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2021 Georgia Code
Title 48 - Revenue and Taxation
Chapter 13 - Specific, Business, and Occupation Taxes
Article 2 - Nonresident Contractors
§ 48-13-37. Preclusion of Right to Bring Action for Payment on Contract by Contractor in Violation of Article
Universal Citation:
GA Code § 48-13-37 (2021)
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No contractor who fails to register with the commissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state.
(Ga. L. 1961, p. 480, § 6; Code 1933, § 91A-6107, enacted by Ga. L. 1978, p. 309, § 2.)
JUDICIAL DECISIONS
Compliance with O.C.G.A. T. 48, C. 13, A. 2 is a condition precedent to filing suit on the contract in Georgia; however, the bar imposed by O.C.G.A. § 48-13-37 is a matter that is properly raised as a plea in abatement and not a proper subject for summary judgment. Rehco Corp. v. California Pizza Kitchen, Inc., 192 Ga. App. 92, 383 S.E.2d 643 (1989). Failure to register contract. - Payment of accrued state and local taxes was not "substantial compliance" with Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., absent registration of construction contract with commissioner. Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8, 424 S.E.2d 311 (1992). Defense that contractor has not complied with section need not be specially pled. - When the contractor has not complied with the provisions of O.C.G.A. § 48-13-37, the defense of the contractor's lack of capacity to maintain the suit may be asserted at trial without being specially pled under O.C.G.A. § 9-11-9. Gorrell v. Fowler, 248 Ga. 801, 286 S.E.2d 13, appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918, 73 L. Ed. 2d 1324 (1982). O.C.G.A. § 48-13-37 is a forum-closing sanction that closes the courts of Georgia to the offender until such time, if ever, when the offender can substantially comply with the provisions of O.C.G.A. T. 48, C. 13, A. 2. Adams v. PPT, Inc., 191 Ga. App. 729, 382 S.E.2d 732 (1989). Dismissal, rather than summary judgment, is appropriate sanction. - Once the trial court determined that the plaintiff was required to comply with O.C.G.A. T. 48, C. 13, A. 2 and had not done so, the court lacked subject matter jurisdiction, and the appropriate action was to enter an involuntary dismissal, rather than a summary judgment. Adams v. PPT, Inc., 191 Ga. App. 729, 382 S.E.2d 732 (1989). Dismissal without prejudice not adjudication on merits. - Dismissal under O.C.G.A. § 48-13-37 is one of the few involuntary dismissals which does not act as an adjudication on the merits. Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 379 S.E.2d 6 (1989); Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341, 392 S.E.2d 855 (1990); Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8, 424 S.E.2d 311 (1992). Dismissal is for lack of subject matter jurisdiction. - Despite the involuntary nature of a dismissal based on O.C.G.A. § 48-13-37, such a dismissal is in the nature of a dismissal for lack of subject matter jurisdiction and not on the merits. Rehco Corp. v. California Pizza Kitchen, Inc., 192 Ga. App. 92, 383 S.E.2d 643 (1989). Dismissal of action not required. - Failure of business to comply with Georgia Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., did not require dismissal of action against a corporation; the fraud claims at issue arose out of a proposed merger agreement and did not depend upon a contract to perform work in Georgia or upon the recovery of payment for performance under the contract. Infrasource, Inc. v. Hahn Yalena Corp., 272 Ga. App. 703, 613 S.E.2d 144 (2005). Recovery of payment for performance on subcontract. - By its action against the city under former O.C.G.A. § 36-82-102, the appellee sought to recover payment due it for work it had performed under its subcontract; therefore, the action sought to recover payment for performance on the contract within the meaning of O.C.G.A. § 48-13-37 and the action was therefore precluded. Mayor of City of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 441 S.E.2d 63 (1994). Cited in American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790, 320 S.E.2d 857 (1984); B.J.'s Flooring, Inc. v. T.C. Interiors, Inc., 204 Ga. App. 441, 419 S.E.2d 528 (1992).
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