2020 Georgia Code
Title 48 - Revenue and Taxation
Chapter 8 - Sales and Use Taxes
Article 1 - State Sales and Use Tax

- 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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).

- Nothing in Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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).

- 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 of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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).

- 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).

- In the context of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) is designed to tax sales at retail. Superior Type, Inc. v. Williams, 98 Ga. App. 89, 105 S.E.2d 14 (1958).

- Tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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 and purpose of the General Assembly in Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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).

- When a retail dealer has collected the tax from the customers under Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), 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).

- 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).

- 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).

- Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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).

ANALYSIS

• In General
• Taxation of Particular Persons and Entities
• Taxation of Particular Sales and Uses

In General

Tax applies to all consensual or contractual agreements for consideration.

- Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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.

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) does not tax any bona fide interstate commerce. 1950-51 Op. Att'y Gen. p. 400; 1960-61 Op. Att'y Gen. p. 542.

- Relating to the applicability of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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.

- 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.

- Reading of Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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.

- 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.

- 1962 Op. Att'y Gen. p. 542.

For discussion of exemptions to Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), see 1952-53 Op. Att'y Gen. p. 232.

Taxation of Particular Persons and Entities

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.

- 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 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.

- Ga. L. 1974, p. 705, § 1, being later in time than Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48), will exempt purchases of credit unions from the taxes imposed by the law. 1974 Op. Att'y Gen. No. 74-136.

- 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) does not exempt sales by nonprofit corporations. 1972 Op. Att'y Gen. No. U72-109.

Ga. L. 1951, p. 360 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) contains no exemption as to purchases by churches. 1971 Op. Att'y Gen. No. U71-67.

- 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.

- 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48). 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 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.

- 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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.

- 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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.

- 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 (see now O.C.G.A. Art. 1, Ch. 8, T. 48) 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 A.L.R. 1432; 110 A.L.R. 1485; 117 A.L.R. 486; 128 A.L.R. 893.

Rights as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 93 A.L.R. 1485; 119 A.L.R. 542.

Validity and construction of statute or ordinance providing for relief of poor persons from taxes, 123 A.L.R. 597.

Constitutionality, construction, and application of general use tax or other compensating tax designed to complement state sales tax, 129 A.L.R. 222; 153 A.L.R. 609.

Constitutionality of retroactive statute imposing excise, license, or privilege tax, 146 A.L.R. 1011.

Deductibility of other taxes or fees in computing excise or license taxes, 148 A.L.R. 263; 174 A.L.R. 1263.

Municipality as subject to state license or excise taxes, 159 A.L.R. 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 A.L.R. 276; 171 A.L.R. 697.

Sales tax on parts, repairs, or constituents used in repair of article, 11 A.L.R.2d 926.

Use tax on property purchased by nonresident in another state, 41 A.L.R.2d 535.

Federal retail luxury or other excise tax as includable in amount on which state sales or use tax is computed, 43 A.L.R.2d 862.

Redemption of trading stamps or the like for merchandise as sale at retail within taxing statute, 80 A.L.R.2d 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 A.L.R.4th 952.

State or local sales, use, or privilege tax on sales of, or revenues from sales of, advertising space or services, 40 A.L.R.4th 1114.