2020 Georgia Code
Title 48 - Revenue and Taxation
Chapter 13 - Specific, Business, and Occupation Taxes
Article 1 - General Provisions
§ 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.)

- Pursuant to Code Section 28-9-5, in 1995, "April 11, 1995" was substituted for "the effective date of this Act" in subsection (c).

- 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.

- 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).

- 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 Section48-13-5).

- 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 Section48-13-5).

- 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 Section48-13-5).

- 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 Section48-13-5).

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 Section48-13-5).

- 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).

- 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 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).

- 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).

- 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).

- 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).

- 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.

- 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).

- 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).

- 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).

- 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).

- 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).

- 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.

- Validity of state or municipal tax or license fee upon occupation of practicing law, 50 A.L.R.4th 467.