2020 Georgia Code
Title 48 - Revenue and Taxation
Chapter 5 - Ad Valorem Taxation of Property
Article 1 - General Provisions
§ 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.)

- 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).

ANALYSIS

• General Consideration
• Specific Items of Property

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).

- 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).

- 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).

- 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).

- 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); GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829, 834 S.E.2d 27 (2019).

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).

- 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).

- 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. 2d 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. 2d 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 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).

- 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).

- 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 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).

- 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).

- 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. 2d 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.

- "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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 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.

- 84 C.J.S., Taxation, § 74 et seq.

- 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.