2020 Georgia Code
Title 33 - Insurance
Chapter 3 - Authorization and General Requirements for Transaction of Insurance
§ 33-3-26. Retaliation

1. When by or pursuant to the laws of any other state or foreign country any taxes, licenses, and other fees in the aggregate and any fines, penalties, deposit requirements, or other material obligations, prohibitions, or restrictions are or would be imposed upon Georgia insurers or upon the agents or representatives of such insurers which are in excess of such taxes, licenses, and other fees in the aggregate or which are in excess of the fines, penalties, deposit requirements, or other obligations, prohibitions, or restrictions directly imposed upon similar insurers or upon the agents or representatives of such insurers of such other state or country under the statutes of this state, so long as such laws of such other state or country continue in force or are so applied, the same taxes, licenses, and other fees in the aggregate or fines, penalties, deposit requirements, or other material obligations, prohibitions, or restrictions of whatever kind shall be imposed by the Commissioner upon the insurers or upon the agents or representatives of such insurers of such other state or country doing business or seeking to do business in Georgia. Any tax, license, or other fee or other obligation imposed by any city, county, or other political subdivision or agency of such other state or country on Georgia insurers or their agents or representatives shall be deemed to be imposed by such state or country within the meaning of this Code section.
2. The Commissioner may waive any retaliatory obligations, prohibitions, or restrictions that would prohibit entry into this state of any insurer domiciled in another state and that would otherwise be imposed by subsection (a) of this Code section if, in his or her discretion, the entry of such insurer would be expected to enhance competition in this state and would be in the best interests of the citizens of this state. The discretion provided by this subsection shall not extend to any retaliatory taxes, fees, fines, penalties, or deposit requirements.
3. This Code section shall not apply as to personal income taxes, as to ad valorem taxes on real or personal property, or as to special purpose obligations or assessments imposed by another state in connection with particular kinds of insurance other than property insurance, except that deductions from premium taxes or other taxes otherwise payable allowed on account of real estate or personal property taxes paid shall be taken into consideration by the Commissioner in determining the propriety and extent of retaliatory action under this Code section.
4. For the purposes of this Code section, the domicile of an alien insurer other than insurers formed under the laws of Canada shall be that state designated by the insurer in writing filed with the Commissioner at the time of admission to this state and may be any one of the following states:
   1. This state if the insurer is entering through this state to transact insurance in the United States through a United States branch;
   2. That in which the insurer was first authorized to transact insurance;
   3. That in which is located the insurer's principal place of business in the United States; or
   4. That in which is held the larger deposit of trusteed assets of the insurer for the protection of its policyholders and creditors in the United States.
5. If the insurer makes no such designation, its domicile shall be deemed to be that state in which is located its principal place of business in the United States.
6. In the case of an insurer formed under the laws of Canada or a province thereof, its domicile shall be deemed to be that province in which its head office is situated.

(Ga. L. 1869, p. 127, § 5; Code 1873, § 2848; Code 1882, § 2848; Ga. L. 1887, p. 124, § 12; Civil Code 1895, § 2060; Civil Code 1910, § 2449; Code 1933, § 56-315; Code 1933, § 56-321, enacted by Ga. L. 1960, p. 289, § 1; Code 1981, §33-3-25; Ga. L. 1982, p. 3, § 33; Code 1981, §33-3-26, as redesignated by Ga. L. 1982, p. 1244, § 1; Ga. L. 1999, p. 584, § 3; Ga. L. 2008, p. 482, § 1/SB 213.)

- For article discussing restrictions on the establishment and transaction of business by a foreign insurer in Georgia with emphasis on threshold requirements for establishment by alien insurers, see 27 Mercer L. Rev. 629 (1976).

OPINIONS OF THE ATTORNEY GENERAL

Determination of amount of retaliatory tax.

- Where the aggregate fee and tax burden imposed upon a Georgia insurer by another state exceeds the aggregate fee and tax burden imposed upon insurers by Georgia, this section imposes an additional retaliatory tax upon insurers from such other state in an amount equal to the amount by which the aggregate fees and taxes of the other state exceed the aggregate fees and taxes imposed upon similar insurers by Georgia. 1982 Op. Att'y Gen. No. 82-2.

Examination of foreign insurer's investments in Georgia is required in calculating the retaliatory tax liability imposed by this section if the foreign insurer's home state imposes a premium tax rate which varies with an insurer's investments in that state. 1982 Op. Att'y Gen. No. 82-2.

- This section and the provisions pertaining to abatement of taxes on insurance premiums (see O.C.G.A. § 33-8-5) are not mutually exclusive; a company having met the statutory standards could qualify for the abatement provisions allowed on the gross premium tax; the same company could also be subject to retaliation because of the existing tax structure of its home state; thus, a foreign insurer coming within both provisions, i.e., abatement and retaliation, would first have the gross premium tax figured at the applicable rate; to this dollar amount would be added the amount of retaliatory tax, if any, computed against the foreign insurer because of the existing differential between the Georgia aggregate tax and fee structure and that of the foreign state in which the company is based. 1963-65 Op. Att'y Gen. p. 138.

RESEARCH REFERENCES

Am. Jur. 2d.

- 43 Am. Jur. 2d, Insurance, §§ 54, 55.

- 44 C.J.S., Insurance, § 136.