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GEORGIA CODE (Last Updated: August 20, 2013) |
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Title 48. REVENUE AND TAXATION |
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Chapter 8. SALES AND USE TAXES |
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Article 1. STATE SALES AND USE TAX |
| Part 1. GENERAL PROVISIONS |
| § 48-8-1. Intent of article with respect to taxation of tangible personal property and services; constitutional and other exemptions |
| § 48-8-2. Definitions |
| § 48-8-3. Exemptions |
| § 48-8-3.1. Exemptions as to motor fuels |
| § 48-8-3.2. Definitions; exemption; applicability; examples |
| § 48-8-3.3. Definitions; applicability; criteria for eligibility; rules and regulations; dealer performing both manufacturing and agricultural operations; exemption |
| § 48-8-4. Nonapplicability of use tax to agricultural products, poultry, and livestock used by producer |
| § 48-8-5. Exemption of agricultural commodities not sold as finished product to ultimate consumer; "agricultural commodity" defined |
| § 48-8-6. Prohibition of political subdivisions from imposing various taxes; ceiling on local sales and use taxes; taxation of mobile telecommunications |
| § 48-8-7. Violation of article; penalty |
| § 48-8-8. Filing false or fraudulent return by dealer under article; penalty |
| § 48-8-9. Failure by dealer to furnish return under article; penalty |
| § 48-8-10. Failure by dealer to keep or to allow inspection of records under article; penalty |
| § 48-8-11. Violation of any other provision of article; penalty |
| § 48-8-12. Refusal by transportation company, agency, firm, or person to allow examination of its books, records, and other documents under article; penalty |
| § 48-8-13. Taxing jurisdiction for mobile telecommunications services |
| § 48-8-14. Restrictions on state contracts with nongovernmental vendors filing or refusing to collect sales or use taxes |
| § 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 |
| § 48-8-16. Ratification of Executive Order on sale of dyed fuel oils |
| § 48-8-17. Suspension of the collection of taxes on gasoline and aviation fuel; ratification of temporary suspension |
| § 48-8-17.1. Ratification of Executive Order on prepaid taxes; suspension of provisions |
| § 48-8-18. Ratification of Executive Order on pharmaceuticals distributed without cost |
| Part 2. IMPOSITION, RATE, COLLECTION, AND ASSESSMENT |
| § 48-8-30. Imposition of tax; rates; collection |
| § 48-8-31. Tax computation to be carried to third decimal place; rounding |
| § 48-8-32. Tax collectable from dealers; rate for retail sales price and purchase price |
| § 48-8-33. Collection of tax by dealer as agent of state notwithstanding constitutional or other exemptions |
| § 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 |
| § 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 |
| § 48-8-36. Prohibition of advertising by dealer of assumption of payment of tax; exception; liability of dealer |
| § 48-8-37. Violation of Code Section 48-8-36; penalty |
| § 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 |
| § 48-8-39. Effect of use other than retention, demonstration, or display by giver of certificate or by processor, manufacturer, or converter |
| § 48-8-40. Effect of sales from commingled goods when certificate given for portion of goods |
| § 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 |
| § 48-8-43. Disposition of taxes collected in excess of 4 percent |
| § 48-8-44. Payment of tax when used articles taken as credit on sale of new and used articles |
| § 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 |
| § 48-8-47. Notice by commissioner to persons holding credits of or owing debts to delinquent dealers; duty of such persons |
| § 48-8-48. Violation of Code Sections 48-8-46 and 48-8-47; penalty |
| § 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 |
| § 48-8-50. Compensation of dealers for reporting and paying tax; reimbursement deduction |
| § 48-8-53. Duty of wholesalers and jobbers to keep records; contents; inspection by commissioner |
| § 48-8-54. Failure of wholesalers or jobbers to keep and allow inspection of records under Code Section 48-8-53; penalty |
| § 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 |
| § 48-8-56. Period of delinquency of unpaid taxes; issuance of fi. fa. for collection |
| § 48-8-60. Engaging in business as seller without certificate of registration required by Code Section 48-8-59; penalty |
| § 48-8-61. Application for certificate of registration by importing dealers; filing of returns and payment of use tax on imported tangible personal property |
| § 48-8-62. Revocation or suspension of certificate of registration for violation of article or regulation; notice; hearing |
| § 48-8-64. Time for assessment |
| § 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 |
| § 48-8-67. Distribution of certain unidentifiable sales and use tax proceeds; limitations; powers and duties of state revenue commissioner |
| § 48-8-68. Relief from liability in certain circumstances for failure to collect tax at new rate |
| § 48-8-69. Purchases from printed catalogs; local jurisdiction boundary changes |
| § 48-8-70. Determination of ZIP Code designation applicable to particular purchases; rebuttable presumption of seller's due diligence |
| § 48-8-71. Immunity from liability for reliance upon erroneous data provided by the state on tax rates, local boundaries, and taxing jurisdiction assignments |
| § 48-8-72. Over-collected sales or use tax |
| § 48-8-73. Immunity from liability for reliance upon erroneous taxability matrix data provided by the state |
| § 48-8-74. Effective date for sales tax rate change |
| § 48-8-75. Purchaser's immunity from liability for failure to pay correct sales tax under certain circumstances |
| § 48-8-76. Compliance with terms of Streamlined Sales and Use Tax Agreement; relief from certain obligations |
| § 48-8-77. Sourcing; definitions; sales of advertising and promotional direct mail and other direct mail; sales of telecommunications service |
| § 48-8-77.1. Certification of review software by department; relief from liability |
REFS & ANNOS
TITLE 48 Chapter 8 Article 1 NOTE
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 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 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. 2d 35 (1979).
PURPOSE. --Purpose of Ga. L. 1951, p. 360 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, 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 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 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 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, 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 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
TAX APPLIES TO ALL CONSENSUAL OR CONTRACTUAL AGREEMENTS FOR CONSIDERATION. --Ga. L. 1951, p. 360 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 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 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 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 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 1952-53 Op. Att'y Gen. p. 232.
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. 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, 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 DOES NOT EXEMPT SALES BY NONPROFIT CORPORATIONS. 1972 Op. Att'y Gen. No. U72-109.
GA. L. 1951, P. 360 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.
WAREHOUSING IS A SERVICE NOT TAXABLE UNDER GA. L. 1951, P. 360. 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. 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 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 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 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 ALR 1432; 110 ALR 1485; 117 ALR 486; 128 ALR 893.
Rights as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 93 ALR 1485; 119 ALR 542.
Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 ALR 597.
Constitutionality, construction, and application of general use tax or other compensating tax designed to complement state sales tax, 129 ALR 222; 153 ALR 609.
Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 ALR 1011.
Deductibility of other taxes or fees in computing excise or license taxes, 148 ALR 263; 174 ALR 1263.
Municipality as subject to state license or excise taxes, 159 ALR 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 ALR 276; 171 ALR 697.
Sales tax on parts, repairs, or constituents used in repair of article, 11 ALR2d 926.
Use tax on property purchased by nonresident in another state, 41 ALR2d 535.
Federal retail luxury or other excise tax as includable in amount on which state sales or use tax is computed, 43 ALR2d 862.
Redemption of trading stamps or the like for merchandise as sale at retail within taxing statute, 80 ALR2d 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 ALR4th 952.
State or local sales, use, or privilege tax on sales of, or revenues from sales of, advertising space or services, 40 ALR4th 1114.
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 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 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. 2d 35 (1979).
PURPOSE. --Purpose of Ga. L. 1951, p. 360 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, 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 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 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 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, 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 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
TAX APPLIES TO ALL CONSENSUAL OR CONTRACTUAL AGREEMENTS FOR CONSIDERATION. --Ga. L. 1951, p. 360 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 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 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 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 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 1952-53 Op. Att'y Gen. p. 232.
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. 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, 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 DOES NOT EXEMPT SALES BY NONPROFIT CORPORATIONS. 1972 Op. Att'y Gen. No. U72-109.
GA. L. 1951, P. 360 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.
WAREHOUSING IS A SERVICE NOT TAXABLE UNDER GA. L. 1951, P. 360. 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. 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 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 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 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 ALR 1432; 110 ALR 1485; 117 ALR 486; 128 ALR 893.
Rights as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 93 ALR 1485; 119 ALR 542.
Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 ALR 597.
Constitutionality, construction, and application of general use tax or other compensating tax designed to complement state sales tax, 129 ALR 222; 153 ALR 609.
Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 ALR 1011.
Deductibility of other taxes or fees in computing excise or license taxes, 148 ALR 263; 174 ALR 1263.
Municipality as subject to state license or excise taxes, 159 ALR 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 ALR 276; 171 ALR 697.
Sales tax on parts, repairs, or constituents used in repair of article, 11 ALR2d 926.
Use tax on property purchased by nonresident in another state, 41 ALR2d 535.
Federal retail luxury or other excise tax as includable in amount on which state sales or use tax is computed, 43 ALR2d 862.
Redemption of trading stamps or the like for merchandise as sale at retail within taxing statute, 80 ALR2d 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 ALR4th 952.
State or local sales, use, or privilege tax on sales of, or revenues from sales of, advertising space or services, 40 ALR4th 1114.