2020 Georgia Code
Title 48 - Revenue and Taxation
Chapter 5 - Ad Valorem Taxation of Property
Article 11 - Ad Valorem Taxation of Public Utilities
§ 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. 1. As used in this Code section, the term "electronic transmission" means any form of communication that does not directly involve the physical transmission of paper and that creates a record that may be retained, retrieved, and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process.
   2. The chief executive officer of each public utility shall be required to make by electronic transmission 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.
3. 1. Each chief executive officer shall apportion, under rules and regulations promulgated by the commissioner, the fair market value of his or her 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; Ga. L. 2020, p. 254, § 2/SB 410.)

The 2020 amendment, effective July 22, 2020, in subsection (a), added paragraph (a)(1), designated the existing provisions as paragraph (a)(2), and inserted "by electronic transmission" in the first sentence of paragraph (a)(2); and inserted "or her" in paragraph (c)(1). See Editor's notes for applicability.

- 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.

Ga. L. 2020, p. 254, § 3/SB 410, not codified by the General Assembly, provides that this Act shall be applicable to tax years beginning on or after January 1, 2021.

ANALYSIS

• General Consideration
• Property to be Returned

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).

- 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 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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) and48-5-511(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).

- 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 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 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).

- 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.

- 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.

- 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.

- 84 C.J.S., Taxation, §§ 200, 474 et seq.

- 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.