted by Ga. L. 1980, p. 1175, § 1; Code 1981, § 48-13-7 ; Code 1981, § 48-13-18 , as redesignated by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1; Ga. L. 2012, p. 580, § 25/HB 865.)

48-13-19. Limitation on levy of employment taxes by municipalities; exception.

  1. Except as may be authorized by general law, no municipality may levy any tax upon an individual for the privilege of working within or being employed within the limits of the municipality.
  2. Nothing contained in this Code section shall be construed to prohibit a municipality, when otherwise authorized, from levying any form of tax being levied by any municipality in this state on January 1, 1980. (Code 1933, § 91A-6014, enacted by Ga. L. 1980, p. 1298, § 1; Code 1981, § 48-13-8 ; Code 1981, § 48-13-19 , as redesignated by Ga. L. 1993, p. 1292, § 7; Ga. L. 1995, p. 419, § 1.)

RESEARCH REFERENCES

ALR. - Eligibility for relief from federal employment taxes under § 530 of Internal Revenue Code (26 USCA § 3401 note), 149 A.L.R. Fed. 627.

48-13-20. Time for payment of fees and taxes.

  1. All occupation taxes authorized by this chapter, except as otherwise specifically provided, shall be due and payable annually within 30 days following January 1, or such other date specified in the local government ordinance imposing the taxes. In the event that any person commences business on any date after the date specified in this Code section or in the local government ordinance imposing the tax, the tax shall be due and payable 30 days following the commencement of the business.
  2. Regulatory fees authorized by this chapter shall be paid before commencing business or the practice of a profession or occupation as a condition precedent for transacting business, or practicing a profession or occupation.
  3. Regulatory fees may be paid after commencing business or the practice of a profession or occupation when:
    1. The work done or services provided are necessary for the health, comfort, or safety of one or more individuals or protection of property. This paragraph shall apply to, but not be limited to, the repair, service, or installation of heating, ventilation, and air conditioning equipment or systems;
    2. The work done or services provided have no adverse effect on any other person;
    3. Regulatory fees are tendered to the local government within two business days after commencing business or the practice of a profession or occupation and any and all required inspections are made in order to ensure compliance with applicable codes; and
    4. The work is commenced or the services are provided within 24 hours of receiving the request for such work or service and it is not possible for the person conducting the work or providing the service to obtain a permit prior to commencing due to the hours of operation of the local government's offices. (Ga. L. 1935, p. 11, § 21; Code 1933, § 91A-6007, enacted by Ga. L. 1978, p. 309, § 2; Code 1981, § 48-13-11 ; Code 1981, § 48-13-20 , as redesignated by Ga. L. 1993, p. 1292, § 9; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 7; Ga. L. 2006, p. 544, § 3/HB 304.)

48-13-20.1. Localities levying occupation tax or regulatory fee to collect certain information from taxpayers; applicability; required information; electronic submission of information; establishment of website or electronic portal; promulgation of rules and regulations.

  1. The provisions of this Code section shall apply only in a municipality or county levying an occupation tax or regulatory fee under this article and shall apply only upon the adoption of a resolution of such governing authority consenting to the applicability of this Code section.
  2. Following the adoption of the resolution provided for in subsection (a) of this Code section, any person who performs any business, occupation, or profession and who is subject to an occupation tax or regulatory fee under this article shall be subject to the requirements of this Code section. Such person shall provide to the municipality or county levying an occupation tax or regulatory fee under this article, at the time such occupation tax or regulatory fee is due and payable, the information required under subsection (c) of this Code section. Such municipality or county shall provide written notice to such person that such information, or the refusal to provide such information, shall be provided to the department. The failure or refusal of such person to provide such information shall not toll or extend the time of payment established for such occupation tax or regulatory fee under Code Section 48-13-20.
  3. The following information shall be requested from such person by such municipality or county:
    1. The legal name of such business and any associated trade names;
    2. The mailing address of such business and the actual physical address of each location of such business if different than the mailing address; and
    3. The sales and use tax identification number assigned to such business by the department if such business is required to have such number pursuant to Article 1 of Chapter 8 of this title.
  4. Within 30 days of the time of payment of such occupation tax or regulatory fee under Code Section 48-13-20, the municipality or county collecting the occupation tax or regulatory fee and the information authorized under subsection (c) of this Code section from such person shall submit electronically to the department the information received from such person under subsection (c) of this Code section. Such municipality or county shall also submit any applicable North American Industry Classification System Code number or numbers electronically to the department.
  5. The department shall establish and maintain an appropriate website or electronic portal for the submission by municipalities and counties of the information required by this Code section.
  6. The commissioner shall promulgate any rules and regulations necessary to implement and administer this Code section. (Code 1981, § 48-13-20.1 , enacted by Ga. L. 2010, p. 804, § 1/HB 1093.)

48-13-21. Penalty for failure to pay tax or fee; time; amount; interest and administrative fees; exemption for certain military service.

  1. Except as otherwise provided in subsection (c) of this Code section, should any special, occupation, or sales tax or license fee imposed by this chapter remain due and unpaid for 90 days from the due date of the tax or fee, the person liable for the tax or fee shall be subject to and shall pay a penalty of 10 percent of the tax or fee due.
  2. Except as otherwise provided in subsection (c) of this Code section, local governments are authorized to provide in their ordinances for interest on delinquent occupation taxes, regulatory fees, and administrative fees at a rate not to exceed 1.5 percent per month.
  3. No taxpayer shall be liable for any penalty or interest pursuant to subsections (a) and (b) of this Code section if:
    1. The default giving rise to such penalty or interest resulted from a taxpayer's military service in the armed forces of the United States in an area designated by the President of the United States by executive order as a combat zone and was not due to gross or willful neglect or disregard of the law or of regulations or instructions issued pursuant to the law; and
    2. The taxpayer provides proof of such military service and makes full payment of taxes due, not including penalties and interest, within 60 days of such taxpayer's return from such military service. (Ga. L. 1931, Ex. Sess., p. 76, § 6; Code 1933, § 92-2105; Ga. L. 1935, p. 11, § 16; Code 1933, § 91A-6011, enacted by Ga. L. 1978, p. 309, § 2; Code 1981, § 48-13-12 ; Code 1981, § 48-13-21 , as redesignated by Ga. L. 1993, p. 1292, § 9; Ga. L. 1995, p. 419, § 1; Ga. L. 2018, p. 317, § 1/HB 840.)

The 2018 amendment, effective July 1, 2018, substituted "Except as otherwise provided in subsection (c) of this Code section, should" for "Should" at the beginning of subsection (a); substituted "Except as otherwise provided in subsection (c) of this Code section, local" for "Local" at the beginning of subsection (b); and added subsection (c).

48-13-22. Amount of tax due from businesses commenced on or after July 1.

When any person commences business on or after July 1 in any year, the business or occupation tax for the remaining portion of the year shall be 50 percent of the tax imposed for the entire year, except that (1) local governments which tax according to the criterion described in paragraph (3) of subsection (a) of Code Section 48-13-10 are authorized to levy their customary rate on the gross receipts of the business or practitioner from the commencement of the business; (2) the administrative fee authorized as a component of an occupation tax by subsection (e) of Code Section 48-13-10 shall not be reduced; and (3) a practitioner of a profession or occupation who elects as his or her occupation tax the amount described in paragraph (2) of subsection (g) of Code Section 48-13-10 shall receive no reduction in such amount.

(Ga. L. 1935, p. 11, § 20; Code 1933, § 91A-6008, enacted by Ga. L. 1978, p. 309, § 2; Code 1981, § 48-13-13 ; Code 1981, § 48-13-22 , as redesignated by Ga. L. 1993, p. 1292, § 9; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 7.)

48-13-23. Duty to post state licenses in places of business by persons subject to any special or occupational tax.

Each person subject to any special or occupation tax who is also licensed by the state shall post the state license in a conspicuous place in the licensee's place of business and shall keep the license there at all times while the license remains valid.

(Ga. L. 1924, p. 183, § 2; Code 1933, § 92-302; Code 1933, § 91A-6006, enacted by Ga. L. 1978, p. 309, § 2; Code 1981, § 48-13-14 ; Code 1981, § 48-13-23 , as redesignated by Ga. L. 1993, p. 1292, § 9; Ga. L. 1995, p. 419, § 1.)

48-13-24. Census governing amount of tax or license fee to be paid.

In any provision of this chapter where population controls the amount of tax or license fee to be paid, the most recent United States decennial census shall govern.

(Ga. L. 1927, p. 56, § 15; Code 1933, § 92-301; Ga. L. 1935, p. 11, § 2; Code 1933, § 91A-6009, enacted by Ga. L. 1978, p. 309, § 2; Code 1981, § 48-13-15 ; Code 1981, § 48-13-24 , as redesignated by Ga. L. 1993, p. 1292, § 9; Ga. L. 1995, p. 419, § 1.)

48-13-25. Effect of entry of nulla bona on right of defaulting taxpayer to collect fees for services rendered after entry; effect of taxpayer's payment in full of delinquent tax, on such right.

When a nulla bona entry has been entered by proper authority upon an execution issued by the tax collector or tax commissioner against any person defaulting on a special tax, the person against whom the entry is made shall not be allowed or entitled to have or collect any fees or charges whatever for services rendered after the entry of the nulla bona. If, at any time after the entry of nulla bona has been made, the person against whom the execution issues pays the tax in full together with all interest and costs accrued on the tax, the person may collect any fees and charges due him or her as though he or she had never defaulted in the payment of the tax.

(Ga. L. 1896, p. 37, § 3; Civil Code 1910, § 1157; Code 1933, § 92-2109; Code 1933, § 91A-6013, enacted by Ga. L. 1978, p. 309, § 2; Code 1981, § 48-13-16 ; Code 1981, § 48-13-25 , as redesignated by Ga. L. 1993, p. 1292, § 9; Ga. L. 1995, p. 419, § 1.)

48-13-26. Issuance of executions against delinquent taxpayers; criminal liability unaffected.

In addition to the other remedies available to the state, counties, and municipalities for the collection of special taxes, occupation taxes, and regulatory fees due the state, counties, and municipalities from persons subject to the tax or fee who fail or refuse to pay the tax or fee, the officer charged with the collection of the tax or fee shall issue executions against the delinquent taxpayers for any or all of the following: the amount of the taxes or fees due when the taxes or fees become due; any penalty imposed by subsection (a) of Code Section 48-13-21; and any interest imposed by the local ordinance in accordance with subsection (b) of Code Section 48-13-21. The court of competent jurisdiction for the enforcement of ordinances of the local government which has levied the tax or imposed the fee may, if authorized by the local ordinance, impose a civil fine for failure to pay the occupation tax or regulatory fee. Such a civil fine shall not exceed $500.00 and may be enforced by the contempt power of the court.

(Ga. L. 1903, p. 17, §§ 1, 2; Civil Code 1910, §§ 1152, 1153; Code 1933, §§ 92-2107, 92-2108; Ga. L. 1935, p. 11, § 21; Code 1933, § 91A-6012, enacted by Ga. L. 1978, p. 309, § 2; Code 1981, § 48-13-17 ; Ga. L. 1990, p. 644, § 2; Code 1981, § 48-13-26 , as redesignated by Ga. L. 1993, p. 1292, § 9; Ga. L. 1995, p. 419, § 1; Ga. L. 1999, p. 749, § 7.)

48-13-27. Ordinances and resolutions to be in compliance with amended article.

  1. The governing authority of any county or municipal corporation which enacted an ordinance or resolution relating to occupation taxes or regulatory fees pursuant to the provisions of this article and other general law effective January 1, 1995, which ordinance or resolution is in effect on April 11, 1995, shall enact an ordinance or resolution in compliance with the provisions of this article, on or after April 11, 1995.
  2. Subsection (a) of this Code section shall not impair the right of any county or municipal corporation:
    1. To determine the content of such an ordinance or resolution relating to occupation taxes or regulatory fees, provided that such ordinance or resolution complies with general law; and
    2. To elect not to impose occupation taxes or regulatory fees. (Code 1981, § 48-13-27 , enacted by Ga. L. 1995, p. 419, § 1; Ga. L. 2002, p. 415, § 48.)

48-13-28. Disposition of increase in occupation tax revenue; public hearings.

In any year when revenue from occupation taxes is greater than revenue from occupation taxes for the preceding year for a local government, the local government shall hold one or more public hearings as a part of the process of determining how to use the additional revenue.

(Code 1981, § 48-13-28 , enacted by Ga. L. 1995, p. 419, § 1.)

48-13-29. Compliance by counties and municipalities with provisions; electronic or mail application process; payment of fees; establishment of system of permitting not required; plans or specifications by mail.

  1. Every county and municipality that requires a permit for the installation, replacement, or improvement of heating, ventilation, air-conditioning, plumbing, or electrical equipment or systems within a building or structure within its jurisdiction shall ensure that the permit process of such county or municipality conforms to the provisions of this Code section.
  2. In addition to applying in person for a heating, ventilation, air-conditioning, plumbing, or electrical permit, every county and municipality subject to this Code section shall provide a method by which an applicant can apply for a heating, ventilation, air-conditioning, plumbing, or electrical permit by mail or through electronic media without having to apply in person. Acceptable electronic media includes, but is not limited to, facsimile transmission. E-mail and Internet websites also may be used at the discretion of the county or municipality. Once the application is received, the county or municipality may approve or disapprove the permit according to the rules, regulations, and ordinances of the county or municipality. A county or municipality may require the applicant to appear in person when such applicant applies for a permit for the first time with such county or municipality. Applications sent by mail shall include payment by check or money order for any fees, unless the amount of such fees is not available from the county or municipality. Applicants using the mail to make applications shall bear the responsibility of any delays in the county or municipality receiving such applications.
  3. In addition to paying by cash any fees for the issuance of a heating, ventilation, air-conditioning, plumbing, or electrical permit, every county and municipality subject to this Code section may provide for the payment of such fees through the use of one or more of the following methods and may add an additional fee, not to exceed the actual cost to the county or municipality, for the cost of providing for and processing such payments:
    1. By use of a check;
    2. By use of a money order;
    3. By use of a major credit card;
    4. By use of a bank draft or wire transfer;
    5. By the establishment of an account by the applicant with the county or municipality which the county or municipality can debit for the payment of the fees; or
    6. By the establishment of a delayed or deferred payment method, to be established by a written policy of the county or municipality, by which the applicant can mail or deliver payment for the fees within a reasonable period of time.
  4. If an applicant's payment of the fee is dishonored by the financial institution on which it is drawn, the county or municipality shall notify the applicant and give the applicant a reasonable period of time, which shall be not less than three business days after receiving notice, to pay the fee, including any interest and penalties, and any additional fees or charges incurred by the county or municipality as a result of the dishonor. If the applicant does not pay the fee within the specified period of time, the county or municipality may invalidate the permit and assess fines and other penalties on the applicant. Such invalidation shall result in the permit being a total nullity and may subject the applicant to all penalties for failure to have a proper permit for the construction, renovation, installation, replacement, or improvement of the building or structure. In addition, if an applicant's payment of the delayed or deferred permit fees is dishonored, the county or municipality may revoke or suspend the applicant's authority to utilize such payment method in future applications.
  5. Nothing in this Code section shall require any county or municipality to establish a system of permits for the construction, renovation, installation, replacement, or improvement of a building or structure.
  6. Nothing in this Code section shall require any county or municipality to accept plans or specifications by mail or electronic means. If a county or municipality chooses to accept plans or specifications by mail or electronic means, the county or municipality may specify the format in which such plans or specifications shall be submitted. Failure to submit such plans or specifications in the format required by the county or municipality shall be a basis for rejecting such plans or specifications by the county or municipality. (Code 1981, § 48-13-29 , enacted by Ga. L. 2004, p. 772, § 1; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2017, p. 774, § 48/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "E-mail" for "Electronic mail" at the beginning of the third sentence in subsection (b).

ARTICLE 2 NONRESIDENT CONTRACTORS

Law reviews. - For article, "Owner Defenses Under Georgia's Lien Statute," see 26 Ga. St. B. J. 76 (1989). For article on construction law, see 42 Mercer L. Rev. 25 (1990). For note on the 1989 amendment to this article, see 6 Georgia St. U.L. Rev. 319 (1989).

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. Art. 2, Ch. 13, T. 48 was not violative of Ga. Const. 1976, Art. I, Sec. I, Para. IX as the same attack might lie logically against innumerable provisions of law which define the rights of litigants. Gorrell v. Fowler, 248 Ga. 801 , 286 S.E.2d 13 , appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918 , 73 L. Ed. 2 d 1324 (1982).

Principal purpose of O.C.G.A. Art. 2, Ch. 13, T. 48 is to require that bond be posted to ensure payment of unemployment contributions which are the responsibility of the contractor. Manifestly, the article is not designed to discriminate against nonresident contractors, but to bring nonresident contractors into a parity with resident contractors relative to compliance with an important obligation under O.C.G.A. Ch. 8, T. 34. Gorrell v. Fowler, 248 Ga. 801 , 286 S.E.2d 13 , appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918 , 73 L. Ed. 2 d 1324 (1982).

O.C.G.A. Art. 2, Ch. 13, T. 48 is applicable to an action in quantum meruit. Gorrell v. Fowler, 248 Ga. 801 , 286 S.E.2d 13 , appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918 , 73 L. Ed. 2 d 1324 (1982).

Finding of nonresidency held correct. - When contractor stated under oath that maintenance of home, office, business records, and reporting requirements occurred in Tennessee, the trial court's factual determination as to nonresidency is correct and does not raise a jury issue. Gorrell v. Fowler, 248 Ga. 801 , 286 S.E.2d 13 , appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918 , 73 L. Ed. 2 d 1324 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Ga. L. 1961, p. 480, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

Intent. - Ga. L. 1961, p. 480 is intended to provide an additional means of collecting taxes due the state and is to be in addition to existing methods. 1960-61 Op. Att'y Gen. p. 545 (decided under former Ga. L. 1961, p. 480).

Construction with other bond requirements. - Minimum requirements of the bond called for in Ga. L. 1961, p. 480 do not meet the minimum requirements of Ga. L. 1955, p. 389, and a qualifying subcontractor should, therefore, post both bonds. 1960-61 Op. Att'y Gen. p. 545 (decided under former Ga. L. 1961, p. 480).

RESEARCH REFERENCES

ALR. - Validity of privilege tax as applied to contractor performing contract with federal government, 97 A.L.R. 1257 ; 114 A.L.R. 347 .

48-13-30. "Contractor" defined.

As used in this article, the term "contractor" means any person engaged in the business of constructing, altering, repairing, dismantling, or demolishing buildings, roads, bridges, viaducts, sewers, water and gas mains, streets, disposal plants, water filters, tanks and towers, airports, dams, water wells, pipelines, and every other type of structure, project, development, or improvement coming within the definition of real property or personal property including, but not limited to, constructing, altering, or repairing of property to be held either for sale or rental, and all subcontractors so engaged.

(Ga. L. 1961, p. 480, § 1; Code 1933, § 91A-6101, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

When registration required. - If the corporation in question were a foreign supplier of equipment to be installed by others, the corporation would not have to register; but, if the corporation also installed the equipment in any wise, it would be liable to and subject to the nonresident contractor's provisions. American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 , 320 S.E.2d 857 (1984).

Construction of a telecommunications line fits within the definition of contracting activities under O.C.G.A. § 48-13-30 . Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341 , 392 S.E.2d 855 (1990).

Subcontractor's exempt status from the sales and use tax provisions of O.C.G.A. § 48-8-63 did not confer upon the subcontractor an automatic exemption from compliance with O.C.G.A. Art. 2, Ch. 13, T. 48. Adams v. PPT, Inc., 191 Ga. App. 729 , 382 S.E.2d 732 (1989).

Provider of services not exempted. - In defining the term "contractor", O.C.G.A. § 48-13-30 does not exempt a provider of services. Adams v. PPT, Inc., 191 Ga. App. 729 , 382 S.E.2d 732 (1989).

Substantial compliance by contractor. - When a nonresident contractor did not comply with O.C.G.A. Art. 2, Ch. 13, T. 48 prior to beginning the contractor's work but, as part of the contractor's contract with Department of Transportation (DOT), signed performance and payment bonds for 100 percent of the amount of the contract that expressly covered the payment of all state and local taxes and, prior to completion of the project, completed all steps to comply with the article, the contractor substantially complied with the article, thus, the trial court did not err in denying the DOT's motion to dismiss the contractor's action for additional compensation. DOT v. Moseman Constr. Co., 260 Ga. 369 , 393 S.E.2d 258 (1990).

Burden of proving defense of noncompliance. - Noncompliance with the Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., is an affirmative defense asserted by the owner and, although it need not be pled, the owner has the burden of proving the elements of the defense the owner asserts. Underground Festival, Inc. v. McAfee Eng'r Co., 214 Ga. App. 243 , 447 S.E.2d 683 (1994).

Dismissal of action not required. - Failure of business to comply with Georgia Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., did not require dismissal of action against a corporation; the fraud claims at issue arose out of a proposed merger agreement and did not depend upon a contract to perform work in Georgia or upon the recovery of payment for performance under the contract. Infrasource, Inc. v. Hahn Yalena Corp., 272 Ga. App. 703 , 613 S.E.2d 144 (2005).

RESEARCH REFERENCES

C.J.S. - 56 C.J.S., Mechanics' Liens, §§ 82, 87 et seq.

48-13-31. Registration of nonresident contractors; minimum contract price; reports with respect to liability; registration fees; disposition.

Each nonresident contractor desiring to engage in the business of contracting in this state shall register with the commissioner for each contract when the total contract price or compensation to be received amounts to more than $10,000.00 and shall report to the commissioner as provided by rule with respect to the tax liability of the contractor pursuant to the business including, but not limited to, liability under Chapter 8 of Title 34. The commissioner shall charge a fee for the registration in the amount of $10.00 for each contract. All fees received by the commissioner shall be deposited on Monday of each week with the Office of the State Treasurer.

(Ga. L. 1961, p. 480, § 2; Ga. L. 1972, p. 492, § 1; Code 1933, § 91A-6102, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

Law reviews. - For article discussing legal aspects of investments and trade in Georgia by foreign business enterprises, see 27 Mercer L. Rev. 629 (1976).

JUDICIAL DECISIONS

When registration required. - If the corporation in question were a foreign supplier of equipment to be installed by others, the corporation would not have to register; but, if the corporation also installed the equipment in any wise, the corporation would be liable to and subject to the nonresident contractor's provisions. American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 , 320 S.E.2d 857 (1984).

Written contract not necessary. - Failure of parties to reduce a contract to writing does not exempt a contract from the requirements of O.C.G.A. § 48-13-31 . Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341 , 392 S.E.2d 855 (1990).

Residence not determined by domicile. - Issue of a contractor's residency was one of residence and not domicile. If the legislature wanted a contractor's domicile to determine liability under the Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., the legislature would have used that word or defined "residence" as meaning "domicile." ADC Constr. Co. v. Hall, 191 Ga. App. 33 , 381 S.E.2d 76 , cert. denied, 191 Ga. App. 921 , 381 S.E.2d 76 (1989).

Cited in Mayor of City of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16 , 441 S.E.2d 63 (1994).

48-13-32. Bonds; procedure; condition precedent to commencing work; amount; blanket or master bonds; amount; registration of completed contracts; fee.

  1. Before entering into the performance of any contract the total price of which or the total compensation to be received by the contractor from which amounts to more than $10,000.00, the contractor shall execute and file with the commissioner a good and valid bond with a surety company authorized to do business in this state or with sufficient sureties to be approved by the commissioner, conditioned that all taxes which may accrue to the state and to the political subdivisions of the state on account of the execution and performance of the contract will be paid on demand, including, but not limited to, contributions due under Chapter 8 of Title 34.
  2. The execution and filing of the bond required by subsection (a) of this Code section shall be a condition precedent to commencing work on any contract in this state.
    1. Every bond required by this Code section shall be in an amount equal to 10 percent of the contract price or of the compensation to be received by the contractor pursuant to the contract.
      1. The commissioner may permit or require a contractor to file a blanket or master bond conditioned as provided in subsection (a) of this Code section and in a sum determined proper by the commissioner when:
        1. The contractor is engaged in a continuing service under multiple contracts or is performing services under a contract on a contingent or unit basis, and the contract price or compensation cannot be determined until after the performance of the contract; or
        2. The commissioner finds that registration of a contract before commencement of work under the contract is impracticable for any reason.
      2. No bond pursuant to this paragraph shall be in an amount of less than $10,000.00 with respect to all contracts to be performed during the current calendar year.
      3. On or before March 1 in each year, the contractor shall report and register all contracts of $10,000.00 or more completed during the previous calendar year and shall pay the registration fee of $10.00 for each contract.

        (Ga. L. 1961, p. 480, § 3; Code 1933, § 91A-6103, enacted by Ga. L. 1978, p. 309, § 2.)

Administrative Rules and Regulations. - Contractors, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Substantive Rules and Regulations, § 560-12-2-.26.

Foreign or non-resident contractors and subcontractors, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Sales and Use Tax Division, Substantive Rules and Regulations, § 560-12-2-.43.

Law reviews. - For article discussing legal aspects of investments and trade in Georgia by foreign business enterprises, see 27 Mercer L. Rev. 629 (1976).

JUDICIAL DECISIONS

Residency is a mixed question of fact and law, which is generally appropriate for the jury. Lenox Hotel Co. v. Charter Bldrs., Inc., 717 F. Supp. 1558 (N.D. Ga. 1989).

Foreign corporation may be resident contractor. - Foreign corporation is not synonymous and cannot be equated with a nonresident corporation. Therefore, simply because a contractor may be considered a foreign corporation because the foreign corporation was incorporated in Texas does not preclude a finding that the foreign corporation is a resident contractor. Lenox Hotel Co. v. Charter Bldrs., Inc., 717 F. Supp. 1558 (N.D. Ga. 1989).

Late registration. - Late registration and payment of all taxes and revenues due the state and the state's political subdivisions constitutes substantial compliance with the requirements of the Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., thus removing the bar to maintenance of an action on the contract. Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341 , 392 S.E.2d 855 (1990); Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8 , 424 S.E.2d 311 (1992); Underground Festival, Inc. v. McAfee Eng'r Co., 214 Ga. App. 243 , 447 S.E.2d 683 (1994).

Payment of taxes without registration. - Payment of accrued state and local taxes was not "substantial compliance" with the Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., absent registration of a construction contract with the commissioner. Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8 , 424 S.E.2d 311 (1992).

RESEARCH REFERENCES

C.J.S. - 11 C.J.S., Bonds, § 7 et seq.

ALR. - Validity of statute or ordinance which requires liability or indemnity insurance or bond as condition of license for conducting business or profession, 120 A.L.R. 950 .

Building contractor's liability, upon bond or other agreement to indemnify owner, for injury or death of third persons resulting from owner's negligence, 27 A.L.R.3d 663.

What constitutes "public work" within statute relating to contractor's bond, 48 A.L.R.4th 1170.

48-13-33. Injunction to prevent execution of contract pending compliance with registration and bond requirements; procedure.

Each person failing to register as required by this article or failing to execute the required bond before beginning the performance of any contract shall be denied the right to perform the contract until he complies with registration and bond requirements. The county attorney of any county in which the contract is to be performed, the Attorney General, when requested by the Commissioner of Labor, or the attorney for the commissioner, when requested by the commissioner, may proceed by injunction to prevent any activity in the performance of the contract until the registration is made and the bond is executed and filed. A temporary injunction enjoining the execution of any such contract shall be granted without notice by any judge authorized by law to grant injunctions.

(Ga. L. 1961, p. 480, § 3; Code 1933, § 91A-6104, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 708, § 18.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "Commissioner of Labor" was substituted for "Commissioner of the Department of Labor" in the second sentence.

48-13-34. Release of bonds; completion of contract and certification from Commissioner of Labor; automatic release.

No bond required under this article shall be released until the contract for which the bond is given has been fully performed and until the commissioner obtains a written release from the Commissioner of Labor certifying that all contributions and interest due from the principal on the bond under Chapter 8 of Title 34 have been paid in full. Bonds shall be released automatically two years after written notification of the completion of the contract is received by the commissioner unless a court proceeding has been instituted against the contractor.

(Ga. L. 1961, p. 480, § 7; Ga. L. 1972, p. 492, § 2; Code 1933, § 91A-6108, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 708, § 19.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, "Commissioner of Labor" was substituted for "Commissioner of the Department of Labor" in the first sentence.

RESEARCH REFERENCES

C.J.S. - 11 C.J.S., Bonds, § 55 et seq.

48-13-35. Appointment of Secretary of State by nonresident contractor as agent for service of process; time; effect on validity of process as to contractor.

At the time a contractor registers with the commissioner, the contractor shall make an appointment in writing of the Secretary of State or his successor in office to be his true and lawful agent upon whom may be served all lawful process in any action or proceeding against the nonresident contractor for state and local taxes arising out of any contract executed or being executed in this state. The appointment shall be evidence of the contractor's agreement that any process against him which is served on the Secretary of State shall be of the same legal force and validity as if served upon him personally within the state.

(Ga. L. 1961, p. 480, § 4; Code 1933, § 91A-6105, enacted by Ga. L. 1978, p. 309, § 2.)

RESEARCH REFERENCES

C.J.S. - 72 C.J.S., Process, § 76.

48-13-36. Actions; venue; service and return of summons; procedure; record book kept by Secretary of State; contents.

An action against any contractor pursuant to this article may be brought by the attorney for the commissioner or by the Attorney General on behalf of the Department of Labor, in Fulton County or in any county in which any work under the contract is performed. The summons shall be directed to the Secretary of State and shall require the defendant to answer by a certain day, not less than 30 days nor more than 60 days from the date of the issuance of the summons. The summons shall be forwarded immediately by the clerk of the court to the Secretary of State who shall immediately forward a copy of the summons to the contractor at the address given by the contractor. After forwarding the summons, the Secretary of State shall make return of the summons to the court in which the summons was issued. The return shall show the date of receipt of the summons by the Secretary of State, the date of forwarding the copy of the summons, and the name and address of the person to whom the Secretary of State forwarded the copy of the summons. The return shall be under the hand and seal of the office of the Secretary of State and shall have the same force and effect as a due and sufficient return made by the sheriff on process directed to him. The Secretary of State shall keep a suitable record book in which he shall docket every action commenced as provided in this Code section against any contractor. The record book shall show the court in which the action is brought, the title of the case, the time when the action is commenced, and the date and manner of service.

(Ga. L. 1961, p. 480, § 5; Code 1933, § 91A-6106, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1985, p. 708, § 20.)

Law reviews. - For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B. J. 254 (1972).

RESEARCH REFERENCES

C.J.S. - 72 C.J.S., Process, § 76. 81A C.J.S., States, § 139.

48-13-37. Preclusion of right to bring action for payment on contract by contractor in violation of article.

No contractor who fails to register with the commissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state.

(Ga. L. 1961, p. 480, § 6; Code 1933, § 91A-6107, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Compliance with O.C.G.A. Art. 2, Ch. 13, T. 48 is a condition precedent to filing suit on the contract in Georgia; however, the bar imposed by O.C.G.A. § 48-13-37 is a matter that is properly raised as a plea in abatement and not a proper subject for summary judgment. Rehco Corp. v. California Pizza Kitchen, Inc., 192 Ga. App. 92 , 383 S.E.2d 643 (1989).

Failure to register contract. - Payment of accrued state and local taxes was not "substantial compliance" with Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., absent registration of construction contract with commissioner. Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8 , 424 S.E.2d 311 (1992).

Defense that contractor has not complied with section need not be specially pled. - When the contractor has not complied with the provisions of O.C.G.A. § 48-13-37 , the defense of the contractor's lack of capacity to maintain the suit may be asserted at trial without being specially pled under O.C.G.A. § 9-11-9 . Gorrell v. Fowler, 248 Ga. 801 , 286 S.E.2d 13 , appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918 , 73 L. Ed. 2 d 1324 (1982).

O.C.G.A. § 48-13-37 is a forum-closing sanction that closes the courts of Georgia to the offender until such time, if ever, when the offender can substantially comply with the provisions of O.C.G.A. Art. 2, Ch. 13, T. 48. Adams v. PPT, Inc., 191 Ga. App. 729 , 382 S.E.2d 732 (1989).

Dismissal, rather than summary judgment, is appropriate sanction. - Once the trial court determined that the plaintiff was required to comply with O.C.G.A. Art. 2, Ch. 13, T. 48 and had not done so, the court lacked subject matter jurisdiction, and the appropriate action was to enter an involuntary dismissal, rather than a summary judgment. Adams v. PPT, Inc., 191 Ga. App. 729 , 382 S.E.2d 732 (1989).

Dismissal without prejudice not adjudication on merits. - Dismissal under O.C.G.A. § 48-13-37 is one of the few involuntary dismissals which does not act as an adjudication on the merits. Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481 , 379 S.E.2d 6 (1989); Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341 , 392 S.E.2d 855 (1990); Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8 , 424 S.E.2d 311 (1992).

Dismissal is for lack of subject matter jurisdiction. - Despite the involuntary nature of a dismissal based on O.C.G.A. § 48-13-37 , such a dismissal is in the nature of a dismissal for lack of subject matter jurisdiction and not on the merits. Rehco Corp. v. California Pizza Kitchen, Inc., 192 Ga. App. 92 , 383 S.E.2d 643 (1989).

Dismissal of action not required. - Failure of business to comply with Georgia Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., did not require dismissal of action against a corporation; the fraud claims at issue arose out of a proposed merger agreement and did not depend upon a contract to perform work in Georgia or upon the recovery of payment for performance under the contract. Infrasource, Inc. v. Hahn Yalena Corp., 272 Ga. App. 703 , 613 S.E.2d 144 (2005).

Recovery of payment for performance on subcontract. - By its action against the city under former O.C.G.A. § 36-82-102, the appellee sought to recover payment due it for work it had performed under its subcontract; therefore, the action sought to recover payment for performance on the contract within the meaning of O.C.G.A. § 48-13-37 and the action was therefore precluded. Mayor of City of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16 , 441 S.E.2d 63 (1994).

Cited in American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790 , 320 S.E.2d 857 (1984); B.J.'s Flooring, Inc. v. T.C. Interiors, Inc., 204 Ga. App. 441 , 419 S.E.2d 528 (1992).

48-13-38. Violations of article; penalty.

  1. It shall be unlawful for any person:
    1. Before beginning the performance of any contract, to fail to register as required by this article;
    2. Before beginning the performance of any contract, to fail to execute the bond required by this article; and
    3. To violate any other provision of this article.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.

    (Ga. L. 1961, p. 480, § 8; Code 1933, § 91A-9929, enacted by Ga. L. 1978, p. 309, § 2.)

ARTICLE 3 EXCISE TAX ON ROOMS, LODGINGS, AND ACCOMMODATIONS

Administrative Rules and Regulations. - Rules for Hotel Motel Tax Reporting and Hotel Motel Tax Performance Review Board, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Department of Community Affairs, Office of Coordinated Planing, Chapter 110-3-3.

RESEARCH REFERENCES

ALR. - Tax on hotel-motel room occupancy, 58 A.L.R.4th 274.

48-13-50. Purpose.

It is declared to be the purpose and intent of the General Assembly that:

  1. Each county and municipality in this state shall be authorized to levy certain excise taxes as hereinafter provided in this article; and
  2. Funds be made available for the purposes of promoting, attracting, stimulating, and developing conventions and tourism in the counties and municipalities and for the provision of other local government services.

    (Ga. L. 1975, p. 1002, § 1; Code 1933, § 91A-6201, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1, § 1; Ga. L. 1990, p. 1134, § 1.)

Law reviews. - For article, "Online Travel Companies Find Issues with Hotels Extremely Taxing: Georgia's Hotel-Motel Occupancy Excise Tax and Expedia, Inc. v. City of Columbus, T.J. Evans," see 61 Mercer L. Rev. 1263 (2010).

JUDICIAL DECISIONS

Collection of taxes. - Although online travel companies were not operators of hotels, the companies actually collected excise taxes from hotel guests, and thus the companies were required to remit those taxes to applicable Georgia cities and counties pursuant to O.C.G.A. §§ 48-13-50 and 48-13-51 . City of Rome v. Hotels.com, LP, F. Supp. 2d (N.D. Ga. May 8, 2006).

In a city's action wherein the city filed a complaint seeking a declaratory judgment, injunctive relief, and other equitable remedies against an online travel company, the trial court did not err by requiring the company to collect tax payment obligations under the Enabling Statute, O.C.G.A. § 48-13-50 et seq., and a city's ordinance via a permanent injunction. The company had contracted with the city to collect such taxes from the customers and was not an innkeeper; thus, the company was required to remit the taxes to the city. Expedia, Inc. v. City of Columbus, 285 Ga. 684 , 681 S.E.2d 122 (2009).

In a city's action to recover unpaid occupancy taxes from several online travel companies pursuant to O.C.G.A. § 48-13-50 et seq., summary judgment for the companies was proper on the city's conversion claim because the city failed to show that the money sought comprised a specific, separate, identifiable fund that belonged to it. City of Atlanta v. Hotels.com, L.P., 332 Ga. App. 888 , 775 S.E.2d 276 (2015).

Determination as to whether tax applied to online travel company had to be determined first. - Trial court erred by dismissing a city's declaratory judgment action against several online travel companies for lack of subject matter jurisdiction, and the appellate court erred by affirming the dismissal as the issue of whether the city's ordinance allowing the city to collect a hotel occupancy tax from the online travel companies was a contested issue in the matter that neither lower court had determined. The legal question of whether the ordinance even applied to the online travel companies had to be determined before the city was required to submit to the administrative process set forth within the ordinance and the enabling statutes, O.C.G.A. § 48-13-50 et seq. City of Atlanta v. Hotels.com, L.P., 285 Ga. 231 , 674 S.E.2d 898 (2009).

Constructive trust. - In a city's action to recover unpaid occupancy taxes from several online travel companies pursuant to O.C.G.A. § 48-13-50 et seq., summary judgment for the companies was proper on the city's breach of constructive trust claim under O.C.G.A. § 53-12-132(a) because, under the law of the case, O.C.G.A. § 9-11-60(h) , that claim had been rejected by the trial court and affirmed in a prior appeal. City of Atlanta v. Hotels.com, L.P., 332 Ga. App. 888 , 775 S.E.2d 276 (2015).

Cited in Teachers Retirement Sys. v. City of Atlanta, 249 Ga. 196 , 288 S.E.2d 200 (1982); City of Atlanta v. Hotels.com, 289 Ga. 323 , 710 S.E.2d 766 (2011).

OPINIONS OF THE ATTORNEY GENERAL

Imposition of tax by county and city. - "Hotel-Motel Tax" may not be imposed by both a county and a city within the boundaries of the city. 1993 Op. Att'y Gen. No. U93-12.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 22, 23.

C.J.S. - 84 C.J.S., Taxation, § 159 et seq.

48-13-50.1. Creation of special districts.

Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, there are created within this state 159 special districts. One such district shall exist within the geographical boundaries of each county, and the territory of each such district shall include all of the territory within the county except territory located within the boundaries of any municipality which imposes an excise tax on charges to the public for rooms, lodgings, and accommodations under this article.

(Code 1981, § 48-13-50.1 , enacted by Ga. L. 1989, p. 1, § 1; Ga. L. 1990, p. 1134, § 1.)

Law reviews. - For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006).

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. § 48-13-50.1 does not violate the special district provisions contained in Ga. Const. 1983, Art. IX, Sec. II, Para. VI. Youngblood v. State, 259 Ga. 864 , 388 S.E.2d 671 (1990).

48-13-50.2. Definitions.

As used in this article, the term:

  1. "Destination marketing organization" means a private sector nonprofit organization or other private entity which is exempt from federal income tax under Section 501(c)(6) of the Internal Revenue Code of 1986 that is supported by the tax under this article, government budget allocations, private membership, or any combination thereof and the primary responsibilities of which are to encourage travelers to visit their destinations, encourage meetings and expositions in the area, and provide visitor assistance and support as needed.
  2. "Innkeeper" means any person who is subject to taxation under this article for the furnishing for value to the public any rooms, lodgings, or accommodations.
  3. "Private sector nonprofit organization" means a chamber of commerce, a convention and visitors bureau, a regional travel association, or any other private group organized for similar purposes which is exempt from federal income tax under Section 501(c)(6) of the Internal Revenue Code of 1986; provided, however, that a county or municipality which has prior to April 1, 1990, contracted for a required expenditure under this Code section with a private group which is exempt from federal income tax under provisions of Section 501(c) of the Internal Revenue Code other than Section 501(c)(6) may continue to contract for required expenditures with such a private group.
  4. "Promoting tourism, conventions, and trade shows" means planning, conducting, or participating in programs of information and publicity designed to attract or advertise tourism, conventions, or trade shows.
  5. "State authority" means an authority created by state law which serves a state-wide function, including, but not limited to, the Geo. L. Smith II Georgia World Congress Center Authority, but shall not mean an authority created for support of a local government or a local purpose or function and shall not include authorities such as area planning and development commissions and any organizational entities they may create, regional commissions and any organizational entities they may create, or local water and sewer authorities.
  6. "Tourism product development" means the expenditure of funds for the creation or expansion of physical attractions which are available and open to the public and which improve destination appeal to visitors, support visitors' experience, and are used by visitors. Such expenditures may include capital costs and operating expenses. Tourism product development may include:
    1. Lodging for the public for no longer than 30 consecutive days to the same customer;
    2. Overnight or short-term sites for recreational vehicles, trailers, campers, or tents;
    3. Meeting, convention, exhibit, and public assembly facilities;
    4. Sports stadiums, arenas, and complexes;
    5. Golf courses associated with a resort development that are open to the general public on a contract or fee basis;
    6. Racing facilities, including dragstrips, motorcycle racetracks, and auto or stock car racetracks or speedways;
    7. Amusement centers, amusement parks, theme parks, or amusement piers;
    8. Hunting preserves, trapping preserves, or fishing preserves or lakes;
    9. Visitor information and welcome centers;
    10. Wayfinding signage;
    11. Permanent, nonmigrating carnivals or fairs;
    12. Airplanes, helicopters, buses, vans, or boats for excursions or sightseeing;
    13. Boat rentals, boat party fishing services, rowboat or canoe rentals, horse shows, natural wonder attractions, picnic grounds, river-rafting services, scenic railroads for amusement, aerial tramways, rodeos, water slides, or wave pools;
    14. Museums, planetariums, art galleries, botanical gardens, aquariums, or zoological gardens;
    15. Parks, trails, and other recreational facilities; or
    16. Performing arts facilities. (Code 1981, § 48-13-50.2 , enacted by Ga. L. 2000, p. 1325, § 1; Ga. L. 2008, p. 1032, § 1/HB 1168; Ga. L. 2009, p. 8, § 48/SB 46.)

JUDICIAL DECISIONS

Cited in City of Atlanta v. City of College Park, 311 Ga. App. 62 , 715 S.E.2d 158 (2011).

48-13-50.3. Additional tax imposed by innkeepers; forms for reporting; use of funds from additional taxes; provisions for termination.

  1. As used in this Code section, the term:
    1. "Extended stay rental" means providing for value to the public a hotel or motel room for longer than 30 consecutive days to the same customer.
    2. "Innkeeper" means any person who is subject to taxation under this article for the furnishing for value to the public a hotel or motel room.
    3. "Transportation purposes" means and includes roads, bridges, public transit, rails, airports, buses, seaports, including without limitation road, street, and bridge purposes pursuant to paragraph (1) of subsection (b) of Code Section 48-8-121, and all accompanying infrastructure and services necessary to provide access to these transportation facilities, including general obligation debt and other multiyear obligations issued to finance such purposes.
  2. On or after July 1, 2015, each innkeeper in this state shall charge a $5.00 per night fee to the customer, unless it is an extended stay rental, for each calendar day a hotel or motel room is rented or leased. The innkeeper shall collect the fee at the time the customer pays for the rental or lease of such hotel or motel room. The innkeeper collecting the fee shall remit the fee on a monthly basis to the department.
  3. The commissioner shall promulgate and make available forms for the use of innkeepers to assist in compliance with this Code section. The commissioner shall promulgate rules and regulations as necessary to implement and administer the provisions of this Code section.
  4. It is the intention of the General Assembly, subject to appropriations, that the fees collected pursuant to subsection (b) of this Code section shall be made available and used exclusively for transportation purposes in this state.
  5. If the amount collected under this Code section is ever not appropriated for a fiscal year as provided by subsection (d) of this Code section, as determined jointly by the House Budget and Research Office and the Senate Budget and Evaluation Office, then the amount collected shall be reduced by 50 percent. Upon the conclusion of a second fiscal year in which the amount collected is not so appropriated, this Code section shall stand repealed and reserved, and such fees shall cease to be collected, on the date the appropriations Act for such fiscal year becomes effective. Such budget offices shall certify any such lack of appropriation to the Code Revision Commission for purposes of updating the Code in accordance with this subsection. (Code 1981, § 48-13-50.3 , enacted by Ga. L. 2015, p. 236, § 5-15/HB 170; Ga. L. 2015, p. 1443, § 3/HB 106.)

Effective date. - This Code section became effective July 1, 2015.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2015, the enactment of this Code section by Ga. L. 2015, p. 236, § 5-15/HB 170, was treated as impliedly repealed and superseded by Ga. L. 2015, p. 1443, § 3/HB 106, due to irreconcilable conflict.

Editor's notes. - Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Funds were appropriated in accordance with this Code section in 2016, 2017, and 2018.

Administrative Rules and Regulations. - State hotel-motel fee, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fees and Excise Taxes, Ch. 560-13-2.

Law reviews. - For article on the 2015 enactment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

48-13-51. County and municipal levies on public accommodations charges for promotion of tourism, conventions, and trade shows.

      1. The governing authority of each municipality in this state may levy and collect an excise tax upon the furnishing for value to the public of any room or rooms, lodgings, or accommodations furnished by any person or legal entity licensed by, or required to pay business or occupation taxes to, the municipality for operating a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings, or accommodations are regularly furnished for value. Within the territorial limits of the special district located within the county, each county in this state may levy and collect an excise tax upon the furnishing for value to the public of any room or rooms, lodgings, or accommodations furnished by any person or legal entity licensed by, or required to pay business or occupation taxes to, the county for operating within the special district a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings, or accommodations are regularly furnished for value. The provisions of this Code section shall control over the provisions of any local ordinance or resolution to the contrary enacted pursuant to Code Section 48-13-53 and in effect prior to July 1, 1998. Any such ordinance shall not be deemed repealed by this Code section but shall be administered in conformity with this Code section.
        1. The excise tax shall be imposed on any person or legal entity licensed by or required to pay a business or occupation tax to the governing authority imposing the tax for operating a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings, or accommodations are regularly furnished for value and shall apply to the furnishing for value of any room, lodging, or accommodation. Every person or entity subject to a tax levied as provided in this Code section shall, except as provided in this Code section, be liable for the tax at the applicable rate on the lodging charges actually collected or, if the amount of taxes collected from the hotel or motel guest is in excess of the total amount that should have been collected, the total amount actually collected must be remitted.
        2. Any tax levied as provided in this Code section is also imposed upon every person or entity who is a hotel or motel guest and who receives a room, lodging, or accommodation that is subject to the tax levied under this Code section. Every such guest subject to the tax levied under this Code section shall pay the tax to the person or entity providing the room, lodging, or accommodation. The tax shall be a debt of the person obtaining the room, lodging, or accommodation to the person or entity providing such room, lodging, or accommodation until it is paid and shall be recoverable at law by the person or entity providing such room, lodging, or accommodation in the same manner as authorized for the recovery of other debts. The person or entity collecting the tax from the hotel or motel guest shall remit the tax to the governing authority imposing the tax, and the tax remitted shall be a credit against the tax imposed by division (i) of this subparagraph on the person or entity providing the room, lodging, or accommodation.
      3. Reserved.
      4. Except as provided in paragraphs (2.1), (2.2), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), and (5.3) of this subsection, no tax levied pursuant to this Code section shall be levied or collected at a rate exceeding 3 percent of the charge to the public for the furnishings.
    2. A county or municipality levying a tax as provided in paragraph (1) of this subsection shall in each fiscal year beginning on or after July 1, 1987, expend for the purpose of promoting tourism, conventions, and trade shows a percentage of the total taxes collected under this Code section which is not less than the percentage of such tax collections expended for such purposes during the immediately preceding fiscal year. In addition, if during such immediately preceding fiscal year any portion of such tax receipts was expended for such purposes through a grant to or a contract or contracts with the state, a department of state government, a state authority, or a private sector nonprofit organization, then in each fiscal year beginning on or after July 1, 1987, at least the same percentage shall be expended through a contract or contracts with one or more such entities for the purpose of promoting tourism, conventions, and trade shows. The expenditure requirements of this paragraph shall cease to apply to a county or municipality which levies a tax at a rate in excess of 3 percent, as authorized under paragraphs (2.1), (2.2), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), and (5.3) of this subsection; and in such case the expenditure requirements of such paragraph of this subsection pursuant to which such tax is levied shall apply instead.

      (2.1) (A) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) and municipalities within such a county in which county or municipality community auditorium or theater facilities owned and operated by a municipality have been renovated which renovations are completed substantially on or before July 1, 1995, and which county and municipalities have not previously levied a 6 percent tax under paragraph (4) of this subsection may levy a tax under this Code section at a rate of 5 percent.

      (2.2) (A) Notwithstanding any other provision of this Code section to the contrary, as used in this paragraph, the term:

      (B) A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to the amount by which the total taxes collected under this Code section exceed the taxes which would be collected at a rate of 3 percent for the purpose of general recreation. Amounts so expended shall be expended only through a contract or contracts with a recreation authority created by local Act of the General Assembly.

      1. "Charitable trust" shall have the meaning given such term in subsection (d) of Code Section 48-13-55.
      2. "Development authority" shall mean a development authority created pursuant to Chapter 62 of Title 36, the "Development Authorities Law."
      3. "Facility" or "facilities" shall mean any of the buildings, structures, and facilities described in division (ii) of subparagraph (D) of this paragraph.
      4. "Functionally related business" shall have the meaning given such term in subsection (d) of Code Section 48-13-55.
      5. "Fund" or "funding" shall include the cost and expense of all things necessary for the construction and operation of a facility or facilities, including, but not limited to, the study, operation, marketing, acquisition, construction, financing (including the payment of principal of and interest on any obligation of a development authority to finance such facility or facilities or refund any obligation of a development authority previously issued to finance such facility or facilities), development, extension, enlargement, or improvement of land, waters, property, streets, highways, buildings, structures, equipment, or facilities and the repayment of any obligation incurred in connection therewith.
      6. "Obligation" shall mean bonds, notes, or any instrument creating an obligation to pay or reserve moneys, having an initial term of not more than 35 years.
      7. "Related entity" shall mean, with respect to a charitable trust, a functionally related business of such charitable trust, or any for profit or not for profit entity owned by or under common ownership with such charitable trust or owned by or under common ownership with a functionally related business of such charitable trust or otherwise affiliated with such charitable trust in a manner approved by the development authority.

        (B) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) or any municipality within such county in which is located, in either case, a convention and conference center which is at least 50,000 square feet in size and is owned in fee simple by a development authority and leased by such development authority to a charitable trust or a related entity thereof, and in which county or municipality there exists a private sector nonprofit organization which, on or before December 31, 2005, entered into a contract or a memorandum of understanding with the county or municipality and the aforementioned charitable trust pursuant to Code Section 48-13-55 relating to the expenditure of the proceeds of the tax collected under this Code section, may levy a tax under this Code section at a rate of 5 percent.

        (C) The proceeds of the taxes collected under this paragraph shall be expended pursuant to a contract or a memorandum of understanding between the county or municipality, the private sector nonprofit organization, and the charitable trust, and such proceeds may be expended by or for the benefit of the county or municipality, the private sector nonprofit organization, or the charitable trust and related entities thereof for the purposes described in subparagraph (D) of this paragraph, provided that the expenditure of the proceeds of the tax levied on a charitable trust or a functionally related business thereof shall meet the requirements of Code Section 48-13-55.

        (D) The proceeds of the taxes collected under this paragraph may be expended for any or all of the following purposes:

        (i) Promoting tourism, conventions, and trade shows;

        (ii) Promoting, attracting, stimulating, and developing conventions and tourism pursuant to Code Section 48-13-55; or

        (iii) Funding, supporting, acquiring, constructing, renovating, improving, and equipping buildings, structures, infrastructure, and facilities which have the effect of promoting, attracting, stimulating, and developing conventions and tourism, including, but not limited to, a hotel facility and infrastructure and utility projects, provided that during any period during which there remains outstanding any obligation issued to fund a facility as contemplated by this paragraph, secured in whole or in part by a pledge of a tax authorized under this Code section, the powers of the county or municipality to impose and distribute the tax imposed by this paragraph shall not be diminished or impaired by the state and no county or municipality levying the tax imposed by this paragraph shall cease to levy the tax in any manner that will impair the interest and rights of the holder of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by a development authority, shall constitute a contract with the holder of such obligation.

    3. Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) or municipality may levy a tax under this Code section at a rate of 5 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to the amount by which the total taxes collected under this Code section exceed the taxes which would be collected at a rate of 3 percent for the purpose of:
      1. Promoting tourism, conventions, and trade shows;
      2. Supporting a facility owned or operated by a state authority for convention and trade show purposes or any other similar or related purposes;
      3. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes, if a written agreement to provide such support was in effect on January 1, 1987, and if such facility is substantially completed and in operation prior to July 1, 1987;
      4. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes if construction of such facility is funded or was funded prior to July 1, 1990, in whole or in part by a grant of state funds or is funded on or after July 1, 1990, in whole or substantially by an appropriation of state funds;
      5. Supporting a facility owned by a local government or local authority for convention and trade show purposes and any other similar or related purposes if construction of such facility is substantially funded or was substantially funded on or after February 28, 1985, by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, and if such facility was substantially completed and in operation prior to December 31, 1993; or
      6. For some combination of such purposes.

        Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended for purposes of subparagraphs (C) and (D) of this paragraph may be so expended in any otherwise lawful manner.

        1. Promoting tourism, conventions, and trade shows;
        2. Funding, supporting, acquiring, constructing, renovating, improving, and equipping buildings, structures, and facilities, including, but not limited to, a trade and convention center, exhibit hall, conference center, performing arts center, accommodations facilities including food service, or any combination thereof, for convention, trade show, athletic, musical, theatrical, cultural, civic, and performing arts purposes and other events and activities for similar and related purposes, acquiring the necessary property therefor, both real and personal, and funding all expenses incident thereto, and supporting, maintaining, and promoting such facilities owned, operated, or leased by or to the local trade and convention center authority; or
        3. For some combination of such purposes;

          provided, however, that at least 50 percent of the total taxes collected at the rate of 6 percent shall be expended for the purposes specified in subparagraph (B) of this paragraph. Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, a local building authority created by local constitutional amendment, and a trade and convention center authority created by intergovernmental contract between a county and one or more municipalities located therein, or a private sector nonprofit organization or through a contract or contracts with some combination of such entities. The aggregate amount of all excise taxes imposed under this paragraph and all sales and use taxes, and other taxes imposed by a county or municipality, or both, shall not exceed 13 percent. Any tax levied pursuant to this paragraph shall terminate not later than December 31, 2029, provided that during any period during which there remains outstanding any obligation issued to fund a facility as contemplated by this paragraph, secured in whole or in part by a pledge of a tax authorized under this Code section, the powers of the counties and municipalities to impose and distribute the tax imposed by this paragraph shall not be diminished or impaired by the state and no county or municipality levying the tax imposed by this paragraph shall cease to levy the tax in any manner that will impair the interests and rights of the holder of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by a building authority created by local constitutional amendment, shall constitute a contract with the holder of such obligation. Notwithstanding any other provision of this Code section to the contrary, as used in this paragraph, the term "fund" or "funding" shall include the cost and expense of all things deemed necessary by a building authority created by local constitutional amendment for the construction and operation of a facility or facilities including but not limited to the study, operation, marketing, acquisition, construction, financing, including the payment of principal and interest on any obligation of the building authority created by local constitutional amendment and any obligation of the building authority created by local constitutional amendment to refund any prior obligation of the building authority created by local constitutional amendment, development, extension, enlargement, or improvement of land, waters, property, streets, highways, buildings, structures, equipment, or facilities and the repayment of any obligation incurred by an authority in connection therewith; "obligation" shall include bonds, notes, or any instrument creating an obligation to pay or reserve moneys and having an initial term of not more than 37 years; and "facility" or "facilities" shall mean any of the buildings, structures, and facilities described in subparagraph (B) of this paragraph and any associated parking areas or improvements originally owned or operated incident to the ownership or operation of such facility used for any purpose or purposes specified in subparagraph (B) of this paragraph by a building authority created by local constitutional amendment.

          1. Promoting tourism, conventions, and trade shows;
          2. Supporting a facility owned or operated by a state authority for convention and trade show purposes or any other similar or related purposes;
          3. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes, if a written agreement to provide such support was in effect on January 1, 1987, and if such facility is substantially completed and in operation prior to July 1, 1987;
          4. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes if construction of such facility is funded or was funded prior to July 1, 1990, in whole or in part by a grant of state funds or is funded on or after July 1, 1990, in whole or substantially by an appropriation of state funds;
          5. Supporting a facility owned by a local government or local authority for convention and trade show purposes and any other similar or related purposes if construction of such facility is substantially funded or was substantially funded on or after February 28, 1985, by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, and if such facility was substantially completed and in operation prior to December 31, 1993; or
          6. For some combination of such purposes.

            Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended for the purposes specified in subparagraphs (C) and (D) of this paragraph may be so expended in any otherwise lawful manner. In addition to the amounts otherwise required to be expended under this paragraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 16 2/3 percent of the total taxes collected at the rate of 6 percent for promoting tourism, conventions, and trade shows. Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities.

            1. Promoting tourism, conventions, and trade shows;
            2. Supporting a facility owned or operated by a state authority for convention and trade show purposes or any other similar or related purposes;
            3. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes, if a written agreement to provide such support was in effect on January 1, 1987, and if such facility is substantially completed and in operation prior to July 1, 1987;
            4. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes if construction of such facility is funded or was funded prior to July 1, 1990, in whole or in part by a grant of state funds or is funded on or after July 1, 1990, in whole or substantially by an appropriation of state funds;
            5. Supporting a facility owned by a local government or local authority for convention and trade show purposes and any other similar or related purposes if construction of such facility is substantially funded or was substantially funded on or after February 28, 1985, by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, and if such facility was substantially completed and in operation prior to December 31, 1993; or
            6. For some combination of such purposes.

              (B) Amounts expended pursuant to subparagraph (A) of this paragraph shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended pursuant to division (iii) or (iv) of subparagraph (A) of this paragraph may be so expended in any otherwise lawful manner.

              1. Promoting tourism, conventions, and trade shows; or
              2. Supporting a publicly owned facility operated for convention and trade show purposes or any other similar or related purposes.

                (B) Amounts expended pursuant to subparagraph (A) of this paragraph shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities.

                (C) In addition to the other amounts required to be expended under this paragraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 16 2/3 percent of the total taxes collected at the rate of 8 percent for the purpose of constructing, developing, supporting, and operating a nature center, nature park, wetlands education center, or nature museum for educational and recreational purposes or any other similar purposes. Amounts which are expended to meet the 16 2/3 percent expenditure requirement of this subparagraph shall not be subject to the provisions of subparagraph (B) of this paragraph requiring expenditure through a contract or contracts with certain entities.

      (3.1) Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) and the municipalities within a county in which a trade and convention center authority has been created by intergovernmental contract between a county and one or more municipalities located therein, and which trade and convention center authority is in existence on or before March 21, 1988, and which trade and convention center authority has not constructed or operated any facility before March 21, 1988, may levy a tax under this Code section at a rate of 6 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to at least 62 1/2 percent of the total taxes collected at the rate of 6 percent for the purpose of:

      (3.2) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) and the municipalities within a county in which a trade and convention center facility is substantially funded by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, which tax was levied prior to January 1, 1994, and is substantially funded by a state grant or grants authorized on or before January 1, 1996, may levy a tax under this Code section at a rate of 6 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 33 1/3 percent of the total taxes collected at the rate of 6 percent for the purpose of promoting tourism, conventions, and trade shows under a contract with a private sector nonprofit organization. In addition to the amounts required to be expended by this paragraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 16 2/3 percent of the total taxes collected at the rate of 6 percent for the purpose of either marketing or operating trade and convention facilities. Marketing and operating expenditures may include a preopening marketing program for such a facility and an escrow account accrued prior to opening such facility to cover operating expenses to be incurred after the opening of such a facility. In the event such facility is not constructed, collected funds may be used for any lawful purpose relating to tourism by the county or municipality levying a tax pursuant to this paragraph.

      (3.3) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) and the municipalities within a county in which a trade and convention center facility is substantially funded by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, which tax was levied prior to January 1, 1994, and which facility was completed and in operation prior to December 31, 1994, and which county and municipalities have not previously levied a 6 percent tax under paragraph (4) of this subsection, may levy a tax under this Code section at a rate of 6 percent. A county or municipality levying a tax pursuant to this paragraph shall expend for the purpose of promoting tourism, conventions, and trade shows in each fiscal year during which the tax is collected under this paragraph an amount which is equal to (A) an amount which is not less than the amount which would have been spent if the tax rate had not been increased to 6 percent and if the same percentage of tax collections expended for such purposes during the immediately preceding fiscal year were expended for such purposes during the current fiscal year plus (B) an amount equal to 16 2/3 percent of the total taxes collected at the rate of 6 percent.

      (3.4) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) or municipality may levy a tax under this Code section at a rate of 6 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to the amount by which the total taxes collected under this Code section exceed the taxes which would be collected at a rate of 3 percent for the purpose of:

      (3.5) Notwithstanding the provisions of paragraph (1) of this subsection, a local consolidated government (within the territorial limits of the special district located within the county the boundary of which is conterminous with that of such local consolidated government) may levy a tax under this Code section at a rate of 6 percent. A local consolidated government levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to the amount by which the total taxes collected under this Code section exceed the taxes which would be collected at a rate of 3 percent for the purpose of promoting tourism, conventions, and trade shows through a contract with a private sector nonprofit organization. In addition to the amounts thus required to be expended, a local consolidated government levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 16 2/3 percent of the total taxes collected at the rate of 6 percent for the purpose of supporting a civic center owned and operated by the local consolidated government.

      (3.6) Reserved.

      (3.7) (A) Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) or municipality may levy a tax under this Code section at a rate of 6 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to the amount by which the total taxes collected under this Code section exceed the taxes which would be collected at a rate of 3 percent for the purpose of:

      (3.8) (A) Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) or municipality may levy a tax under this Code section at a rate of 8 percent if there is located in such county or municipality an international horse park which was used in Olympic Games competition and which was in operation prior to January 1, 1999. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to the amount by which the total taxes collected under this Code section exceed the taxes which would be collected at a rate of 4 percent for the purpose of:

    4. Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) or municipality may levy a tax under this Code section at a rate of 6 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to at least 43 1/3 percent of the total taxes collected at the rate of 6 percent for the purpose of: (A) promoting tourism, conventions, and trade shows; (B) supporting a facility owned or operated by a state authority for convention and trade show purposes or any other similar or related purposes; (C) supporting a facility owned or operated by a local authority or local government for convention and trade show purposes or any other similar or related purposes, if a written agreement to provide such support was in effect on January 1, 1987, and if such facility is substantially completed and in operation prior to July 1, 1987; (D) supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes if construction of such facility is funded or was funded prior to July 1, 1990, in whole or in part by a grant of state funds or is funded on or after July 1, 1990, in whole or substantially by an appropriation of state funds; (E) supporting a facility owned by a local government or local authority for convention and trade show purposes and any other similar or related purposes if construction of such facility is substantially funded or was substantially funded on or after February 28, 1985, by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, and such facility was substantially completed and in operation prior to December 31, 1993; or (F) for some combination of such purposes. Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended for purposes (C) and (D) may be so expended in any otherwise lawful manner. In addition to the amounts required to be expended above, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to at least 1 percent of the total taxes collected at the rate of 6 percent for the purpose of supporting a museum of aviation and aviation hall of fame or an amount equal to at least 16 2/3 percent of the total taxes collected at the rate of 6 percent for the purpose of: (A) construction or expansion of either: (i) a facility owned or operated by a state authority for convention and trade show purposes or any other similar or related purposes; (ii) a facility owned or operated by a local authority or local government for convention and trade show purposes or any other similar or related purposes, if such support is provided to a governmental entity with which the county or municipality levying the tax had in effect on January 1, 1987, a contractual agreement concerning governmental support of a convention and trade show facility; (iii) a facility owned or operated for convention and trade show purposes, visitor welcome center purposes, or any other similar or related purposes by a convention and visitors bureau authority created by local Act of the General Assembly for a municipality; (iv) a facility owned or operated for convention and trade show purposes or any other similar or related purposes by a coliseum and exhibit hall authority created by local Act of the General Assembly for a county and one or more municipalities therein; (v) a facility owned by a local government or local authority for convention and trade show purposes and any other similar or related purposes if construction of such facility is substantially funded or was substantially funded on or after February 28, 1985, by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, and such facility was substantially completed and in operation prior to December 31, 1993; (vi) a system of bicycle or pedestrian trails or walkways or both connecting a historic district within the levying county or municipality and surrounding areas (and with respect to this purpose (vi) construction and expansion shall include acquisition and development), if not later than December 1, 1993, the county or municipality has adopted ordinances, resolutions, or contracts which: (I) designate such historic district; (II) obligate the county or municipality to provide funds to promote tourism to a historic district owners and business association which qualifies as a private sector nonprofit organization under Section 501(c)(6) of the Internal Revenue Code; (III) provide a "comprehensive plan" as provided for in Chapters 70 and 71 of Title 36; (IV) provide a transportation plan as a component of such comprehensive plan; and (V) provide a recreation plan which is designed to identify recreation needs through the year 2000 and which includes provisions for such system of trails or walkways or both; provided that the authority to expend funds for such system of trails or walkways or both shall expire when all capital costs of the initial acquisition, construction, and development of such system as identified in the relevant plan have been paid and in no event later than July 1, 2002. Amounts so expended to meet such 16 2/3 percent expenditure requirement shall not be subject to the foregoing provisions of this paragraph requiring expenditure through a contract or contracts with certain entities; or (vii) a system of bicycle or pedestrian greenways, trails, walkways, or any combination thereof connecting a downtown historic or business district within the levying county or municipality and surrounding areas (and with respect to this purpose (vii) construction and expansion shall include acquisition and development), if not later than December 1, 2000, the county or municipality has adopted ordinances, resolutions, or contracts which: (I) designate such historic or downtown business district; (II) obligate the county or municipality to provide funds to promote tourism to a downtown business district owners and business association or chamber of commerce which qualifies as a private sector nonprofit organization under Section 501(c)(6) of the Internal Revenue Code; (III) provide a "comprehensive plan" as provided for in Chapters 70 and 71 of Title 36; (IV) provide a transportation plan as a component of such comprehensive plan; and (V) provide a recreation plan as a component of such comprehensive plan which includes provisions for such system of trails or walkways or both; provided that the authority to expend funds for such system of trails or walkways or both shall expire when all capital costs of the initial acquisition, construction, and development of such system as identified in the relevant plan have been paid and in no event later than July 1, 2025; or (B) promoting tourism, conventions, and trade shows. Amounts so expended to meet such 16 2/3 percent expenditure requirement shall not be subject to the foregoing provisions of this paragraph requiring expenditure through a contract or contracts with certain entities.

      (4.1) Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) or municipality within a county in which a coliseum authority has been created by local Act of the General Assembly and which authority is in existence on or before July 1, 1963, for the purpose of owning or operating a facility, may levy a tax under this Code section at a rate of 7 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to at least 62 1/2 percent of the total taxes collected at the rate of 7 percent for the purpose of:

      (4.2) Notwithstanding the provisions of paragraph (1) of this subsection, a local consolidated government (within the territorial limits of the special district located within the county the boundary of which is conterminous with that of such local consolidated government) may levy a tax under this Code section at a rate of 7 percent. A local consolidated government levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to the amount by which the total taxes collected under this Code section exceed the taxes which would be collected at a rate of 3 percent as follows: an amount equal to 28.58 of the total taxes collected at the rate of 7 percent for the purpose of promoting tourism, conventions, and trade shows through a contract with a private sector nonprofit organization, an authority created by local Act of the General Assembly, or through a contract or contracts with any combination of such entities; an amount equal to 14.29 percent of the total taxes collected at the rate of 7 percent for the purpose of supporting a civic center owned or operated, or both, by the local consolidated government; and an amount equal to 14.29 percent of the total taxes collected at the rate of 7 percent for the purpose of maintaining and operating a performing arts facility.

      (4.3) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) or municipality may levy a tax under this Code section at a rate of 7 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) amounts as follows: an amount equal to 28.58 percent of the total taxes collected at the rate of 7 percent for the purpose of promoting tourism, conventions, and trade shows which amount shall be expended only through a contract or contracts with the state, a department of state government, a state authority, an authority created by local Act of the General Assembly, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities; and an amount equal to 28.58 percent of the total taxes collected at the rate of 7 percent for the purpose of supporting a conference and convention center facility or similar facility owned or operated by an authority created by local Act of the General Assembly for convention and conference center purposes or any other similar or related purposes, if a written agreement to provide such support was in effect on or prior to July 1, 1997, and if such conference and convention center facility or similar facility is substantially completed and in operation prior to December 31, 2001, which amounts shall be expended only through a contract or contracts with the state or an authority created by local Act of the General Assembly.

      (4.4) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) and municipalities within a county in which community auditorium or theater facilities owned and operated by the municipality or by a local authority created by local Act of the General Assembly for such purpose have been renovated which renovations are completed substantially on or before January 1, 2000, may levy a tax under this Code section at a rate of 7 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 28.58 percent of the total taxes collected at the rate of 7 percent for the purpose of promoting tourism, conventions, and trade shows under a contract with a private sector nonprofit organization and an amount equal to 28.58 percent of the total taxes collected at the rate of 7 percent for the purpose of either marketing or operating community auditorium or theater facilities or a community convention or trade center of which the theater or auditorium is a part. Marketing and operating expenditures may include a preopening marketing program for such facilities and an escrow account accrued prior to opening such facilities to cover operating expenses to be incurred after the opening of such facilities.

      (4.5) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) or municipality may levy a tax under this Code section at a rate of 7 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) amounts as follows:

      (4.6) (A) Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) or municipality within a county in which a convention center authority has been created by local Act of the General Assembly and which authority is in existence on or before July 1, 2001, for the purpose of owning or operating a facility may levy a tax under this Code section at a rate of 5 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to at least 40 percent of the total taxes collected at the rate of 5 percent for the purpose of:

      (4.7) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) and the municipalities within a county in which a trade and convention center facility is substantially funded by a special county 1 percent sales and use tax authorized by Article 3 of Chapter 8 of this title, as amended, which tax was levied prior to January 1, 1994, and is substantially funded by a state grant or grants authorized on or before January 1, 1996, may levy a tax under this Code section at a rate of 7 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 28.6 percent of the total taxes collected at the rate of 7 percent for the purpose of promoting tourism, conventions, and trade shows under a contract with a private sector nonprofit organization. In addition to the other amounts required to be expended under this paragraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 14.3 percent of the total taxes collected at the rate of 7 percent for the purpose of either marketing or operating trade and convention facilities which are managed or operated by the Georgia International and Maritime Trade Center Authority. Marketing and operating expenditures may include a preopening marketing program for such a facility and an escrow account accrued prior to opening such facility to cover operating expenses to be incurred after the opening of such a facility. In the event such facility is not constructed, such 14.3 percent may be used for any lawful purpose relating to tourism by the county or municipality levying a tax pursuant to this paragraph. In addition to the amounts required to be expended under this paragraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 14.3 percent of the total taxes collected at the rate of 7 percent for the purpose of planning, constructing, marketing, or operating an attraction honoring the inventor of the cotton gin. Marketing and operating expenditures may include a preopening marketing program for such facility and an escrow account accrued prior to opening such facility to cover operating expenses to be incurred after the opening of such facility. In the event such facility is not constructed, such 14.3 percent may be used for any lawful purpose relating to tourism by the county or municipality levying a tax pursuant to this paragraph.

      1. Promoting tourism, conventions, and trade shows;
      2. Funding and supporting a facility owned or operated by such coliseum authority; or
      3. For some combination of such purposes.

        Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, a local coliseum authority, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended for the purpose of subparagraph (B) of this paragraph may be so expended in any otherwise lawful manner without the necessity of a contract. The aggregate amount of all excise taxes imposed under this paragraph and all sales and use taxes, and other taxes imposed by a county or municipality, or both, shall not exceed 12 percent. Any tax levied pursuant to this paragraph shall terminate not later than December 31, 2028, provided that during any period during which there remains outstanding any obligation which is incurred prior to January 1, 1995, issued to fund a facility as contemplated by this paragraph, and secured in whole or in part by a pledge of a tax authorized under this Code section, the powers of the counties and municipalities to impose and distribute the tax imposed by this paragraph shall not be diminished or impaired by the state and no county or municipality levying the tax imposed by this paragraph shall cease to levy the tax in any manner that will impair the interest and rights of the holders of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by a coliseum and exhibit hall authority, shall constitute a contract with the holder of such obligations. Notwithstanding any other provision of this Code section to the contrary, as used in this paragraph, the term "fund" and "funding" shall include the cost and expense of all things deemed necessary by a local coliseum authority for the construction, renovation, and operation of a facility including but not limited to the study, operation, marketing, acquisition, construction, finance, development, extension, enlargement, or improvement of land, waters, property, streets, highways, buildings, structures, equipment, or facilities, and the repayment of any obligation incurred by a local coliseum authority in connection therewith; "obligation" shall include bonds, notes, or any instrument creating an obligation to pay or reserve moneys incurred prior to January 1, 1995, and having an initial term of not more than 30 years; and "facility" shall mean a coliseum or other facility and any associated parking areas or improvements originally owned or operated incident to the ownership or operation of a facility used for convention and trade show purposes or amusement purposes, educational purposes, or a combination thereof and for fairs, expositions, or exhibitions in connection therewith by a local coliseum authority.

        1. An amount equal to 28.58 percent of the total taxes collected at the rate of 7 percent for the purpose of:
          1. Promoting tourism, conventions, and trade shows;
          2. Supporting a facility owned or operated by a state authority for convention and trade show purposes or any other similar or related purposes;
          3. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes; or
          4. For some combination of such purposes.

            Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended for the purpose of division (iii) of this subparagraph may be so expended in any otherwise lawful manner; and

        2. An amount equal to 28.58 percent of the total taxes collected at the rate of 7 percent for the purpose of operating, maintaining, and marketing of a conference center facility.
          1. Promoting tourism, conventions, and trade shows;
          2. Funding and supporting a facility owned or operated by such convention and visitors authority; or
          3. For some combination of such purposes.

            Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention center authority created by local Act of the General Assembly for a municipality, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended for the purpose of division (ii) of this subparagraph may be so expended in any otherwise lawful manner without the necessity of a contract. Any tax levied pursuant to this paragraph shall terminate not later than December 31, 2037, provided that during any period during which there remains outstanding any obligation issued to fund a facility as contemplated by this paragraph, and secured in whole or in part by a pledge of a tax authorized under this Code section, the powers of the counties and municipalities to impose and distribute the tax imposed by this paragraph shall not be diminished or impaired by the state, and no county or municipality levying the tax imposed by this paragraph shall cease to levy the tax in any manner that will impair the interest and rights of the holders of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by a convention center authority, shall constitute a contract with the holder of such obligations. Notwithstanding any other provision of this Code section to the contrary, as used in this paragraph, the terms "fund" and "funding" shall include the cost and expense of all things deemed necessary by a local convention center authority for the construction, renovation, and operation of a facility including, but not limited to, the study, operation, marketing, acquisition, construction, finance, development, extension, enlargement, or improvement of land, waters, property, streets, highways, buildings, structures, equipment, or facilities, and the repayment of any obligation incurred by a local convention center authority in connection therewith; "obligation" shall include bonds, notes, or any instrument creating an obligation to pay or reserve moneys and having an initial term of not more than 37 years; and "facility" shall mean a convention center or other facility and any associated parking areas or improvements originally owned or operated incident to the ownership or operation of a facility used for convention and trade show purposes or amusement purposes, educational purposes, or a combination thereof and for fairs, expositions, or exhibitions in connection therewith by a local convention center authority.

            (B) Notwithstanding any other provision of this subparagraph, a municipality located within a standard metropolitan statistical area recognized by the United States Department of Commerce, Bureau of the Census, which is levying a tax at a rate of 5 percent pursuant to paragraph (3) of this subsection on or before January 1, 1999, and in which an interstate highway is located, shall, on and after April 28, 1999, be authorized to levy and collect a tax under this Code section at a rate of 6 percent. A municipality levying a tax pursuant to this subparagraph shall expend, in each fiscal year during which the tax is collected under this subparagraph, an amount equal to the amount by which the total taxes collected under this subparagraph exceed the taxes which would have been collected at the rate of 5 percent for the purpose of dispensing information about the qualities of such municipality and promoting business in the municipality and to acquire for such use a building located in an area of high density retail businesses within the limits of such municipality. During any period during which there remains outstanding any obligation issued to fund a facility as contemplated by this subparagraph, and secured in whole or in part by a pledge of a tax authorized under this Code section, the powers of the counties and municipalities to impose and distribute the tax imposed by this subparagraph shall not be diminished or impaired by the state, and no county or municipality levying the tax imposed by this subparagraph shall cease to levy the tax in any manner that will impair the interest and rights of the holders of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by a convention center authority, shall constitute a contract with the holder of such obligations.

        1. Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) or municipality is authorized to levy a tax under this Code section at a rate of 7 percent. A county or municipality levying a tax pursuant to this paragraph shall expend an amount equal to at least 51.4 percent of the total taxes collected prior to July 1, 1990, at the rate of 7 percent and an amount equal to at least 32.14 percent of the total taxes collected on or after July 1, 1990, at the rate of 7 percent for the purpose of:
          1. Promoting tourism, conventions, and trade shows;
          2. Supporting a facility owned or operated by a state authority for convention and trade show purposes or any other similar or related purposes;
          3. Supporting a facility owned or operated by a local authority or local government for convention and trade show purposes or any other similar or related purposes, if a written agreement to provide such support was in effect on January 1, 1987, and if such facility is substantially completed and in operation prior to July 1, 1987;
          4. Supporting a facility owned or operated by a local government or local authority for convention and trade show purposes or any other similar or related purposes if construction of such facility is funded or was funded in whole or in part by a grant of state funds; or
          5. For some combination of such purposes.

            Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities, except that amounts expended for those purposes specified in subdivisions (III) and (IV) of this division may be so expended in any otherwise lawful manner.

        2. In addition to the amounts required to be expended under division (i) of this subparagraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 14.3 percent of the total taxes collected prior to July 1, 1990, at the rate of 7 percent and an amount equal to 39.3 percent of the total taxes collected on or after July 1, 1990, at the rate of 7 percent toward funding a multipurpose domed stadium facility. Amounts so expended shall be expended only through a contract originally with the state, a department or agency of the state, or a state authority, or through a contract or contracts with some combination of the above. Any tax levied pursuant to this paragraph shall terminate not later than December 31, 2020, unless extended as provided in subparagraph (B) of this paragraph, provided that during any period during which there remains outstanding any obligation which is incurred prior to January 1, 1991, issued to fund a multipurpose domed stadium as contemplated by this paragraph, and secured in whole or in part by a pledge of a tax authorized under this Code section, or any such obligation which is incurred to refund such an obligation incurred before January 1, 1991, the powers of the counties and municipalities to impose and distribute the tax imposed by this paragraph shall not be diminished or impaired by the state and no county or municipality levying the tax imposed by this paragraph shall cease to levy the tax in any manner that will impair the interest and rights of the holders of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by an authority of the state, shall constitute a contract with the holder of such obligations.
      2. Notwithstanding the termination date stated in division (ii) of subparagraph (A) of this paragraph, notwithstanding paragraph (6) of this subsection, and notwithstanding subsection (b) of this Code section, a tax levied under this paragraph may be extended by resolution of the levying county or municipality and continue to be collected through December 31, 2050, if a state authority certifies that:
        1. The same portion of the proceeds will be used to fund a successor facility to the multipurpose domed facility as is currently required to fund the multipurpose domed facility under division (ii) of subparagraph (A) of this paragraph;
        2. Such successor facility will be located on property owned by the state authority; and
        3. The state authority has entered into a contract with a national football league team for use of the successor facility by the national football league team through the end of the new extended period of the tax collection.

          During the extended period of collection provided for in this subparagraph, the county or municipality levying the tax shall continue to comply with the expenditure requirements of division (i) of subparagraph (A) of this paragraph. During the extended period of collection, the county or municipality shall further expend (in each fiscal year during which the tax is collected during the extended period of collection) an amount equal to 39.3 percent of the total taxes collected at the rate of 7 percent toward funding the successor facility certified by the state authority. Amounts so expended shall be expended only through a contract with the certifying state authority. Any tax levied pursuant to this paragraph shall terminate not later than December 31, 2050, provided that during any period during which there remains outstanding any obligation which is incurred to fund the successor facility certified by the state authority, and secured in whole or in part by a pledge of a tax authorized under this Code section, or any such obligation which is incurred to refund such an obligation, the powers of the counties and municipalities to impose and distribute the tax imposed by this paragraph shall not be diminished or impaired by the state and no county or municipality levying the tax imposed by this paragraph shall cease to levy the tax in any manner that will impair the interest and rights of the holders of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by an authority of the state, shall constitute a contract with the holder of such obligations.

      3. Notwithstanding any provision of the law to the contrary, and subject to the limitations contained in this subparagraph, a municipality levying a tax a percentage of which is dedicated to financing a multipurpose domed stadium pursuant to division (ii) of subparagraph (A) of this paragraph shall be further authorized to expend in each fiscal year during which the tax is collected under this paragraph an amount equal to 39.3 percent of the total taxes collected at the rate of 7 percent toward funding any of the purposes permitted for tourism product development contained in paragraph (6) of Code Section 48-13-50.2. Any funding pursuant to this paragraph shall not commence until the municipality has terminated its obligations under division (ii) of subparagraph (A) of this paragraph and so long as there remains outstanding any obligation which is incurred prior to January 1, 1991, issued to fund a multipurpose domed stadium as contemplated by this paragraph, and secured in whole or in part by a pledge of a tax authorized under this Code section, or any such obligation which is incurred to refund such an obligation incurred before January 1, 1991.
        1. Promoting tourism, conventions, and trade shows;
        2. Funding, supporting, acquiring, constructing, renovating, improving, and equipping buildings, structures, and facilities, including, but not limited to, a coliseum, exhibit hall, conference center, performing arts center, or any combination thereof, for convention, trade show, athletic, musical, theatrical, cultural, civic, and performing arts purposes and other events and activities for similar and related purposes, acquiring the necessary property therefor, both real and personal, and funding all expenses incident thereto, and supporting, maintaining, and promoting such facilities owned, operated, or leased by or to the local coliseum and exhibit hall authority or a downtown development authority; or
        3. For some combination of such purposes;

          provided, however, that at least 50 percent of the total taxes collected at the rate of 8 percent shall be expended for the purposes specified in subparagraph (B) of this paragraph. Amounts so expended shall be expended only through a contract or contracts with the state, a department of state government, a state authority, a convention and visitors bureau authority created by local Act of the General Assembly for a municipality, a local coliseum and exhibit hall authority, a downtown development authority, or a private sector nonprofit organization, or through a contract or contracts with some combination of such entities. The aggregate amount of all excise taxes imposed under this paragraph and all sales and use taxes, and other taxes imposed by a county or municipality, or both, shall not exceed 13 percent; provided, however, that any sales tax for educational purposes which is imposed pursuant to Article VIII, Section VI, Paragraph IV of the Constitution shall not be included in calculating such limitation. Any tax levied pursuant to this paragraph shall terminate not later than December 31, 2053, provided that during any period during which there remains outstanding any obligation issued to fund a facility as contemplated by this paragraph, secured in whole or in part by a pledge of a tax authorized under this Code section, the powers of the counties and municipalities to impose and distribute the tax imposed by this paragraph shall not be diminished or impaired by the state and no county or municipality levying the tax imposed by this paragraph shall cease to levy the tax in any manner that will impair the interests and rights of the holder of any such obligation. This proviso shall be for the benefit of the holder of any such obligation and, upon the issuance of any such obligation by a local coliseum and exhibit hall authority or a downtown development authority, shall constitute a contract with the holder of such obligation. Notwithstanding any other provision of this Code section to the contrary, as used in this paragraph, the term "fund" or "funding" shall include the cost and expense of all things deemed necessary by a local coliseum and exhibit hall authority or a downtown development authority for the construction and operation of a facility or facilities, including, but not limited to, the study, operation, marketing, acquisition, construction, financing, including the payment of principal and interest on any obligation of the local coliseum and exhibit hall authority or the downtown development authority and any obligation of the local coliseum and exhibit hall authority or the downtown development authority to refund any prior obligation of the local coliseum and exhibit hall authority or the downtown development authority, development, extension, enlargement, or improvement of land, waters, property, streets, highways, buildings, structures, equipment, or facilities and the repayment of any obligation incurred by an authority in connection therewith; "obligation" shall include bonds, notes, or any instrument creating an obligation to pay or reserve moneys and having an initial term of not more than 37 years; "facility" or "facilities" means any of the buildings, structures, and facilities described in subparagraph (B) of this paragraph and any associated parking areas or improvements originally owned or operated incident to the ownership or operation of such facility used for any purpose or purposes specified in subparagraph (B) of this paragraph by a local coliseum and exhibit hall authority or a downtown development authority; and "downtown development authority" means a downtown development authority created by local Act of the General Assembly for a municipality pursuant to a local constitutional amendment.

          (B) A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 33 1/3 percent of the total taxes collected at the rate of 8 percent under this subparagraph for the purpose of promoting tourism, conventions, and trade shows under a contract with a private sector nonprofit organization.

          (C) In addition to the amounts required to be expended pursuant to subparagraph (B) of this paragraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 16 2/3 percent of the total taxes collected at the rate of 8 percent for the purpose of either marketing or operating community auditorium or theater facilities or a community convention or trade center of which the theater or auditorium is a part. Marketing and operating expenditures may include a preopening marketing program for such facilities and an escrow account accrued prior to opening such facilities to cover operating expenses to be incurred after the opening of such facilities.

          (D) In addition to the amounts required to be expended pursuant to subparagraphs (B) and (C) of this paragraph, a county or municipality levying a tax pursuant to this paragraph shall further expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to 33 1/3 percent of the total taxes collected at the rate of 8 percent for general recreation purposes. Amounts so expended shall be expended only through a contract or contracts with a recreation authority created by local Act of the General Assembly.

          (B) The provisions of paragraph (2) of this subsection relating to expenditures shall apply to this paragraph; provided, however, that a county or municipality levying a tax pursuant to this paragraph shall be authorized, but not required, to expend funds through a convention and visitor's bureau authority created by local Act of the General Assembly.

      (5.1) Notwithstanding any other provision of this subsection, a county (within the territorial limits of the special district located within the county) and the municipalities within a county in which a coliseum and exhibit hall authority has been created by local Act of the General Assembly for a county and one or more municipalities therein, and which local coliseum and exhibit hall authority is in existence on or before January 1, 1991, and which local coliseum and exhibit hall authority has not constructed or operated any facility before January 1, 1991, may levy a tax under this Code section at a rate of 8 percent. A county or municipality levying a tax pursuant to this paragraph shall expend (in each fiscal year during which the tax is collected under this paragraph) an amount equal to at least 62 1/2 percent of the total taxes collected at the rate of 8 percent for the purpose of:

      (5.2) (A) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) and municipalities within a county in which community auditorium or theater facilities owned and operated by the municipality have been renovated which renovations are completed substantially on or before July 1, 1995, and which county and municipalities have not previously levied a 6 percent tax under paragraph (4) of this subsection may levy a tax under this Code section at a rate of 8 percent.

      (5.3) (A) Notwithstanding the provisions of paragraph (1) of this subsection, a county (within the territorial limits of the special district located within the county) and municipalities within such a county in which a convention and visitor's bureau authority has been created by local Act of the General Assembly which was in existence on July 1, 2005, and which authority is established specifically by such local Act as a permissible, but not exclusive, entity for the transfer of hotel and motel tax funds by the taxing entities of the county for which such authority was created may levy a tax under this Code section at a rate of 5 percent.

    6. Following the termination of a tax under paragraph (2.1), (2.2), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), or (5.3) of this subsection, any county or municipality which has levied a tax pursuant to paragraph (2.1), (2.2), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), or (5.3) of this subsection shall levy any future taxes under this Code section in a manner authorized by subsection (b) of this Code section.
    7. As used in this subsection, the term:
      1. "Fund" and "funding" mean the cost and expense of all things deemed necessary by a state authority for the construction and operation of a multipurpose domed stadium and a successor facility to such multipurpose domed stadium including but not limited to the study, operation, marketing, acquisition, construction, finance, development, extension, enlargement, or improvement of land, waters, property, streets, highways, buildings, structures, equipment, or facilities, and the repayment of any obligation incurred by an authority in connection therewith.
      2. "Obligation" means bonds, notes, or any instrument creating an obligation to pay or reserve moneys and having an initial term of not more than 30 years.
      3. "Multipurpose domed stadium facility" means a multipurpose domed stadium facility and any associated parking areas or improvements originally owned or operated incident to the ownership or operation of a facility used for convention and trade show purposes by the state, a department or agency of the state, a state authority, or a combination thereof.
    8. Reserved.
      1. A county or municipality imposing a tax under paragraph (1), (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), or (5.3) of this subsection shall, prior to the imposition of the tax (if the tax is imposed on or after July 1, 1990) and prior to each fiscal year thereafter in which the tax is imposed, adopt a budget plan specifying how the proceeds of the tax shall be expended. Prior to the adoption of such budget plan, the county or municipality shall obtain from the authorized entity with which it proposes to contract to meet the expenditure requirements of this Code section a budget for expenditures to be made by such organization; and such budget shall be made a part of the county or municipal budget plan.
        1. The determination as to whether a county or municipality has complied with the expenditure requirements of paragraph (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), or (5.3) of this subsection shall be made for each fiscal year beginning on or after July 1, 1987, and, as of the end of each fiscal year, shall be prominently reflected in the audit required under Code Section 36-81-7 and shall disclose:
          1. The amount of funds expended or contractually committed for expenditure as provided in paragraph (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), or (5.3) of this subsection, whichever is applicable, during the fiscal year;
          2. The amount of tax receipts under this Code section during such fiscal year; and
          3. Expenditures as a percentage of tax receipts.
        2. A county or municipality contractually expending funds to meet the expenditure requirements of paragraph (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), or (5.3) of this subsection shall require the contracting party to provide audit verification that the contracting party makes use of such funds in conformity with the requirements of this subsection. If the audit required by Code Section 36-81-7 identifies noncompliance with the applicable expenditure requirements of this Code section, such noncompliance shall be reported in accordance with paragraph (2) of subsection (c) of Code Section 36-81-7. The state auditor shall report all instances of noncompliance with this subparagraph noted in the audit report to the Department of Community Affairs upon completion of the report review required by paragraph (2) of subsection (d) of Code Section 36-81-7. The state auditor shall furnish a copy of all documents submitted by the local government or the local government's auditor pertaining to noncompliance with this subparagraph to the Department of Revenue. The Department of Community Affairs shall submit a copy of such documents to the performance review board.
    10. Nothing in this article shall be construed to limit the power of a county or municipality to expend more than the required amounts, or all, of the total taxes collected under this Code section for the purposes described in paragraph (2), (2.1), (2.2), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.7), (4), (4.1), (4.2), (4.3), (4.4), (4.5), (4.6), (4.7), (5), (5.1), (5.2), or (5.3) of this subsection.
    1. Except as provided in paragraphs (2) and (3) of subsection (a) of this Code section, any new excise taxes which are first levied pursuant to this Code section after July 1, 2008, or any new excise tax which is first levied following the termination of a previous levy pursuant to this Code section after July 1, 2008, shall be levied pursuant to this subsection.
    2. The governing authority of each municipality in this state may levy an excise tax pursuant to this subsection at a rate not to exceed 8 percent of the charge for the furnishing for value to the public of any room or rooms, lodgings, or accommodations furnished by any person or legal entity licensed by, or required to pay business or occupation taxes to, the municipality for operating a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings, or accommodations are regularly or periodically furnished for value.
    3. Within the territorial limits of the special district located within the county, each county in this state may levy an excise tax pursuant to this subsection at a rate not to exceed 8 percent of the charge for the furnishing for value to the public of any room or rooms, lodgings, or accommodations furnished by any person or legal entity licensed by, or required to pay business or occupation taxes to, the county for operating within the special district a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings, or accommodations are regularly or periodically furnished for value.
    4. The levy of an excise tax pursuant to this subsection shall be conditioned upon the county or municipality adopting a resolution which specifies the subsequent tax rate, identifies the projects or tourism product development purposes, and specifies the allocation of proceeds and, subsequent to such resolution, the enactment of a local Act by the General Assembly.
    5. In accordance with the terms of the resolution adopted by the county or municipality, the local Act of the General Assembly shall provide that:
      1. In each fiscal year during which a tax is collected under paragraph (2) or (3) of this subsection, an amount equal to not less than 50 percent of the total amount of  taxes collected that exceed the amount of taxes that would be collected at the rate of 5 percent shall be expended for promoting tourism, conventions, and trade shows by the destination marketing organization designated by the county or municipality levying the tax; and
      2. The remaining amount of taxes collected that exceed the amount of taxes that would be collected at the rate of 5 percent which are not otherwise expended under subparagraph (A) of this paragraph shall be expended for tourism product development.
    6. A county or municipality levying a tax pursuant to this subsection shall expend an amount equal to the amount of total taxes collected under this subsection which would have been collected at a rate of 5 percent in accordance with the provisions of paragraph (3) of subsection (a) of this Code section.
      1. Any municipality which is levying an excise tax under paragraph (5) of subsection (a) of this Code section, so long as any obligation as described in division (a)(5)(A)(ii) or subparagraph (a)(5)(B) of this Code section remains outstanding, shall leave such excise tax in effect at the rate of 7 percent and may levy up to an additional 1 percent excise tax under this paragraph so long as the combined rate does not exceed 8 percent.
        1. Such additional excise tax shall not be deemed to violate the provisions of subsection (d) of this Code section.
        2. Such additional excise tax shall not count toward or be subject to the 14 percent rate limitations of subsection (c.1) of Code Section 48-8-6 and subsection (d) of Code Section 48-8-201.
      3. Any taxes collected in excess of 7 percent shall be expended by the municipality for the promotion of conventions and tradeshows by a not for profit destination marketing organization located within the municipality and in existence and operation on January 1, 2011, through a contract or contracts with the state, a department of state government, or a state authority. At least 80 percent of such tax amounts shall be segregated by the destination marketing organization and used in securing major conventions at facilities containing at least 1.3 million square feet of floor space used for convention hall purposes and events at facilities containing at least 70,000 seats used for major events under the control of a state authority, and amounts so segregated may be held by the destination marketing organization and expended in fiscal years subsequent to the fiscal year in which the taxes were collected.
      4. Any municipal levy of any additional excise tax under this paragraph must be approved by local Act and shall also comply with the resolution requirements contained in paragraph (4) of this subsection in regard to the additional excise tax levied under this paragraph only. The local Act of the General Assembly shall provide that the first 7 percent in excise tax levied under the authority of paragraph (5) of subsection (a) of this Code section shall continue to be levied under that paragraph and all amounts collected thereunder shall be expended as required therein and that the additional amounts collected under the provisions of this paragraph shall be expended as required in this paragraph.

    (b.1) As an alternative to the provisions of subsection (b) of this Code section, any county (within the territorial limits of the special district located within the county) and any municipality which is levying a tax under this Code section at the rate of 6 percent under paragraph (3.4) or (4) of subsection (a) of this Code section shall be authorized to levy a tax under this Code section at the rate of 7 percent in the manner provided in this subsection. Both the county and municipality shall adopt a resolution which shall specify that an amount equal to the total amount of taxes collected under such levy at a rate of 6 percent shall continue to be expended as it was expended pursuant to either paragraph (3.4) or (4) of subsection (a) of this Code section, as applicable, and such resolution shall specify the manner of expenditure of funds for an amount equal to the total amount of taxes collected under such levy that exceeds the amount that would be collected at the rate of 6 percent for any tourism, convention, or trade show purposes, tourism product development purposes, or any combination thereof. Each resolution shall be required to be ratified by a local Act of the General Assembly. Only when both such local Acts have become law, the governing authority of the county and municipality shall be authorized to levy an excise tax pursuant to this subsection at the rate of 7 percent of the charge for the furnishing for value to the public of any room or rooms, lodgings, or accommodations furnished by any person or legal entity licensed by, or required to pay business or occupation taxes to, the municipality for operating a hotel, motel, inn, lodge, tourist camp, tourist cabin, campground, or any other place in which rooms, lodgings, or accommodations are regularly or periodically furnished for value.

  3. Nothing in this article shall be construed to impair, or authorize or require the impairment of, any existing contract or contractual rights.
  4. At no time shall a county or municipality levy simultaneously more than one tax under this article.
    1. Except as otherwise provided in paragraph (2) of this subsection, for any excise tax levied pursuant to subsection (b) of this Code section, a county or municipality imposing a tax under this article shall, prior to the imposition of the tax or changing the rate of the levy of the tax and prior to each fiscal year thereafter in which the tax is imposed, adopt a budget plan specifying how the proceeds of such tax are to be expended.  Prior to the adoption of such budget plan, the county or municipality shall obtain from the destination marketing organization or state authority with which it proposes to contract to meet the expenditure requirements of this paragraph a budget plan for expenditures to be made by such organization. Such destination marketing organization or state authority expenditure budget plan shall be made a part of the county or municipal budget plan.
    2. This paragraph shall apply to a county or municipality which is levying the tax under subsection (a) of this Code section on January 1, 2008, and is expending the proceeds of the tax through a contract or contracts with an authorized entity or entities other than a destination marketing organization.  In the event such county or municipality ceases such levy in order to levy an excise tax under subsection (b) of this Code section, it may continue to expend the proceeds of the tax through a contract or contracts with the same entity or entities other than a destination marketing organization if, prior to each fiscal year in which the tax is imposed, the county or municipality adopts a budget plan specifying how the proceeds of such tax are to be expended.  Prior to the adoption of such budget plan, such county or municipality shall obtain from such entity or entities with which it proposes to contract to meet the expenditure requirements of this paragraph a budget plan for expenditures to be made by such entity or entities.  The budget plan of such entity or entities shall be made a part of the county or municipal budget plan.
  6. A county or municipality expending funds of the tax levied under subsection (b) of this Code section pursuant to a contract shall require the destination marketing organization or state authority to provide audit verification that such destination marketing organization or state authority makes use of such funds in conformity with the requirements of this subsection.  If the audit required by Code Section 36-81-7 identifies noncompliance with the applicable expenditure requirements of this Code section, such noncompliance shall be reported in accordance with paragraph (2) of subsection (c) of Code Section 36-81-7. The state auditor shall report all instances of noncompliance with this subsection noted in the audit report to the Department of Community Affairs upon completion of the report review required by paragraph (2) of subsection (d) of Code Section 36-81-7. The state auditor shall furnish a copy of all documents submitted by the local government or the local government's auditor pertaining to noncompliance with this subsection to the Department of Community Affairs.  The Department of Community Affairs shall submit a copy of such documents to the performance review board.
    1. Any action by a local governing authority to impose or change the rate of the tax authorized under this article shall become effective no sooner than the first day of the second month following its action by the local governing authority.
    2. In the case of a county or municipality which has adopted an ordinance ceasing the levy under the applicable paragraph of subsection (a) of this Code section in order to levy an excise tax under subsection (b) of this Code section, such levy under subsection (b) of this Code section shall become effective no sooner than the first day of the second month following its action by the local governing authority.
  8. The tax authorized by this article shall not apply to:
    1. Charges made for any rooms, lodgings, or accommodations provided to any persons who certify that they are staying in such room, lodging, or accommodation as a result of the destruction of their home or residence by fire or other casualty;
    2. The use of meeting rooms and other such facilities or any rooms, lodgings, or accommodations provided without charge;
    3. Any rooms, lodgings, or accommodations furnished for a period of one or more days for use by Georgia state or local governmental officials or employees when traveling on official business.  Notwithstanding the availability of any other means of identifying the person as a state or local government official or employee, whenever a person pays for any rooms, lodgings, or accommodations with a state or local government credit or debit card, such rooms, lodgings, or accommodations shall be deemed to have been furnished for use by a Georgia state or local government official or employee traveling on official business for purposes of the exemption provided by this paragraph.  For purpose of the exemption provided under this paragraph, a local government official or employee shall include officials or employees of counties, municipalities, consolidated governments, or county or independent school districts; or
    4. Charges made for continuous use of any rooms, lodgings, or accommodations after the first 30 days of continuous occupancy.
  9. No tax under this article may be levied or collected by a county outside the territorial limits of the special district located within the county.
  10. Any requirement that a tax under this article be expended in the fiscal year in which it is collected shall be satisfied so long as fiscal year expenditures conform with the budget  plan required in either paragraph (9) of subsection (a) or subsection (e) of this Code section.

    (Ga. L. 1975, p. 1002, §§ 2, 3; Code 1933, § 91A-6202, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 639, § 1; Ga. L. 1987, p. 635, § 1; Ga. L. 1988, p. 1866, § 1; Ga. L. 1989, p. 1, § 1; Ga. L. 1989, p. 62, § 13; Ga. L. 1990, p. 1134, § 1; Ga. L. 1991, p. 292, §§ 1-5; Ga. L. 1992, p. 3035, §§ 1-4; Ga. L. 1993, p. 442, § 1; Ga. L. 1993, p. 995, §§ 3, 4; Ga. L. 1994, p. 793, § 1; Ga. L. 1995, p. 10, § 48; Ga. L. 1995, p. 578, §§ 1-4; Ga. L. 1996, p. 1407, §§ 1-5; Ga. L. 1997, p. 930, §§ 1-4; Ga. L. 1997, p. 959, §§ 1-4; Ga. L. 1997, p. 1417, §§ 1-4; Ga. L. 1998, p. 19, § 1; Ga. L. 1998, p. 894, §§ 1-4; Ga. L. 1999, p. 81, § 48; Ga. L. 1999, p. 663, § 1; Ga. L. 1999, p. 769, §§ 1-4; Ga. L. 2000, p. 214, §§ 1-8; Ga. L. 2000, p. 1303, § 1; Ga. L. 2000, p. 1325, § 1A; Ga. L. 2000, p. 1364, §§ 1-4; Ga. L. 2001, p. 1191, §§ 1-4; Ga. L. 2002, p. 979, §§ 1-4; Ga. L. 2004, p. 403, § 1; Ga. L. 2005, p. 532, § 1/HB 505; Ga. L. 2005, p. 1523, §§ 1-6/HB 374; Ga. L. 2006, p. 667, §§ 1-4/HB 1030; Ga. L. 2007, p. 47, § 48/SB 103; Ga. L. 2008, p. 181, § 23/HB 1216; Ga. L. 2008, p. 887, §§ 1, 2/HB 302; Ga. L. 2008, p. 1032, §§ 2-9, 12/HB 1168; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2010, p. 809, §§ 1, 2, 3/HB 903; Ga. L. 2011, p. 517, § 1/HB 382; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2016, p. 279, § 1/HB 408; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2018, p. 198, § 1/HB 658.)

The 2016 amendment, effective July 1, 2016, added subparagraph (a)(5)(C).

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, revised punctuation and language throughout paragraphs (a)(3) through (a)(12); substituted "of subparagraphs (C) and (D) of this paragraph" for "(C) and (D)" near the end of the ending undesignated paragraph of paragraph (a)(3); in paragraph (a)(3.2), deleted "as defined in subparagraph (A) of paragraph (8) of this subsection" following "organization" at the end of the second sentence and substituted "by this paragraph" for "above" at the beginning of the third sentence; in paragraph (a)(4), deleted "subparagraph (a)(8)(A) of this Code section and" preceding "Section 501(c)(6)" twice; substituted "the purpose of subparagraph (B) of this paragraph" for "purpose (B)" in the first sentence of the ending undesignated paragraph of paragraph (a)(4.1); deleted "defined in subparagraph (A) of paragraph (8) of this subsection;" following "nonprofit organization" in the second sentence of paragraph (a)(4.2); substituted "the purpose of division (iii) of this subparagraph" for "purpose (iii)" near the end of the ending undesignated paragraph of subparagraph (a)(4.5)(A); substituted "the purpose of division (ii) of this subparagraph" for "purpose (B)" near the end of the first sentence of the ending undesignated paragraph of subparagraph (a)(4.6)(A); deleted "as defined in subparagraph (A) of paragraph (8) of this subsection" following "nonprofit organization" at the end of the second sentence of paragraph (a)(4.7); in subparagraph (a)(5)(B) added "that" at the end of the paragraph and made related changes; deleted ", notwithstanding any provision of paragraph (8) of this subsection to the contrary" following "such entities" at the end of the second sentence of the ending undesignated paragraph of paragraph (a)(5.1); deleted "defined in subparagraph (A) of paragraph (8) of this subsection" following "nonprofit organization" at the end of subparagraph (a)(5.2)(B); inserted "and" near the middle of subdivision (a)(9)(B)(i); and deleted former paragraphs (a)(11) and (a)(12), which read: "Reserved.".

The 2018 amendment, effective July 1, 2018, in the ending undesignated paragraph of subparagraph (a)(5.1)(C), substituted "2053" for "2028" in the fourth sentence, substituted "facilities, including, but not limited to," for "facilities including but not limited to" in the sixth sentence and substituted "means" for "shall mean" twice.

Cross references. - Local government authority to enter into certain one year or less contracts, § 36-60-14 .

Regulation of operation of hotels, inns, and similar entities generally, T. 43, C. 21.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1996, "(a)(3.1)," was transferred to follow "(a)(3)," to maintain numerical order.

Pursuant to Code Section 28-9-5, in 1997, paragraph (4.2) of subsection (a) as added by Ga. L. 1997, p. 959, § 2 was redesignated as paragraph (4.3) of subsection (a), and paragraphs (4.2) and (4.3) of subsection (a) as added by Ga. L. 1997, p. 1417, § 2 were redesignated as paragraphs (4.4) and (4.5) of subsection (a), respectively. The internal references in subsection (a) were changed to reflect these redesignations.

Pursuant to Code Section 28-9-5, in 1999, "April 28, 1999" was substituted for "the effective date of this Act" in subparagraph (a)(4.6)(B).

Pursuant to Code Section 28-9-5, in 2001, "(3)" was deleted following "under this paragraph" in the second sentence of paragraph (a)(3.4).

The amendment of this Code section by Ga. L. 2008, p. 181, § 23, irreconcilably conflicted with and was treated as superseded by Ga. L. 2008, p. 1032, § 5. See County of Butts v. Strahan, 151 Ga. 417 (1921).

Pursuant to Code Section 28-9-5, in 2008, the subparagraph (C) designation in subparagraph (a)(1)(C) and the paragraph (8) designation in paragraph (a)(8) were inserted; in division (a)(3.8)(A)(ii), a period was substituted for a semicolon at the end; in paragraph (a)(4), parentheses were added around "III" and "IV"; and in subparagraph (a)(7)(A), quotation marks were inserted following "Fund".

Editor's notes. - Ga. L. 1989, p. 62, § 14, not codified by the General Assembly, provides: "In the event that any other Act of the 1989 General Assembly amends Article 3 of Chapter 13 of Title 48 of the Official Code of Georgia Annotated, it is the intention of the General Assembly that the provisions of such other Act control over the provisions of this Act, except that it is the intention of the General Assembly that the increase in the rate of state sales and use taxation provided for in this Act shall not operate to decrease the maximum rate of taxes which may be imposed by local governments under said article as now existing or as it may be amended; and for this limited purpose, the provisions of this Act and particularly of this statement of intent shall control over the provisions of such other Act, notwithstanding any limitation on maximum aggregate amounts of taxation which may be contained in such other Act."

Ga. L. 1996, p. 1407, § 3 amended paragraph (a)(5.1) by adding the proviso at the end of the fourth sentence. This proviso became effective upon ratification of House Resolution 728 (Ga. L. 1996, p. 1668) at the November 1996 election.

Law reviews. - For annual survey of state and local taxation, see 42 Mercer L. Rev. 421 (1990). For annual survey of law on administrative law, see 62 Mercer L. Rev. 1 (2010).

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. Art. 3, Ch. 13, T. 48 does not violate the uniformity requirements of the state constitution and due process and equal protection guarantees of the state and federal constitutions, nor does the statute impermissibly burden interstate commerce. Youngblood v. State, 259 Ga. 864 , 388 S.E.2d 671 (1990).

O.C.G.A. § 48-13-51(a)(5) merely makes clear that once the courts have validated a bond issue and the bonds have been issued, the state cannot impair the contract between the issuer and the bondholder. The statute does not violate the Abridged Powers Clause contained in Ga. Const. 1983, Art. III, Sec. VI, Para. III. Youngblood v. State, 259 Ga. 864 , 388 S.E.2d 671 (1990).

"Stadium Funding Agreement" for construction of a domed facility, entered into by a city, a county, and a stadium authority, was authorized by the intergovernmental contracts clause of Ga. Const. 1983, Art. IX, Sec. III, Para. I, and therefore did not violate the special district debt clause of Ga. Const. 1983, Art. IX, Sec. V, Para. II. Youngblood v. State, 259 Ga. 864 , 388 S.E.2d 671 (1990).

O.C.G.A. § 48-13-51(a)(5)(B) was not unconstitutional under the Uniformity Clause, Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a), but was a proper exception to the general law of § 48-13-51(a)(1)(D), which imposed a 3 percent cap on hotel/motel taxes, in that the statute applied uniformly on all taxing authorities within the scope of the statute's provisions, and because the classification made by the statute was not arbitrary or unreasonable. Cottrell v. Atlanta Dev. Auth., 297 Ga. 1 , 770 S.E.2d 616 (2015).

Collection of taxes. - Although online travel companies were not operators of hotels, the companies actually collected excise taxes from hotel guests, and thus the companies were required to remit those taxes to applicable Georgia cities and counties pursuant to O.C.G.A. §§ 48-13-50 and 48-13-51 . City of Rome v. Hotels.com, LP, F. Supp. 2d (N.D. Ga. May 8, 2006).

In a city's action wherein the city filed a complaint seeking a declaratory judgment, injunctive relief, and other equitable remedies against an online travel company, the trial court did not err by requiring the company to collect tax payment obligations under the Enabling Statute, O.C.G.A. § 48-13-50 et seq., and a city's ordinance via a permanent injunction. The company had contracted with the city to collect such taxes from the customers and was not an innkeeper; thus, the company was required to remit the taxes to the city. Expedia, Inc. v. City of Columbus, 285 Ga. 684 , 681 S.E.2d 122 (2009).

Trial court did not err under O.C.G.A. § 48-13-51(a)(1)(B)(I) when the court determined that the rent for occupying a hotel room in a city was the room rate paid by a consumer, rather than the negotiated wholesale rate between an online travel company and a hotel, because the retail room rate was the taxable amount or rent under a city's ordinance. City of Atlanta v. Hotels.com, 289 Ga. 323 , 710 S.E.2d 766 (2011).

Determination as to whether tax applied to online travel companies had to be determined first. - Trial court erred by dismissing a city's declaratory judgment action against several online travel companies for lack of subject matter jurisdiction, and the appellate court erred by affirming the dismissal as the issue of whether the city's ordinance allowing the city to collect a hotel occupancy tax from the online travel companies was a contested issue in the matter that neither lower court had determined. The legal question of whether the ordinance even applied to the online travel companies had to be determined before the city was required to submit to the administrative process set forth within the ordinance and the enabling statutes, O.C.G.A. § 48-13-50 et seq. City of Atlanta v. Hotels.com, L.P., 285 Ga. 231 , 674 S.E.2d 898 (2009).

Tax proceeds were revenue to pay for bonds. - Hotel/Motel tax funding agreement for a stadium project worked with a bond proceeds funding agreement to ensure that the stadium's tax proceeds were expended consistent with O.C.G.A. § 48-13-51(a)(5)(B), and there was no requirement that the development authority own the stadium for the tax proceeds to be considered as part of the revenue to pay for the bonds: under O.C.G.A. § 36-82-61(3) , "revenue" included revenues arising out of or in connection with the operation or ownership of the stadium. Cottrell v. Atlanta Dev. Auth., 297 Ga. 1 , 770 S.E.2d 616 (2015).

Cited in City of Atlanta v. City of College Park, 311 Ga. App. 62 , 715 S.E.2d 158 (2011); City of Atlanta v. City of College Park, 292 Ga. 741 , 741 S.E.2d 147 (2013).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 87 et seq.

C.J.S. - 20 C.J.S., Counties, §§ 369 et seq., 382 et seq.

ALR. - Deductibility of other taxes or fees in computing excise or license taxes, 174 A.L.R. 1263 .

What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap 31), 93 A.L.R.2d 1120.

Obligation of online travel companies to collect and remit hotel occupancy taxes, 61 A.L.R. 6 th 387.

48-13-52. Allowance of percentage of tax collected as deduction to person reporting and paying tax; effect of delinquent payments; rate.

Each person collecting the tax authorized by this article shall be allowed a percentage of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if the amount due is not delinquent at the time of payment. The rate of the deduction shall be 3 percent of the amount due, but only if the amount due was not delinquent at the time of payment.

(Ga. L. 1975, p. 1002, § 5; Code 1933, § 91A-6204, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1, § 1; Ga. L. 1990, p. 1134, § 1; Ga. L. 1992, p. 815, § 5.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 382 et seq.

48-13-53. Procedures.

Except as otherwise specifically provided in this article, the rate of taxation, the manner of imposition, payment, and collection of the tax, and all other procedures related to the tax shall be as provided by each county and municipality electing to exercise the powers conferred by this article.

(Ga. L. 1975, p. 1002, § 4; Code 1933, § 91A-6203, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1, § 1; Ga. L. 1990, p. 1134, § 1; Ga. L. 1998, p. 894, § 5; Ga. L. 2000, p. 1325, § 2.)

JUDICIAL DECISIONS

Determination as to whether tax applied to online travel company had to be determined first. - Trial court erred by dismissing a city's declaratory judgment action against several online travel companies for lack of subject matter jurisdiction, and the appellate court erred by affirming the dismissal as the issue of whether the city's ordinance allowing the city to collect a hotel occupancy tax from the online travel companies was a contested issue in the matter that neither lower court had determined. The legal question of whether the ordinance even applied to the online travel companies had to be determined before the city was required to submit to the administrative process set forth within the ordinance and the enabling statutes, O.C.G.A. § 48-13-50 et seq. City of Atlanta v. Hotels.com, L.P., 285 Ga. 231 , 674 S.E.2d 898 (2009).

48-13-53.1. Innkeepers; selling or quitting business; withholding of purchase money by purchaser; liability of purchaser for failure to withhold purchase money.

If any innkeeper liable for any tax, interest, or penalty imposed by this article sells his or her business or quits the business, he or she shall make a final return and payment within 15 days after the date of selling or quitting the business. The innkeeper's successor or assigns, if any, shall withhold a sufficient amount of the purchase money to cover the amount of the taxes, interest, and penalties due under this article and unpaid until the former owner produces either a receipt from the governing authority imposing the tax showing that the taxes, interest, and penalties due under this article have been paid or a certificate from the governing authority imposing the tax stating that no tax, interest, or penalty is due under this article. If the purchaser of a business fails to withhold the purchase money as required by this Code section, he or she shall be personally liable for the payment of any taxes, interest, and penalties accruing under this article and unpaid by any former owner or assignor. The personal liability of the purchaser in such a case shall not exceed the amount of the total purchase money, but the property being transferred shall in all cases be subject to the full amount of the tax lien arising from the delinquencies of the former owner. Paid executions may be transferred and enforced as otherwise provided by law.

(Code 1981, § 48-13-53.1 , enacted by Ga. L. 2000, p. 1325, § 3.)

48-13-53.2. Innkeepers and taxes.

  1. Each innkeeper, on or before the twentieth day of each month, shall transmit returns and remit taxes due to any applicable governing authority imposing a tax under this article showing the gross charges taxable under this article during the preceding calendar month. The governing authority imposing the tax may provide by resolution or ordinance for quarterly or annual returns. The returns required by this subsection shall be made upon forms prescribed, prepared, and furnished by the governing authority imposing the tax.
  2. As used in this subsection, the term "estimated tax liability" means an innkeeper's tax liability under this article, adjusted to account for any subsequent change in the rate of tax imposed under this article or any substantial change in circumstances due to damage to the premises, based on his or her average monthly payments for the last fiscal year. If the estimated tax liability of an innkeeper for any taxable period exceeds $2,500.00, the innkeeper shall file a return and remit to the governing authority imposing the tax not less than 50 percent of the estimated tax liability for the taxable period on or before the twentieth day of the period. The amount of the payment of the estimated tax liability shall be credited against the amount to be due on the return required under subsection (a) of this Code section. This subsection shall not apply to any innkeeper unless during the previous fiscal year the innkeeper's monthly payments exceeded $2,500.00 per month for three consecutive months or more. (Code 1981, § 48-13-53.2 , enacted by Ga. L. 2000, p. 1325, § 3.)

JUDICIAL DECISIONS

On line travel company not innkeeper and payment of taxes responsibility of company. - In a city's action wherein the city filed a complaint seeking a declaratory judgment, injunctive relief, and other equitable remedies against an online travel company, the trial court did not err by requiring the company to collect tax payment obligations under the Enabling Statute, O.C.G.A. § 48-13-50 et seq., and a city's ordinance via a permanent injunction. The company had contracted with the city to collect such taxes from the customers and was not an innkeeper; thus, the company was required to remit the taxes to the city. Expedia, Inc. v. City of Columbus, 285 Ga. 684 , 681 S.E.2d 122 (2009).

Cited in City of Atlanta v. Hotels.com, 289 Ga. 323 , 710 S.E.2d 766 (2011).

48-13-53.3. Taxes; extensions and returns; failure of innkeeper to make return and pay required tax.

    1. The governing authority imposing a tax under this article may, for good cause, extend the time for making any returns required under this article for not more than 30 days.
    2. No extension granted pursuant to paragraph (1) of this subsection shall be valid unless granted in writing upon written application, and then the extension shall only be valid for a period, as appropriate, of not more than 12 consecutive months or four consecutive calendar quarters.
    3. Upon the grant of any extension authorized by this subsection, the innkeeper shall remit to the governing authority imposing a tax under this article on or before the date the tax would otherwise become due without the grant of the extension an amount which equals not less than 100 percent of the innkeeper's payment for the corresponding period of the preceding tax year.
    4. No interest or penalty shall be charged by reason of the granting of an extension pursuant to this subsection during the first ten days of each extension period. Thereafter, interest shall be collected upon the unpaid balance of the innkeeper's liability at the rate specified in Code Section 48-2-40.
  2. In the event any innkeeper fails to make a return and pay the tax as provided by this article or makes a grossly incorrect return or a return that is false or fraudulent, the governing authority imposing a tax under this article shall make an estimate for the taxable period of taxable charges of the innkeeper. Based upon its estimate, the governing authority shall assess and collect the taxes, interest, and penalties, as accrued, on the basis of the assessments. (Code 1981, § 48-13-53.3 , enacted by Ga. L. 2000, p. 1325, § 3.)

JUDICIAL DECISIONS

Necessity to follow procedures before filing suit to collect tax. - Municipalities failed to exhaust administrative remedies prior to litigation to recover excise taxes from Internet travel agencies which arranged accommodation for their customers since the procedures of O.C.G.A. § 48-13-53.3(b) were not optional, and the municipalities were required to estimate, assess, and attempt to collect the excise taxes from the travel agencies before pursuing litigation. City of Rome v. Hotels.com, L.P., F. Supp. 2d (N.D. Ga. May 10, 2007).

48-13-53.4. Records and books.

  1. Each innkeeper required to make a return and pay any tax under this article shall keep and preserve:
    1. Suitable records of the charges taxable under this article; and
    2. Other books of account which are necessary to determine the amount of tax due.
  2. All books, invoices, and other records required by this Code section to be kept shall be open to examination at all reasonable hours by the governing authority imposing a tax under this article. (Code 1981, § 48-13-53.4 , enacted by Ga. L. 2000, p. 1325, § 3; Ga. L. 2001, p. 984, § 19.)

Law reviews. - For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001).

48-13-53.5. Assessments.

Any assessment of an innkeeper pursuant to this article by the governing authority imposing a tax under this article shall be deemed prima facie correct.

(Code 1981, § 48-13-53.5 , enacted by Ga. L. 2000, p. 1325, § 3.)

48-13-53.6. Unpaid tax.

The tax imposed by this article shall become delinquent for each month after the twentieth day of each succeeding month during which it remains unpaid.

(Code 1981, § 48-13-53.6 , enacted by Ga. L. 2000, p. 1325, § 3.)

48-13-54. Lodge operated under jurisdiction of Department of Natural Resources or other state authority; collection and remittance of tax; use of funds.

Any state park operated under the jurisdiction of the Department of Natural Resources, or a state authority that is administratively attached to the Department of Natural Resources, which state park or authority regularly furnishes for value lodge rooms as well as meals and conference or meeting facilities or has a minimum of 20 cabins and which rooms, facilities, or cabins located in a county or municipality levying a tax under this article shall, as provided in this Code section, agree to collect and remit to the county or municipality within whose taxing jurisdiction the facility is located amounts which are equal to, or partially equal to, the amounts which would be collected and remitted to the county or municipality under the tax levied by the county or municipality under Code Section 48-13-51 if such rooms, facilities, or cabins were privately operated. The sums so collected and remitted shall only be expended for development, promotion, and advertising of such rooms, facilities, or cabins from which the money was collected and remitted or for similar purposes of promoting, advertising, stimulating, and developing conventions and tourism in the county or municipality in which such rooms, facilities, or cabins of the state park or state authority are located so long as said promotion or advertising prominently features the state park or state authority rooms, facilities, or cabins.

(Code 1981, § 48-13-54 , enacted by Ga. L. 1990, p. 1134, § 1; Ga. L. 1991, p. 292, § 6; Ga. L. 2008, p. 1032, § 10/HB 1168.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1990, a subsection (a) designation was deleted from the beginning of the Code section since there is no subsection (b).

48-13-55. Facility operated by charitable trust or functionally related business; license fees; limitation on or applicability of tax levies.

  1. A charitable trust, or a functionally related business of a charitable trust, which regularly furnishes for value rooms, lodgings, or accommodations shall be subject to local licensure by, or required to pay a business or occupation tax to, a county or municipality only to the extent provided in this Code section.  Further, such a charitable trust, or such a functionally related business of a charitable trust, shall be subject to taxes levied under Code Section 48-13-51 only to the extent provided in this Code section.
  2. Any license fee of any type, whether a flat fee or based on gross receipts, charged by a county or municipality to a charitable trust, or to a functionally related business of a charitable trust or any affiliated activity, shall not exceed $200.00 per year.
  3. Any tax levied by a county or municipality under Code Section 48-13-51 shall apply to a charitable trust, or a functionally related business of a charitable trust, only if the levy and collection of the tax is approved in advance in writing by the Board of Natural Resources. The Board of Natural Resources may revoke its approval at will. Amounts collected and remitted under the authority of this Code section shall be expended solely for promoting, attracting, stimulating, and developing conventions and tourism. The expenditure of the funds shall only be made under a written agreement between the charitable trust or its functionally related business and the local government.  The agreement governing the expenditure of the funds must be approved in writing by the Board of Natural Resources before any taxes are collected and remitted and before any funds are spent.
  4. For purposes of this Code section, the term "charitable trust" means any trust or other entity covered by Article 9 or 10 of Chapter 12 of Title 53. For purposes of this Code section, the term "functionally related business" means a business entity, whether or not incorporated, which is owned by such a charitable trust and which constitutes a functionally related business within the meaning of Section 4942(j)(4) of the federal Internal Revenue Code.
  5. This Code section (rather than conflicting provisions in Code Section 48-13-51 ) shall govern the licenses and license fees of, and the levy, collection, and expenditure of the taxes authorized by this article as applied to, a charitable trust or a functionally related business of a charitable trust. (Code 1981, § 48-13-55 , enacted by Ga. L. 1990, p. 1134, § 1; Ga. L. 1991, p. 810, § 8; Ga. L. 2010, p. 579, § 17/SB 131.)

48-13-56. Annual report to Department of Community Affairs.

Each county or municipality imposing a tax as authorized by this article shall, as a condition of continuing authorization to impose the tax, annually file with the Department of Community Affairs a report specifying the rate of taxation and amounts collected and expended pursuant to this article. Such report shall include the schedules specified under subparagraph (b)(1)(B) of Code Section 36-81-8 and shall be filed in such form and at such times as may be specified by rule of the Department of Community Affairs.

(Code 1981, § 48-13-56 , enacted by Ga. L. 1990, p. 1134, § 1; Ga. L. 2004, p. 403, § 2.)

48-13-56.1. Hotel Motel Tax Performance Review Board; composition; appointments; investigations of complaints; expenses of members.

    1. There is created the Hotel Motel Tax Performance Review Board which shall consist of 11 members.
    2. The commissioner of community affairs shall appoint five persons to serve as members of the performance review board as follows:
      1. A designee of the commissioner;
      2. A representative of the private sector tourism industry who shall be an innkeeper;
      3. A representative of municipal government;
      4. A representative of county government; and
      5. A representative of a destination marketing organization.
    3. The Governor shall appoint one member of the board.
    4. The Speaker of the House of Representatives shall appoint one member of the board.
    5. The Lieutenant Governor shall appoint one member of the board.
    6. The state auditor shall appoint one member of the board.
    7. The commissioner of economic development shall appoint one member of the board.
    8. The state revenue commissioner shall appoint one member of the board.
    1. The member of the board who is appointed under subparagraph (a)(2)(A) of this Code section shall serve for a term of office of five years. Members of the board who are appointed under subparagraphs (a)(2)(B), (a)(2)(C), (a)(2)(D), and (a)(2)(E) of this Code section shall serve for terms of office of three years each. Members of the board who are appointed under paragraphs (3), (4), and (5) of subsection (a) of this Code section shall serve for terms of office of three years each. Members of the board who are appointed under paragraphs (6), (7), and (8) of subsection (a) of this Code section shall serve for terms of office of five years each. Members of the board shall serve for the terms of office specified in this subsection and until their respective successors are appointed and qualified. Members of the board may be reappointed to the board upon the expiration of their terms of office if they otherwise continue to meet the qualifications for such office.
    2. If a vacancy occurs in the membership of the board, the appropriate appointing entity shall appoint a successor for the remainder of the unexpired term and until a successor is appointed and qualified.
  3. It shall be the duty of the performance review board to make a thorough and complete investigation of any complaint with respect to all actions of a county, municipality, or any other entity regarding its expenditure of funds received from a tax under this article and such county's, municipality's, or other entity's compliance with state law and regulations. Complaints may be received from taxpayers, local governments, innkeepers, or private sector nonprofit organizations. All complaints shall be received by the department by June 1 in order to be heard the following year. The performance review board shall meet annually from September 1 through December 1. The department shall send a notice to all interested parties of the meeting place and time. The performance review board shall issue a written report of its findings which shall include such evaluations, judgments, and recommendations as it deems appropriate.
  4. The findings of the report of the review board under subsection (c) of this Code section shall be transmitted to the commissioner of community affairs within 60 calendar days of hearing the complaint. The commissioner of community affairs shall have 30 calendar days to review the findings of the performance review board. If the commissioner of community affairs determines that remedial action is necessary, the subject of the complaint shall be issued a notice by certified mail, return receipt requested, or statutory overnight delivery and shall be given a period of 90 calendar days to take the necessary remedial action with respect to such findings. In the event that such remedial action does not occur within the specified period, the commissioner of community affairs shall immediately notify the state revenue commissioner, and the state revenue commissioner shall be authorized to take appropriate action to enforce compliance with such remedial action, up to and including termination of the tax.
  5. The commissioner of community affairs shall promulgate such rules and regulations as may be necessary for the administration of this Code section.
  6. Each member of the board shall receive the same per diem expense allowance as that received by members of the General Assembly for each day a committee member is in attendance at a meeting of the committee, plus reimbursement for actual transportation costs incurred while traveling by public carrier or the mileage allowance authorized for certain state officials and employees for the use of a personal automobile in connection with such attendance.  Such allowance and reimbursement shall be paid in lieu of any other per diem, allowance, or remuneration and shall be paid from funds appropriated to the Department of Community Affairs. (Code 1981, § 48-13-56.1 , enacted by Ga. L. 2004, p. 403, § 3; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2005, p. 532, § 2/HB 505; Ga. L. 2008, p. 1032, § 11/HB 1168.)

Cross references. - Annual local government finances reports and local independent authority indebtedness reports, § 36-81-8 .

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2004, "economic development" was substituted for "industry, trade, and tourism" in paragraph (a)(7) and "state revenue commissioner" was substituted for "commissioner of revenue" in paragraph (a)(8).

48-13-57. Provisions applying to taxes.

The provisions of Code Section 48-2-41, relating to authority to waive interest on unpaid taxes; Code Section 48-2-43, relating to authority to waive penalties; and Code Section 48-2-49, relating to periods of limitation for assessment of taxes imposed by this title, shall apply to taxes imposed by any local governing authority pursuant to this article, provided that the local governing authority shall stand in lieu of the commissioner, and the county or municipality shall stand in lieu of the state for purposes of this Code section.

(Code 1981, § 48-13-57 , enacted by Ga. L. 2000, p. 1325, § 4.)

48-13-58. Penalties added to tax for failure to pay.

  1. When any innkeeper fails to make any return or to pay the full amount of the tax required by this article, there shall be imposed, in addition to other penalties provided by law, a penalty to be added to the tax in the amount of 5 percent or $5.00, whichever is greater, if the failure is for not more than 30 days and an additional 5 percent or $5.00, whichever is greater, for each additional 30 days or fraction of 30 days during which the failure continues. The penalty for any single violation shall not exceed 25 percent or $25.00 in the aggregate, whichever is greater. If the failure is due to providential cause shown to the satisfaction of the governing authority imposing a tax under this article in affidavit form attached to the return and remittance is made within ten days of due date, the return may be accepted exclusive of penalties and interest. In the case of a false or fraudulent return or of a failure to file a return where willful intent exists to defraud the governing authority of any tax due under this article, a penalty of 50 percent of the tax due shall be assessed.
  2. All civil penalties and interest added to any tax imposed under this article and collected by a county or municipality shall be included as revenue derived from such tax for purposes of the expenditure requirements imposed on such county or municipality as provided by this article. (Code 1981, § 48-13-58 , enacted by Ga. L. 2000, p. 1325, § 4.)

JUDICIAL DECISIONS

Determination as to whether tax applied to online travel had to be determined first. - Trial court erred by dismissing a city's declaratory judgment action against several online travel companies for lack of subject matter jurisdiction, and the appellate court erred by affirming the dismissal as the issue of whether the city's ordinance allowing the city to collect a hotel occupancy tax from the online travel companies was a contested issue in the matter that neither lower court had determined. The legal question of whether the ordinance even applied to the online travel companies had to be determined before the city was required to submit to the administrative process set forth within the ordinance and the enabling statutes, O.C.G.A. § 48-13-50 et seq. City of Atlanta v. Hotels.com, L.P., 285 Ga. 231 , 674 S.E.2d 898 (2009).

48-13-58.1. Criminal penalties for failure to make return or pay taxes.

  1. It shall be unlawful for any innkeeper to fail to make a return and pay the taxes due under this article to any applicable governing authority imposing a tax under this article.
    1. If the tax liability is $10,000.00 or less, any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.
    2. If the tax liability is more than $10,000.00, any person who violates subsection (a) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years. (Code 1981, § 48-13-58.1 , enacted by Ga. L. 2002, p. 523, § 1.)

Editor's notes. - Ga. L. 2002, p. 523, § 2, not codified by the General Assembly, provides that this Code section is applicable with respect to offenses committed on or after July 1, 2002. Prior law shall continue to apply with respect to any offense committed prior to July 1, 2002.

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting not required. - Offense resulting from a violation of O.C.G.A. § 48-13-58.1(b)(1) does not require fingerprinting. 2002 Op. Att'y Gen. No. 2002-7.

48-13-59. Failure to collect taxes; punishment.

  1. It shall be unlawful for any innkeeper to fail, neglect, or refuse to collect the tax provided in this article, either by himself or herself or through his or her agents or employees.
  2. In addition to the penalty of being liable for and paying the tax himself or herself, any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $100.00 or imprisonment in the county jail for not more than three months, or both. (Code 1981, § 48-13-59 , enacted by Ga. L. 2000, p. 1325, § 4.)

JUDICIAL DECISIONS

Determination as to whether tax applied to online travel company had to be determined first. - Trial court erred by dismissing a city's declaratory judgment action against several online travel companies for lack of subject matter jurisdiction, and the appellate court erred by affirming the dismissal as the issue of whether the city's ordinance allowing the city to collect a hotel occupancy tax from the online travel companies was a contested issue in the matter that neither lower court had determined. The legal question of whether the ordinance even applied to the online travel companies had to be determined before the city was required to submit to the administrative process set forth within the ordinance and the enabling statutes, O.C.G.A. § 48-13-50 et seq. City of Atlanta v. Hotels.com, L.P., 285 Ga. 231 , 674 S.E.2d 898 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required. - Violation of O.C.G.A. § 48-13-59 is not an offense designated as one that requires fingerprinting. 2000 Op. Att'y Gen. No. 2000-11.

RESEARCH REFERENCES

ALR. - Obligation of online travel companies to collect and remit hotel occupancy taxes, 61 A.L.R. 6 th 387.

48-13-60. Unlawful returns; punishment.

  1. It shall be unlawful for any innkeeper required by this article to make, render, sign, or verify any return to make a false or fraudulent return with intent to evade the tax levied by this article.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100.00 nor more than $300.00 or confinement in the county jail for not less than 30 days nor more than three months, or both fine and confinement. (Code 1981, § 48-13-60 , enacted by Ga. L. 2000, p. 1325, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders required. - Violation of O.C.G.A. § 48-13-60 is an offense designated as one that requires fingerprinting. 2000 Op. Att'y Gen. No. 2000-11.

48-13-61. Failure to furnish return; punishment.

  1. It shall be unlawful for any innkeeper subject to this article to fail or refuse to furnish any return required to be made by this article or to fail or refuse to furnish a supplemental return or other data required by the governing authority imposing a tax under this article.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor. (Code 1981, § 48-13-61 , enacted by Ga. L. 2000, p. 1325, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required. - Violation of O.C.G.A. § 48-13-61 is not an offense designated as one that requires fingerprinting. 2000 Op. Att'y Gen. No. 2000-11.

48-13-62. Failure to keep and open records; punishment.

  1. It shall be unlawful for any innkeeper subject to this article to fail to keep records or to fail to open the records to inspection as required by law.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor. (Code 1981, § 48-13-62 , enacted by Ga. L. 2000, p. 1325, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required. - Violation of O.C.G.A. § 48-13-62 is not an offense designated as one that requires fingerprinting. 2000 Op. Att'y Gen. No. 2000-11.

48-13-63. Other violations; punishment.

  1. It shall be unlawful for any innkeeper to violate any other provision of this article for which punishment is not otherwise provided.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor. (Code 1981, § 48-13-63 , enacted by Ga. L. 2000, p. 1325, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting of offenders not required. - Violation of O.C.G.A. § 48-13-63 is not an offense designated as one that requires fingerprinting. 2000 Op. Att'y Gen. No. 2000-11.

ARTICLE 4 CORPORATE NET WORTH TAX

Law reviews. - For article, "Primary Tax Incentives for Industrial Investment in the Southeastern United States," see 25 Emory L.J. 789 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, Ch. 92-24, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article.

For example of cooperative marketing corporation which is exempt from franchise and license taxes, except for $10.00 annual license tax, see 1962 Op. Att'y Gen. p. 512 (decided under former Code 1933, § 92-24).

RESEARCH REFERENCES

ALR. - Doctrine of unity of use for purposes of taxation as applied to manufacturing or industrial concerns, 27 A.L.R. 906 .

Tax on corporations as affected by fact that corporation is not actually engaged in or carrying on business for which it was incorporated, 124 A.L.R. 1109 .

Liability of corporation which has previously paid franchise fee or tax on authorized or issued stock, for additional fee or tax on later increase after intermediate reduction, 16 A.L.R.2d 1090.

48-13-70. Definition.

As used in this article, the term "corporation" includes, but is not limited to, associations, professional associations organized pursuant to Chapter 10 of Title 14, and insurance companies.

(Ga. L. 1931, Ex. Sess., p. 24, § 2; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3002; Ga. L. 1962, p. 454, § 1; Code 1933, § 91A-6301, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For article, "Post-Creation Checklist for Georgia Business Entities," see 9 Ga. St. B. J. 24 (2004).

RESEARCH REFERENCES

ALR. - Meaning of association or joint stock company within statutes taxing associations or joint stock companies as corporations ("Massachusetts" or business trusts), 108 A.L.R. 340 ; 144 A.L.R. 1050 ; 166 A.L.R. 1461 .

48-13-71. Organizations and companies exempt from corporate net worth tax.

The following are exempt from the payment of the tax imposed by this article:

  1. Those organizations not organized for pecuniary gain or profit;
  2. Insurance companies which are separately taxed; and
  3. Those corporations having a net worth, including capital stock, paid-in surplus, and earned surplus, of no more than $100,000.00.

    (Code 1933, § 92-2406, enacted by Ga. L. 1975, p. 147, § 1; Code 1933, § 92-2406.1, enacted by Ga. L. 1975, p. 147, § 2; Ga. L. 1976, p. 405, §§ 7, 8; Code 1933, § 92-2405, enacted by Ga. L. 1976, p. 1580, § 5; Code 1933, § 91A-6303, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1350, § 13; Ga. L. 2017, p. 637, § 2-1/SB 133.)

The 2017 amendment, effective January 1, 2018, deleted "and" at the end of paragraph (1), substituted "; and" for the period at the end of paragraph (2), and added paragraph (3). See Editor's notes for applicability.

Editor's notes. - Ga. L. 1983, p. 1350, § 15, effective January 1, 1984, provides that, should subsection (e) of § 48-6-93 or paragraph (b)(11) of § 48-7-21 be declared invalid or unconstitutional, it is the intent of the General Assembly that the entire Act be held invalid and that the method of taxation affected by the Act revert to the method in effect prior to January 1, 1984.

Ga. L. 2017, p. 637, § 3-1(b)/SB 133, not codified by the General Assembly, provides, in part, that this Act shall be applicable to all taxable years beginning on or after January 1, 2018.

Law reviews. - For article, "Why Captives, Lord, What Have They Ever Done?: The Georgia Captive Insurance Company Act," see 26 Ga. St. B. J. 119 (1990).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1952, p. 371, § 1, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Taxation of association all of whose shareholders are exempt, nonprofit organizations. - Association engaged in the business of owning and operating a building which the association maintains, operates, keeps in repair, and rents to tenants and the income from which the association distributes among the association's shareholders, all of which are labor unions which are nontaxable and nonprofit organizations, which under the association's charter had as the association's objects pecuniary gain to the stockholders advancement of their social, ethical, and economical well-being and interests and promotion of the cause of organized labor was not entitled to the exemption under the former version of this section as a corporation not organized for pecuniary gain or profit. Atlanta Labor Temple Ass'n v. Williams, 98 Ga. App. 179 , 105 S.E.2d 406 (1958) (decided under former Ga. L. 1952, p. 371, § 1).

Organization of a corporation for nonprofit purposes is controlling in determining liability. - Purpose for which a corporation was organized, and not the question of whether it does in fact make a profit, or seek to make a profit, must control in a determination of tax liability. Atlanta Labor Temple Ass'n v. Williams, 98 Ga. App. 179 , 105 S.E.2d 406 (1958) (decided under former Ga. L. 1952, p. 371, § 1).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Ga. L. 1952, p. 371, § 1, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Foreign corporation organized under the laws of another state, territory, or nation, not for pecuniary gain or profit, is exempt. 1952-53 Op. Att'y Gen. p. 183 (decided under former Ga. L. 1952, p. 371, § 1).

Credit bureau incorporated under the laws of this state for the purpose of collecting accounts for the bureau's members is not exempt as a corporation not organized for pecuniary gain or profit. 1952-53 Op. Att'y Gen. p. 433 (decided under former Ga. L. 1952, p. 371, § 1).

State and federal credit unions are exempt under present laws from the corporate net worth tax. 1965-66 Op. Att'y Gen. No. 66-92 (decided under former Ga. L. 1952, p. 371, § 1).

Taxation of holding companies. - Though state banks and trust companies are exempt from corporation occupation tax, holding company holding and owning real property used by bank and trust company is not exempt. 1962 Op. Att'y Gen. p. 493 (decided under former Ga. L. 1952, p. 371, § 1).

No refund on liquidation or merger. - Corporation that liquidates or merges with another corporation during a taxable year is not entitled to a refund of a pro rata part of the corporate net worth tax. 1969 Op. Att'y Gen. No. 69-481 (decided under former Ga. L. 1952, p. 371, § 1).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 244 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 180 et seq., 200 et seq., 325 et seq.

ALR. - Applicability of state license tax law to property or business of individual on land owned by federal government, 46 A.L.R. 224 .

Discrimination in state taxation of national banks or national bank shares, 59 A.L.R. 10 ; 81 A.L.R. 502 ; 87 A.L.R. 846 .

Exemption of charitable organization from taxation or special assessment, 108 A.L.R. 284 .

Hospital as within tax exemption provision not specifically naming hospitals, 144 A.L.R. 1483 .

48-13-72. Imposition of annual corporate net worth tax on all corporations doing business or owning property in state.

In addition to all other taxes imposed by law, there is imposed an annual corporate net worth tax on all corporations incorporated under the laws of this state, all domesticated foreign corporations, and all corporations incorporated or organized under the laws of any other state, territory, or nation doing business or owning property in this state for the privilege of carrying on a business within this state in the corporate form, except as otherwise provided in Code Section 48-13-71.

(Ga. L. 1929, p. 84, § 1; Ga. L. 1931, Ex. Sess., p. 76, § 1; Code 1933, § 92-2401; Ga. L. 1935, p. 11, § 2; Ga. L. 1941, p. 204, § 1; Ga. L. 1951, p. 157, § 5a; Ga. L. 1952, p. 371, § 1; Code 1933, § 92-2401, enacted by Ga. L. 1976, p. 1580, § 1; Code 1933, § 91A-6302, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 107; Ga. L. 2017, p. 637, § 2-2/SB 133.)

The 2017 amendment, effective January 1, 2018, added ", except as otherwise provided in Code Section 48-13-71" at the end of this Code section. See Editor's notes for applicability.

Editor's notes. - Ga. L. 2017, p. 637, § 3-1(b)/SB 133, not codified by the General Assembly, provides, in part, that this Act shall be applicable to all taxable years beginning on or after January 1, 2018.

Law reviews. - For article, "Foreign Corporations in Georgia," see 10 Ga. St. B. J. 243 (1973).

JUDICIAL DECISIONS

"Doing business" standard comports with due process. - Phrase "doing business" in former Code 1933, §§ 92-2401 and 92-3113 (see now O.C.G.A. §§ 48-7-31 and 48-13-72 et seq.), which means any activity or transactions for the purpose of financial profit or gain, does not violate the due process requirement of either U.S. Const., amend. 14 or Ga. Const. 1976, Art. I, Sec. I, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Chattanooga Glass Co. v. Strickland, 244 Ga. 603 , 261 S.E.2d 599 (1979).

"Doing business" means any activity or transaction for the purpose of financial profit or gain. Chattanooga Glass Co. v. Strickland, 244 Ga. 603 , 261 S.E.2d 599 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Tax imposed by this section is not a tax on doing business but is an annual tax on the privilege of being incorporated. 1957 Op. Att'y Gen. p. 282.

Liability for the tax first attaches on the date of incorporation. - Fact that a corporation does nothing further is not material, and should not be, since the mere preemption of a corporate name is a benefit flowing from incorporation even when nothing further is done. Moreover, since the statute provides a minimum tax of $10.00 the fact that no capitalization takes place and no money is paid into the corporation is also ineffective to deny liability for the $10.00 minimum tax. 1957 Op. Att'y Gen. p. 282.

Georgia corporation is taxable, even though the corporation is not doing business. 1954-56 Op. Att'y Gen. p. 703.

Doing business and owning of property in state not required for taxation. - Corporation organized under Georgia law is liable for the corporate net worth tax even though the corporation is doing no business in this state and owns no property herein. Such a corporation would be subject to the tax based on the corporation's entire net worth. 1967 Op. Att'y Gen. No. 67-199.

No refund upon liquidation or merger. - Corporation that liquidates or merges with another corporation during a taxable year is not entitled to a refund of a pro rata part of the annual corporate net worth tax. 1969 Op. Att'y Gen. No. 69-481.

Taxation of holding companies. - Though state banks and trust companies are exempt from corporation net worth tax, a holding company holding and owning real property used by a bank and trust company is not exempt. 1962 Op. Att'y Gen. p. 493.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 152 et seq.

C.J.S. - 84 C.J.S., Taxation, § 163 et seq.

ALR. - Stock contemplated by statute imposing tax upon, or measuring it by, capital stock, 89 A.L.R. 858 ; 153 A.L.R. 693 .

48-13-73. Amount of corporate net worth tax; amount for taxable period less than six months.

  1. The tax imposed by this article shall be based upon corporate net worth according to the following table:
  2. With respect to any corporation coming into existence or becoming subject to the tax for the first time for an initial taxable period of less than six months, the tax imposed for such period shall be 50 percent of the tax imposed by this article for an entire year.

    (Ga. L. 1929, p. 84, § 1; Ga. L. 1931, Ex. Sess. p. 76, § 1; Code 1933, §§ 92-2401, 92-2403; Ga. L. 1935, p. 11, § 2; Ga. L. 1941, p. 204, § 1; Ga. L. 1951, p. 157, § 5a; Ga. L. 1952, p. 371, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 290, § 6; Ga. L. 1953, Jan.-Feb. Sess., p. 295, § 1; Code 1933, § 92-2401, enacted by Ga. L. 1976, p. 1580, § 1; Code 1933, § 91A-6304, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 108; Ga. L. 2017, p. 637, § 2-3/SB 133.)

Corporations with Net Worth Amount Including Issued Capital Stock, of Tax Paid-in Surplus, and Earned Surplus ----------------------------------- ------ Over $100,000.00 and not exceeding $150,000.00 $ 125.00 Over $150,000.00 and not exceeding $200,000.00 150.00 Over $200,000.00 and not exceeding $300,000.00 200.00 Over $300,000.00 and not exceeding $500,000.00 250.00 Over $500,000.00 and not exceeding $750,000.00 300.00 Over $750,000.00 and not exceeding $1,000,000.00 500.00 Over $1,000,000.00 and not exceeding $2,000,000.00 750.00 Over $2,000,000.00 and not exceeding $4,000,000.00 1,000.00 Over $4,000,000.00 and not exceeding $6,000,000.00 1,250.00 Over $6,000,000.00 and not exceeding $8,000,000.00 1,500.00 Over $8,000,000.00 and not exceeding $10,000,000.00 1,750.00 Over $10,000,000.00 and not exceeding $12,000,000.00 2,000.00 Over $12,000,000.00 and not exceeding $14,000,000.00 2,500.00 Over $14,000,000.00 and not exceeding $16,000,000.00 3,000.00 Over $16,000,000.00 and not exceeding $18,000,000.00 3,500.00 Over $18,000,000.00 and not exceeding $20,000,000.00 4,000.00 Over $20,000,000.00 and not exceeding $22,000,000.00 4,500.00 Over $22,000,000.00 5,000.00

The 2017 amendment, effective January 1, 2018, deleted "Not exceeding $10,000.00….$10.00; Over $10,000.00 and not exceeding $25,000.00….20.00; Over $25,000.00 and not exceeding $40,000.00….40.00; Over $40,000.00 and not exceeding $60,000.00….60.00; Over $60,000.00 and not exceeding $80,000.00….75.00; Over $80,000.00 and not exceeding $100,000.00….100.00" from the table in subsection (a).

Editor's notes. - Ga. L. 2017, p. 637, § 3-1(b)/SB 133, not codified by the General Assembly, provides, in part, that this Act shall be applicable to all taxable years beginning on or after January 1, 2018.

OPINIONS OF THE ATTORNEY GENERAL

Corporation must pay a minimum tax of $10.00, even though the corporation has a negative net worth. 1954-56 Op. Att'y Gen. p. 706.

No refund on liquidation or merger. - Corporation that liquidates or merges with another corporation during a taxable year is not entitled to a refund of a pro rata part of the annual corporate license or occupation tax. 1969 Op. Att'y Gen. No. 69-481.

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, §§ 155 et seq., 170 et seq.

48-13-74. Determination of net worth of corporation; determination by commissioner absent disclosure of true net worth on corporation's books or return.

For the purpose of ascertaining the corporate net worth tax imposed by this article, the net worth of the corporation shall be presumed to be the net worth as disclosed on the corporation's books and as reflected on the return required to be filed annually by the corporation. In the event the commissioner ascertains that the books of any corporation reporting under this article or the return filed for any corporation reporting under this article, as provided in Code Section 48-13-77, does not disclose the true net worth of the corporation, the net worth of the corporation shall have the value fixed by the commissioner from any information obtained by the commissioner from any source.

(Ga. L. 1929, p. 84, § 1; Ga. L. 1931, Ex. Sess., p. 76, § 1; Code 1933, § 92-2401; Ga. L. 1935, p. 11, § 2; Ga. L. 1951, p. 157, § 5a; Ga. L. 1952, p. 371, § 1; Code 1933, § 92-2401, enacted by Ga. L. 1976, p. 1580, § 1; Code 1933, § 91A-6305, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For article discussing recordation of unrealized appreciation and the assessment of corporate franchise tax, see 25 Ga. B. J. 152 (1962).

JUDICIAL DECISIONS

Term "net worth" is the difference between assets and liabilities. Oxford v. Macon Tel. Publishing Co., 104 Ga. App. 788 , 123 S.E.2d 277 (1961).

"Net worth" and "true net worth" not limited to issued capital stock, paid-in surplus, and earned surplus. - Measure of this tax shall be the true net worth of the corporation and the particular expression "including issued capital stock, paid-in surplus and earned surplus" following the words "net worth" in no way limits the meaning of the term "net worth" or "true net worth" as found in other parts of former Code 1933, Ch. 92-24. Oxford v. Macon Tel. Publishing Co., 104 Ga. App. 788 , 123 S.E.2d 277 (1961).

Increase in valuation, known as "revaluation surplus," is part of the net assets or net worth of a corporation, and is included in the true net worth of the corporation as part of the measure of the corporate franchise tax imposed by this section when such "revaluation surplus" is included in the regular balance sheets of the corporation. Oxford v. Macon Tel. Publishing Co., 104 Ga. App. 788 , 123 S.E.2d 277 (1961).

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 610 et seq.

ALR. - Transactions between affiliated corporations as basis of "bad debt" deduction in computing income tax or corporate franchise tax, 128 A.L.R. 1251 .

Inclusion of investments in stock of other corporations in fixing base for taxation of corporation, 11 A.L.R.2d 323.

48-13-75. Apportionment of net worth of foreign corporation; formula; determination of receipts derived from business in state; fixing value of capital stock; alternate method.

  1. For the purpose of ascertaining the corporate net worth tax imposed on a foreign corporation subject to the tax, the corporation shall be deemed to have employed in this state that proportion of its entire outstanding issued capital stock and surplus which its assets in this state and the gross receipts of business done in this state bear to all of its assets and the total gross receipts of business done by the corporation. Receipts shall be deemed to have been derived from business done within this state only if received from products shipped to customers in this state or delivered within this state to customers. In determining gross receipts within this state, receipts from sales negotiated or effected through offices of the taxpayer outside the state and delivered from storage from within the state to customers outside the state shall be excluded. Capital stock having no nominal or par value shall be deemed to have the value fixed for the stock by the commissioner from the information contained in the return to be filed by the corporation as provided in Code Section 48-13-77 and from any other information available to the commissioner.
  2. The commissioner may provide by regulation for an alternate method for apportionment of the net worth of a foreign corporation to this state when the formula set forth in subsection (a) of this Code section does not accurately reflect the volume of business done in this state in relation to the total volume of business done by the foreign corporation.

    (Ga. L. 1929, p. 84, § 1; Ga. L. 1931, Ex. Sess., p. 76, § 1; Code 1933, § 92-2401; Ga. L. 1935, p. 11, § 2; Ga. L. 1951, p. 157, § 5a; Ga. L. 1952, p. 371, § 1; Code 1933, § 92-2401, enacted by Ga. L. 1976, p. 1580, § 1; Code 1933, § 91A-6306, enacted by Ga. L. 1978, p. 309, § 2.)

Law reviews. - For article discussing taxation of foreign businesses in Georgia, see 27 Mercer L. Rev. 629 (1976). For article, "Foreign Corporations in Georgia," see 10 Ga. St. B. J. 243 (1973).

RESEARCH REFERENCES

Am. Jur. 2d. - 71 Am. Jur. 2d, State and Local Taxation, § 175 et seq.

C.J.S. - 84 C.J.S., Taxation, §§ 213 et seq., 610 et seq.

ALR. - Stock in another corporation owned by foreign corporation as included in the property which measures the privilege tax payable by latter, 49 A.L.R. 1296 .

Constitutionality of excise or franchise tax on foreign corporation as affected by inclusion or exclusion of intangible measuring or computing tax, 131 A.L.R. 940 .

What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap 31), 93 A.L.R.2d 1120.

48-13-76. Corporate net worth tax due on first day of tax period; determination of annual tax period; determination of first tax period.

  1. The corporate net worth tax imposed shall be due on the first day of the tax period. The annual tax period shall be the same as the annual tax period adopted by the corporation for state income tax purposes as provided by law. If a corporation does not return income taxes to this state, the tax period shall begin on January 1 and end on December 31 of each calendar year.
  2. The first tax period of a corporation coming into existence or otherwise becoming subject to the tax for the first time shall begin on the date of incorporation or of first becoming subject to the tax and shall end on the day immediately preceding the beginning of the regular annual tax period provided in subsection (a) of this Code section.

    (Ga. L. 1929, p. 84, § 1; Ga. L. 1931, Ex. Sess., p. 76, § 1; Code 1933, § 92-2401; Ga. L. 1935, p. 11, § 2; Ga. L. 1951, p. 157, § 5a; Ga. L. 1952, p. 371, § 1; Ga. L. 1957, p. 107, § 1; Ga. L. 1965, p. 344, § 1; Ga. L. 1976, p. 1580, § 1; Code 1933, § 91A-6307, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 109.)

48-13-77. Corporate net worth tax return and payment; procedure; combining net worth tax return with state income tax return.

Each corporation other than Georgia Subchapter "S" corporations subject to the tax imposed by this article shall file a return and pay the tax due on the fifteenth day of the fourth calendar month following the beginning of its tax period. Each Georgia Subchapter "S" corporation subject to the tax imposed by this article shall file a return and pay the tax due on the fifteenth day of the third calendar month following the beginning of its tax period. The commissioner may authorize combining the return required by this Code section with the state income tax return required by law. The return shall be signed and sworn to by an officer of the corporation and shall be forwarded to the commissioner.

(Code 1933, § 92-2402, enacted by Ga. L. 1976, p. 1580, § 2; Code 1933, § 91A-6308, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1118, § 1; Ga. L. 2016, p. 1, § 6/HB 742.)

The 2016 amendment, effective February 23, 2016, in the first sentence, inserted "other than Georgia Subchapter 'S' corporations", and substituted "fourth" for "third"; and added the second sentence in this Code section. See Editor's notes for applicability.

Editor's notes. - Ga. L. 1989, p. 1118, § 3, not codified by the General Assembly, provides that the amendments to this Code section by that Act shall apply to tax years beginning on and after January 1, 1989.

Ga. L. 2016, p. 1, § 8/HB 742, not codified by the General Assembly, provides, in part, that Sections 2, 3, 6, and 7 of this Act shall be applicable to all taxable years beginning on or after January 1, 2016.

RESEARCH REFERENCES

C.J.S. - 84 C.J.S., Taxation, § 689 et seq.

48-13-78. Period for payment of tax; effect.

For corporations other than Georgia Subchapter "S" corporations, the tax imposed by this article shall be paid to the commissioner on or before the fifteenth day of the fourth calendar month beginning with the first calendar month of the tax period. For Georgia Subchapter "S" corporations, the tax imposed by this article shall be paid to the commissioner on or before the fifteenth day of the third calendar month beginning with the first calendar month of the tax period. Except as otherwise provided by law, the payment of the tax shall authorize the corporation to exercise the privilege provided in Code Section 48-13-72 in any county of this state. The payment of this tax shall not be construed to relieve a corporation or its agents of any other license or occupation tax.

(Ga. L. 1927, p. 56, § 6; Ga. L. 1929, p. 84, § 2; Ga. L. 1931, Ex. Sess., p. 76, § 1; Code 1933, § 92-2404; Ga. L. 1935, p. 11, § 2; Ga. L. 1953, Jan.-Feb. Sess., p. 285, § 1; Ga. L. 1971, p. 662, §§ 1, 2; Ga. L. 1972, p. 491, § 1; Code 1933, § 92-2403, enacted by Ga. L. 1976, p. 1580, § 3; Code 1933, § 91A-6309, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1989, p. 1118, § 2; Ga. L. 2016, p. 1, § 7/HB 742.)

The 2016 amendment, effective February 23, 2016, in the first sentence, substituted "For corporations other than Georgia Subchapter 'S' corporations, the", for "The" at the beginning, and substituted "fourth calendar month" for "third calendar month" near the middle; and added the second sentence in this Code section. See Editor's notes for applicability.

Editor's notes. - Ga. L. 1989, p. 1118, § 3, not codified by the General Assembly, provides that the amendments to this Code section by the Act shall apply to tax years beginning on and after January 1, 1989.

Ga. L. 2016, p. 1, § 8/HB 742, not codified by the General Assembly, provides, in part, that Sections 2, 3, 6, and 7 of this Act shall be applicable to all taxable years beginning on or after January 1, 2016.

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1125 et seq.

48-13-79. Penalties; failure to file timely; extensions; failure to pay timely; interest.

  1. Each corporation subject to this article which fails to file timely the returns required by this article shall become liable for a penalty of 10 percent of the tax. The penalty shall be collected in the same manner as the tax is collected. The commissioner shall have the authority to extend the time for filing the return when good cause for the extension is shown.
  2. Should the tax imposed by this article remain unpaid after the date prescribed for payment, the delinquent corporation liable for the tax shall be subject to and shall pay, in addition to other penalties incurred, a penalty of 10 percent of the tax for failure to pay the tax when due.
  3. Any tax imposed by this article which remains unpaid after the date prescribed for payment shall bear interest at the rate specified in Code Section 48-2-40 until paid. The interest shall be in addition to all other penalties prescribed by law and shall be collected in the same manner as the tax imposed by this article.

    (Ga. L. 1935, p. 11, § 2; Ga. L. 1953, Jan.-Feb. Sess., p. 290, §§ 3, 4; Ga. L. 1947, p. 107, §§ 3, 4; Code 1933, § 92-2404, enacted by Ga. L. 1976, p. 1580, § 4; Code 1933, § 91A-6310, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 41.)

RESEARCH REFERENCES

C.J.S. - 85 C.J.S., Taxation, § 1851 et seq.

ARTICLE 5 EXCISE TAXES ON RENTAL MOTOR VEHICLES

48-13-90. Legislative purpose and intent.

It is declared to be the purpose and intent of the General Assembly that:

  1. Each county and municipality in this state shall be authorized to levy certain excise taxes as provided in this article; and
  2. Funds derived from such tax shall be made available for the purpose of promoting industry, trade, commerce, and tourism; for the provision of convention, trade, sports, and recreational facilities; and for public safety purposes. (Code 1981, § 48-13-90 , enacted by Ga. L. 1996, p. 1639, § 1.)

48-13-91. Definitions.

As used in this article, the term:

  1. "Rental charge" means the total value received by a rental motor vehicle concern for the rental or lease for 31 or fewer consecutive days of a rental motor vehicle, including the total cash and nonmonetary consideration for the rental or lease including, but not limited to, charges based on time or mileage and charges for insurance coverage or collision damage waiver but excluding all charges for motor fuel taxes or sales taxes.
  2. "Rental motor vehicle" means a motor vehicle designed to carry ten or fewer passengers and used primarily for the transportation of persons that is rented or leased without a driver regardless of whether such vehicle is licensed in this state.
  3. "Rental motor vehicle concern" means a person or legal entity which owns or leases five or more rental motor vehicles and which regularly rents or leases such vehicles to the public for value. (Code 1981, § 48-13-91 , enacted by Ga. L. 1996, p. 1639, § 1.)

48-13-92. Special districts.

Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, there are created within this state 159 special districts. One such district shall exist within the geographical boundaries of each county, and the territory of each district shall include all of the territory within the county except territory located within the boundaries of any municipality that imposes an excise tax on charges to the public for the rental or lease of rental motor vehicles under this article.

(Code 1981, § 48-13-92 , enacted by Ga. L. 1996, p. 1639, § 1.)

48-13-93. Levy and collection of excise taxes upon motor vehicle rental charges; expenditure of taxes; purpose.

    1. The governing authority of each municipality in this state may levy and collect an excise tax upon the rental charge collected by a rental motor vehicle concern when such charge constitutes a taxable event for purposes of sales and use tax under Article 1 of Chapter 8 of this title. Within the territorial limits of the special district located within the county, each county in this state may levy and collect an excise tax upon the rental charge collected by a rental motor vehicle concern when such charge constitutes a taxable event for purposes of sales and use tax under Article 1 of Chapter 8 of this title. The tax levied pursuant to this article shall be levied or collected at the rate of 3 percent of the rental charges. The tax levied pursuant to this article shall be imposed only at the time when and place where a customer pays sales tax with respect to the rental charge. The customer who pays a rental charge that is subject to a tax levied as provided in this article shall be liable for the tax. The tax shall be paid by the customer to the rental motor vehicle concern. The tax shall be a debt of the customer to the rental motor vehicle concern until it is paid and shall be recoverable at law in the same manner as authorized for the recovery of other debts. The rental motor vehicle concern collecting the tax shall remit the tax to the governing authority imposing the tax, and the tax remitted shall be a credit against the tax imposed on the rental motor vehicle concern. Every rental motor vehicle concern subject to a tax levied as provided in this article shall be liable for the tax at the applicable rate on the charges actually collected or the amount of taxes collected from the customers whichever is greater.
    2. A county or municipality levying an excise tax as provided in paragraph (1) of this subsection shall only levy such tax by ordinance which shall specify with particularity the authorized projects or purposes, or both, for which proceeds of the tax are to be expended and shall apply in each fiscal year during which the tax is collected such tax proceeds for the purpose of:
      1. Promoting industry, trade, commerce, and tourism;
      2. Capital outlay projects consisting of the construction of convention, trade, sports, and recreational facilities, or public safety facilities, including the acquiring, constructing, renovating, improving, and equipping of parking facilities, pedestrian walkways, plazas, connections, and other public improvements associated with such convention, trade, sports, and recreational facilities or public safety facilities or the retirement of debt issued with respect to such capital outlay projects; and
      3. Maintenance and operation expenses or security and public safety expenses associated with capital outlay projects funded pursuant to subparagraph (B) of this paragraph.
    3. Amounts collected pursuant to this article may be expended pursuant to a contract or contracts with a county, municipality, development authority, downtown development authority, urban redevelopment authority, recreation authority, or any combination of two or more of such entities. Nothing in this article shall be construed to limit the formation of intergovernmental contracts pursuant to the authority granted by Article IX, Section III, Paragraph I of the Constitution of this state to accomplish the purposes described in paragraph (2) of this subsection including the construction and maintenance of facilities located outside the special district within which the excise tax is levied and collected and which benefit the special district.
    4. Any tax levied pursuant to this article shall terminate not later than December 31, 2047. Following the termination of the tax, any county or municipality which has levied a tax pursuant to this article shall not thereafter be again authorized to levy a tax under this article.
    5. No tax shall be imposed under this article on the rental charge associated with the rental or lease of a rental motor vehicle if either:
      1. The customer picks up the rental motor vehicle outside this state and returns it in this state; or
      2. The customer picks up the rental motor vehicle in this state and returns it outside this state.
    6. Nothing in this Code section shall be construed to impair, or authorize or require the impairment of, any existing contract or contractual rights.
    7. Any action by a local governing authority to impose the tax authorized under this Code section shall become effective no sooner than the first day of the month following the month of its adoption by the local governing authority.
  2. No tax under this article may be levied or collected by a county outside the territorial limits of the special district located within the county. (Code 1981, § 48-13-93 , enacted by Ga. L. 1996, p. 1639, § 1; Ga. L. 2016, p. 772, § 2/HB 937.)

The 2016 amendment, effective July 1, 2016, substituted "December 31, 2047" for "December 31, 2038" in paragraph (a)(4).

48-13-94. Reimbursement for persons collecting tax.

Each person collecting the tax authorized by this article shall be allowed a percentage of the tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if the amount due is not delinquent at the time of payment. The rate of deduction shall be 3 percent of the amount due but only if the amount due was not delinquent at the time of payment.

(Code 1981, § 48-13-94 , enacted by Ga. L. 1996, p. 1639, § 1.)

48-13-95. Local powers and procedures.

The manner of imposition, payment, and collection of the tax and all other procedures related to the tax shall be as provided by each county and municipality electing to exercise the powers conferred by this article.

(Code 1981, § 48-13-95 , enacted by Ga. L. 1996, p. 1639, § 1.)

48-13-96. Auditor's report.

As a part of the audit report required under Code Section 36-81-7, the auditor shall include, in a separate schedule, a report of the revenues and expenditures pertaining to the tax under this article.

(Code 1981, § 48-13-96 , enacted by Ga. L. 1996, p. 1639, § 1.)

48-13-97. Cash and credit rental charges to be reported on either cash or accrual basis of accounting.

  1. Any person collecting the tax under this article having both cash and credit rental charges may report the rental charges on either the cash or accrual basis of accounting. Each election of a basis of accounting shall be made on the first return filed on or after July 1, 1998, and, once made, the election shall be irrevocable unless the commissioner grants written permission for a change. Permission for a change in the basis of accounting shall be granted only upon written application and under rules and regulations promulgated by the commissioner.
  2. Any person reporting on a cash basis of accounting shall include in each return all cash rental charges made during the period covered by the return and all collections made in any period on credit rental charges of prior periods and shall pay the tax on the rental charges at the time of filing the return.
  3. Any person reporting on the accrual basis of accounting shall be allowed a deduction for bad debts under rules and regulations of the commissioner on the same basis that bad debts are allowed as a deduction on state income tax returns. (Code 1981, § 48-13-97 , enacted by Ga. L. 1998, p. 598, § 1.)

ARTICLE 6 EXCISE TAX ON SALE OR USE OF ENERGY

Editor's notes. - Ga. L. 2012, p. 257, § 7-1(h)/HB 386, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-1(i)/HB 386, not codified by the General Assembly, provides: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of the relevant portion of this Act."

Ga. L. 2012, p. 257, § 7-2/HB 386, not codified by the General Assembly, provides for severability.

Law reviews. - For article on the 2012 enactment of this article, see 29 Georgia St. U.L. Rev. 112 (2012).

48-13-110. Definitions.

As used in this article, the term:

  1. "Dealer" means any person who sells energy at retail, offers to sell energy at retail, or has in his or her possession any energy for sale at retail.
  2. "Energy" has the same meaning as in Code Section 48-8-3.2.
  3. "Local sales and use tax" means any of the following:
    1. The county special purpose local option sales and use tax under Part 1 of Article 3 of Chapter 8 of this title;
    2. The joint county and municipal sales and use tax under Article 2 of Chapter 8 of this title;
    3. The homestead option sales and use tax under Article 2A of Chapter 8 of this title;
    4. The tax levied for purposes of a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Ga. L. 1964, p. 1008; the continuation of such amendment under Article XI, Section I, Paragraph IV(d) of the Constitution; and the laws enacted pursuant to such constitutional amendment; or
    5. The water and sewer projects and costs tax pursuant to Article 4 of Chapter 8 of this title.
  4. "Purchaser" means any person who purchases energy and who would have been liable for sales and use tax on such energy but for the exemption provided for in Code Section 48-8-3.2 . (Code 1981, § 48-13-110 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386; Ga. L. 2013, p. 787, § 1/HB 250.)

48-13-111. Creation of special districts.

Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution, there are created within this state 159 special districts. One such district shall exist within the geographical boundaries of each county, and the territory of each district shall include all of the territory within the county except territory located within the boundaries of any municipality that imposes an excise tax on energy under this article.

(Code 1981, § 48-13-111 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386.)

48-13-112. Levy and collection of excise tax on sale or use of energy.

    1. Within the territorial limits of the special district located within the county, each county in this state may levy and collect an excise tax upon the sale or use of energy when such sale or use would have constituted a taxable event for purposes of sales and use tax under Article 1 of Chapter 8 of this title but for the exemption in Code Section 48-8-3.2.
    2. The governing authority of each municipality in this state may, subject to the conditions of Code Section 48-13-115, levy and collect an excise tax upon the sale or use of energy when such sale or use would have constituted a taxable event for purposes of sales and use tax under Article 1 of Chapter 8 of this title but for the exemption in Code Section 48-8-3.2.
    3. The excise tax levied pursuant to this article shall be phased in over a four-year period as follows:
      1. For the period commencing January 1, 2013, and concluding at the last moment of December 31, 2013, such excise tax shall be at a rate equivalent to 25 percent of the total amount of local sales and use tax in effect in such special district that would be collected on the sale, use, storage, or consumption of energy but for the exemption in Code Section 48-8-3.2;
      2. For the period commencing January 1, 2014, and concluding at the last moment of December 31, 2014, such excise tax shall be at a rate equivalent to 50 percent of the total amount of local sales and use tax in effect in such special district that would be collected on the sale, use, storage, or consumption of energy but for the exemption in Code Section 48-8-3.2;
      3. For the period commencing January 1, 2015, and concluding at the last moment of December 31, 2015, such excise tax shall be at a rate equivalent to 75 percent of the total amount of local sales and use tax in effect in such special district that would be collected on the sale, use, storage, or consumption of energy but for the exemption in Code Section 48-8-3.2; and
      4. On or after January 1, 2016, such excise tax shall be at a rate equivalent to 100 percent of the total amount of local sales and use tax in effect in such special district that would be collected on the sale, use, storage, or consumption of energy but for the exemption in Code Section 48-8-3.2.
  2. Any county or municipality which imposes the excise tax under this article during the phase-in period provided for in this Code section shall levy such excise tax at the amount provided for under the applicable year of the phase in. Any county or municipality which imposes such excise tax on or after January 1, 2016, shall impose it at the rate specified under subparagraph (a)(3)(D) of this Code section.
    1. The excise tax authorized by this article shall be imposed only at the time that sales and use tax on the sale or use of such energy would have been due and payable under Code Section 48-8-30 but for the exemption in Code Section 48-8-3.2. The excise tax shall be due and payable in the same manner as would be otherwise required under Article 1 of Chapter 8 of this title except as otherwise provided under this article. The excise tax shall be a debt of the purchaser of energy until it is paid and shall be recoverable at law in the same manner as authorized for the recovery of other debts. The dealer collecting the excise tax shall remit the excise tax to the governing authority imposing the excise tax. Every dealer required to collect the excise tax levied as provided in this article shall be liable for the excise tax at the applicable rate on the charges for energy actually collected or the amount of excise taxes collected from the purchasers of energy, whichever is greater.
    2. Dealers shall be allowed a percentage of the amount of tax due and accounted for and shall be reimbursed in the form of a deduction in submitting, reporting, and paying the amount due if such amount is not delinquent at the time of payment. The rate of deduction shall be 3 percent of the amount due of the first $3,000.00 of the combined total amount of all excise tax computed on a monthly basis and due to each governmental authority imposing the tax and a deduction of one-half of 1 percent of the portion exceeding $3,000.00 of the combined total amount of all excise tax computed on a monthly basis and due to each governmental authority imposing the tax, but only if the amount due was not delinquent at the time of payment to the local government enacting such excise tax in accordance with Code Section 48-13-119.
  4. A county or municipality levying an excise tax as provided in this subsection shall only levy such excise tax initially by ordinance and at the equivalent rate as determined under paragraph (3) of subsection (a) of this Code section. Following such initial imposition, on or after January 1, 2016, the rate of the tax under this article shall be controlled by the maximum amount of local sales and use tax in effect in the special district, but in no event more than 2 percent; however, this 2 percent limitation shall not apply in a municipality that levies a water and sewer projects and costs tax pursuant to Article 4 of Chapter 8 of this title, in which case there shall be a 3 percent limitation. In the event the total rate of local sales and use taxes in effect in the special district decreases from 2 percent to 1 percent, the rate of the excise tax under this article shall likewise be reduced at the same time such local sales and use tax rate reduction becomes effective. In the event the total rate of local sales and use taxes in effect in the special district increases from 1 percent to 2 percent, the rate of the excise tax under this article shall likewise be increased at the same time such local sales and use tax rate increase becomes effective.
  5. An excise tax under this article shall not be levied or collected by a county or municipality outside the territorial limits of the special district located within the county.
  6. An excise tax authorized under this article shall not apply to the sale or use of energy used for and in the construction of a competitive project of regional significance under paragraph (93) of Code Section 48-8-3 during the construction of such project within the time period specified under such paragraph (93). (Code 1981, § 48-13-112 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386; Ga. L. 2013, p. 787, § 2/HB 250.)

48-13-113. Notice of meeting to determine levy.

Prior to the adoption of the ordinance levying an excise tax authorized under this article, the county governing authority within a special district shall meet and confer with each of the municipalities within the special district. Any county that desires to have an excise tax authorized under this article levied within the special district shall deliver or mail a written notice to the mayor or chief elected official in each municipality located within the special district. If the governing authority of such county does not deliver or mail such notice within 30 days of the date of the written request of the mayor or chief elected official of a municipality within the special district, then such mayor or chief elected official shall deliver or mail a written notice to the mayor or chief elected official in each municipality located within the special district and to the county governing authority. Such notice shall contain the date, time, place, and purpose of a meeting at which the governing authorities of the county and of each municipality are to discuss whether or not the excise tax should be levied within the special district. The notice shall be delivered or mailed at least ten days prior to the date of the meeting. The meeting shall be held at least 30 days prior to the adoption of any ordinance levying an excise tax authorized under this article.

(Code 1981, § 48-13-113 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386; Ga. L. 2013, p. 787, § 3/HB 250.)

48-13-114. Adoption of ordinance levying excise tax within special district.

    1. Following the meeting required under Code Section 48-13-113, the governing authority of the county within the special district shall enter into an intergovernmental agreement with the governing authority of each municipality wishing to participate in such excise tax that provides for the distribution of the proceeds as provided in subsection (c) of this Code section. Following the execution of such agreement, the governing authority of such county shall be authorized to adopt an ordinance levying the excise tax.
    2. If a municipality elects not to participate in such excise tax by not signing such agreement, then such municipality shall not receive any proceeds from the excise tax. In such event, any proportionate share that would have been distributed to such municipality under an applicable local sales and use tax as provided in subsection (c) of this Code section shall instead be distributed to the general fund of the county.
  2. The excise tax proceeds shall be allocated and distributed by the county governing authority at the end of each calendar month. Of such excise tax proceeds, an amount equal to 1 percent of the proceeds collected by the county shall be paid into the general fund of the county to defray the costs of collection and administration. The remainder of the proceeds shall be distributed in accordance with the intergovernmental agreement as provided in subsection (c) of this Code section.
  3. The excise tax proceeds shall be allocated and distributed by the county governing authority within 30 days following the end of each calendar month in the manner provided in this subsection. Such proceeds shall not be subject to any use or expenditure requirements provided for under any of the local sales and use taxes but shall be authorized to be expended in the same manner as otherwise would have been required under such local sales and use taxes or may be expended for any lawful purpose. Of such excise tax proceeds:
    1. If two such local sales and use taxes are in effect in the special district, an amount equal to one-half of the proceeds of the excise tax shall be distributed to the county general fund and the general fund of each participating municipality located in such county according to the same proportionate share as specified under the distribution provisions of the first local sales and use tax and an amount equal to one-half of the proceeds of the excise tax shall be distributed to the county general fund and the general fund of each participating municipality located in such county according to the same proportionate share as specified under the distribution provisions of the second local sales and use tax; or
    2. If only one such local sales and use tax is in effect in the special district, then the proceeds of the excise tax shall be distributed to the county general fund and the general fund of each participating municipality located in such county according to the same proportionate share as specified under the distribution provisions of the local sales and use tax. (Code 1981, § 48-13-114 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386.)

48-13-115. Nonparticipation of county within special district to enter into intergovernmental agreement.

    1. Within 30 days following the meeting required under Code Section 48-13-113, if the governing authority of the county within the special district fails or refuses to enter into an intergovernmental agreement with the governing authority of each municipality wishing to participate in such excise tax, then the governing authority of each municipality wishing to levy the excise tax shall be authorized to adopt an ordinance levying the excise tax within the corporate limits of such municipality. If a county elects not to participate in such excise tax by not signing such agreement, then the county shall not receive any proceeds from the excise tax. The proceeds of such excise tax shall be deposited in the general fund of each municipality.
    2. If, subsequent to the levy of an excise tax by a municipality under paragraph (1) of this subsection, a county determines to commence proceedings for the imposition of the excise tax authorized under this article, then proceedings for such imposition shall commence in the same manner as otherwise provided under Code Section 48-13-113. Except as to a municipality that levies a water and sewer projects and costs tax pursuant to Article 4 of Chapter 8 of this title, if a county complies with the requirements of this article and enacts an ordinance imposing the excise tax, the excise tax levied by such municipality shall cease on the day immediately prior to the day the new tax levied by the county commences. If such municipality elects not to participate, its current excise tax authorized under this article shall terminate on the date the county's tax levy becomes effective, and it shall not receive any proceeds under the county levy.
    1. If a municipality located within a special district where the excise tax is imposed by the county is not participating in such excise tax and is not receiving proceeds of that excise tax, the governing authority of that nonparticipating municipality may give written notice to the governing authority of the county and the governing authority of each participating municipality within the special district of its decision to opt in to the existing intergovernmental agreement. Within 60 days of the date of such notice, an amended intergovernmental agreement shall be executed by the governing authority of the municipality exercising such opt in and the governing authorities of the county and each currently participating municipality.
    2. When an amended intergovernmental agreement is executed pursuant to paragraph (1) of this subsection, the revised distribution of proceeds thereunder shall not become effective until the first day of the next succeeding calendar quarter which begins more than 80 days after the execution date of such amended intergovernmental agreement. The distribution of proceeds of the excise tax shall continue under the prior intergovernmental agreement until the date provided for in this paragraph. (Code 1981, § 48-13-115 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386; Ga. L. 2012, p. 954, § 4/SB 332; Ga. L. 2013, p. 787, § 4/HB 250.)

Code Commission notes. - Pursuant to Code Section 28-9-3 , in 2012, the enactment of this Code section by Ga. L. 2012, p. 257, § 5-4/HB 386, was treated as impliedly repealed and superseded by Ga. L. 2012, p. 954, § 4/SB 332, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

48-13-116. Imposition of excise tax; effective date; limitations.

    1. Except as otherwise provided in Code Section 48-13-115, an excise tax authorized by this article shall become effective on the first day of the next succeeding calendar quarter which begins more than 80 days after the adoption date of an ordinance levying the excise tax.
    2. If services are regularly billed on a monthly basis, however, the excise tax shall become effective with respect to and the tax shall apply to services billed on or after the effective date specified in paragraph (1) of this subsection.
  2. The excise tax shall cease to be imposed on the first day of the next succeeding calendar quarter which begins more than 80 days after the adoption date of an ordinance terminating the excise tax.
  3. At no time shall more than a single 2 percent excise tax under this article be imposed within a special district or a municipality, except that in the event a municipality levies a water and sewer projects and costs tax pursuant to Article 4 of Chapter 8 of this title, a single 3 percent excise tax may be imposed within such municipality.
  4. Following the termination of an excise tax under this article, the governing authority of a county within a special district or the mayor or chief elected official of a municipality in the special district in which an excise tax authorized by this article is in effect may initiate proceedings for the reimposition of a tax under this article in the same manner as provided in this article for the initial imposition of such tax. (Code 1981, § 48-13-116 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386; Ga. L. 2012, p. 954, § 5/SB 332; Ga. L. 2013, p. 787, § 5/HB 250.)

Code Commission notes. - Pursuant to Code Section 28-9-3 , in 2012, the enactment of this Code section by Ga. L. 2012, p. 257, § 5-4/HB 386, was treated as impliedly repealed and superseded by Ga. L. 2012, p. 954, § 5/SB 332, due to irreconcilable conflict. See County of Butts v. Strahan, 151 Ga. 417 (1921); Keener v. McDougall, 232 Ga. 273 (1974).

48-13-117. Procedures for manner of payment and collection; assessment; claim for refund of taxes paid; contingent contract or arrangement for assessment of tax liability prohibited.

  1. Except as otherwise provided in this Code section, the manner of payment and collection of the excise tax and all other procedures related to the tax, including, but not limited to, periodic auditing of dealers collecting and remitting the excise tax authorized under this article, shall be as provided by each county and municipality electing to exercise the powers conferred by this article.
    1. The amount of the excise tax authorized by this article shall be assessed upon either the dealer or the purchaser within three years after the time that sales and use tax on the sale or use of such energy would have been due and payable under Code Section 48-8-30 but for the exemption in Code Section 48-8-3.2, except as otherwise provided in this Code section.
    2. In the case of a dealer or purchaser who knowingly and willfully evades all or any portion of the excise tax imposed by this article, the amount of such excise tax evaded may be assessed at any time upon such dealer or such purchaser, as the case may be.
  3. No action without assessment shall be brought against either the dealer or the purchaser for the collection of any excise tax authorized by this article after the expiration of the period for assessment.
    1. A claim for refund of the excise tax levied pursuant to this article erroneously or illegally assessed and collected may be made by the dealer or the purchaser at any time within three years after the date of the payment of the excise tax to the governing authority. In making any such claim for refund, the procedures provided in Code Section 48-5-380 shall apply.
    2. If a claim for refund of taxes paid for any taxable period is filed within the last six months of the period during which the county or municipality imposing the tax may assess the amount of taxes, the assessment period is extended for a period of six months beginning on the day the claim for refund is filed.
  5. Where, before the expiration of the time prescribed in this Code section for the assessment of the excise tax authorized by this article, both an authorized representative of the governing authority and the dealer or purchaser have consented in writing to its assessment after such time, the excise tax may be assessed at any time prior to the expiration of the agreed upon period. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the previously agreed upon period. The governing authority is authorized in any such agreement to extend similarly the period within which a claim for refund may be filed.
  6. In determining the liability of any dealer or purchaser for the excise tax, the governing authority imposing such tax may not employ or otherwise hire an agent who is compensated in whole or in part by such governing authority for services rendered on a contingent basis or any other basis related to the amount of tax, interest, or penalty assessed against or collected from the dealer or purchaser. Any such contract or arrangement, if made or entered into, is void and unenforceable. (Code 1981, § 48-13-117 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386; Ga. L. 2013, p. 787, § 6/HB 250.)

48-13-118. Separate revenue schedule required.

As a part of the audit report required under Code Section 36-81-7, the auditor shall include, in a separate schedule, a report of the revenues pertaining to the excise tax under this article.

(Code 1981, § 48-13-118 , enacted by Ga. L. 2012, p. 257, § 5-4/HB 386.)

48-13-119. Transmittal of returns and remission of taxes due; form of returns; estimated tax liability.

  1. Each dealer, on or before the twentieth day of each month, shall transmit returns and remit taxes due to any applicable governing authority imposing a tax authorized under this article showing the gross charges for energy taxable under the ordinance enacted pursuant to this article during the preceding calendar month. The governing authority imposing the tax may provide by resolution or ordinance for quarterly or annual returns. The returns required by this subsection shall be made upon forms prescribed, prepared, and furnished by the governing authority imposing the tax.
  2. As used in this subsection, the term "estimated tax liability" means a dealer's tax liability under the ordinance enacted pursuant to this article, adjusted to account for any subsequent change in the rate of tax authorized to be imposed under this article. If the estimated tax liability of a dealer for any taxable period exceeds $2,500.00, the dealer shall file a return and remit to the governing authority imposing the tax not less than 50 percent of the estimated tax liability for the taxable period on or before the twentieth day of the period. The amount of the payment of the estimated tax liability shall be credited against the amount to be due on the return required under subsection (a) of this Code section. This subsection shall not apply to any dealer unless during the previous fiscal year the dealer's monthly payments exceeded $2,500.00 per month for three consecutive months or more. (Code 1981, § 48-13-119 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-120. Extension of time for making returns; penalties and interest; failure to make return.

    1. The governing authority imposing a tax authorized under this article may, for good cause, extend the time for making any returns required under this article for not more than 30 days.
    2. No extension granted pursuant to paragraph (1) of this subsection shall be valid unless granted in writing upon written application, and then the extension shall only be valid for a period, as appropriate, of not more than 12 consecutive months or four consecutive calendar quarters.
    3. Upon the granting of any extension authorized by this subsection, the dealer shall remit to the governing authority imposing a tax authorized under this article on or before the date the tax would otherwise become due without the extension an amount which equals not less than 100 percent of the dealer's payment for the corresponding period of the preceding tax year.
    4. No interest or penalty shall be charged by reason of the granting of an extension pursuant to this subsection during the first ten days of each extension period. Thereafter, interest shall be collected upon the unpaid balance of the dealer's liability at the rate specified in Code Section 48-2-40.
  2. In the event any dealer fails to make a return and pay the tax as provided by this article or makes a grossly incorrect return or a return that is false or fraudulent, the governing authority imposing a tax authorized under this article shall make an estimate for the taxable period of taxable charges of the dealer. Based upon its estimate, the governing authority shall assess and collect the taxes, interest, and penalties, as accrued, on the basis of the assessments against the dealer and such assessment may be assessed against the dealer at any time. (Code 1981, § 48-13-120 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-121. Keeping and preservation of records, exemption certificates, and books of account; records to be open to examination; audits and examinations.

  1. Each dealer required to make a return and collect and remit any tax authorized under this article shall keep and preserve:
    1. Suitable records of the energy charges taxable under this article;
    2. Any exemption certificates received by the dealer; and
    3. Other books of account which are necessary to determine the amount of tax due.
  2. All books, invoices, exemption certificates, and other records required by this Code section to be kept shall be open to examination at all reasonable hours by the governing authority imposing a tax authorized under this article.
  3. Any audit or examination by a governing authority imposing a tax authorized under this article of the books and records of a dealer for the purpose of ascertaining the proper amount of tax due shall be based primarily upon any sales tax audit report of the dealer, any other tax audit report of the dealer, or any return created pursuant to Code Section 48-13-119 within the time periods described in subsection (b) of Code Section 48-13-117 or of subsection (b) of Code Section 48-13-120 . Any information secured by the local governing authority incident to any such audit or examination shall be confidential and privileged to the same extent as provided in Code Section 48-2-15 for tax information secured by the commissioner. (Code 1981, § 48-13-121 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-122. Authority to waive penalties.

The provisions of Code Section 48-2-41, relating to authority to waive interest on unpaid taxes, and Code Section 48-2-43, relating to authority to waive penalties, shall apply to taxes imposed by any local governing authority pursuant to this article, provided that the local governing authority shall stand in lieu of the commissioner, and the county or municipality shall stand in lieu of the state for purposes of this Code section.

(Code 1981, § 48-13-122 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-123. Failure to make returns or pay full amount of tax; penalties and interest.

  1. When any dealer fails to make any return or to pay the full amount of the tax required by an ordinance authorized by this article, there shall be imposed, in addition to other penalties provided by law, a penalty to be added to the tax in the amount of 5 percent or $5.00, whichever is greater, if the failure is for not more than 30 days and an additional 5 percent or $5.00, whichever is greater, for each additional 30 days or fraction of 30 days during which the failure continues. The penalty for any single violation shall not exceed 25 percent or $25.00 in the aggregate, whichever is greater. If the failure is due to providential cause shown to the satisfaction of the governing authority imposing a tax authorized under this article in affidavit form attached to the return and remittance is made within ten days of due date, the return may be accepted exclusive of penalties and interest. In the case of a false or fraudulent return or of a failure to file a return where willful intent exists to defraud the governing authority of any tax due under an ordinance authorized by this article, a penalty of 50 percent of the tax due shall be assessed.
  2. All civil penalties and interest added to any tax imposed under an ordinance authorized by this article and collected by a county or municipality shall be included as revenue derived from such tax for purposes of the expenditure requirements imposed on such county or municipality as provided by this article. (Code 1981, § 48-13-123 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-124. Willful failure to collect tax; misdemeanor; punishment.

  1. It shall be unlawful for any dealer to knowingly and willfully fail, neglect, or refuse to collect the tax provided in this article, either by himself or herself or through his or her agents or employees.
  2. In addition to the penalty of being liable for and paying the tax himself or herself, any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both. (Code 1981, § 48-13-124 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-125. False or fraudulent return; penalty.

  1. It shall be unlawful for any dealer required by this article to knowingly and willfully make, render, sign, or verify any return to make a false or fraudulent return with intent to evade the tax levied by this article.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both. (Code 1981, § 48-13-125 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-126. Failure or refusal to furnish return; punishment.

  1. It shall be unlawful for any dealer subject to this article to knowingly and willfully fail or refuse to furnish any return required to be made by this article or to fail or refuse to furnish a supplemental return or other data required by the governing authority of the county or municipality pursuant to any provision of this article.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both. (Code 1981, § 48-13-126 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-127. Willful failure to keep records or open records to inspection; punishment.

  1. It shall be unlawful for any dealer subject to this article to knowingly and willfully fail to keep records or to fail to open the records to inspection as required by law.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor of a high and aggravated nature and, upon conviction thereof, shall be punished by a fine of not more than $5,000.00 or imprisonment for not more than one year, or both. Upon the second or subsequent conviction of a person who violates subsection (a) of this Code section, the person shall be guilty of a felony and shall be punished by a fine of not more than $10,000.00 or imprisonment for not more than five years, or both. (Code 1981, § 48-13-127 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

48-13-128. Violation of article; punishment.

  1. It shall be unlawful for any dealer to violate any other provision of this article for which punishment is not otherwise provided.
  2. Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor. (Code 1981, § 48-13-128 , enacted by Ga. L. 2013, p. 787, § 7/HB 250.)

ARTICLE 7 TAXATION OF CONSUMER FIREWORKS

Effective date. - This article became effective July 1, 2015.

Administrative Rules and Regulations. - Fireworks excise tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Fees and Excise Taxes, Ch. 560-13-1.

48-13-130. Definitions.

As used in this article, the term:

  1. "Consumer fireworks" shall have the same meaning as provided for in Code Section 25-10-1.
  2. "Seller" means the person who is issued a license pursuant to Code Section 25-10-5.1 . (Code 1981, § 48-13-130 , enacted by Ga. L. 2015, p. 274, § 9/HB 110.)

48-13-131. Excise tax imposed; rate of taxation; allocation of moneys collected from tax on consumer fireworks to various purposes; payment.

  1. An excise tax, in addition to all other taxes of every kind imposed by law, is imposed upon the sale of consumer fireworks and any items provided for in paragraph (2) of subsection (b) of Code Section 25-10-1 in this state at a rate of 5 percent per item sold.
  2. Moneys collected from the excise tax on the sale of consumer fireworks as provided for under subsection (a) of this Code section, and pursuant to Article III, Section IX, Paragraph VI of the Constitution of Georgia, shall be used as follows:
    1. The amount of 55 percent shall be provided to the Georgia Trauma Care Network Commission for purposes provided for under Code Section 31-11-102;
    2. The amount of 40 percent shall be provided to the Georgia Firefighter Standards and Training Council to be exclusively used for the implementation of a grant program to improve the equipping and training of firefighters and to improve the rating of fire departments in this state by the Insurance Services Office; and
    3. The amount of 5 percent shall be provided to local governments to be used solely for public safety purposes consisting of the operation of 9-1-1 systems under Part 4 of Article 2 of Chapter 5 of Title 46. The commissioner shall include such amount as a part of the 9-1-1 distribution made on or before October 15 of each year to such local governments.
  3. The excise tax imposed by this article shall be paid by the seller and due and payable in the same manner as would be otherwise required under Article 1 of Chapter 8 of this title. (Code 1981, § 48-13-131 , enacted by Ga. L. 2015, p. 274, § 9/HB 110.)

The 2016 amendment, added present subsection (b); and redesignated former subsection (b) as present subsection (c). For effective date of this amendment, see the Editor's notes.

Editor's notes. - The constitutional amendment (Ga. L. 2016, p. 272, § 2/SB 350) which added subsection (b) and redesignated former subsection (b) as present subsection (c) was ratified at the general election held November 8, 2016.

48-13-132. Civil penalty for violations.

A seller who knowingly and willfully violates the requirements of this article shall be assessed a civil penalty of not more than $10,000.00 in addition to the amount of tax due.

(Code 1981, § 48-13-132 , enacted by Ga. L. 2015, p. 274, § 9/HB 110.)

48-13-133. Promulgation of rules and regulations.

The department is authorized to adopt rules and regulations necessary for the enforcement and implementation of the provisions of this Code section.

(Code 1981, § 48-13-133 , enacted by Ga. L. 2015, p. 274, § 9/HB 110.)

CHAPTER 14 GRANTS AND SPECIAL REVENUE DISBURSEMENTS

Sec.

48-14-1. Grants to counties containing more than 20,000 acres of state-owned land not subject to taxation; limit on amount of grants; evaluation and assessment; procedure for billing State Forestry Commission.

  1. Each county in which is located land belonging to the state which consists of 20,000 acres and from which the county receives no tax revenue may receive from the State Forestry Commission a grant of funds for such land. The amount of funds to be granted may not exceed the amount the county would have received were the land subject to taxation during the applicable time period based on property evaluation and millage assessment.
  2. Immediately upon an evaluation of the property involved and a determination of the millage assessment for the property, the county tax official for the county involved shall bill the State Forestry Commission for the proper amount as determined under this Code section. The county tax official shall send the bill to the State Forestry Commission at the same time as the county tax bills are sent to the property owners of the county who are subject to county taxation.

    (Ga. L. 1963, p. 166, §§ 1, 2; Code 1933, § 91A-7001, enacted by Ga. L. 1978, p. 309, § 2.)

Cross references. - Georgia Outdoor Stewardship Act, T. 12, C. 6A.

48-14-2. "TVA" defined; apportionment of payments to state and political subdivisions by TVA in lieu of taxes; formula; deduction of direct TVA payments; reapportionment.

  1. As used in this Code section, the term "TVA" means the Tennessee Valley Authority.
  2. Payments made by the TVA to the state and any of its political subdivisions under 16 U.S.C.A. Section 831(l), as amended, shall be apportioned among the political subdivisions in which property owned by the TVA is located on the basis of the percentage of loss of taxes to each to be determined as provided in this Code section. The payments made for each fiscal year by the TVA shall be distributed by the commissioner among counties and municipalities in which the TVA had power property including, but not limited to, reservoir land allocated to power purposes, at the end of the preceding fiscal year, in such manner that the sum of such payments plus the total amount of payments for the same fiscal year made by the TVA directly to counties of the state shall be apportioned among the counties and municipalities in the same ratio that the book value of the TVA's power property in each county and in each municipality, respectively, bore as of the end of the preceding fiscal year to the total amount of the book value of the TVA's power properties in all counties within the state, plus the book value of the TVA's power properties located in all municipalities within the state. The apportionment shall be subject to any adjustments necessary to meet the conditions set forth in subsections (c) and (d) of this Code section. The amount distributed by the commissioner under this Code section to any county or municipality in which is located an independent school district shall be divided between the county or municipal government and the county or municipal school system based upon the ratio that the tax rate for the previous tax year for each bears to the total rate for both for the previous tax year.
  3. All payments in lieu of taxes made by the TVA directly to any county for any fiscal year shall be retained by the county. The direct payment shall be deducted from the amount finally apportioned to the county under subsection (b) of this Code section before distribution of the balance, if any, of the county's payment share for the particular fiscal year from the state.
  4. If the initially apportioned payment share of any county for a fiscal year is less than the amount of payment made directly to the county by the TVA under 16 U.S.C.A. Section 831(l), the amount due the county shall be increased to conform to the requirements of 16 U.S.C.A. Section 831(l), and the previously apportioned shares of all other counties and municipalities shall be reduced pro rata so that the total of the reductions shall equal the total of increases necessary to meet the minimum payment requirements of this Code section.

    (Ga. L. 1972, p. 923, §§ 1-3; Code 1933, § 91A-7002, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1982, p. 3, § 48.)

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 241 et seq.

48-14-3. Distribution of funds appropriated to counties for public road construction and maintenance; submission of annual county audits; unexpended funds; payment; minimum annual amount.

  1. The funds made available by appropriations of the General Assembly for distribution to the counties to be used exclusively for the construction and maintenance of the public roads shall be distributed by the Office of the State Treasurer  before the tenth day of each month to each county fiscal officer. The amounts distributable each month shall be one-twelfth of the amounts provided for each county in the following table:

    *Counties with this symbol have increased amounts to figures shown in order to bring them to the average of 14.13 percent.

    1. The governing authority of each county shall submit to the state auditor a copy of its regular annual audit not later than 180 days after the end of the fiscal year for which the audit was made. If an extension of time is granted to a county for the filing of the audit required by Code Section 36-81-7 or the correction of deficiencies in such an audit, then the same extension of time shall apply for purposes of this paragraph. The state auditor shall compare the amount of funds distributed to each county in the year of the audit against the amount of funds expended by the county in that year for the purposes authorized by this Code section. In the event the state auditor determines that the amount so expended in any year is less than the amount distributed, he shall certify the amount of the difference to the Office of the State Treasurer, which shall deduct and withhold the certified amount from the next funds to be distributed to the underexpending county under this Code section. In the event a county expending less than the amount distributed to it certifies at the time of the submission of its audit or within a reasonable time thereafter that it is accumulating the unexpended funds for a specified allowable purpose and submits proof of the deposit or investment of the funds, the county shall be deemed to have complied with this subsection, except that the amount of the unexpended funds shall be added to the amount of funds distributed to the county in the next succeeding year or years for the purpose of making the comparison and determination provided in this Code section. Upon the request of the Governor or the commissioner of transportation, the state auditor may audit the books and records of each county to verify the accuracy of the audits filed with him and to ensure that the expenditure of the funds has been made for the purposes intended.
    2. The procedure provided in this subsection shall apply to any grants to counties under any provision of law from motor fuel tax funds.
    3. The Secretary of State shall mail a copy of this subsection to the chairman and the clerk of the governing authority of each county.
  3. The Office of the State Treasurer shall pay to each county the amount provided in this Code section in 12 equal monthly installments. The amount necessary to make each monthly payment to the proper officials of the various counties is appropriated for the purpose and made a special and continuing appropriation.
  4. If the Office of Planning and Budget fails to make available for any quarter of a fiscal year a sum sufficient to pay in full the appropriation provided in subsection (c) of this Code section, the distribution of funds to the counties for that quarter shall be on the basis existing prior to January 1, 1979. No county shall receive less than $17,500.00.

    (Ga. L. 1923, p. 41, § 2; Ga. L. 1925, p. 66, § 1; Code 1933, § 92-1410; Code 1933, § 92-1404, enacted by Ga. L. 1937, p. 167, § 1; Ga. L. 1937-38, Ex. Sess., p. 258, § 1; Ga. L. 1945, p. 316, § 1; Ga. L. 1949, Ex. Sess., p. 19, § 3; Ga. L. 1966, p. 203, § 1; Ga. L. 1969, p. 845, § 1; Code 1933, § 92-1404, enacted by Ga. L. 1978, p. 186, § 1; Code 1933, § 91A-7003, enacted by Ga. L. 1979, p. 5, § 110; Ga. L. 1982, p. 3, § 48; Ga. L. 1984, p. 818, § 7; Ga. L. 1985, p. 149, § 48; Ga. L. 1992, p. 6, § 48; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

County Amount ------ ------ Appling ....................................................... $ 38,074.69 Atkinson ....................................................... 27,609.69 Bacon* ......................................................... *21,562.95 Baker .......................................................... 22,251.20 Baldwin ........................................................ 18,840.71 Banks* ......................................................... *20,573.60 Barrow ......................................................... 24,217.62 Bartow* ........................................................ *36,861.04 Ben Hill ....................................................... 25,016.48 Berrien ........................................................ 39,448.11 Bibb ........................................................... 23,108.44 Bleckley* ...................................................... *17,998.86 Brantley ....................................................... 28,135.09 Brooks* ........................................................ *38,865.35 Bryan .......................................................... 28,423.90 Bulloch* ....................................................... *64,465.57 Burke* ......................................................... *75,000.00 Butts .......................................................... 18,462.78 Calhoun ........................................................ 21,406.25 Camden ......................................................... 26,030.40 Candler* ....................................................... *24,844.41 Carroll ........................................................ 50,097.45 Catoosa ........................................................ 16,941.89 Charlton ....................................................... 32,113.99 Chatham ........................................................ 27,001.32 Chattahoochee .................................................. 11,783.12 Chattooga* ..................................................... *22,453.99 Cherokee* ...................................................... *40,216.23 Clarke ......................................................... 13,500.66 Clay ........................................................... 13,973.83 Clayton ........................................................ 19,101.87 Clinch ......................................................... 44,766.64 Cobb* .......................................................... *35,917.78 Coffee ......................................................... 39,841.39 Colquitt* ...................................................... *43,774.21 Columbia* ...................................................... *24,709.22 Cook* .......................................................... *18,720.87 Coweta* ........................................................ *37,690.62 Crawford ....................................................... 24,574.03 Crisp* ......................................................... *33,241.61 Dade ........................................................... 18,690.15 Dawson ......................................................... 27,833.97 Decatur* ....................................................... *43,918.62 DeKalb* ........................................................ *44,573.07 Dodge .......................................................... 42,198.01 Dooly* ......................................................... *42,342.42 Dougherty ...................................................... 23,102.29 Douglas* ....................................................... *21,612.13 Early .......................................................... 31,656.19 Echols ......................................................... 26,310.00 Effingham* ..................................................... *51,077.60 Elbert* ........................................................ *33,014.24 Emanuel* ....................................................... *60,964.97 Evans .......................................................... 18,094.08 Fannin* ........................................................ *19,885.36 Fayette ........................................................ 23,805.90 Floyd* ......................................................... *34,243.25 Forsyth* ....................................................... *23,615.40 Franklin ....................................................... 30,900.35 Fulton* ........................................................ *75,000.00 Gilmer* ........................................................ *27,572.82 Glascock ....................................................... 13,257.93 Glynn .......................................................... 24,798.32 Gordon* ........................................................ *26,509.72 Grady .......................................................... 45,755.99 Greene* ........................................................ *29,895.63 Gwinnett* ...................................................... *46,250.67 Habersham ...................................................... 28,125.86 Hall ........................................................... 37,592.30 Hancock* ....................................................... *31,047.83 Haralson* ...................................................... *29,520.79 Harris ......................................................... 37,254.32 Hart* .......................................................... *28,669.70 Heard* ......................................................... *26,617.25 Henry* ......................................................... *32,246.12 Houston ........................................................ 26,949.09 Irwin* ......................................................... *22,583.03 Jackson ........................................................ 29,102.93 Jasper ......................................................... 37,595.37 Jeff Davis* .................................................... *25,071.77 Jefferson* ..................................................... *57,867.87 Jenkins* ....................................................... *22,524.65 Johnson ........................................................ 23,197.54 Jones .......................................................... 27,327.01 Lamar* ......................................................... *17,190.76 Lanier ......................................................... 31,063.20 Laurens* ....................................................... *64,652.00 Lee* ........................................................... *26,869.20 Liberty ........................................................ 36,990.10 Lincoln ........................................................ 21,609.04 Long ........................................................... 19,292.36 Lowndes ........................................................ 46,859.02 Lumpkin ........................................................ 22,868.78 McDuffie* ...................................................... *23,947.23 McIntosh ....................................................... 17,857.49 Macon .......................................................... 48,727.38 Madison* ....................................................... *29,914.07 Marion* ........................................................ *23,332.74 Meriwether ..................................................... 43,393.22 Miller* ........................................................ *17,267.58 Mitchell ....................................................... 48,825.44 Monroe ......................................................... 39,758.43 Montgomery* .................................................... *23,179.10 Morgan* ........................................................ *30,387.24 Murray* ........................................................ *20,075.85 Muscogee ....................................................... 27,078.13 Newton ......................................................... 35,290.98 Oconee ......................................................... 17,820.62 Oglethorpe* .................................................... *28,556.04 Paulding* ...................................................... *32,301.42 Peach .......................................................... 15,049.21 Pickens ........................................................ 28,205.75 Pierce ......................................................... 23,108.43 Pike* .......................................................... *18,398.25 Polk ........................................................... 22,318.80 Pulaski ........................................................ 19,621.12 Putnam* ........................................................ *26,248.55 Quitman ........................................................ 10,741.53 Rabun .......................................................... 20,321.66 Randolph* ...................................................... *21,738.09 Richmond* ...................................................... *38,043.96 Rockdale ....................................................... 18,213.91 Schley ......................................................... 16,932.66 Screven* ....................................................... *60,547.13 Seminole* ...................................................... *19,393.75 Spalding* ...................................................... *21,950.09 Stephens* ...................................................... *20,109.65 Stewart ........................................................ 20,051.27 Sumter* ........................................................ *38,590.89 Talbot ......................................................... 31,284.41 Taliaferro ..................................................... 15,122.95 Tattnall* ...................................................... *37,315.77 Taylor ......................................................... 32,104.78 Telfair ........................................................ 45,104.61 Terrell ........................................................ 22,899.50 Thomas ......................................................... 54,850.65 Tift* .......................................................... *25,382.10 Toombs* ........................................................ *34,163.37 Towns .......................................................... 16,170.68 Treutlen ....................................................... 23,154.52 Troup .......................................................... 32,952.79 Turner* ........................................................ *24,466.49 Twiggs* ........................................................ *28,918.57 Union .......................................................... 19,396.83 Upson* ......................................................... *22,893.36 Walker ......................................................... 35,764.15 Walton* ........................................................ *30,774.37 Ware ........................................................... 42,609.73 Warren ......................................................... 28,371.66 Washington* .................................................... *60,362.76 Wayne* ......................................................... *32,949.72 Webster ........................................................ 15,325.74 Wheeler ........................................................ 26,162.52 White .......................................................... 17,537.95 Whitfield* ..................................................... *23,028.55 Wilcox ......................................................... 32,157.02 Wilkes* ........................................................ *25,809.18 Wilkinson* ..................................................... *27,443.76 Worth* ......................................................... *42,265.60 TOTAL ......................................................... $4,810,846.70

Cross references. - For further provisions regarding grants by state to counties for public road purposes, see § 36-17-20 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Restriction on use of funds generally. - Funds received by counties under this section must be used for purposes which have as their sole and only function the construction and maintenance of public roads. 1967 Op. Att'y Gen. No. 67-116.

Funds are limited to the direct cost involved in the construction or maintenance of public roads. To be a legitimate and legal expenditure, the item must be traceable directly to such construction and maintenance, and must be an item that is customarily associated with the construction and maintenance of roads. 1965-66 Op. Att'y Gen. No. 66-116.

Administrative expenses chargeable against these funds. - Only administrative expense that can be charged against these funds are items customarily and usually associated with the construction and maintenance of roads and have as their sole or exclusive function the construction and maintenance of public roads. 1965-66 Op. Att'y Gen. No. 66-188.

Purchase of construction and maintenance equipment under this section is proper, provided the primary function of such equipment is for construction and maintenance of roads. For example, these funds may not be expended for the purchase of a tractor since it would appear that the primary purpose of a tractor would not be for road maintenance or construction, but this rationale would not apply to bulldozers and motor graders. 1967 Op. Att'y Gen. No. 67-116.

Illegal to use funds for county farm even though farm houses prisoners who perform road construction. - County may not use the state grant funds for the upkeep and operation of a county farm although prisoners are kept there who are used as laborers on road construction and maintenance. 1967 Op. Att'y Gen. No. 67-116.

Presumption that counties have annual audits made. - State treasurer (now director of the Office of Treasury and Fiscal Services) is justified in relying upon the legal presumption that public officers are performing the duties imposed upon the officers by law, and unless the treasurer is informed or becomes aware of facts to the contrary, the treasurer can legitimately assume that each county is having a regular annual audit made inasmuch as such an obligation is imposed by law on each and every county of this state and the treasurer is justified in continuing to make distributions to the respective counties until notified otherwise. 1965-66 Op. Att'y Gen. No. 66-116.

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 241 et seq.

48-14-4. Annual grant to counties with 20,000 or more acres of unimproved real estate owned by Department of Natural Resources.

  1. As used in this Code section, the term "department" means the Department of Natural Resources.
  2. Each county in which is located 20,000 acres or more of unimproved real property belonging to the state and under the custody or control of the department, in which such state owned property exceeds 10 percent of the taxable real property in the county, and in which such property represents 10 percent or more of the assessed tax digest of the county may receive from the department an annual grant as provided in this Code section.
  3. For each county eligible to receive a grant pursuant to subsection (b) of this Code section, the department shall calculate the approximate value of public services which the county provides the department each year; provided, however, that such sum shall not exceed the amount the county would charge any other landowner for such services.  The department shall request funds in its annual operating budget each year to reimburse all eligible counties for the provision of such services.  In the event the amount appropriated in any year is less than the amount requested, each eligible county shall receive a pro rata share based on the estimated value of services provided.
  4. The department is directed to make an annual calculation of the amount of unimproved state owned real property under its custody or control and determine which counties are eligible for a grant pursuant to subsection (b) of this Code section. The first such determination shall be completed not later than December 31, 1993, and each subsequent determination shall be made not later than December 31 of each year.  The department is further directed to calculate the approximate value of public services provided by each eligible county as provided in subsection (c) of this Code section.
  5. No county shall be authorized to receive a grant of funds pursuant to both this Code section and Code Section 48-14-1 . (Code 1981, § 48-14-4 , enacted by Ga. L. 1993, p. 1071, § 1.)

CHAPTER 15 EXCISE TAX ON MARIJUANA AND CONTROLLED SUBSTANCES

Sec.

Law reviews. - For article, "Taxing Marijuana: Earmarking Tax Revenue from Legalized Marijuana," see 33 Ga. St. U.L. Rev. 659 (2017).

48-15-1. No immunity from criminal prosecution; unlawful use of marijuana or controlled substances not authorized.

No provision of this chapter shall in any manner provide any immunity for any person from criminal prosecution pursuant to the laws of this state and no provision of this chapter shall in any manner be deemed to authorize the unlawful use, possession, consumption, storage, transfer, or distribution of marijuana or controlled substances.

(Code 1981, § 48-15-1 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-2. Definitions.

As used in this chapter, the term:

  1. "Commissioner" means the state revenue commissioner.
  2. "Controlled substance" shall have the same meaning as defined in paragraph (4) of Code Section 16-13-21 and shall mean any drug, substance, or immediate precursor, whether real or counterfeit, that is held, possessed, transported, transferred, sold, or offered for sale in violation of the laws of this state.
  3. "Marijuana" shall have the same meaning as defined in paragraph (16) of Code Section 16-13-21 and shall mean any marijuana, whether real or counterfeit, that is held, possessed, transported, transferred, sold, or offered for sale in violation of the laws of this state. (Code 1981, § 48-15-2 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-3. Imposition of tax.

  1. There is imposed, in addition to all other applicable taxes, a state excise tax upon each use, possession, consumption, storage, or transfer of marijuana or any controlled substance.
  2. The tax imposed by this Code section shall apply regardless of whether the substance exists in solid, liquid, or gaseous form and regardless of the degree of purity of the substance. Each person who uses, possesses, consumes, stores, or transfers a substance identified in this Code section shall be liable for the tax imposed by this Code section. (Code 1981, § 48-15-3 , enacted by Ga. L. 1990, p. 1231, § 1.)

RESEARCH REFERENCES

ALR. - Validity, construction, and application of state laws imposing tax or license fee on possession, sale, or the like, of illegal narcotics, 12 A.L.R.5th 89.

48-15-4. Exemption.

Nothing in this chapter shall require persons who are lawfully in possession of marijuana or a controlled substance under a valid medical prescription or a licensed pharmacist or medical practitioner licensed to dispense marijuana or any controlled substance to pay the tax required under this chapter when such person, pharmacist, or practitioner is lawfully using, possessing, consuming, storing, or transferring such marijuana or controlled substance.

(Code 1981, § 48-15-4 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-5. Calculation of tax.

For the purpose of calculating the tax under Code Section 48-15-6, a quantity of marijuana or other controlled substance in the person's possession shall be measured by the weight of the substance whether pure or impure or dilute, or by dosage units when the substance is not sold by weight. A quantity of a controlled substance is dilute if it consists of a detectable quantity of pure controlled substance and any excipients or fillers.

(Code 1981, § 48-15-5 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-6. Tax rates.

A tax is imposed on marijuana and controlled substances as defined in Code Section 48-15-2 at the following rates:

  1. On each gram of marijuana, or each portion of a gram, $3.50;
  2. On each gram of controlled substance, or portion of a gram, $200.00; and
  3. On each ten dosage units of a controlled substance that is not sold by weight, or portion thereof, $400.00. (Code 1981, § 48-15-6 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-7. Time of payment of tax; report forms.

The tax imposed by Code Section 48-15-3 shall be due and payable at the time of each use, possession, consumption, storage, or transfer; however, each person liable to pay the tax may report and remit the amount of tax which is due, using report forms prepared by the commissioner, no later than the twentieth day of the calendar month following the month in which the tax liability is incurred. The reporting procedure provided for in this Code section shall not prevent the commissioner from earlier assessing or collecting, prior to receiving the report or remittance, any taxes which have become due.

(Code 1981, § 48-15-7 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-8. Enforcement and administration of chapter.

This chapter shall be enforced and administered by the commissioner, and the commissioner is authorized to adopt all forms and all reasonable rules and regulations which the commissioner deems necessary to enforce and administer this chapter.

(Code 1981, § 48-15-8 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-9. Assessment and collection of tax.

The commissioner is authorized to issue assessments, including jeopardy assessments, to issue tax executions, and to collect the tax imposed under this chapter in the same manner and to the same extent as provided in this title for any other state tax assessed and collected by the commissioner.

(Code 1981, § 48-15-9 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-10. Confidentiality of information obtained under chapter; penalty for violation; publication of statistics authorized.

  1. Notwithstanding any law to the contrary, neither the commissioner nor a public employee may reveal facts contained in a report or return required by this chapter or any information obtained from a person under this chapter; nor can any information contained in such a report or return or obtained from such person be used against the person in any criminal proceeding, unless independently obtained, except in connection with a proceeding involving taxes due under this chapter from the person making the return.
  2. Any person violating this Code section shall be guilty of a misdemeanor of a high and aggravated nature.
  3. This Code section shall not prohibit the commissioner from publishing statistics that do not disclose the identity of such persons or the contents of particular returns or reports. (Code 1981, § 48-15-10 , enacted by Ga. L. 1990, p. 1231, § 1.)

48-15-11. Forfeiture law not superseded by chapter.

Notwithstanding any provision of this chapter to the contrary, no provision of this chapter shall be deemed to supersede the provisions of Code Section 16-13-49 with respect to forfeitures and the vesting of forfeited property, money, or currency.

(Code 1981, § 48-15-11 , enacted by Ga. L. 1990, p. 1231, § 1; Ga. L. 1991, p. 94, § 48.)

CHAPTER 16 TAX AMNESTY PROGRAM

Sec.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, Chapter 16 of Title 48, as enacted by Ga. L. 1992, p. 1521, § 3, was redesignated as Chapter 17 of Title 48, since Ga. L. 1992, p. 1249, § 1, also enacted a Chapter 16 of Title 48.

48-16-1. Legislative findings, declarations, and intent.

The General Assembly finds and declares that a public purpose is served by the waiver of tax penalties and criminal prosecution in return for the immediate reporting and payment of previously underreported, unreported, or unpaid tax liabilities. The General Assembly further finds and declares that the benefits gained through this program include, among other things, increased collection of certain currently owed taxes, permanently bringing into the tax system taxpayers who have been evading payment of taxes and providing an opportunity for taxpayers to satisfy tax obligations before stepped-up tax enforcement programs take effect. It is the intention of the General Assembly in enacting this chapter that the tax amnesty program provided under this chapter be a one-time occurrence which shall not be repeated in the future because taxpayers' expectations of any future amnesty programs could have a counterproductive effect on compliance under this chapter.

(Code 1981, § 48-16-1 , enacted by Ga. L. 1992, p. 1249, § 1; Ga. L. 1993, p. 91, § 48.)

48-16-2. Short title.

This chapter shall be known and may be cited as the "Tax Amnesty Program Act."

(Code 1981, § 48-16-2 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-3. Definitions.

As used in this chapter, the term:

  1. "Accounts receivable" means an amount of state tax, penalty, or interest which has been recorded as due and entered in the account records or any ledger maintained in the department, or which a taxpayer should reasonably expect to become due as a direct or indirect result of any pending or completed audit or investigation, which a taxpayer knows is being conducted by any federal, state, or local taxing authority.
  2. "Final, due, and owing" means an assessment which has become final and is owed to the state due to either the expiration of the taxpayer's appeal rights or, in the case of an assessment which has been appealed, either pursuant to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," or pursuant to Code Section 48-2-59, the rendition of the final order by the commissioner or by any court of this state. Assessments that have been appealed shall be final, due, and owing 15 days after the last unappealed or unappealable order sustaining the assessment or any part thereof has become final.  Assessments that have not been appealed shall be final, due, and owing 30 days after service of notice of assessment pursuant to Code Section 48-2-45.
  3. "Taxpayer" means any individual, partnership, joint venture, association, corporation, receiver, trustee, guardian, executor, administrator, fiduciary, or any other entity of any kind subject to any tax set forth in this title or any person required to collect any such tax under this title. (Code 1981, § 48-16-3 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-4. Tax amnesty program; waiver of penalties; duration and applicability of program; forms.

  1. The commissioner shall develop and administer a one-time tax amnesty program as provided in this chapter.  The commissioner shall, upon the voluntary return and remission of taxes and interest owed by any taxpayer, waive all penalties that are assessed or subject to being assessed for outstanding liabilities for taxable periods ending or transactions occurring on or before December 31, 1990.  The commissioner shall provide by regulation as necessary for the administration of this amnesty program and shall further provide for necessary forms for the filing of amnesty applications and returns.
  2. Notwithstanding the provisions of any other law to the contrary, the tax amnesty program shall begin by October 31, 1992, and shall be completed no later than December 31, 1992, and shall apply to all taxpayers owing taxes, penalties, or interest administered by the commissioner under the provisions of this title, except that the tax amnesty shall not apply to any property tax levied or administered by the commissioner pursuant to Chapters 5 and 6 of this title.  The program shall apply to tax liabilities for taxable periods ending or transactions occurring on or before December 31, 1990. Amnesty tax return forms shall be in a form prescribed by the commissioner. (Code 1981, § 48-16-4 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-5. Applicability; effect of audit, assessment, bill, notice, demand for payment, or proceeding; installment agreements; deficiency assessment after amnesty period ends.

  1. The provisions of this chapter shall apply to any eligible taxpayer who files an application for amnesty within the time prescribed by the commissioner and does the following:
    1. Files such returns as may be required by the commissioner for all years or tax reporting periods as stated on the application for which returns have not previously been filed and files such returns as may be required by the commissioner for all years or tax reporting periods for which returns were filed but the tax liability was underreported;
    2. Pays in full the taxes due for the periods and taxes applied for at the time the application or amnesty tax returns are filed within the amnesty period and pays with the taxes the amount of interest due and pays the amount of any additional tax and interest owed as may be determined by the commissioner within 30 days of notification by the commissioner; and
    3. The commissioner may, in his discretion, impose by regulation, the further condition that, in addition to the requirements set forth in paragraphs (1) and (2) of this subsection, the requirement that any eligible taxpayer also pay in full within the amnesty period all taxes previously assessed by the commissioner that are final, due, and owing at the time the application or amnesty tax returns are filed and pays with the taxes the amount of interest due and pays within 30 days of notification by the commissioner the amount of any additional interest owed.
  2. An eligible taxpayer may participate in the amnesty program whether or not the taxpayer is under audit, notwithstanding the fact that the amount due is included in a proposed assessment or an assessment, bill, notice, or demand for payment issued by the commissioner, and without regard to whether the amount due is subject to a pending administrative or judicial proceeding. An eligible taxpayer may participate in the amnesty program to the extent of the uncontested portion of any assessed liability.  However, participation in the program shall be conditioned upon the taxpayer's agreement that the right to protest or initiate an administrative or judicial proceeding or to claim any refund of moneys paid under the program is barred with respect to the amounts paid with the application or amnesty return.
  3. The commissioner may enter into an installment payment agreement in cases of severe hardship in lieu of the complete payment required under subsection (a) of this Code section. In such cases, 25 percent of the amount due shall be paid with the application or amnesty return with the balance to be paid in monthly installments not less than 25 percent of the original amount nor to exceed three months following the expiration of the amnesty period. Failure of the taxpayer to make timely payments shall void the terms of the amnesty program.  All such agreements and payments shall include interest due and accruing during the installment agreement.
  4. If, following the termination of the tax amnesty period, the commissioner issues a deficiency assessment based upon information independent of that shown on a return filed pursuant to subsection (a) of this Code section, the commissioner shall have the authority to impose penalties and criminal action may be brought where authorized by law only with respect to the difference between the amount shown on the amnesty tax return and the correct amount of tax due.  The imposition of penalties or criminal action shall not invalidate any waiver granted under Code Section 48-16-6 . (Code 1981, § 48-16-5 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-6. To whom amnesty granted; effect of notice of criminal investigation or pending criminal litigation; interest or penalty paid prior to request for amnesty; refund or credit of taxes or interest paid under program.

  1. Amnesty shall be granted for any taxpayer who meets the requirements of Code Section 48-16-5 in accordance with the following:
    1. For taxes which are owed as a result of the nonreporting or underreporting of tax liabilities or the nonpayment of any accounts receivable owed by an eligible taxpayer, the state shall waive criminal prosecution and all civil penalties which may be assessed under any provision of this title for the taxable years or periods for which tax amnesty is requested; and
    2. With the exception of instances in which the taxpayer and commissioner enter into an installment payment agreement authorized under subsection (c) of Code Section 48-16-5, the failure to pay all taxes and interest as shown on the taxpayer's amnesty tax return shall invalidate any amnesty granted pursuant to this chapter.
  2. This chapter shall not apply to any taxpayer who is on notice, written or otherwise, of a criminal investigation being conducted by an agency of the state or any political subdivision thereof or the United States, nor shall this chapter apply to any taxpayer who is the subject of any criminal litigation which is pending on the date of the taxpayer's application in any court of this state or the United States for nonpayment, delinquency, evasion, or fraud in relation to any federal taxes or to any of the taxes to which this amnesty program is applicable.
  3. No refund or credit shall be granted for any interest or penalty paid prior to the time the taxpayer requests amnesty pursuant to Code Section 48-16-5.
  4. Unless the commissioner in his own discretion redetermines the amount of taxes and interest due, no refund or credit shall be granted for any taxes or interest paid under the amnesty program. (Code 1981, § 48-16-6 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-7. Interest on installment agreements; interest on refunded or credited overpayments.

  1. All installment agreements authorized under subsection (c) of Code Section 48-16-5 shall bear interest on the outstanding amount of tax due during the installment period at the rate prescribed under Code Section 48-2-40.
  2. Notwithstanding the provisions of this title, if any overpayment of tax under this chapter is refunded or credited within 180 days after the return is filed, no interest shall be allowed. (Code 1981, § 48-16-7 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-8. Regulations, forms and instructions, and other actions necessary to implement chapter; publicity of program.

The commissioner shall promulgate administrative regulations as necessary, issue forms and instructions, and take all actions necessary to implement the provisions of this chapter. The commissioner shall publicize the tax amnesty program in order to maximize the public awareness of and participation in the program. The commissioner may, for the purpose of publicizing the tax amnesty program, contract with any advertising agency within or outside this state.

(Code 1981, § 48-16-8 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-9. Accounting and reporting of funds collected under amnesty program; disposition of funds.

For purposes of accounting for the revenues received pursuant to this chapter, the commissioner shall maintain an accounting and reporting of funds collected under the amnesty program. All funds collected shall be remitted to the general fund of the state treasury.

(Code 1981, § 48-16-9 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-10. Imposition of cost of collection fee after amnesty period expires.

  1. In addition to all other penalties provided under this chapter or any other law, the commissioner may by regulation impose after the expiration of the tax amnesty period a cost of collection fee of 20 percent of any deficiency assessed for any taxable period ending or transactions occurring after December 31, 1990. This fee shall be in addition to all other applicable penalties, fees, or costs. The commissioner shall have the right to waive any collection fee when it is demonstrated that any deficiency of the taxpayer was not due to negligence, intentional disregard of administrative rules and regulations, or fraud.
  2. In addition to all other penalties provided under this chapter or any other law, the commissioner may pursuant to regulation impose after the expiration of the tax amnesty period a cost of collection fee of 50 percent of any deficiency assessed after the amnesty period for taxable periods ending or transactions occurring on or before December 31, 1990, regardless of when due. This fee shall be in addition to all other applicable penalties, fees, or costs. The commissioner shall have the right to waive any collection fee when it is demonstrated that any deficiency of the taxpayer was not due to negligence, intentional disregard of administrative rules and regulations, or fraud.
  3. The provisions of subsections (a) and (b) of this Code section shall not apply to any account which has been protested pursuant to Code Section 48-2-46 as of the expiration of the amnesty period and which does not become final, due, and owing, or to any account on which the taxpayer is remitting timely payments under a payment agreement negotiated with the commissioner prior to or during the amnesty period.
  4. The fee levied under subsections (a) and (b) of this Code section shall not apply to taxes paid pursuant to the terms of the amnesty program. (Code 1981, § 48-16-10 , enacted by Ga. L. 1992, p. 1249, § 1; Ga. L. 1996, p. 682, § 1; Ga. L. 2013, p. 636, § 3/HB 359.)

Administrative Rules and Regulations. - Collection fees, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Administrative Unit, Collections, § 560-1-2-.02.

48-16-11. Contracts with debt collection agencies or attorneys to collect delinquent taxes, penalties, and interest.

The commissioner may, for the purpose of collecting any delinquent taxes due from a taxpayer, contract with any debt collection agency or attorney doing business within or outside this state for the collection of such delinquent taxes, including penalties and interest thereon.

(Code 1981, § 48-16-11 , enacted by Ga. L. 1992, p. 1249, § 1.)

48-16-12. Willful failure to make return; false returns; willful failure to pay taxes; failure to obey a subpoena or order.

  1. As used in this Code section, the term "return" means and includes any return, declaration, or form prescribed by the commissioner with respect to the taxes covered by the amnesty program.
  2. In addition to all other penalties provided under this chapter and any other law, any person who willfully fails to make a return or willfully makes a false return or conspires to do so, or who willfully fails to pay taxes owing, withheld, or collected, with intent to evade payment of the tax owed or the amount withheld or collected, or any part thereof, or who conspires to do so shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than three years or by a fine of not more than $5,000.00, or both.
  3. Any person who fails to obey a subpoena or order of the commissioner issued pursuant to Code Section 48-2-8 for purposes of enforcing this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined not less than $25.00 and not more than $100.00 or imprisoned in the county jail for not more than three months, or both.  For any subsequent offense such person shall, upon conviction thereof, be punished by imprisonment for not more than one year or by a fine of not more than $1,000.00, or both. (Code 1981, § 48-16-12 , enacted by Ga. L. 1992, p. 1249, § 1; Ga. L. 1993, p. 91, § 48.)

CHAPTER 16A PROPERTY TAX AMNESTY PROGRAM

Sec.

RESEARCH REFERENCES

Am. Jur. 2d. - 72 Am. Jur. 2d, State and Local Taxation, § 687 et seq.

C.J.S. - 85 C.J.S., Taxation, § 1125 et seq.

48-16A-1. Legislative findings, declarations, and intent.

The General Assembly finds and declares that a public purpose is served by the waiver of tax penalties and criminal prosecution in return for the immediate reporting and payment of previously underreturned, unreturned, or unpaid state and local ad valorem tax liabilities. The General Assembly further finds and declares that the benefits gained through this program include, among other things, increased collection of certain currently owed state and local ad valorem taxes, permanently bringing into the state and local tax system taxpayers who have been evading payment of local taxes and providing an opportunity for taxpayers to satisfy state and local ad valorem tax obligations before stepped-up local tax enforcement programs take effect. It is the intention of the General Assembly in enacting this chapter that the property tax amnesty program provided under this chapter be a one-time occurrence which shall not be repeated in the future because taxpayers' expectations of any future property tax amnesty programs could have a counterproductive effect on compliance under this chapter.

(Code 1981, § 48-16A-1 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-2. Short title.

This chapter shall be known and may be cited as the "Property Tax Amnesty Program Act."

(Code 1981, § 48-16A-2 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-3. Definitions.

As used in this chapter, the term:

  1. "Ad valorem tax" or "property tax" means any state or local ad valorem tax levied by any taxing jurisdiction.
  2. "Administering governing authority" means the county governing authority in the case of state, county, and school ad valorem tax or the municipal governing authority in the case of municipal or independent school system ad valorem tax.
  3. "Delinquent taxes" means an amount of ad valorem property tax, penalty, or interest which has been recorded as due and entered in the account records or any ledger maintained in the office of the local collection official, or which a taxpayer should reasonably expect to become due as a direct or indirect result of any pending or completed audit or assessment, which a taxpayer knows is being conducted by any state or local assessing authority.
  4. "Final, due, and owing" means an assessment and ad valorem tax amount which has become final and is owed to the taxing jurisdiction due to either the expiration of the taxpayer's appeal rights or the rendition of a final determination of assessed value based upon an appeal.
  5. "Governing authority" means that official or group of officials responsible for the governing of a taxing jurisdiction.
  6. "Local collection official" means that local official responsible for the collection of ad valorem taxes.
  7. "Taxing jurisdiction" means the state or any district within which a county or municipality, a county, independent, or area school system, or a consolidated city-county government or other political subdivision of the state exercises the power to levy or causes to be levied any ad valorem taxes to carry out its purposes.
  8. "Taxpayer" means any individual, partnership, joint venture, association, corporation, receiver, trustee, guardian, executor, administrator, fiduciary, or any other entity of any kind subject to any ad valorem tax. (Code 1981, § 48-16A-3 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-4. Development and administration of program; waiver of penalties; duration of program; forms.

  1. Upon the adoption of a resolution or ordinance by the governing authority of each local taxing jurisdiction for which a local collection official collects delinquent taxes indicating that governing authority's desire to participate in the property tax amnesty program, the administering governing authority shall be authorized to develop and administer a one-time property tax amnesty program as provided in this chapter.  The county governing authority shall be authorized to include the state's delinquent tax in the property tax amnesty program.  Such administering governing authority shall be authorized to waive, in whole or in part, all penalties or interest or both with respect to outstanding ad valorem tax liabilities for all tax years ending or transactions occurring on or before December 31, 1993.  The terms and conditions of such waiver shall be specified in the resolution or ordinance adopted by such administering governing authority and may include a delegation of authority to the local collecting official of the authority to make such waiver, in whole or in part, on a case-by-case basis.  The administering governing authority shall provide for the necessary forms for the filing of property tax amnesty applications and returns.
  2. The local collection official shall, upon the voluntary filing of a return to the official responsible for the receiving of property tax returns and the remission of ad valorem taxes owed by any taxpayer, if required, waive all penalties and interest that are assessed or subject to being assessed for outstanding ad valorem tax liabilities for all tax years ending or transactions occurring on or before December 31, 1993. Such waiver shall be in accordance with the terms of the resolution or ordinance of the administering governing authority.
  3. Any property tax amnesty program conducted under the authority of this chapter shall begin by October 31, 1994, and shall be completed no later than December 31, 1994, and shall apply to all taxpayers owing ad valorem taxes, penalties, or interest. The program shall apply to outstanding ad valorem tax liabilities for all tax years ending on or before December 31, 1993.  Property tax amnesty tax return forms shall be in a form prescribed by the administering  governing authority. (Code 1981, § 48-16A-4 , enacted by Ga. L. 1994, p. 428, § 3; Ga. L. 1995, p. 10, § 48.)

48-16A-5. Requirements for participation in program by eligible taxpayers.

  1. The provisions of this chapter shall apply to any eligible taxpayer who files an application for property tax amnesty within the time prescribed by the administering governing authority and does the following:
    1. Files such returns as may be required by the local official responsible for receiving returns for all tax years as stated on the application for which returns have not previously been filed and files such returns as may be required by the local official responsible for receiving returns for all tax years for which returns were filed but on which the value of the taxpayer's property was understated;
    2. Pays in full the ad valorem taxes and, if required, pays in full the interest due, for the periods applied for at the time of the application and pays the amount of any additional ad valorem tax and, if required, interest owed, as may be determined from any additional returns by the local collection official within 30 days of notification by such local collection official; and
    3. The administering governing authority may by local resolution or ordinance impose the further condition that, in addition to the requirements set forth in paragraphs (1) and (2) of this subsection, the requirement that any eligible taxpayer also pay in full within the property tax amnesty period all ad valorem taxes and, if required, penalties and interest previously levied and assessed that are final, due, and owing at the time the application or property tax amnesty tax returns are filed.
  2. An eligible taxpayer may participate in the property tax amnesty program whether or not the taxpayer is under audit, notwithstanding the fact that the amount due is based upon a proposed assessment or an assessment and without regard to whether the amount due is subject to a pending administrative or judicial proceeding.  An eligible taxpayer may participate in the property tax amnesty program to the extent of the uncontested portion of any assessed ad valorem tax liability. However, participation in the program shall be conditioned upon the taxpayer's agreement that the right to protest or initiate an administrative or judicial proceeding or to claim any refund of moneys paid under the program is barred with respect to the amounts paid with the application or property tax amnesty return.
  3. The local collection official may enter into an installment payment agreement in cases of severe hardship in lieu of the complete payment required under subsection (a) of this Code section.  In such cases, 25 percent of the amount due shall be paid with the application or property tax amnesty return with the balance to be paid in monthly installments not less than 25 percent of the original amount nor to exceed three months following the expiration of the property tax amnesty period. Failure of the taxpayer to make timely payments shall void the terms of the property tax amnesty program.  All such agreements and payments shall, if required, include interest due and accruing during the installment agreement.
  4. If, following the termination of the property tax amnesty period, additional taxes are determined to be due from the taxpayer based upon information independent of that shown on a return filed pursuant to subsection (a) of this Code section, the local collection official shall have the authority to impose penalties only with respect to the difference between the amount shown on the property tax amnesty tax return and the correct amount of tax due.  The imposition of penalties shall not invalidate any waiver granted under Code Section 48-16A-6 . (Code 1981, § 48-16A-5 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-6. Taxpayers eligible for amnesty.

  1. Property tax amnesty shall be granted for any taxpayer who meets the requirements of Code Section 48-16A-5 in accordance with the following:
    1. For ad valorem taxes which are owed as a result of the nonreturning or underreturning of any ad valorem tax liabilities or the nonpayment of any delinquent ad valorem taxes owed by an eligible taxpayer, the local collection official shall waive criminal prosecution and all civil penalties which may be assessed under any provision of law for the taxable years or periods for which property tax amnesty is requested; and
    2. With the exception of instances in which the taxpayer and local collection official enter into an installment payment agreement authorized under subsection (c) of Code Section 48-16A-5, the failure to pay all taxes and, if required, interest as shown on the taxpayer's property tax amnesty tax return shall invalidate any property tax amnesty granted pursuant to this chapter.
  2. This chapter shall not apply to any taxpayer who is on notice, written or otherwise, of a criminal investigation being conducted by an agency of the state or any political subdivision thereof, nor shall this chapter apply to any taxpayer who is the subject of any criminal litigation which is pending on the date of the taxpayer's application in any court of this state for nonpayment, delinquency, evasion, or fraud in relation to any of the ad valorem taxes to which this property tax amnesty program is applicable.
  3. No refund or credit shall be granted for any interest or penalty paid prior to the time the taxpayer requests amnesty pursuant to Code Section 48-16A-5.
  4. Unless the local collection official in the discretion of such local collection official redetermines the amount of taxes and interest due, no refund or credit shall be granted for any taxes or interest paid under the property tax amnesty program. (Code 1981, § 48-16A-6 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-7. Interest on installment agreements or refunded or credited overpayments.

  1. All installment agreements authorized under subsection (c) of Code Section 48-16A-5 shall, if required, bear interest on the outstanding amount of tax due during the installment period at the rate prescribed under Code Section 48-2-40.
  2. Notwithstanding any other provisions of this title, if any overpayment of ad valorem tax under this chapter is refunded or credited within 180 days after the return is filed, no interest shall be allowed. (Code 1981, § 48-16A-7 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-8. Publicizing of program.

The administering governing authority shall publicize the property tax amnesty program in order to maximize the public awareness of and participation in the program. The administering governing authority may, for the purpose of publicizing the property tax amnesty program, contract with any advertising agency within or outside this state.

(Code 1981, § 48-16A-8 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-9. Accounting and reporting of collections.

For purposes of accounting for the revenues received pursuant to this chapter, the local collection official shall maintain an accounting and reporting of funds collected under the property tax amnesty program.

(Code 1981, § 48-16A-9 , enacted by Ga. L. 1994, p. 428, § 3.)

48-16A-10. Cost of collection fee.

  1. In addition to all other penalties provided under this chapter or any other law, the administering governing authority may by ordinance or resolution impose after the expiration of the property tax amnesty period a cost of collection fee of 50 percent of any deficiency levied after the property tax amnesty period for taxable periods ending on or before December 31, 1993, regardless of when due.  This fee shall be in addition to all other applicable penalties, fees, or costs.  The local collection official shall have the right to waive any collection fee when it is demonstrated that any deficiency of the taxpayer was not due to negligence, intentional disregard of local ordinances or resolutions, or fraud.
  2. The provisions of subsection (a) of this Code section shall not apply to any account which is under appeal as of the expiration of the property tax amnesty period and which does not become final, due, and owing, or to any account on which the taxpayer is remitting timely payments under a payment agreement negotiated with the local collection official prior to or during the property tax amnesty period.
  3. The fee levied under subsection (a) of this Code section shall not apply to taxes paid pursuant to the terms of the property tax amnesty program. (Code 1981, § 48-16A-10 , enacted by Ga. L. 1994, p. 428, § 3.)

CHAPTER 17 REDESIGNATED

Editor's notes. - Ga. L. 2013, p. 37, § 1-2/HB 487, effective April 10, 2013, redesignated the former provisions of this chapter, relating to coin operated amusement machines, as Article 3 of Chapter 27 of Title 50, and reserved the former chapter designation.

48-17-1 through 48-17-17.

Redesignated as Article 3 of Chapter 27 of Title 50 by Ga. L. 2013, p. 37, § 1-1/HB 487, effective April 10, 2013.

Editor's notes. - Ga. L. 2013, p. 37, § 1-1/HB 487, effective April 10, 2013, redesignated former Code Sections 48-17-1 through 48-17-17 as Code Sections 50-27-70 through 50-27-86.

Ga. L. 2018, p. 1112, § 17(3)/SB 365, part of an Act to revise, modernize, and correct the Code, repealed the reservation of this Code section, effective May 8, 2018.

CHAPTER 18 CERTIFIED CAPITAL COMPANIES

48-18-1 through 48-18-9.

Repealed by Ga. L. 2004, p. 431, § 2, effective May 13, 2004.

Editor's notes. - This chapter, consisting of Code Sections 48-18-1 through 48-18-9, concerning state insurance premium tax credits with respect to certified capital companies, was based on Code 1981, §§ 48-18-1 through 48-18-9, enacted by Ga. L. 2002, p. 954, § 4; Ga. L. 2003, p. 665, §§ 40, 41.