Bill Text: GA HB1221 | 2009-2010 | Regular Session | Comm Sub
Bill Title: Sales and use tax; change certain definitions
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Passed) 2011-01-01 - Effective Date [HB1221 Detail]
Download: Georgia-2009-HB1221-Comm_Sub.html
10 LC 18 9287ERS
COMMITTEE
OF CONFERENCE SUBSTITUTE TO HB 1221
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Titles 48 and 50 of the Official Code of Georgia Annotated, relating,
respectively, to revenue and taxation and state government, so as to provide for
the comprehensive revision of sales and use tax provisions for streamlined sales
tax purposes; to change and provide for definitions; to change and provide for
exemptions; to change certain provisions regarding limitations on local sales
and use taxes; to change certain provisions regarding designation of price
brackets; to change certain provisions regarding tax collection from dealers; to
change certain provisions regarding taxability burden of proof; to change
certain provisions regarding property retention, demonstration, or display; to
change certain provisions regarding reporting of sales and accounting methods;
to change certain provision regarding dealer returns and estimated tax
liability; to change certain provisions regarding dealer compensation; to change
certain provisions regarding dealers' duty to keep records, examination,
assessment, and collection; to change certain provisions regarding return
allowances; to change certain provisions regarding dealer certificates of
registration; to provide for comprehensive procedures, conditions, and
limitations regarding implementation of streamlined sales tax purposes; to
change certain provisions regarding the imposition of the joint county and
municipal sales and use tax; to change certain provisions regarding imposition
of the homestead option sales and use tax; to change certain provisions
regarding imposition of the county special purpose local option sales tax; to
change certain provisions regarding definitions relating to the Streamlined
Sales and Use Tax Agreement; to provide for membership on the Streamlined Sales
and Use Tax Governing Board; to change certain provisions regarding
intergovernmental contracts and imposition of the municipal option water and
sewer projects and costs tax; to provide for the correction of cross-references;
to provide for related matters; to provide an effective date; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
48 of the Official Code of Georgia Annotated, relating to revenue and taxation,
is amended by revising Code Section 48-8-2, relating to definitions regarding
sales and use tax, as follows:
"48-8-2.
As
used in this article, the term:
(1)
'Alcoholic
Beverages' means beverages that are suitable for human consumption and contain
one-half of one percent or more of alcohol by volume.
(2)
'Ancillary services' means services that are associated with or incidental to
the provision of 'telecommunications services,' including but not limited to
'detailed telecommunications billing service,' 'directory assistance,' 'vertical
service,' and 'voice mail services.'
(3)
'Bundled transaction' means the retail sale of two or more products, except real
property and services to real property, where the products are otherwise
distinct and identifiable and the products are sold for one nonitemized price.
A 'bundled transaction' does not include the sale of any products in which the
'sales price' varies, or is negotiable, based on the selection by the purchaser
of the products included in the transaction.
(A)
'Distinct and identifiable products' shall not include:
(i)
Packaging such as containers, boxes, sacks, bags, and bottles or other materials
such as wrapping, labels, tags, and instruction guides, that accompanies the
'retail sale' of the products and are incidental or immaterial to the 'retail
sale' thereof. Examples of packaging that are incidental or immaterial include
grocery sacks, shoe boxes, dry cleaning garment bags, and express delivery
envelopes and boxes.
(ii)
A product provided free of charge with the required purchase of another product.
A product is 'provided free of charge' if the 'sales price' of the product
purchased does not vary depending on the inclusion of the product 'provided free
of charge.'
(iii)
Items included in the 'sales price.'
(B)
The term 'one nonitemized price' shall not include a price that is separately
identified by product on binding sales or other supporting sales related
documentation made available to the customer in paper or electronic form
including, but not limited to, an invoice, bill of sale, receipt, contract,
service agreement, lease agreement, periodic notice of rates and services, rate
card, or price list.
(C)
A transaction that otherwise meets the definition of a 'bundled transaction' as
defined above, is not a 'bundled transaction' if it is:
(i)
The 'retail sale' of tangible personal property and a service where the tangible
personal property is essential to the use of the service, and is provided
exclusively in connection with the service, and the true object of the
transaction is the service;
(ii)
The 'retail sale' of services where one service is provided that is essential to
the use or receipt of a second service and the first service is provided
exclusively in connection with the second service and the true object of the
transaction is the second service;
(iii)(I)
A transaction that includes taxable products and nontaxable products and the
'purchase price' or 'sales price' of the taxable products is de minimis. As
used in this subparagraph the term, 'de minimis' means the seller's 'purchase
price' or 'sales price' of the taxable product is 10 percent or less of the
total 'purchase price' or 'sales price' of the bundled products.
(II)
Sellers shall use either the 'purchase price' or the 'sales price' of the
products to determine if the taxable products are de minimis. Sellers may not
use a combination of the 'purchase price' and 'sales price' of the products to
determine if the taxable products are de minimis.
(III)
Sellers shall use the full term of a service contract to determine if the
taxable products are de minimis; or
(iv)
The 'retail sale' of exempt tangible personal property and taxable tangible
personal property where:
(I)
The transaction includes 'food and food ingredients,' 'drugs,' 'durable medical
equipment,' 'mobility enhancing equipment,' 'over-the-counter drugs,' or
'prosthetic devices'; and
(II)
The seller's 'purchase price' or 'sales price' of the taxable tangible personal
property is 50 percent or less of the total 'purchase price' or 'sales price' of
the bundled tangible personal property. Sellers may not use a combination of
the 'purchase price' and 'sales price' of the tangible personal property when
making the 50 percent determination for a transaction.
(4)
'Business' means any activity engaged in by any person or caused to be engaged
in by any person with the object of direct or indirect gain, benefit, or
advantage.
(2)
'Cost price' means the actual cost of articles of tangible personal property
without any deductions for the cost of materials used, labor costs, service
costs, transportation charges, or any other expenses of any kind.
(5)
'Coin operated telephone service' means a 'telecommunications service' paid for
by inserting money into a telephone accepting direct deposits of money to
operate.
(6)
'Computer software' means a set of coded instructions designed to cause a
computer or automatic data processing equipment to perform a task.
(7)
'Conference bridging service' means an ancillary service that links two or more
participants of an audio or video conference call and may include the provision
of a telephone number. 'Conference bridging service' shall not include the
telecommunications services used to reach the conference bridge.
(3)(8)
'Dealer' means every person who:
(A)
Has sold at retail, used, consumed, distributed, or stored for use or
consumption in this state tangible personal property and who cannot prove that
the tax levied by this article has been paid on the sale at retail or on the
use, consumption, distribution, or storage of the tangible personal
property;
(B)
Imports or causes to be imported tangible personal property from any state or
foreign country for sale at retail, or for use, consumption, distribution, or
storage for use or consumption in this state;
(C)
Is the lessee or renter of tangible personal property and who pays to the owner
of the property a consideration for the use or possession of the property
without acquiring title to the property;
(D)
Leases or rents tangible personal property for a consideration, permitting the
use or possession of the property without transferring title to the
property;
(E)
Maintains or has within this state, indirectly or by a subsidiary, an office,
distribution center, salesroom or sales office, warehouse, service enterprise,
or any other place of business;
(F)
Manufactures or produces tangible personal property for sale at retail or for
use, consumption, distribution, or storage for use or consumption in this
state;
(G)
Sells at retail, offers for sale at retail, or has in his possession for sale at
retail, or for use, consumption, distribution, or storage for use or consumption
in this state tangible personal property;
(H)
Solicits business by an agent, employee, representative, or any other
person;
(I)
Engages in the regular or systematic solicitation of a consumer market in this
state, unless the dealer's only activity in this state is:
(i)
Advertising or solicitation by:
(I)
Direct mail, catalogs, periodicals, or advertising fliers;
(II)
Means of print, radio, or television media; or
(III)
Telephone, computer, the Internet, cable, microwave, or other communication
system; or
(ii)
The delivery of tangible personal property within this state solely by common
carrier or United States mail.
The
exceptions provided in divisions (i) and (ii) of this subparagraph shall not
apply to any requirements under Code Section 48-8-14;
(J)
Is an affiliate that sells at retail, offers for sale at retail in this state,
or engages in the regular or systematic solicitation of a consumer market in
this state through a related dealer located in this state unless:
(i)
The in-state dealer to which the affiliate is related does not engage in any of
the following activities on behalf of the affiliate:
(I)
Advertising;
(II)
Marketing;
(III)
Sales; or
(IV)
Other services; and
(ii)
The in-state dealer to which the affiliate is related accepts the return of
tangible personal property sold by the affiliate and also accepts the return of
tangible personal property sold by any person or dealer that is not an affiliate
on the same terms and conditions as an affiliate's return;
As
used in this subparagraph, the term 'affiliate' means any person that is related
directly or indirectly through one or more intermediaries, controls, is
controlled by, is under common control with, or is subject to the control of a
dealer described in subparagraphs (A) through (I) of this paragraph or in this
subparagraph;
(K)
Notwithstanding any of the provisions contained in this paragraph, with respect
to a person that is not a resident or domiciliary of Georgia, that does not
engage in any other business or activity in Georgia, and that has contracted
with a commercial printer for printing to be conducted in Georgia, such person
shall not be deemed a 'dealer' in Georgia merely because such
person:
(i)
Owns tangible or intangible property which is located at the Georgia premises of
a commercial printer for use by such printer in performing services for the
owner;
(ii)
Makes sales and distributions of printed material produced at and shipped or
distributed from the Georgia premises of the commercial printer;
(iii)
Performs activities of any kind at the Georgia premises of the commercial
printer which are directly related to the services provided by the commercial
printer; or
(iv)
Has printing, including any printing related activities, and distribution
related activities performed by the commercial printer in Georgia for or on its
behalf,
nor
shall such person, absent any contact with Georgia other than with or through
the use of the commercial printer or the use of the United States Postal Service
or a common carrier, have an obligation to collect sales or use tax from any of
its customers located in Georgia based upon the activities described in
divisions (i) through (iv) of this subparagraph. In no event described in this
subparagraph shall such person be considered to have a fixed place of business
in Georgia at either the commercial printer's premises or at any place where the
commercial printer performs services on behalf of that person;
(L)
Each dealer shall collect the tax imposed by this article from the purchaser,
lessee, or renter, as applicable, and no action seeking either legal or
equitable relief on a sale, lease, rental, or other transaction may be had in
this state by the dealer unless the dealer has fully complied with this article;
or
(M)
The commissioner shall promulgate such rules and regulations necessary to
administer this paragraph, including other such information, applications,
forms, or statements as the commissioner may reasonably require.
(9)
'Delivered electronically' means delivered to the purchaser by means other than
tangible storage media.
(10)
'Delivery charges' means charges by the seller of personal property or services
for preparation and delivery to a location designated by the purchaser of
personal property or services including, but not limited to, transportation,
shipping, postage, handling, crating, and packing.
(11)
'Detailed telecommunications billing service' means an ancillary service of
separately stating information pertaining to individual calls on a customer's
billing statement.
(12)
'Direct mail' means printed material delivered or distributed by United States
mail or other delivery service to a mass audience or to addressees on a mailing
list provided by the purchaser or at the direction of the purchaser when the
costs of the items are not billed directly to the recipients. 'Direct mail'
includes tangible personal property supplied directly or indirectly by the
purchaser to the direct mail seller for inclusion in the package containing the
printed material. 'Direct mail' does not include multiple items of printed
material delivered to a single address.
(13)
'Directory assistance' means an ancillary service of providing telephone number
information or address information, or both.
(14)
'Drug' means a compound, substance, or preparation, and any component of a
compound, substance, or preparation, other than 'food and food ingredients,'
'dietary supplements,' or 'alcoholic beverages':
(A)
Recognized in the official United States Pharmacopoeia, official Homeopathic
Pharmacopoeia of the United States, or official National Formulary, or
supplement to any of them;
(B)
Intended for use in the diagnosis, cure, mitigation, treatment, or prevention of
disease; or
(C)
Intended to affect the structure or any function of the body.
(15)
'Durable medical equipment' means equipment including repair and replacement
parts for the same, but does not include 'mobility enhancing equipment,'
which:
(A)
Can withstand repeated use;
(B)
Is primarily and customarily used to serve a medical purpose;
(C)
Generally is not useful to a person in the absence of illness or injury;
and
(D)
Is not worn in or on the body.
(4)
'Gross sales' means the:
(A)
Sum total of all retail sales of tangible personal property or services without
any deduction of any kind other than as provided in this article;
or
(B)(i)
Charges, when applied to sales of telephone service, made for local exchange
telephone service, except local messages which are paid for by inserting coins
in coin operated telephones, but including the total amount of the guaranteed
charge for semipublic coin box telephone services; except as otherwise provided
in division (ii) of this subparagraph.
(ii)(I)
If a telephone service is not subject to the tax levied by this chapter, and if
the amount charged for such telephone service is aggregated with and not
separately stated from the amount paid or charged for any service that is
subject to such tax, then the nontaxable telephone service shall be treated as
being subject to such tax unless the telephone service provider can reasonably
identify the amount paid or charged for the telephone service not subject to
such tax from its books and records kept in the regular course of
business.
(II)
If a telephone service is not subject to the tax levied by this chapter, a
customer may not rely upon the nontaxability of such telephone service unless
the telephone service provider separately states the amount charged for such
nontaxable telephone service or the telephone service provider elects, after
receiving a written request from the customer in the form required by the
provider, to provide verifiable data based upon the provider's books and records
that are kept in the regular course of business that reasonably identifies the
amount charged for such nontaxable telephone service.
(16)
'Food and food ingredients' means substances, whether in liquid, concentrated,
solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing
by humans and are consumed for their taste or nutritional value. 'Food and food
ingredients' shall not include alcoholic beverages or tobacco.
(5)(17)
'Lease or rental' means
the leasing
or renting of tangible personal property and the possession or use of the
property by the lessee or renter for a consideration without transfer of the
title to the property
any transfer
of possession or control of tangible personal property for a fixed or
indeterminate term for consideration. A lease or rental may include future
options to purchase or extend. 'Lease or rental' shall not
include:
(A)
A transfer of possession or control of property under a security agreement or
deferred payment plan that requires the transfer of title upon completion of the
required payments;
(B)
A transfer of possession or control of property under an agreement that requires
the transfer of title upon completion of required payments and payment of an
option price does not exceed the greater of one hundred dollars or one percent
of the total required payments; or
(C)
Providing tangible personal property along with an operator for a fixed or
indeterminate period of time. A condition of this exclusion is that the
operator is necessary for the equipment to perform as designed. For the purpose
of this subparagraph, an operator must do more than maintain, inspect, or
install the tangible personal
property.
(18)
'Load and leave' means delivery to the purchaser by use of a tangible storage
media where the tangible storage media is not physically transferred to the
purchaser.
(19)
'Mobile wireless service' means a telecommunications service that is
transmitted, conveyed, or routed regardless of the technology used, by which the
origination or termination points, or both, of the transmission, conveyance, or
routing are not fixed, including, by way of example only, telecommunications
services that are provided by a commercial mobile radio service
provider.
(20)
'Mobility enhancing equipment' means equipment including repair and replacement
parts to the same, but does not include 'durable medical equipment,'
which:
(A)
Is primarily and customarily used to provide or increase the ability to move
from one place to another and which is appropriate for use either in a home or a
motor vehicle;
(B)
Is not generally used by persons with normal mobility; and
(C)
Does not include any motor vehicle or equipment on a motor vehicle normally
provided by a motor vehicle manufacturer.
(21)
'Place of primary use' means the street address representative of where the
customer's use of the telecommunications service primarily occurs, which must be
the residential street address or the primary business street address of the
customer. In the case of mobile telecommunications services, 'place of primary
use' must be within the licensed service area of the home service
provider.
(22)
'Prepaid calling service' means the right to access exclusively
'telecommunications services,' which must be paid for in advance and which
enables the origination of calls using an access number or authorization code,
whether manually or electronically dialed, and that is sold in predetermined
units or dollars of which the number declines with use in a known
amount.
(5.1)(23)
'Prepaid local tax' means any local sales and use tax which is levied on the
sale or use of motor fuel and imposed in an area consisting of less than the
entire state, however authorized, including, but not limited to, such taxes
authorized by or pursuant to constitutional amendment; by or pursuant to Section
25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, known
as the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965'; or by or
pursuant to Article 2, 2A, 3, or 4 of this chapter. Such tax is based on the
same average retail sales price as set forth in subparagraph (b)(2)(B) of Code
Section 48-9-14. Such price shall be used to compute the prepaid sales tax rate
for local jurisdictions by multiplying such retail price by the applicable rate
imposed by the jurisdiction. The person collecting and reporting the prepaid
local tax for the local jurisdiction shall provide a schedule as to which
jurisdiction these collections relate. This determination shall be based upon
the shipping papers of the conveyance that delivered the motor fuel to the
dealer or consumer in the local jurisdiction. A seller may rely upon the
representation made by the purchaser as to which jurisdiction the shipment is
bound and prepare shipping papers in accordance with those
instructions.
(5.2)(24)
'Prepaid state tax' means the tax levied under Code Section 48-8-30 in
conjunction with Code Section 48-8-3.1 and Code Section 48-9-14 on the retail
sale of motor fuels for highway use and collected prior to that retail sale.
This tax is based upon the average retail sales price as set forth in Code
Section 48-9-14.
(25)
'Prepaid wireless calling service' means a 'telecommunications service' that
provides the right to utilize 'mobile wireless service' as well as other
nontelecommunications services including the download of digital products
'delivered electronically,' content, and 'ancillary services,' which must be
paid for in advance that is sold in predetermined units of dollars of which the
number declines with use in a known amount.
(26)
'Prewritten computer software' means 'computer software,' including prewritten
upgrades, which is not designed and developed by the author or other creator to
the specifications of a specific purchaser. The combining of two or more
'prewritten computer software' programs or prewritten portions thereof does not
cause the combination to be other than 'prewritten computer software.'
'Prewritten computer software' includes software designed and developed by the
author or other creator to the specifications of a specific purchaser when it is
sold to a person other than the specific purchaser. Where a person modifies or
enhances 'computer software' of which the person is not the author or creator,
the person shall be deemed to be the author or creator only of such person's
modifications or enhancements. 'Prewritten computer software' or a prewritten
portion thereof that is modified or enhanced to any degree, where such
modification or enhancement is designed and developed to the specifications of a
specific purchaser, remains 'prewritten computer software'; provided, however,
that where there is a reasonable, separately stated charge or an invoice or
other statement of the price given to the purchaser for such modification or
enhancement, such modification or enhancement shall not constitute 'prewritten
computer software.'
(27)
'Prepared food' means:
(A)
Food:
(i)
Sold in a heated state or heated by the seller;
(ii)
With two or more food ingredients mixed or combined by the seller for sale as a
single item; or
(iii)
Sold with eating utensils provided by the seller, including plates, knives,
forks, spoons, glasses, cups, napkins, or straws. A plate does not include a
container or packaging used to transport the food; and
(B)
'Prepared food' shall not include food:
(i)
That is only cut, repackaged, or pasteurized by the seller, and eggs, fish,
meat, poultry, and foods containing these raw animal foods requiring cooking by
the consumer as in Chapter 3, part 401.11 of the United States Food and Drug
Administration Food Code so as to prevent food borne illnesses;
(ii)
Sold by a seller whose proper primary North American Industrial Classification
System code is subsector 311, food manufacturing, except for industry group
3118, bakeries and tortilla manufacturing, if sold without eating utensils
provided by the seller; or
(iii)
Sold by a seller whose proper primary North American Industrial Classification
System code is industry group 3121, beverage manufacturing.
(28)
'Prescription' means an order, formula, or recipe issued in any form of oral,
written, electronic, or other means of transmission by a duly licensed
practitioner authorized by the laws of this state.
(29)
'Prosthetic device' means a replacement, corrective, or supportive device
including repair and replacement parts for the same worn on or in the body
to:
(A)
Artificially replace a missing portion of the body;
(B)
Prevent or correct physical deformity or malfunction; or
(C)
Support a weak or deformed portion of the body.
(30)
'Purchase price' applies to the measure subject to use tax and has the same
meaning as sales price.
(6)(31)
'Retail sale' or a 'sale at retail'
means:
any sale,
lease, or rental for any purpose other than for resale, sublease, or
subrent.
(A)
A sale to a consumer or to any person for any purpose other than for resale of
tangible personal property or services taxable under this article including, but
not limited to, any such transactions which the commissioner upon investigation
finds to be in lieu of sales. Sales for
resale must be made in strict compliance with the commissioner's rules and
regulations. Any dealer making a sale for resale which is not in strict
compliance with the commissioner's rules and regulations shall himself be liable
for and shall pay the
tax;.
The terms 'retail sale' or 'sale at retail' include but are not limited to the
following:
(B)(i)(A)
Except as otherwise provided in
division
(ii) of this subparagraph
this
chapter, the sale of natural or artificial
gas, oil, electricity, solid fuel, transportation, local telephone services,
alcoholic
beverages, and tobacco products, when made to any purchaser for purposes other
than
resale.
(ii)
The sale of electricity used directly in the manufacture of a product shall not
constitute a retail sale for purposes of this article if the direct cost of such
electricity exceeds 50 percent of the cost of all materials, including
electricity, used directly in the product and shall be exempt from taxation
under this article. Such exemption shall be applied to manufacturers located in
this state as follows:
(I)
For calendar years beginning on or after January 1, 1995, and prior to January
1, 1996, 20 percent of the direct cost of such electricity shall be
exempt;
(II)
For calendar years beginning on or after January 1, 1996, and prior to January
1, 1997, 40 percent of the direct cost of such electricity shall be
exempt;
(III)
For calendar years beginning on or after January 1, 1997, and prior to January
1, 1998, 60 percent of the direct cost of such electricity shall be
exempt;
(IV)
For calendar years beginning on or after January 1, 1998, and prior to January
1, 1999, 80 percent of the direct cost of such electricity shall be exempt;
and
(V)
For calendar years beginning on or after January 1, 1999, 100 percent of the
direct cost of such electricity shall be
exempt;
(C)(B)
The sale or charges for any room, lodging, or accommodation furnished to
transients by any hotel, inn, tourist camp, tourist cabin, or any other place in
which rooms, lodgings, or accommodations are regularly furnished to transients
for a consideration. This tax shall not apply to rooms, lodgings, or
accommodations supplied for a period of 90 continuous days or more;
(D)(C)
Sales of tickets, fees, or charges made for admission to, or voluntary
contributions made to places of, amusement, sports, or entertainment including,
but not limited to:
(i)
Billiard and pool rooms;
(ii)
Bowling alleys;
(iii)
Amusement devices;
(iv)
Musical devices;
(v)
Theaters;
(vi)
Opera houses;
(vii)
Moving picture shows;
(viii)
Vaudeville;
(ix)
Amusement parks;
(x)
Athletic contests including, but not limited to, wrestling matches, prize
fights, boxing and wrestling exhibitions, football games, and baseball
games;
(xi)
Skating rinks;
(xii)
Race tracks;
(xiii)
Public bathing places;
(xiv)
Public dance halls; and
(xv)
Any other place at which any exhibition, display, amusement, or entertainment is
offered to the public or any other place where an admission fee is
charged;
(E)
Reserved;
(F)(D)
Charges made for participation in games and amusement activities;
or
(G)(E)
Sales of tangible personal property to persons for resale when there is a
likelihood that the state will lose tax funds due to the difficulty of policing
the business operations because:
(i)
Of the operation of the business;
(ii)
Of the very nature of the business;
(iii)
Of the turnover of so-called independent contractors;
(iv)
Of the lack of a place of business in which to display a certificate of
registration;
(v)
Of the lack of a place of business in which to keep records;
(vi)
Of the lack of adequate records;
(vii)
The persons are minors or transients;
(viii)
The persons are engaged in essentially service businesses; or
(ix)
Of any other reasonable reason.
The
commissioner may promulgate rules and regulations requiring vendors of persons
described in this subparagraph to collect the tax imposed by this article on the
retail price of the tangible personal property. The commissioner shall refuse
to issue certificates of registration and may revoke certificates of
registration issued in violation of his rules and
regulations;.
(F)
Charges, which applied to sales of telephone service, made for local exchange
telephone service, except coin operated telephone service, except as otherwise
provided in subparagraph (G) of this paragraph; or
(G)
If the price is attributable to products that are taxable and products that are
nontaxable, the portion of the price attributable to the nontaxable products may
be subject to tax unless the provider can identify by reasonable and verifiable
standards such portion from its books and records that are kept in the regular
course of business for other purposes, including, but not limited to, nontax
purposes. If the price is attributable to products that are subject to tax at
different tax rates, the total price may be treated as attributable to the
products subject to tax at the highest tax rate unless the provider can identify
by reasonable and verifiable standards the portion of the price attributable to
the products subject to tax at the lower rate from the provider's books and
records that are kept in the regular course of business for other purposes,
including, but not limited to, nontax purposes.
(7)(32)
'Retailer' means every person making sales at retail or for distribution, use,
consumption, or storage for use or consumption in this state
and has the
same meaning as 'seller' in Code Section
48-8-161.
(8)(A)(33)(A)
'Sale' means any transfer of title or possession, transfer of title and
possession, exchange, barter, lease, or rental, conditional or otherwise, in any
manner or by any means of any kind of tangible personal property for a
consideration except as otherwise provided in subparagraph (B) of this paragraph
and includes, but is not limited to:
(i)
The fabrication of tangible personal property for consumers who directly or
indirectly furnish the materials used in such fabrication;
(ii)
The furnishing, repairing, or serving for a consideration of any tangible
personal property consumed on the premises of the person furnishing, repairing,
or serving the tangible personal property; or
(iii)
A transaction by which the possession of property is transferred but the seller
retains title as security for the payment of the price.
(B)
Notwithstanding a dealer's physical presence, in the case of a motor vehicle
retail sale or a motor vehicle lease or rental when the lease or rental period
exceeds 30 days and when the purchaser or lessee is a resident of this state,
the taxable situs of the transaction for the purposes of collecting local sales
and use taxes shall be the county of motor vehicle registration of the purchaser
or lessee.
(9)(A)(34)(A)
'Sales price'
applies to the
measure subject to sales tax and means the
total amount
of
consideration, including cash, credit, property, and services, for which
personal property or services are sold, leased, or
rented, valued in money, whether
paid
received
in money or
otherwise,
for which tangible personal property or services are sold including, but not
limited to, any services that are a part of the sale and any amount for which
credit is given to the purchaser by the
seller without any deduction
from the
total amount for the cost of the property sold, the cost of materials used,
labor or service costs, losses, or any other expenses of any
kind.
for the
following:
(i)
The seller's cost of the property sold;
(ii)
The cost of materials used, labor, or service cost, interest, losses, all costs
of transportation to the seller, all taxes imposed on the seller, and any other
expense of the seller;
(iii)
Charges by the seller for any services necessary to complete the sale, other
than delivery and installation charges;
(iv)
Delivery charges;
(v)
Installation charges; and
(vi)
Credit for any trade-in, except as otherwise provided in division (vii) of
subparagraph (B) of this paragraph.
(B)
'Sales price'
does
shall
not include:
(i)
Cash
discounts allowed and taken on sales
Discounts,
including cash, term, or coupons that are not reimbursed by a third party that
are allowed by a seller and taken by a purchaser on a
sale;
(ii)
The amount
charged for labor or services rendered in installing, applying, remodeling, or
repairing property sold
Interest,
financing, and carrying charges from credit extended on the sale of personal
property or services, if the amount is separately stated on the invoice, bill of
sale or similar document given to the
purchaser;
or
(iii)
Finance
charges, carrying charges, service charges, or interest from credit extended on
sales of tangible personal property under conditional sale contracts or other
conditional contracts providing for deferred payments of the purchase
price
Any taxes
legally imposed directly on the consumer that are separately stated on the
invoice, bill of sale, or similar document given to the purchaser;
(iv)
Installation charges if they are separately stated on the invoice, billing, or
similar document given to the purchaser;
(v)
Charges by the seller for any services necessary to complete the sale if they
are separately stated on the invoice, billing, or similar document given to the
purchaser;
(vi)
Telecommunications nonrecurring charges if they are separately stated on the
invoice, billing, or similar document; and
(vii)
Credit for any motor vehicle trade-in.
(C)
'Sales price' shall include consideration received by the seller from third
parties if:
(i)
The seller actually receives consideration from a party other than the purchaser
and the consideration is directly related to a price reduction or discount on
the sale;
(ii)
The seller has an obligation to pass the price reduction or discount through to
the purchaser;
(iii)
The amount of the consideration attributable to the sale is fixed and
determinable by the seller at the time of the sale of the item to the purchaser;
and
(iv)
One of the following criteria is met:
(I)
The purchaser presents a coupon, certificate, or other documentation to the
seller to claim a price reduction or discount where the coupon, certificate, or
documentation is authorized, distributed, or granted by a third party with the
understanding that the third party will reimburse any seller to whom the coupon,
certificate, or documentation is presented;
(II)
The purchaser identifies himself or herself to the seller as a member of a group
or organization entitled to a price reduction or discount; provided, however,
that a 'preferred customer' card that is available to any patron shall not
constitute membership in such a group; or
(III)
The price reduction or discount is identified as a third party price reduction
or discount on the invoice received by the purchaser or on a coupon,
certificate, or other documentation presented by the purchaser.
(10)(35)
'Storage' means any keeping or retention in this state of tangible personal
property for use or consumption in this state or for any purpose other than sale
at retail in the regular course of business.
(36)
'Streamlined sales tax agreement' means the Streamlined Sales and Use Tax
Agreement under Code Section 48-8-162.
(11)(37)
'Tangible personal property' means personal property
which
may
that
can be seen, weighed, measured, felt, or
touched or
that
is in any other manner perceptible to the senses.
'Tangible
personal property' includes electricity, water, gas, steam, and prewritten
computer software. 'Tangible personal
property' does not mean stocks, bonds, notes, insurance, or other obligations or
securities.
(38)
'Telecommunications nonrecurring charges' means an amount billed for the
installation, connection, change, or initiation of 'telecommunications service'
received by the customer.
(39)
'Telecommunications service' means the electronic transmission, conveyance, or
routing of voice, data, audio, video, or any other information or signals to a
point, or between or among points. The term 'telecommunications service'
includes such transmission, conveyance, or routing in which computer processing
applications are used to act on the form, code or protocol of the content for
purposes of transmission, conveyance or routing without regard to whether such
service is referred to as voice over Internet protocol services or is classified
by the Federal Communications Commission as enhanced or value added.
'Telecommunications service' shall not include:
(A)
Data processing and information services that allow data to be generated,
acquired, stored, processed, or retrieved and delivered by an electronic
transmission to a purchaser where such purchaser's primary purpose for the
underlying transaction is the processed data or information;
(B)
Installation or maintenance of wiring or equipment on a customer's
premises;
(C)
Tangible personal property;
(D)
Advertising, including but not limited to directory advertising;
(E)
Billing and collection services provided to third parties;
(F)
Internet access service;
(G)
Radio and television audio and video programming services, regardless of the
medium, including the furnishing of transmission, conveyance and routing of such
services by the programming service provider. Radio and television audio and
video programming services shall include but not be limited to cable service as
defined in 47 USC 522(6) and audio and video programming services delivered by
commercial mobile radio service providers, as defined in 47 CFR
20.3;
(H)
Ancillary services; or
(I)
Digital products delivered electronically, including but not limited to
software, music, video, reading materials, or ring tones.
(12)(40)
'Use' means the exercise of any right or power over tangible personal property
incident to the ownership of the property including, but not limited to, the
sale at retail of the property in the regular course of business.
(13)(41)
'Use tax' includes the use, consumption, distribution, and storage of tangible
personal property as defined in this article.
(42)
'Vertical service' means an ancillary service that is offered in connection with
one or more telecommunications services, which offers advanced calling features
that allow customers to identify callers and to manage multiple calls and call
connections, including conference bridging services.
(43)
'Voice mail service' means an ancillary service that enables the customer to
store, send, or receive recorded messages. 'Voice mail service' does not include
any vertical services that the customer may be required to have in order to
utilize the voice mail
service."
SECTION
2.
Said
title is further amended by revising Code Section 48-8-3, relating to exemptions
from sales and use tax, as follows:
"48-8-3.
The
sales and use taxes levied or imposed by this article shall not apply
to:
(1)
Sales to the United States government, this state, any county or municipality of
this state, or any bona fide department of such governments when paid for
directly to the seller by warrant on appropriated government funds;
(2)
Transactions in which tangible personal property is furnished by the United
States government or by a county or municipality of this state to any person who
contracts to perform services for the governmental entity for the installation,
repair, or extension of any public water, gas, or sewage system of the
governmental entity when the tangible personal property is installed for general
distribution purposes, notwithstanding Code Section 48-8-63 or any other
provision of this article. No exemption is granted with respect to tangible
personal property installed to serve a particular property site;
(3)
The federal retailers' excise tax if the tax is billed to the consumer
separately from the selling price of the product or from the tax imposed by
Article 1 of Chapter 9 of this title relating to motor fuel taxes;
(4)
Sales by counties and municipalities arising out of their operation of any
public transit facility and sales by public transit authorities or charges by
counties, municipalities, or public transit authorities for the transportation
of passengers upon their conveyances;
(5)(A)
Fares and charges, except charges for charter and sightseeing service, collected
by an urban transit system for the transportation of passengers.
(B)
As used in this paragraph, the term:
(i)
'Public transit system primarily urban in character' shall include a transit
system operated by any entity which provides passenger transportation services
by means of motor vehicles having passenger-carrying capacity within or between
standard metropolitan areas and urban areas, as those terms are defined in Code
Section 32-2-3, of this state.
(ii)
'Urban transit system' means a public transit system primarily urban in
character which is operated by a street railroad company or a motor common
carrier, is subject to the jurisdiction of the Public Service Commission, and
whose fares and charges are regulated by the Public Service Commission, or is
operated pursuant to a franchise contract with a municipality of this state so
that its fares and charges are regulated by or are subject to the approval of
the municipality. An urban transit system certificate shall be issued by the
Public Service Commission, or by the municipality which has regulatory
authority, upon an affirmative showing that the applicant operates an urban
transit system. The certificate shall be obtained and filed with the
commissioner and shall continue in effect so long as the holder of such
certificate qualifies as an urban transit system. Any urban transit system
certificate granted prior to January 1, 2002, shall be deemed valid as of the
date it was issued;
(6)
Sales to any hospital authority created by Article 4 of Chapter 7 of Title
31;
(6.1)
Sales to any housing authority created by Article 1 of Chapter 3 of Title 8, the
'Housing Authorities Law';
(6.2)
Sales to any local government authority created on or after January 1, 1980, by
local law, which authority has as its principal purpose or one of its principal
purposes the construction, ownership, or operation of a coliseum and related
facilities to be used for athletic contests, games, meetings, trade fairs,
expositions, political conventions, agricultural events, theatrical and musical
performances, conventions, or other public entertainments or any combination of
such purposes;
(6.3)
Sales to any agricultural commodities commission created by and regulated
pursuant to Chapter 8 of Title 2;
(7)
Sales of tangible personal property and services to a nonprofit licensed nursing
home, nonprofit licensed in-patient hospice, or a nonprofit general or mental
hospital used exclusively by such nursing home, in-patient hospice, or hospital
in performing a general nursing home, in-patient hospice, hospital, or mental
hospital treatment function in this state when such nursing home, in-patient
hospice, or hospital is a tax exempt organization under the Internal Revenue
Code and obtains an exemption determination letter from the
commissioner;
(7.05)(A)
For the period commencing on July 1, 2008, and ending on June 30, 2010, sales of
tangible personal property to a nonprofit health center in this state which has
been established under the authority of and is receiving funds pursuant to the
United States Public Health Service Act, 42 U. S. C. Section 254b if such health
clinic obtains an exemption determination letter from the
commissioner.
(B)(i)
For the purposes of this paragraph, the term 'local sales and use tax' shall
mean any sales tax, use tax, or local sales and use tax which is levied and
imposed in an area consisting of less than the entire state, however authorized,
including, but not limited to, such taxes authorized by or pursuant to
constitutional amendment; by or pursuant to Section 25 of an Act approved March
10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid
Transit Authority Act of 1965'; by or pursuant to Article 2, 2A, 3, or 4 of this
chapter.
(ii)
The exemption provided for in subparagraph (A) of this paragraph shall not apply
to any local sales and use tax levied or imposed at any time.
(7.1)
Sales of tangible personal property and services to a nonprofit organization,
the primary function of which is the provision of services to mentally retarded
persons, when such organization is a tax exempt organization under the Internal
Revenue Code and obtains an exemption determination letter from the
commissioner;
(7.2)
Sales of tangible personal property or services to any chapter of the Georgia
State Society of the Daughters of the American Revolution which is tax exempt
under Section 501(c)(3) of the Internal Revenue Code and obtains an exemption
determination letter from the commissioner;
(7.3)
For the period commencing July 1, 2008, and ending June 30, 2010, sales of
tangible personal property and services to a nonprofit volunteer health clinic
which primarily treats indigent persons with incomes below 200 percent of the
federal poverty level and which property and services are used exclusively by
such volunteer health clinic in performing a general treatment function in this
state when such volunteer health clinic is a tax exempt organization under the
Internal Revenue Code and obtains an exemption determination letter from the
commissioner;
(8)
Sales of tangible personal property and services to the University System of
Georgia and its educational units;
(9)
Sales of tangible personal property and services to be used exclusively for
educational purposes by those private colleges and universities in this state
whose academic credits are accepted as equivalents by the University System of
Georgia and its educational units;
(10)
Sales of tangible personal property and services to be used exclusively for
educational purposes by those bona fide private elementary and secondary schools
which have been approved by the commissioner as organizations eligible to
receive tax deductible contributions if application for exemption is made to the
department and proof of the exemption is established;
(11)
Sales of tangible personal property or services to, and the purchase of tangible
personal property or services by, any educational or cultural institute
which:
(A)
Is tax exempt under Section 501(c)(3) of the Internal Revenue Code;
(B)
Furnishes at least 50 percent of its programs through universities and other
institutions of higher education in support of their educational
programs;
(C)
Is paid for by government funds of a foreign country; and
(D)
Is an instrumentality, agency, department, or branch of a foreign government
operating through a permanent location in this state;
(12)
School lunches sold and served to pupils and employees of public
schools;
(13)
Sales of
food to
be
prepared food
and food and food ingredients consumed
on the
premises by pupils and employees of bona
fide private elementary and secondary schools which have been approved by the
commissioner as organizations eligible to receive tax deductible contributions
when application for exemption is made to the department and proof of the
exemption is established;
(14)
Sales of objects of art and of anthropological, archeological, geological,
horticultural, or zoological objects or artifacts and other similar tangible
personal property to or for the use by any museum or organization which is tax
exempt under Section 501(c)(3) of the Internal Revenue Code of such tangible
personal property for display or exhibition in a museum within this state when
the museum is open to the public and has been approved by the commissioner as an
organization eligible to receive tax deductible contributions;
(15)
Sales:
(A)
Of any religious paper in this state when the paper is owned and operated by
religious institutions or denominations and no part of the net profit from the
operation of the institution or denomination inures to the benefit of any
private person;
(B)
By religious institutions or denominations when:
(i)
The sale results from a specific charitable fundraising activity;
(ii)
The number of days upon which the fundraising activity occurs does not exceed 30
in any calendar year;
(iii)
No part of the gross sales or net profits from the sales inures to the benefit
of any private person; and
(iv)
The gross sales or net profits from the sales are used for the purely charitable
purposes of:
(I)
Relief to the aged;
(II)
Church related youth activities;
(III)
Religious instruction or worship; or
(IV)
Construction or repair of church buildings or facilities;
(15.1)
Sales of pipe organs or steeple bells to any church which is qualified as an
exempt religious organization under Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended;
(16)
The sale or use of Holy Bibles, testaments, and similar books commonly
recognized as being Holy Scripture regardless of by or to whom
sold;
(17)
The sale of fuel and supplies for use or consumption aboard ships plying the
high seas either in intercoastal trade between ports in this state and ports in
other states of the United States or its possessions or in foreign commerce
between ports in this state and ports of foreign countries;
(18)
Charges made for the transportation of tangible personal property including, but
not limited to, charges for accessorial services such as refrigeration,
switching, storage, and demurrage made in connection with interstate and
intrastate transportation of the property;
(19)
All tangible personal property purchased outside of this state by persons who at
the time of purchase are not domiciled in this state but who subsequently become
domiciled in this state and bring the property into this state for the first
time as a result of the change of domicile, if the property is not brought into
this state for use in a trade, business, or profession;
(20)
The sale of water delivered to consumers through water mains, lines, or
pipes;
(21)
Sales, transfers, or exchanges of tangible personal property made as a result of
a business reorganization when the owners, partners, or stockholders of the
business being reorganized maintain the same proportionate interest or share in
the newly formed business reorganization;
(22)
Professional, insurance, or personal service transactions which involve sales as
inconsequential elements for which no separate charges are made;
(23)
Fees or charges for services rendered by repairmen for which a separate charge
is made;
(24)
The rental of videotape or motion picture film to any person who charges an
admission fee to view such film or videotape;
(25)
The sale of seed; fertilizers; insecticides; fungicides; rodenticides;
herbicides; defoliants; soil fumigants; plant growth regulating chemicals;
desiccants including, but not limited to, shavings and sawdust from wood, peanut
hulls, fuller's earth, straw, and hay; and feed for livestock, fish, or poultry
when used either directly in tilling the soil or in animal, fish, or poultry
husbandry;
(26)
The sale to persons engaged primarily in producing farm crops for sale of
machinery and equipment which is used exclusively for irrigation of farm crops
including, but not limited to, fruit, vegetable, and nut crops;
(27)
The sale of sugar used as food for honeybees kept for the commercial production
of honey, beeswax, and honeybees when the commissioner's prior approval is
obtained;
(28)
The sale of cattle, hogs, sheep, horses, poultry, or bees when sold for breeding
purposes;
(29)
The sale of the following types of agricultural machinery:
(A)
Machinery and equipment for use on a farm in the production of poultry and eggs
for sale;
(B)
Machinery and equipment used in the hatching and breeding of poultry and the
breeding of livestock;
(C)
Machinery and equipment for use on a farm in the production, processing, and
storage of fluid milk for sale;
(D)
Machinery and equipment for use on a farm in the production of livestock for
sale;
(E)
Machinery and equipment which is used by a producer of poultry, eggs, fluid
milk, or livestock for sale for the purpose of harvesting farm crops to be used
on the farm by that producer as feed for poultry or livestock;
(F)
Machinery which is used directly in tilling the soil or in animal husbandry when
the machinery is incorporated for the first time into a new farm unit engaged in
tilling the soil or in animal husbandry in this state;
(G)
Machinery which is used directly in tilling the soil or in animal husbandry when
the machinery is incorporated as additional machinery for the first time into an
existing farm unit already engaged in tilling the soil or in animal husbandry in
this state;
(H)
Machinery which is used directly in tilling the soil or in animal husbandry when
the machinery is bought to replace machinery in an existing farm unit already
engaged in tilling the soil or in animal husbandry in this state;
(I)
Rubber-tired farm tractors and attachments to the tractors which are sold to
persons engaged primarily in producing farm crops for sale and which are used
exclusively in tilling, planting, cultivating, and harvesting farm crops, and
equipment used exclusively in harvesting farm crops or in processing onion crops
which are sold to persons engaged primarily in producing farm crops for sale.
For the purposes of this subparagraph, the term 'farm crops' includes only those
crops which are planted and harvested within a 12 month period; and
(J)
Pecan sprayers, pecan shakers, and other equipment used in harvesting pecans
which is sold to persons engaged in the growing, harvesting, and production of
pecans;
(29.1)
The sale or use of any off-road equipment and related attachments which are sold
to or used by persons engaged primarily in the growing or harvesting of timber
and which are used exclusively in site preparation, planting, cultivating, or
harvesting timber. Equipment used in harvesting shall include all off-road
equipment and related attachments used in every forestry procedure starting with
the severing of a tree from the ground until and including the point at which
the tree or its parts in any form has been loaded in the field in or on a truck
or other vehicle for transport to the place of use. Such off-road equipment
shall include, but not be limited to, skidders, feller bunchers, debarkers,
delimbers, chip harvestors, tub-grinders, woods cutters, chippers of all types,
loaders of all types, dozers, and motor graders and the related
attachments;
(30)
The sale of a vehicle to a service-connected disabled veteran when the veteran
received a grant from the United States Department of Veterans Affairs to
purchase and specially adapt the vehicle to his disability;
(31)
The sale of tangible personal property manufactured or assembled in this state
for export when delivery is taken outside this state;
(32)
Aircraft, watercraft, motor vehicles, and other transportation equipment
manufactured or assembled in this state when sold by the manufacturer or
assembler for use exclusively outside this state and when possession is taken
from the manufacturer or assembler by the purchaser within this state for the
sole purpose of removing the property from this state under its own power when
the equipment does not lend itself more reasonably to removal by other
means;
(33)(A)
The sale of aircraft, watercraft, railroad locomotives and rolling stock, motor
vehicles, and major components of each, which will be used principally to cross
the borders of this state in the service of transporting passengers or cargo by
common carriers and by carriers who hold common carrier and contract carrier
authority in interstate or foreign commerce under authority granted by the
United States government. Replacement parts installed by carriers in such
aircraft, watercraft, railroad locomotives and rolling stock, and motor vehicles
which become an integral part of the craft, equipment, or vehicle shall also be
exempt from all taxes under this article;
(B)
In lieu of any tax under this article which would apply to the purchase, sale,
use, storage, or consumption of the tangible personal property described in this
paragraph but for this exemption, the tax under this article shall apply with
respect to all fuel purchased and delivered within this state by or to any
common carrier and with respect to all fuel purchased outside this state and
stored in this state irrespective, in either case, of the place of its
subsequent use;
(33.1)(A)
The sale or use of jet fuel to or by a qualifying airline at a qualifying
airport, to the extent provided in subparagraphs (B), (C), and (D) of this
paragraph.
(B)
The sale or use of jet fuel to or by a qualifying airline at a qualifying
airport shall be exempt from the first 1.80 percent of the 4 percent state sales
and use tax imposed by this chapter and shall be subject to the remaining 2.20
percent of the 4 percent state sales and use tax imposed by this
chapter.
(C)
The sale or use of jet fuel to or by a qualifying airline at a qualifying
airport shall also be exempt from the sales or use tax levied and imposed as
authorized pursuant to Part 1 of Article 3 of this chapter.
(D)
Except as provided for in subparagraph (C) of this paragraph, this exemption
shall not apply to any other local sales and use tax levied or imposed at
anytime in any area consisting of less than the entire state, however
authorized, including, but not limited to, such taxes authorized by or pursuant
to Section 25 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as
amended, the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965,' or such
taxes as authorized by or pursuant to Part 2 of Article 3 or Article 2, 2A, or 4
of this chapter.
(E)
For purposes of this paragraph, a 'qualifying airline' shall mean any person
which is authorized by the Federal Aviation Administration or appropriate agency
of the United States to operate as an air carrier under an air carrier operating
certificate and which provides regularly scheduled flights for the
transportation of passengers or cargo for hire.
(F)
For purposes of this paragraph, a 'qualifying airport' shall mean any airport in
the state that has had more than 750,000 takeoffs and landings during a calendar
year.
(G)
The commissioner shall adopt rules and regulations to carry out the provisions
of this paragraph.
(H)
The exemption provided for in this paragraph shall apply only as to transactions
occurring on or after July 1, 2009, and prior to July 1, 2011;
(34)
The sale of the following types of manufacturing machinery:
(A)
Machinery or equipment which is necessary and integral to the manufacture of
tangible personal property when the machinery or equipment is bought to replace
or upgrade machinery or equipment in a manufacturing plant presently existing in
this state and machinery or equipment components which are purchased to upgrade
machinery or equipment which is necessary and integral to the manufacture of
tangible personal property in a manufacturing plant;
(B)
Machinery or equipment which is necessary and integral to the manufacture of
tangible personal property when the machinery or equipment is used for the first
time in a new manufacturing plant located in this state;
(C)
Machinery or equipment which is necessary and integral to the manufacture of
tangible personal property when the machinery or equipment is used as additional
machinery or equipment for the first time in a manufacturing plant presently
existing in this state; and
(D)
Any person making a sale of machinery or equipment for the purpose specified in
subparagraph (B) of this paragraph shall collect the tax imposed on the sale by
this article unless the purchaser furnishes him with a certificate issued by the
commissioner certifying that the purchaser is entitled to purchase the machinery
or equipment without paying the tax. As a condition precedent to the issuance
of the certificate, the commissioner, at the commissioner's discretion, may
require a good and valid bond with a surety company authorized to do business in
this state as surety or may require legal securities, in an amount fixed by the
commissioner, conditioned upon payment by the purchaser of all taxes due under
this article in the event it should be determined that the sale fails to meet
the requirements of this subparagraph;
(34.1)(A)
The sale of primary material handling equipment which is used for the handling
and movement of tangible personal property and racking systems used for the
conveyance and storage of tangible personal property in a warehouse or
distribution facility located in this state when such equipment is either part
of an expansion worth $5 million or more of an existing warehouse or
distribution facility or part of the construction of a new warehouse or
distribution facility where the total value of all real and personal property
purchased or acquired by the taxpayer for use in the warehouse or distribution
facility is worth $5 million or more.
(B)
In order to qualify for the exemption provided for in subparagraph (A) of this
paragraph, a warehouse or distribution facility may not make retail sales from
such facility to the general public if the total of the retail sales equals or
exceeds 15 percent of the total revenues of the warehouse or distribution
facility. If retail sales are made to the general public by a warehouse or
distribution facility and at any time the total of the retail sales equals or
exceeds 15 percent of the total revenues of the facility, the taxpayer will be
disqualified from receiving such exemption as of the date such 15 percent
limitation is met or exceeded. The taxpayer may be required to repay any tax
benefits received under subparagraph (A) of this paragraph on or after that date
plus penalty and interest as may be allowed by law;
(34.2)(A)
The sale or use of machinery or equipment, or both, which is used in the
remanufacture of aircraft engines or aircraft engine parts or components in a
remanufacturing facility located in this state. For purposes of this paragraph,
'remanufacture of aircraft engines or aircraft engine parts or components' means
the substantial overhauling or rebuilding of aircraft engines or aircraft engine
parts or components.
(B)
Any person making a sale of machinery or equipment, or both, for the
remanufacture of aircraft engines or aircraft engine parts or components shall
collect the tax imposed on the sale by this article unless the purchaser
furnishes a certificate issued by the commissioner certifying that the purchaser
is entitled to purchase the machinery or equipment without paying the
tax;
(34.3)(A)
The sale or use of repair or replacement parts, machinery clothing or
replacement machinery clothing, molds or replacement molds, dies or replacement
dies, waxes, and tooling or replacement tooling for machinery which is necessary
and integral to the manufacture of tangible personal property in a manufacturing
plant presently existing in this state.
(B)
The commissioner shall promulgate rules and regulations to implement and
administer this paragraph;
(34.4)(A)
Notwithstanding any provision of Code Section 48-8-63 to the contrary, sales of
tangible personal property to, or used in or for the construction of, an
alternative fuel facility primarily dedicated to the production and processing
of ethanol, biodiesel, butanol, and their by-products, when such fuels are
derived from biomass materials such as agricultural products, or from animal
fats, or the wastes of such products or fats.
(B)
As used in this paragraph, the term:
(i)
'Alternative fuel facility' means any facility located in this state which is
primarily dedicated to the production and processing of ethanol, biodiesel,
butanol, and their by-products for sale.
(ii)
'Used in or for the construction' means any tangible personal property
incorporated into a new alternative fuel facility that loses its character of
tangible personal property. Such term does not mean tangible personal property
that is temporary in nature, leased or rented, tools, or other items not
incorporated into the facility.
(C)
Any person making a sale of tangible personal property for the purpose specified
in this paragraph shall collect the tax imposed on this sale unless the
purchaser furnishes an exemption certificate issued by the commissioner
certifying that the purchaser is entitled to purchase the tangible personal
property without payment of tax.
(D)
Any corporation, partnership, limited liability company, or any other entity or
person that qualifies for this exemption must conduct at least a majority of its
business with entities or persons with which it has no affiliation.
(E)
The exemption provided for under subparagraph (A) of this paragraph shall not
apply to sales of tangible personal property that occur after the production and
processing of biodiesel, ethanol, butanol, and their by-products has begun at
the alternative fuel facility.
(F)
The exemption provided for under subparagraph (A) of this paragraph shall apply
only to sales occurring during the period July 1, 2007, through June 30,
2012.
(G)
The commissioner shall promulgate any rules and regulations necessary to
implement and administer this paragraph;
(35)(A)
The sale, use, storage, or consumption of:
(i)
Industrial materials for future processing, manufacture, or conversion into
articles of tangible personal property for resale when the industrial materials
become a component part of the finished product;
(ii)
Industrial materials other than machinery and machinery repair parts that are
coated upon or impregnated into the product at any stage of its processing,
manufacture, or conversion; or
(iii)
Materials, containers, labels, sacks, or bags used for packaging tangible
personal property for shipment or sale. To qualify for the packaging exemption,
the items shall be used solely for packaging and shall not be purchased for
reuse;
(B)
As used in this paragraph, the term 'industrial materials' does not include
natural or artificial gas, oil, gasoline, electricity, solid fuel, ice, or other
materials used for heat, light, power, or refrigeration in any phase of the
manufacturing, processing, or converting process;
(36)(A)
The sale of machinery and equipment and any repair, replacement, or component
parts for such machinery and equipment which is used for the primary purpose of
reducing or eliminating air or water pollution;
(B)
Any person making a sale of machinery and equipment or repair, replacement, or
component parts for such machinery and equipment for the purposes specified in
this paragraph shall collect the tax imposed on the sale by this article unless
the purchaser furnishes him with a certificate issued by the commissioner
certifying that the purchaser is entitled to purchase the machinery and
equipment or repair, replacement, or component parts for such machinery and
equipment without paying the tax;
(36.1)(A)
The sale of machinery and equipment which is incorporated into any qualified
water conservation facility and used for water conservation.
(B)
As used in this paragraph, the term:
(i)
'Qualified water conservation facility' means any facility, including buildings,
and any machinery and equipment used in the water conservation process resulting
in a minimum 10 percent reduction in permit by relinquishment or transfer of
annual permitted water usage from existing permitted ground-water sources. In
addition, such facility shall have been certified pursuant to rules and
regulations promulgated by the Department of Natural Resources as necessary to
promote its ground-water management efforts for areas with a multiyear record of
consumption at, near, or above sustainable use signaled by declines in
ground-water pressure, threats of salt-water intrusion, need to develop
alternate sources to accommodate economic growth and development, or any other
indication of growing inadequacy of the existing resource.
(ii)
'Water conservation' means a minimum 10 percent reduction resulting in the
relinquishment of transfer of annual permitted water usage from existing
ground-water sources due to increased manufacturing process efficiencies or
recycling of manufacturing process water which results in reduced ground-water
usage, or a change from a ground-water source to a surface-water source or an
alternate source.
(C)
Any person making a sale of machinery and equipment for the purposes specified
in this paragraph shall collect the tax imposed on this sale unless the
purchaser furnishes such person with a certificate issued by the commissioner
certifying that the purchaser is entitled to purchase the machinery and
equipment without paying the tax;
(37)
The sale of machinery and equipment for use in combating air and water pollution
and any industrial material bought for further processing in the manufacture of
tangible personal property for sale or any part of the industrial material or
by-product thereof which becomes a wasteful product contributing to pollution
problems and which is used up in a recycling or burning process. Any person
making a sale of machinery and equipment for the purposes specified in this
paragraph shall collect a tax imposed on the sale by this article unless the
purchaser furnishes the person making the sale with a certificate issued by the
commissioner certifying that the purchaser is entitled to purchase the
machinery, equipment, or industrial material without paying the
tax;
(38)
Sales of tangible personal property and fees and charges for services by the
Rock Eagle 4-H Center;
(39)
Sales by any public or private school containing any combination of grades
kindergarten through 12 of tangible personal property, concessions, or tickets
for admission to a school event or function, provided that the net proceeds from
such sales are used solely for the benefit of such public or private school or
its students;
(39.1)
The use of cargo containers and their related chassis which are owned by or
leased to persons engaged in the international shipment of cargo by ocean-going
vessels which containers and chassis are directly used for the storage and
shipment of tangible personal property in or through this state in intrastate or
interstate commerce;
(40)
The sale of major components and repair parts installed in military craft,
vehicles, and missiles;
(41)(A)
Sales of tangible personal property and services to a child-caring institution
as defined in paragraph (1) of Code Section 49-5-3, as amended; a child-placing
agency as defined in paragraph (2) of Code Section 49-5-3, as amended; or a
maternity home as defined in paragraph (14) of Code Section 49-5-3, as amended,
when such institution, agency, or home is engaged primarily in providing child
services and is a nonprofit, tax-exempt organization under Section 501(c)(3) of
the Internal Revenue Code and obtains an exemption determination letter from the
commissioner; and
(B)
Sales by an institution, agency, or home as described in subparagraph (A) of
this paragraph when:
(i)
The sale results from a specific charitable fundraising activity;
(ii)
The number of days upon which the fundraising activity occurs does not exceed 30
in any calendar year;
(iii)
No part of the gross sales or net profits from the sales inures to the benefit
of any private person; and
(iv)
The gross sales or net profits from the sales are used purely for charitable
purposes in providing child services;
(42)
The use by, or lease or rental of tangible personal property to, a person who
acquires the property from another person where both persons are under 100
percent common ownership and where the person who furnishes, leases, or rents
the property has:
(A)
Previously paid sales or use tax on the property; or
(B)
Been credited under Code Section 48-8-42 with paying a sales or use tax on the
property so furnished, leased, or rented, and the tax credited is based upon the
fair rental or lease value of the property;
(43)
Gross revenues generated from all bona fide coin operated amusement machines
which vend or dispense music or are operated for skill, amusement,
entertainment, or pleasure which are in commercial use and are provided to the
public for play which will require a permit fee under Chapter 17 of this
title;
(44)
Sales of motor vehicles, as defined in Code Section 48-5-440, to nonresident
purchasers for immediate transportation to and use in another state in which the
vehicles are required to be registered, provided the seller obtains from the
purchaser and retains an affidavit stating the name and address of the
purchaser, the state in which the vehicle will be registered and operated, the
make, model, and serial number of the vehicle, and such other information as the
commissioner may require;
(45)
The sale, use, storage, or consumption of paper stock which is manufactured in
this state into catalogs intended to be delivered outside this state for use
outside this state;
(46)
Sales to blood banks having a nonprofit status pursuant to Section 501(c)(3) of
the Internal Revenue Code;
(47)(A)(i)
The sale or use of controlled substances and
dangerous
drugs which are lawfully dispensed by prescription for the treatment of natural
persons, and sales of prescription eyeglasses and contact lenses including,
without limitation, prescription contact lenses distributed by the manufacturer
to licensed dispensers as free samples not intended for resale and labeled as
such.
(ii)
The sale or use of those controlled substances and
dangerous
drugs lawfully dispensable by prescription for the treatment of natural persons
which are dispensed or distributed without charge to physicians, dentists,
clinics, hospitals, or any other person or entity located in Georgia by a
pharmaceutical manufacturer or distributor; and the use of controlled
substances,
dangerous
drugs, new animal drugs, and medical devices lawfully dispensed or distributed
without charge solely for the purposes of a clinical trial approved by either
the United States Food and Drug Administration or by an institutional review
board.
(B)
For purposes of this paragraph, the term:
(i)
'Controlled substance' means the same as provided in Code Section
16-13-1.
(ii)
'Dangerous
drug'
'Drug'
means the same as provided in Code Section
16-13-1
48-8-2.
(iii)
'Institutional review board' means an institutional review board as provided in
21 C.F.R. Section 56.
(iv)
'Medical device' means a device as defined in subsection (h) of 21 U.S.C.
Section 321.
(v)
'New animal drug' means a new animal drug as defined in subsection (v) of 21
U.S.C. Section 321.
(C)
The commissioner is authorized to prescribe forms and promulgate rules and
regulations deemed necessary in order to administer and effectuate this
paragraph;
(48)
Sales to licensed commercial fishermen of bait for taking crabs and the use by
licensed commercial fishermen of bait for taking crabs;
(49)
Sales of liquefied petroleum gas or other fuel used in a structure in which
broilers, pullets, or other poultry are raised;
(49.1)(A)
From July 1, 2008, until June 30, 2010, the sale or use of liquefied petroleum
gas or other fuel used in a structure in which swine are raised.
(B)(i)
For the purposes of this paragraph, the term 'local sales and use tax' shall
mean any sales tax, use tax, or local sales and use tax which is levied and
imposed in an area consisting of less than the entire state, however authorized,
including, but not limited to, such taxes authorized by or pursuant to
constitutional amendment; by or pursuant to Section 25 of an Act approved March
10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid
Transit Authority Act of 1965'; by or pursuant to Article 2 of this chapter; by
or pursuant to Article 2A of this chapter; by or pursuant to Part 1 of Article 3
of this chapter; by or pursuant to Part 2 of Article 3 of this chapter; and by
or pursuant to Article 4 of this chapter.
(ii)
The exemption provided for in subparagraph (A) of this paragraph shall not apply
to any local sales and use tax levied or imposed at any time;
(50)
Sales of blood measuring devices, other monitoring equipment, or insulin
delivery systems used exclusively by diabetics and sales of insulin, insulin
syringes, and blood glucose level measuring strips dispensed without a
prescription;
(51)
Sales of oxygen prescribed by a licensed physician;
(52)
The sale or
use of hearing aids
Reserved;
(53)
Sales transactions for which food stamps or WIC coupons are used as the medium
of exchange;
(54)
The sale or use of any durable medical equipment or prosthetic device prescribed
by a physician;
(55)
The sale of lottery tickets authorized by Chapter 27 of Title 50;
(56)
Sales by any parent-teacher organization qualified as a tax exempt organization
under Section 501(c)(3) of the Internal Revenue Code;
(57)(A)
The sale
for
off-premises human consumption or use of eligible foods and
beverages
of food and
food ingredients, to the extent provided
in subparagraph (B) of this paragraph.
(B)
A transaction described in subparagraph (A) of this paragraph shall be exempt
from sales and use tax only if occurring on or after October 1, 1996, and only
to the extent set forth in divisions (i) through (iii) of this subparagraph as
follows:
(i)
For a transaction occurring during the period from October 1, 1996, through
September 30, 1997, to the extent of 50 percent of that amount on which, but for
this paragraph, sales and use tax would be levied or imposed;
(ii)
For a transaction occurring during the period from October 1, 1997, through
September 30, 1998, to the extent of 75 percent of that amount on which, but for
this paragraph, sales and use tax would be levied or imposed; and
(iii)
For a transaction occurring on or after October 1, 1998, to the extent of 100
percent of that amount on which, but for this paragraph, sales and use tax would
be levied or imposed.
(C)(B)
For the purposes of this paragraph,
'eligible
food and beverages' means any food as defined in Section 3 of the federal Food
Stamp Act of 1977 (P.L. 95-113), as amended, 7 U.S.C.A. 2012(g), as such Act
existed on January 1, 1996, except that eligible food and beverages shall not
include seeds or plants to grow food and shall not include food or drink
dispensed by or through vending machines or related
operations
'food and
food ingredients' shall not include prepared food, alcoholic beverages, or
tobacco.
(D)(i)(C)(i)
The exemption provided for in this paragraph shall not apply to any local sales
and use tax levied or imposed at any time
by or
pursuant to Article 3 of this
chapter.
(ii)
Except as otherwise provided in division (i) of this subparagraph, the exemption
provided for in this paragraph shall not apply to any local sales and use tax
which is effective before October 1, 1996, notwithstanding any provisions to the
contrary in the law authorizing or imposing such tax.
(iii)
Except as otherwise provided in divisions (i) and (iv) of this subparagraph, the
exemption provided for in this paragraph shall apply with respect to any local
sales and use tax which becomes effective on or after October 1, 1996, but such
exemption shall apply only as to transactions occurring on or after October 1,
1998, notwithstanding any provision to the contrary in the law authorizing or
imposing such tax.
(iv)
The exemption provided for in this paragraph shall apply to any local sales and
use tax levied or imposed at any time by or pursuant to Article 2A of this
chapter.
(v)(ii)
For the purposes of this subparagraph, the term 'local sales and use tax' shall
mean any sales tax, use tax, or local sales and use tax which is levied and
imposed in an area consisting of less than the entire state, however authorized,
including, but not limited to, such taxes authorized by or pursuant to
constitutional amendment; by or pursuant to Section 25 of an Act approved March
10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid
Transit Authority Act of 1965'; by or pursuant to
Article 2
of this chapter; by or pursuant to Article 2A of this chapter; or by or pursuant
to Article 3
any
article of this chapter.
(E)(D)
The commissioner shall adopt rules and regulations to carry out the provisions
of this paragraph;
(57.1)(A)
From July 1, 2006, until June 30, 2010, sales of
eligible
food and
beverages
food
ingredients to a qualified food
bank.
(B)
As used in this paragraph, the
term:
(i)
'Eligible food and beverages' means any food as defined in Section 3 of the
federal Food Stamp Act of 1977 (P.L. 95-113), as amended, 7 U.S.C.A. 2012(g), as
such Act existed on January 1, 1996, whether or not for off premises
consumption.
(ii)
'Qualified
'qualified
food bank' means any food bank which is exempt from taxation under Section
501(c)(3) of the Internal Revenue Code and which is operated primarily for the
purpose of providing hunger relief to low income persons residing in this
state.
(C)
Any person
making a sale of eligible food and beverages for the purpose specified in this
paragraph shall collect the tax imposed on this sale unless the purchaser
furnishes such person with an exemption determination letter issued by the
commissioner certifying that the purchaser is entitled to purchase the eligible
food and beverages without paying the tax.
(D)
The commissioner is authorized to promulgate rules and regulations deemed
necessary in order to administer and effectuate this paragraph;
(57.2)(A)
For the period commencing July 1, 2007, and ending on June 30, 2011, the use of
prepared food
and
beverages which
are
is
donated to a qualified nonprofit agency and which are used for hunger relief
purposes.
(B)
As used in this paragraph, the term 'qualified nonprofit agency' means any
entity which is exempt from taxation under Section 501(c)(3) of the Internal
Revenue Code and which provides hunger relief.
(C)
Any person
making a donation of prepared food and beverages for the purpose specified in
this paragraph shall remit the tax imposed thereon unless the person making use
of such prepared food and beverages furnishes the person making the donation
with an exemption determination letter issued by the commissioner certifying
that the person making use of such food and beverages is entitled to use the
prepared food and beverages without paying the tax.
(D)
The commissioner is authorized to promulgate rules and regulations deemed
necessary in order to administer and effectuate this paragraph;
(57.3)(A)
For the period commencing July 1, 2007, and ending on June 30, 2011, the use of
prepared food
and
beverages which
are
is
donated following a natural disaster and which are used for disaster relief
purposes.
(B)
The commissioner is authorized to promulgate rules and regulations deemed
necessary in order to administer and effectuate this paragraph;
(58)(A)
Notwithstanding any provisions of this chapter to the contrary, sales to or use
by a government contractor of overhead materials in performance of a contract
with the United States government to which title passes immediately to the
government under the terms of the contract.
(B)
As used in this paragraph, the term:
(i)
'Government contractor' means a person who enters into a contract with the
United States Department of Defense or the National Aeronautics and Space
Administration to sell services or tangible personal property, or both, for the
purpose of the national defense.
(ii)
'Overhead materials' means any tangible personal property used or consumed in
the performance of a contract between the United States Department of Defense or
the National Aeronautics and Space Administration and a government contractor,
the cost of which is charged to an expense account and allocated to various
United States government contracts based upon generally accepted accounting
principles, and consistent with government contract accounting standards. The
term does not include tangible personal property which is incorporated into real
property construction.
(C)
This paragraph shall stand repealed on January 1, 2011;
(59)(A)
For purposes of this paragraph, 'eligible food and beverages' means any food as
defined in Section 3 of the federal Food Stamp Act of 1977 (P.L. 95-113), as
amended, 7 U.S.C.A. 2012(g), as such Act existed on January 1, 1996, whether or
not for off premises
consumption.
(B)(A)
Sales of
eligible
food and beverages
food and food
ingredients to and by member councils of
the Girl Scouts of the U.S.A. in connection with fundraising activities of any
such council.
(C)(B)
Sales of
eligible
food and beverages
food and food
ingredients to and by member councils of
the Boy Scouts of America in connection with fundraising activities of any such
council;
(60)
The sale of machinery and equipment which is incorporated into any
telecommunications manufacturing facility and used for the primary purpose of
improving air quality in advanced technology clean rooms of Class 100,000 or
less, provided such clean rooms are used directly in the manufacture of tangible
personal property;
(61)
Printed advertising inserts or advertising supplements distributed in this state
in or as part of any newspaper for resale;
(62)
The sale of grass sod of all kinds and character when such sod is in the
original state of production or condition of preparation for sale. The
exemption provided for by this paragraph shall only apply to a sale made by the
sod producer, a member of such producer's family, or an employee of such
producer. The exemption provided for by this paragraph shall not apply to sales
of grass sod by a person engaged in the business of selling plants, seedlings,
nursery stock, or floral products;
(63)
The sale or use of funeral merchandise, outer burial containers, and cemetery
markers as defined in Code Section 43-18-1, which are purchased with funds
received from the Georgia Crime Victims Emergency Fund under Chapter 15 of Title
17;
(64)
The sale of electricity or other fuel for the operation of an irrigation system
which is used on a farm exclusively for the irrigation of crops;
(65)(A)
Sales of dyed diesel fuel exclusively used to operate vessels or boats in the
commercial fishing trade by licensed commercial fishermen.
(B)
Any person making a sale of dyed diesel fuel for the purposes specified in this
paragraph shall collect the tax imposed on the sale by this article unless the
purchaser furnishes such person with a certificate issued by the commissioner
certifying that the purchaser is entitled to purchase the dyed diesel fuel
without paying the tax;
(66)
Sales of gold, silver, or platinum bullion or any combination of such bullion,
provided that the dealer maintains proper documentation, as specified by rule or
regulation to be promulgated by the department, to identify each sale or portion
of a sale which is exempt under this paragraph;
(67)
Sales of coins or currency or a combination of coins and currency, provided that
the dealer maintains proper documentation, as specified by rule or regulation to
be promulgated by the department, to identify each sale or portion of a sale
which is exempt under this paragraph;
(68)(A)
The sale or lease of computer equipment to be incorporated into a facility or
facilities in this state to any high-technology company classified under North
American Industrial Classification System code 51121, 51331, 51333, 51334,
51421, 52232, 54133, 54171, 54172, 334413, 334611, 513321, 513322, 514191,
541511, 541512, 541513, or 541519 where such sale of computer equipment for any
calendar year exceeds $15 million or, in the event of a lease of such computer
equipment, the fair market value of such leased computer equipment for any
calendar year exceeds $15 million.
(B)
Any person making a sale or lease of computer equipment to a high-technology
company as specified in subparagraph (A) of this paragraph shall collect the tax
imposed on the sale by this article unless the purchaser furnishes such seller
with a certificate issued by the commissioner certifying that the purchaser is
entitled to purchase the computer equipment without paying the tax. As a
condition precedent to the issuance of the certificate, the commissioner, at
such commissioner's discretion, may require a good and valid bond with a surety
company authorized to do business in this state as surety or may require legal
securities, in an amount fixed by the commissioner, conditioned upon payment by
the purchaser of all taxes due under this article in the event it should be
determined that the sale fails to meet the requirements of this
subparagraph.
(C)(i)
As used in this paragraph, the term 'computer equipment' means any individual
computer or organized assembly of hardware or software, such as a server farm,
mainframe or midrange computer, mainframe driven high-speed print and mailing
devices, and workstations connected to those devices via high bandwidth
connectivity such as a local area network, wide area network, or any other data
transport technology which performs one of the following functions: storage or
management of production data, hosting of production applications, hosting of
application systems development activities, or hosting of applications systems
testing.
(ii)
The term shall not include:
(I)
Telephone central office equipment or other voice data transport technology;
or
(II)
Equipment with imbedded computer hardware or software which is primarily used
for training, product testing, or in a manufacturing process.
(D)
Any corporation, partnership, limited liability company, or any other similar
entity which qualifies for the exemption and is affiliated in any manner with a
nonqualified corporation, partnership, limited liability company, or any other
similar entity must conduct at least a majority of its business with entities
with which it has no affiliation;
(69)
The sale of machinery, equipment, and materials incorporated into and used in
the construction or operation of a clean room of Class 100 or less in this
state, not to include the building or any permanent, nonremovable component of
the building that houses such clean room, provided that such clean room is used
directly in the manufacture of tangible personal property in this
state;
(70)(A)
For the purposes of this paragraph, the term 'local sales and use tax' shall
mean any sales tax, use tax, or local sales and use tax which is levied and
imposed in an area consisting of less than the entire state, however authorized,
including, but not limited to, such taxes authorized by or pursuant to
constitutional amendment; by or pursuant to Section 25 of an Act approved March
10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid
Transit Authority Act of 1965'; by or pursuant to Article 2 of this chapter; by
or pursuant to Article 2A of this chapter; by or pursuant to Part 1 of Article 3
of this chapter; or by or pursuant to Part 2 of Article 3 of this
chapter.
(B)
The sale of natural or artificial gas used directly in the production of
electricity which is subsequently sold.
(C)
The exemption provided for in subparagraph (B) of this paragraph shall not apply
to any local sales and use tax levied or imposed at any time.
(D)
The commissioner shall adopt rules and regulations to carry out the provisions
of this paragraph;
(70.1)(A)
For the period commencing July 1, 2008, and concluding on December 31, 2010, the
sale of natural or artificial gas, No. 2 fuel oil, No. 6 fuel oil, propane,
petroleum coke, and coal used directly or indirectly in the manufacture or
processing, in a manufacturing plant located in this state, of tangible personal
property primarily for resale, and the fuel cost recovery component of retail
electric rates used directly or indirectly in the manufacture or processing, in
a manufacturing plant located in this state, of tangible personal property
primarily for resale.
(B)
The exemption provided for in subparagraph (A) of this paragraph shall not apply
to the first $7.60 per decatherm of the sales price or cost price of natural or
artificial gas, the first $2.48 per gallon of the sales price or cost price of
No. 2 fuel oil, the first $1.72 per gallon of the sales price or cost price of
No. 6 fuel oil, the first $1.44 per gallon of the sales price or cost price of
propane, the first $57.90 per ton of petroleum coke, the first $57.90 per ton of
coal, or the first 3.44¢ per kilowatt hour of the fuel cost recovery
component of retail electricity rates whether such fuel recovery charges are
charged separately or are embedded in such electric rates. Dealers with such
embedded rates may exempt from the electricity sales upon which the sales tax is
calculated no more than the amount, if any, by which the fuel cost recovery
charge approved by the Georgia Public Service Commission for transmission
customers of electric utilities regulated by the Georgia Public Service
Commission exceeds 3.44¢ per kilowatt hour.
(C)(i)
For the purposes of this paragraph, the term 'local sales and use tax' shall
mean any sales tax, use tax, or local sales and use tax which is levied and
imposed in an area consisting of less than the entire state, however authorized,
including, but not limited to, such taxes authorized by or pursuant to
constitutional amendment; by or pursuant to Section 25 of an Act approved March
10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid
Transit Authority Act of 1965'; or by or pursuant to Article 2, 2A, 3, or 4 of
this chapter.
(ii)
The exemption provided for in subparagraph (A) of this paragraph shall not apply
to any local sales and use tax levied or imposed at any time.
(D)
Any person making a sale of items qualifying for exemption under
subparagraph (A) of this paragraph shall be relieved of the burden of
proving such qualification if the person receives in good faith a certificate
from the purchaser certifying that the purchase is exempt under this
paragraph.
(E)
Any person who qualifies for this exemption shall notify and certify to the
person making the qualified sale that this exemption is applicable to the
sale;
(71)
Sales to or by any nonprofit organization which has as its primary purpose the
raising of funds for books, materials, and programs for public libraries if such
organization qualifies as a tax-exempt organization under Section 501(c)(3) of
the Internal Revenue Code;
(72)
The sale or
use, to or
by permanently disabled persons, of wheelchairs and any accompanying equipment,
including seating equipment, all of which is manually or mechanically attached
or adapted to such wheelchairs
of all
mobility enhancing equipment prescribed by a
physician;
(73)(A)
The sale or lease of production equipment or production services for use in this
state by a certified film producer or certified film production company for
qualified production activities.
(B)
As used in this paragraph, the term:
(i)
'Film producer' means any person engaged in the business of organizing and
supervising qualified production activities.
(ii)
'Film production company' means any company that employs one or more film
producers and whose goal is to engage in film production activity.
(iii)
'Production equipment' means items purchased or leased for use exclusively in
qualified production activities in Georgia, including, but not limited to,
cameras, camera supplies, camera accessories, lighting equipment, cables, wires,
generators, motion picture film and videotape stock, cranes, booms, dollies, and
teleprompters.
(iv)
'Production services' means services purchased for use exclusively in qualified
production activities in Georgia, including, but not limited to, digital or tape
editing, film processing, transfers of film to tape or digital format, sound
mixing, computer graphics services, special effects services, animation
services, and script production.
(v)
'Qualified production activities' means the production or post production of
film or video projects such as feature films, series, pilots, movies for
television, commercials, music videos, or sound recordings used in feature
films, series, pilots, or movies for television, for which the film producer or
film production company will be compensated and which are intended for
nation-wide commercial distribution.
(C)
Any person making a sale of production equipment or production services to a
film producer or film production company as specified in this paragraph shall
collect the tax imposed on the sale by this article unless the purchaser
furnishes such seller with a certificate issued by the commissioner certifying
that the purchaser is entitled to purchase the production equipment or
production services without paying the tax. As a condition precedent to the
issuance of the certificate, film producers and film production companies shall
submit an application to the commissioner for designation as a certified film
producer or certified film production company. Such application shall not be
valid without prior written approval by the Georgia Film and Videotape Office of
the Department of Economic Development;
(74)(A)(i)
Except as otherwise provided in divisions (ii) and (iii) of this subparagraph,
the sale or use of digital broadcast equipment sold to, leased to, or used by a
federally licensed commercial or public radio or television broadcast station, a
cable network, or a cable distributor that enables a radio or television
station, cable network, or cable distributor to originate and broadcast or
transmit or to receive and broadcast or transmit digital signals, including, but
not limited to, digital broadcast equipment required by the Federal
Communications Commission.
(ii)
For commercial or public television broadcasters and cable distributors, such
equipment shall be limited to antennas, transmission lines, towers, digital
transmitters, studio to transmitter links, digital routing switchers, character
generators, Advanced Television Systems Committee video encoders and
multiplexers, monitoring facilities, cameras, terminal equipment, tape
recorders, and file servers.
(iii)
For radio broadcasters, such equipment shall be limited to transmitters, digital
audio processors, and diskettes.
(B)
As used in this paragraph, the term:
(i)
'Digital broadcast equipment' means equipment purchased, leased, or used for the
origination or integration of program materials for broadcast over the airwaves
or transmission by cable, satellite, or fiber optic line which uses or produces
an electronic signal where the signal carries data generated, stored, and
processed as strings of binary data. Data transmitted or stored as digital data
consists of strings of positive or nonpositive elements of a transmission
expressed in strings of 0's and 1's which a computer or processor can
reconstruct as an electronic signal.
(ii)
'Federally licensed commercial or public radio or television broadcast station'
means any entity or enterprise, either commercial or noncommercial, which
operates under a license granted by the Federal Communications Commission for
the purpose of free distribution of audio and video services when the
distribution occurs by means of transmission over the public
airwaves.
(C)
The exemption provided under this paragraph shall not apply to any of the
following:
(i)
Repair or replacement parts purchased for the equipment described in this
paragraph;
(ii)
Equipment purchased to replace equipment for which an exemption was previously
claimed and taken under this paragraph;
(iii)
Any equipment purchased after a television station, cable network, or cable
distributor has ceased analog broadcasting, or purchased after November 1, 2004,
whichever occurs first; or
(iv)
Any equipment purchased after a radio station has ceased analog broadcasting, or
purchased after November 1, 2008, whichever occurs first.
(D)
Any person making a sale of digital broadcasting equipment to a federally
licensed commercial or public radio or television broadcast station, cable
network, or cable distributor shall collect the tax imposed on the sale by this
article unless the purchaser furnishes a certificate issued by the commissioner
certifying that the purchaser is entitled to purchase the equipment without
paying the tax;
(75)(A)
The sale of any covered item. The exemption provided by this paragraph shall
apply only to sales occurring during a period commencing at 12:01 A.M. on July
30, 2009, and concluding at 12:00 Midnight on August 2, 2009.
(B)
As used in this paragraph, the term 'covered item' shall mean:
(i)
Articles of clothing and footwear with a sales price of $100.00 or less per
article of clothing or pair of footwear, excluding accessories such as jewelry,
handbags, umbrellas, eyewear, watches, and watchbands;
(ii)
A single purchase, with a sales price $1,500.00 or less, of personal computers
and personal computer related accessories purchased for noncommercial home or
personal use, including personal computer base units and keyboards, personal
digital assistants, handheld computers, monitors, other peripheral devices,
modems for Internet and network access, and nonrecreational software, whether or
not they are to be utilized in association with the personal computer base unit.
Computer and computer related accessories shall not include furniture and any
systems, devices, software, or peripherals designed or intended primarily for
recreational use; and
(iii)
Noncommercial purchases of general school supplies to be utilized in the
classroom or in classroom related activities, such as homework, up to a sales
price of $20.00 per item including pens, pencils, notebooks, paper, book bags,
calculators, dictionaries, thesauruses, and children's books and books listed on
approved school reading lists for pre-kindergarten through twelfth
grade.
(C)
The exemption provided by this paragraph shall not apply to rentals, sales in a
theme park, entertainment complex, public lodging establishment, restaurant, or
airport or to purchases for trade, business, or resale.
(D)
The commissioner shall promulgate any rules and regulations necessary to
implement and administer this paragraph including but not be limited to a list
of those articles and items qualifying for the exemption pursuant to this
paragraph;
(76)
Notwithstanding any provision of Code Section 48-8-63 to the contrary, from June
4, 2003, until January 1, 2007, sales of tangible personal property to, or used
in the construction of, an aquarium owned or operated by an organization which
is exempt from taxation under Section 501(c)(3) of the Internal Revenue
Code;
(77)
Sales of liquefied petroleum gas or other fuel used in a structure in which
plants, seedlings, nursery stock, or floral products are raised primarily for
the purposes of making sales of such plants, seedlings, nursery stock, or floral
products for resale;
(78)(A)
Notwithstanding any provision of Code Section 48-8-63 to the contrary, from the
effective date of this paragraph until September 1, 2011, sales of tangible
personal property used in direct connection with the construction of a new
symphony hall facility owned or operated by an organization which is exempt from
taxation under Section 501(c)(3) of the Internal Revenue Code if the aggregate
construction cost of such facility is $200 million or more.
(B)
Any person making a sale of tangible personal property for the purpose specified
in this paragraph shall collect the tax imposed on this sale unless the
purchaser furnishes such person with an exemption determination letter issued by
the commissioner certifying that the purchaser is entitled to purchase the
tangible personal property without paying the tax;
(79)
The sale or use of ice for chilling poultry or vegetables in processing for
market and for chilling poultry or vegetables in storage rooms, compartments, or
delivery trucks;
(80)(A)
Notwithstanding any provision of Code Section 48-8-63 to the contrary, from the
effective date of this paragraph until December 31, 2007, sales of tangible
personal property to, or used in or for the new construction of an eligible
corporate attraction.
(B)
As used in this paragraph, the term: 'corporate attraction' means any tourist
attraction facility constructed on or after the effective date of this paragraph
dedicated to the history and products of a corporation which costs exceeds $50
million, is greater than 60,000 square feet of space, and has associated
facilities, including but not limited to parking decks and landscaping owned by
the same owner as the eligible corporate attraction.
(C)
Any person making a sale of tangible personal property for the purpose specified
in this paragraph shall collect the tax imposed on this sale unless the
purchaser furnishes such person with an exemption determination letter issued by
the commissioner certifying that the purchaser is entitled to purchase the
tangible personal property without paying the tax;
(81)
The sale of food and
beverages,
except for alcoholic beverages,
food
ingredients to a qualifying airline for
service to passengers and crew in the aircraft, whether in flight or on the
ground, and the furnishing without charge of food and
beverages
food
ingredients to qualifying airline
passengers and crew in the aircraft, whether in flight or on the ground; and for
purposes of this paragraph a 'qualifying airline' shall mean any person which is
authorized by the Federal Aviation Administration or appropriate agency of the
United States to operate as an air carrier under an air carrier operating
certificate and which provides regularly scheduled flights for the
transportation of passengers or cargo for
hire. As used
in this paragraph, 'food and food ingredients' means substances, whether in
liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold
for ingestion or chewing by humans and are consumed for their taste or
nutritional value. 'Food and food ingredients' shall not include alcoholic
beverages or tobacco;
(82)(A)
Purchase of energy efficient products or water efficient products with a sales
price of $1,500.00 or less per product purchased for noncommercial home or
personal use. The exemption provided by this paragraph shall apply only to
sales occurring during a period commencing at 12:01 A.M. on October 1, 2009, and
concluding at 12:00 Midnight on October 4, 2009.
(B)
As used in this paragraph, the term:
(i)
'Energy efficient product' means any energy efficient product for noncommercial
home or personal use consisting of any dishwasher, clothes washer, air
conditioner, ceiling fan, fluorescent light bulb, dehumidifier, programmable
thermostat, refrigerator, door, or window which has been designated by the
United States Environmental Protection Agency and the United States Department
of Energy as meeting or exceeding each such agency's energy saving efficiency
requirements or which have been designated as meeting or exceeding such
requirements under each such agency's Energy Star program.
(ii)
'Water efficient product' means any product used for the conservation or
efficient use of water which has been designated by the United States
Environmental Protection Agency as meeting or exceeding such agency's water
saving efficiency requirements or which has been designated as meeting or
exceeding such requirements under such agency's Water Sense
program.
(C)
The exemption provided for in subparagraph (A) of this paragraph shall not apply
to purchases of energy efficient products or water efficient products purchased
for trade, business, or resale.
(D)
The commissioner shall promulgate any rules and regulations necessary to
implement and administer this paragraph;
(83)(A)
The sale or use of biomass material, including pellets or other fuels derived
from compressed, chipped, or shredded biomass material, utilized in the
production of energy, including without limitation the production of
electricity, steam, or the production of electricity and steam, which is
subsequently sold.
(B)
As used in this paragraph, the term 'biomass material' means organic matter,
excluding fossil fuels, including agricultural crops, plants, trees, wood, wood
wastes and residues, sawmill waste, sawdust, wood chips, bark chips, and forest
thinning, harvesting, or clearing residues; wood waste from pallets or other
wood demolition debris; peanut shells; pecan shells; cotton plants; corn stalks;
and plant matter, including aquatic plants, grasses, stalks, vegetation, and
residues, including hulls, shells, or cellulose containing fibers;
(84)(A)
Notwithstanding any provision of Code Section 48-8-63 to the contrary, from July
1, 2006, until June 30, 2008, sales of tangible personal property used in direct
connection with the construction of a national infantry museum and heritage park
facility.
(B)
As used in this paragraph, the term 'national infantry museum and heritage park
facility' means a museum and park facility which is constructed after July 1,
2006; is dedicated to the history of the American foot soldier; has more than
130,000 square feet of space; and has associated facilities, including, but not
limited to, parking, parade grounds, and memorial areas.
(C)
Any person making a sale of tangible personal property for the purpose specified
in this paragraph shall collect the tax imposed on this sale unless the
purchaser furnishes such person with an exemption determination letter issued by
the commissioner certifying that the purchaser is entitled to purchase the
tangible personal property without paying the tax;
(85)(A)
Sales of tangible personal property and services to a qualified job training
organization when such organization obtains an exemption determination letter
from the commissioner.
(B)
For purposes of this paragraph, 'qualified job training organization' means an
organization which:
(i)
Is located in this state;
(ii)
Is exempt from income taxation under Section 501 (c)(3) of the Internal Revenue
Code;
(iii)
Specializes in the retail sale of donated items;
(iv)
Provides job training and employment services to individuals with workplace
disadvantages and disabilities; and
(v)
Uses a majority of its revenues for job training and placement
programs.
(C)(i)
For the purposes of this paragraph, the term 'local sales and use tax' shall
mean any sales tax, use tax, or local sales and use tax which is levied and
imposed in an area consisting of less than the entire state, however authorized,
including, but not limited to, such taxes authorized by or pursuant to
constitutional amendment; by or pursuant to Section 25 of an Act approved March
10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid
Transit Authority Act of 1965'; by or pursuant to Article 2 of this chapter; by
or pursuant to Article 2A of this chapter; by or pursuant to Part 1 of Article 3
of this chapter; by or pursuant to Part 2 of Article 3 of this chapter; or by or
pursuant to Article 4 of this chapter.
(ii)
The exemption provided for in subparagraph (A) of this paragraph shall not apply
to any local sales and use tax levied or imposed at any time.
(D)
The commissioner shall promulgate any rules and regulations necessary to
implement and administer this paragraph.
(E)
This paragraph shall stand repealed in its entirety on July 1,
2010;
(86)
For the period commencing on July 1, 2007, and ending on June 30, 2011, the sale
or use of engines, parts, equipment, and other tangible personal property used
in the maintenance or repair of aircraft when such engines, parts, equipment,
and other tangible personal property are installed on such aircraft that is
being repaired or maintained in this state so long as such aircraft is not
registered in this state;
(87)(A)
Notwithstanding any provision of Code Section 48-8-63 to the contrary, from
July 1, 2009, until June 30, 2011, sales of tangible personal property used for
and in the renovation or expansion of a zoological institution.
(B)
As used in this
Code
section
paragraph,
the term 'zoological institution' means a nonprofit wildlife park, terrestrial
institution, or facility which is:
(i)
Open to the public, that exhibits and cares for a collection consisting
primarily of animals other than fish, and has received accreditation from the
Association of Zoos and Aquariums; and
(ii)
Located in this state and owned or operated by an organization which is exempt
from taxation under Section 501(c)(3) of the Internal Revenue Code.
(C)
Any person making a sale of tangible personal property for the purpose specified
in this paragraph shall collect the tax imposed on this sale unless the
purchaser furnishes such person with an exemption determination letter issued by
the commissioner certifying that the purchaser is entitled to purchase the
tangible personal property without paying the tax;
(88)(A)
Notwithstanding any provision of Code Section 48-8-63 to the contrary, from
July 1, 2009, until July 30, 2015, sales of tangible personal property to, or
used in or for the new construction of, a civil rights museum.
(B)
As used in this paragraph, the term 'civil rights museum' means a museum which
is constructed after July 1, 2009; is owned or operated by an organization which
is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code;
has more than 70,000 square feet of space; and has associated facilities,
including, but not limited to, special event space and retail
space.
(C)
Any person making a sale of tangible personal property for the purpose specified
in this paragraph shall collect the tax imposed on this sale unless the
purchaser furnishes such person with an exemption determination letter issued by
the commissioner certifying that the purchaser is entitled to purchase the
tangible personal property without paying the tax.
(D)
The exemption provided for under subparagraph (A) of this paragraph shall not
apply to sales of tangible personal property that occur after the museum is
opened to the public;
or
(89)
For the period commencing on July 1, 2009, and ending on June 30, 2011, the sale
or use of an airplane flight simulation training device approved by the Federal
Aviation Administration under Appendices A and B, 14 C.F.R. Part
60;
(90)
The sale of electricity to a manufacturer located in this state used directly in
the manufacture of a product if the direct cost of such electricity exceeds 50
percent of the cost of all materials, including electricity, used directly in
the product; or
(91)
The sale of prewritten software which has been delivered to the purchaser
electronically or by means of load and
leave."
SECTION
3.
Said
title is further amended by revising Code Section 48-8-6, relating to
limitations on local sales and use taxes, as follows:
"48-8-6.
(a)
Except as
otherwise authorized by the General Assembly, no county, municipality, school
district, or other political subdivision of this state shall impose, levy, or
collect a gross receipts tax, sales tax, use tax, or tax on amusement admission
or services included in this article.
(b)
There shall not be imposed in any jurisdiction in this state or on any
transaction in this state local sales taxes, local use taxes, or local sales and
use taxes in excess of 2 percent. For purposes of this prohibition, the taxes
affected are any sales tax, use tax, or sales and use tax which is levied in an
area consisting of less than the entire state, however authorized, including
such taxes authorized by or pursuant to constitutional amendment, except that
the following taxes shall not count toward or be subject to such 2 percent
limitation:
(1)
A sales and use tax for educational purposes exempted from such limitation under
Article VIII, Section VI, Paragraph IV of the Constitution;
(2)
Any tax levied for purposes of a metropolitan area system of public
transportation, as authorized by the amendment to the Constitution set out at
Georgia Laws, 1964, page 1008; the continuation of such amendment under Article
XI, Section I, Paragraph IV(d) of the Constitution; and the laws enacted
pursuant to such constitutional amendment; provided, however, that the exception
provided for under this paragraph shall only apply in a county in which a tax is
being imposed under subparagraph (a)(1)(D) of Code Section 48-8-111 in whole or
in part for the purpose or purposes of a water capital outlay project or
projects, a sewer capital outlay project or projects, a water and sewer capital
outlay project or projects, water and sewer projects and costs as defined under
paragraph (3) of Code Section 48-8-200, or any combination thereof and with
respect to which the county has entered into an intergovernmental contract with
a municipality, in which the average waste-water system flow of such
municipality is not less than 85 million gallons per day, allocating proceeds to
such municipality to be used solely for water and sewer projects and costs as
defined under paragraph (3) of Code Section 48-8-200. The exception provided for
under this paragraph shall apply only during the period the tax under said
subparagraph (a)(1)(D) is in effect. The exception provided for under this
paragraph shall not apply in any county in which a tax is being imposed under
Article 2A of this chapter;
(3)
In the event of a rate increase imposed pursuant to Code Section 48-8-96, only
the amount in excess of the initial 1 percent sales and use tax and in the event
of a newly imposed tax pursuant to Code Section 48-8-96, only the amount in
excess of a 1 percent sales and use tax; and
(4)
A sales and use tax levied under Article 4 of this chapter.
If
the imposition of any otherwise authorized local sales tax, local use tax, or
local sales and use tax would result in a tax rate in excess of that authorized
by this subsection, then such otherwise authorized tax may not be
imposed.
(c)
Where the exception specified in paragraph (2) of subsection (b) of this Code
section applies, the tax imposed under subparagraph (a)(1)(D) of Code Section
48-8-111 shall not apply to:
(1)
Reserved; and
(2)
The sale of motor vehicles.
(c.1)
Where the exception specified in paragraph (2) of subsection (b) of this Code
section applies, on and after July 1, 2007, the aggregate amount of all excise
taxes imposed under paragraph (5) of subsection (a) of Code Section 48-13-51 and
all sales and use taxes shall not exceed 14 percent.
(d)
Notwithstanding any law or ordinance to the contrary, any tax, charge, or fee
levied by any political subdivision of this state and applicable to mobile
telecommunications services, as defined in Section 124(7) of the federal Mobile
Telecommunications Sourcing Act, 4 U.S.C. Section 124(7), shall apply only if
the customer's place of primary use is located within the boundaries of the
political subdivision levying such local tax, charge, or fee. For purposes of
this subsection, the provisions of Code Section 48-8-13 shall apply in the same
manner and to the same extent as such provisions apply to the tax levied by Code
Section 48-8-1 on mobile telecommunications services. This subsection shall not
be construed to authorize the imposition of any tax, charge, or
fee."
SECTION
4.
Said
title is further amended in Code Section 48-8-14, relating to certain state
contract restrictions, by revising subsection (b) as follows:
"(b)
On or after April 12, 2005, the Department of Administrative Services and any
other state agency shall not enter into a state-wide contract or agency contract
for goods or services, or both, in an amount exceeding $100,000.00 with a
nongovernmental vendor if the vendor or an affiliate of the vendor is a dealer
as defined in
paragraph
(3) of Code Section 48-8-2, or meets one
or more of the conditions thereunder, but fails or refuses to collect sales or
use taxes levied under this chapter on its sales delivered to
Georgia."
SECTION
5.
Said
title is further amended in Code Section 48-8-17, relating to ratification of an
executive order regarding gasoline taxes, by revising subsection (b) and (c) as
follows:
"(b)
The General Assembly of Georgia ratifies the Executive Order of the Governor
dated June 2, 2008, and filed in the official records of the Office of the
Governor as Executive Order 06.02.08.01 which suspended the collection of any
rate of prepaid state taxes as defined in
paragraph
(5.2) of Code Section 48-8-2 to the extent
it differs from the rate levied as of January 1, 2008, pursuant to Code Section
48-9-14 as it applies to sales of motor fuel and aviation gasoline as those
terms are defined in Code Section 48-9-2.
(c)
For the time period commencing on June 2, 2008, as specified in the Executive
Order of the Governor dated June 2, 2008, and filed in the official records of
the Office of the Governor as Executive Order 06.02.08.01, the collection of any
rate of prepaid state taxes as defined in
paragraph
(5.2) of Code Section 48-8-2 to the extent
it differs from the rate levied as of January 1, 2008, pursuant to Code Section
48-9-14 as it applies to sales of motor fuel and aviation gasoline as those
terms are defined in Code Section 48-9-2 shall be governed by the provisions of
this Code section notwithstanding any provisions of Code Section 48-9-14 or any
other law to the contrary."
SECTION
6.
Said
title is further amended in Code Section 48-8-17.1, relating to ratification of
an executive order on prepaid taxes, by revising paragraph (1) of subsection (a)
as follows:
"(1)
Sonny Perdue, as Governor of Georgia, issued an Executive Order ('EO
06.02.08.01') that suspended the collection of any rate of prepaid taxes as
defined in
paragraph
(5.2) of Code Section 48-8-2 to the extent
it differed from the rate levied as of January 1, 2008, pursuant to Code Section
48-9-14 as it applied to sales of motor fuel and aviation gasoline as those
terms are defined in Code Section 48-9-2 until the General Assembly acts upon
the suspension;"
SECTION
7.
Said
title is further amended by revising Code Section 48-8-30, relating to
imposition, rates, and collection of sales and use tax, as follows:
"48-8-30.
(a)
There is levied and imposed a tax on the retail purchase, retail sale, rental,
storage, use, or consumption of tangible personal property and on the services
described in this article.
(b)(1)
Every purchaser of tangible personal property at retail in this state shall be
liable for a tax on the purchase at the rate of 4 percent of the sales price of
the purchase. The tax shall be paid by the purchaser to the retailer making the
sale, as provided in this article. The retailer shall remit the tax to the
commissioner as provided in this article and, when received by the commissioner,
the tax shall be a credit against the tax imposed on the retailer. Every person
making a sale or sales of tangible personal property at retail in this state
shall be a retailer and a dealer and shall be liable for a tax on the sale at
the rate of 4 percent of the
gross sale
or gross sales
price,
or the amount of taxes collected by him from his purchaser or purchasers,
whichever is greater.
(2)
No retail sale shall be taxable to the retailer or dealer which is not taxable
to the purchaser at retail.
(c)(1)
Upon the first instance of use, consumption, distribution, or storage within
this state of tangible personal property purchased at retail outside this state,
the owner or user of the property shall be a dealer and shall be liable for a
tax at the rate of 4 percent of the
cost
purchase
price, except as provided in paragraph (2) of this subsection.
(2)
Upon the first instance of use, consumption, distribution, or storage within
this state of tangible personal property purchased at retail outside this state
and used outside this state for more than six months prior to its first use
within this state, the owner or user of the property shall be a dealer and shall
be liable for a tax at the rate of 4 percent of the
cost
purchase
price or fair market value of the property, whichever is the
lesser.
(3)
This subsection shall not be construed to require a duplication in the payment
of the tax. The tax imposed by this subsection shall be subject to the credit
otherwise granted by this article for like taxes previously paid in another
state.
(c.1)(1)
Every purchaser of tangible personal property at retail outside this state from
a dealer, as defined in
subparagraph
(H) of paragraph (3) of Code Section
48-8-2, when such property is to be used, consumed, distributed, or stored
within this state, shall be liable for a tax on the purchase at the rate of 4
percent of the sales price of the purchase. It shall be prima-facie evidence
that such property is to be used, consumed, distributed, or stored within this
state if that property is delivered in this state to the purchaser or agent
thereof. The tax shall be paid by the purchaser to the retailer making the
sale, as provided in this article. The retailer shall remit the tax to the
commissioner as provided in this article and, when received by the commissioner,
the tax shall be a credit against the tax imposed on the retailer. Every person
who is a dealer, as defined in
subparagraph
(H) of paragraph (3) of Code Section
48-8-2 and who makes any sale of tangible personal property at retail outside
this state which property is to be delivered in this state to a purchaser or
purchaser's agent shall be a retailer and a dealer for purposes of this article
and shall be liable for a tax on the sale at the rate of 4 percent of such
gross
sales
price
or the amount of tax as collected by that person from purchasers having their
purchases delivered in this state, whichever is greater.
(2)
No retail sale shall be taxable to the retailer or dealer which is not taxable
to the purchaser at retail. The tax imposed by this subsection shall be subject
to the credit otherwise granted by this article for like taxes previously paid
in another state. This subsection shall not be construed to require a
duplication in the payment of the tax.
(d)(1)
Every person to whom tangible personal property in the state is leased or rented
shall be liable for a tax on the lease or rental at the rate of 4 percent of the
gross lease
or rental charge
sales
price. The tax shall be paid to the
person who leases or rents the property by the person to whom the property is
leased or rented. A person who leases or rents property to others as a dealer
under this article shall remit the tax to the commissioner as provided in this
article. When received by the commissioner, the tax shall be a credit against
the tax imposed on the person who leases or rents the property to others. Every
person who leases or rents tangible personal property in this state to others
shall be a dealer and shall be liable for a tax on the lease or rental at the
rate of 4 percent of the
gross lease
or rental proceeds
sales
price, or the amount of taxes collected by
him from persons to whom he leases or rents tangible personal property,
whichever is greater.
(2)
No lease or rental shall be taxable to the person who leases or rents tangible
property to another which is not taxable to the person to whom the property is
leased or rented.
(3)
The lessee of both taxable and exempt property in this state under a single
lease agreement containing a lease period of ten years or more shall have the
option to discharge in full all sales and use taxes imposed by this article
relating to the tangible personal property by paying in a lump sum 4 percent of
the fair market value of the tangible personal property at the date of inception
of the lease agreement in the same manner and under the same conditions
applicable to sales of the tangible personal property.
(e)
Upon the first instance of use within this state of tangible personal property
leased or rented outside this state, the person to whom the property is leased
or rented shall be a dealer and shall be liable for a tax at the rate of 4
percent of the
rental
charge
sales
price paid to the person who leased or
rented the property, subject to the credit authorized for like taxes previously
paid in another state.
(e.1)(1)
Every person who leases, as lessor, or rents tangible personal property outside
this state for use within this state shall be liable for a tax at the rate of 4
percent of the
rental
charge
sales
price paid for that lease or rental if
that person is a dealer, as defined in
subparagraph
(H) of paragraph (3) of Code Section
48-8-2 and title to that property remains in that person. It shall be
prima-facie evidence that such property is to be used within this state if that
property is delivered in this state to the lessee or renter of such property, or
to the agent of either. The tax shall be paid by the lessee or renter and
payment of the tax shall be made to the lessor or person receiving rental
payments for that property, which person shall be the dealer for purposes of
this article. The dealer shall remit the tax to the commissioner as provided in
this article and, when received by the commissioner, the tax shall be a credit
against the tax imposed on the dealer. Every person who is a dealer, as defined
in
subparagraph
(H) of paragraph (3) of Code Section
48-8-2 and who leases or rents tangible personal property outside this state to
be delivered in this state to the lessee, renter, or agent of either shall be a
dealer and shall be liable as such for a tax on the lease or rental at the rate
of 4 percent of the
gross
proceeds
sales
price from such leases or rentals or the
amount of taxes collected by that dealer for leases or rentals of tangible
personal property delivered in this state, whichever is greater.
(2)
No lease or rental shall be taxable to the dealer which is not taxable to the
lessee or renter. The tax imposed by this subsection shall be subject to the
credit granted by this article for like taxes previously paid in another state.
This subsection shall not be construed to require a duplication in the payment
of the tax.
(f)(1)
Every person purchasing or receiving any service within this state, the purchase
of which is a retail sale, shall be liable for tax on the purchase at the rate
of 4 percent of the
gross
charge or charges
sales
price made for the purchase. The tax
shall be paid by the person purchasing or receiving the service to the person
furnishing the service. The person furnishing the service, as a dealer under
this article, shall remit the tax to the commissioner as provided in this
article; and, when received by the commissioner, the tax shall be a credit
against the tax imposed on the person furnishing the service. Every person
furnishing a service, the purchase of which is a retail sale, shall be a dealer
and shall be liable for a tax on the sale at the rate of 4 percent of the
gross
charge or charges
sales
price made for furnishing the service, or
the amount of taxes collected by him from the person to whom the service is
furnished, whichever is greater.
(2)
No sale of services shall be taxable to the person furnishing the service which
is not taxable to the purchaser of the service.
(g)
Whenever a purchaser of tangible personal property under subsection (b) or (c.1)
of this Code section, a lessee or renter of the property under subsection (d) or
(e.1) of this Code section, or a purchaser of taxable services under subsection
(f) of this Code section does not pay the tax imposed upon him or her to the
retailer, lessor, or dealer who is involved in the taxable transaction, the
purchaser, lessee, or renter shall be a dealer himself or herself and the
commissioner, whenever he or she has reason to believe that a purchaser or
lessee has not so paid the tax, may assess and collect the tax directly against
and from the purchaser, lessee, or renter, unless the purchaser, lessee, or
renter shows that the retailer, lessor, or dealer who is involved in the
transaction has nevertheless remitted to the commissioner the tax imposed on the
transaction. If payment is received directly from the purchaser, it shall not
be collected a second time from the retailer, lessor, or dealer who is
involved.
(h)
The tax imposed by this Code section shall be collected from the dealer and paid
at the time and in the manner provided in this article. Any person engaging or
continuing in business as a retailer and wholesaler or jobber shall pay the tax
imposed on the
gross
proceeds
sales
price of retail sales of the business at
the rate specified when proper books are kept showing separately the gross
proceeds of sales for each business. If the records are not kept separately,
the tax shall be paid as a retailer or dealer on the gross sales of the
business. For the purpose of this Code section, all sales through any one
vending machine shall be treated as a single sale. The gross proceeds for
reporting vending sales shall be treated as if the tax is included in the sale
and the taxable proceeds shall be net of the tax included in the
sale.
(i)
The tax levied by this Code section is in addition to all other taxes, whether
levied in the form of excise, license, or privilege taxes, and shall be in
addition to all other fees and taxes levied.
(j)
In the event any distributor licensed under Chapter 9 of this title purchases
any motor fuel on which the prepaid state tax or prepaid local tax or both have
been imposed pursuant to this Code section and resells the same to a
governmental entity that is totally or partially exempt from such tax under
paragraph (1) of Code Section 48-8-3, such distributor shall be entitled to
either a credit or refund. The amount of the credit or refund shall be the
prepaid state tax or prepaid local tax or both rates for which such governmental
entity is exempt multiplied by the gallons of motor fuel purchased for its
exclusive use. To be eligible for the credit or refund, the distributor shall
reduce the amount such distributor charges for the fuel sold to such
governmental entity by an amount equal to the tax from which such governmental
entity is exempt. Should a distributor have a liability under this Code
section, the distributor may elect to take a credit for those sales against such
liability.
(k)
The prepaid local tax shall be imposed at the time tax is imposed under
subparagraph (b)(2)(B) of Code Section 48-9-14."
SECTION
8.
Said
title is further amended by revising Code Section 48-8-31, relating to
designation of price brackets, as follows:
"48-8-31.
Except
as otherwise provided in Code Section 48-8-30, the commissioner may prepare
suitable brackets of prices for the collection of the tax imposed by this
article. The use of tokens is prohibited
Tax
computation must be carried to the third decimal place, and the tax must be
rounded to a whole cent using a method that rounds up to the next cent whenever
the third decimal place is greater than
four."
SECTION
9.
Said
title is further amended by revising Code Section 48-8-32, relating to tax
collection from dealers, as follows:
"48-8-32.
The
tax at the rate of 4 percent of the retail sales price at the time of sale or 4
percent of the
cost
purchase
price at the time of purchase, as the case may be, shall be collectable from all
persons engaged as dealers in the sale at retail, or in the use, consumption,
distribution, or storage for use or consumption in this state of tangible
personal property."
SECTION
10.
Said
title is further amended by revising Code Section 48-8-38, relating to
taxability burden of proof, as follows:
"48-8-38.
(a)
All gross sales of a retailer are subject to the tax imposed by this article
until the contrary is established. The burden of proving that a sale of tangible
personal property is not a sale at retail is upon the person who makes the sale
unless he takes from the purchaser a certificate stating that the property is
purchased for resale
or is
otherwise exempt.
(b)
The certificate relieves the seller from the burden of proof as provided in
subsection (a) of this Code section
only if
taken in good faith
if the seller
acquires from
a person
who:
the purchaser
a properly completed certificate.
(1)
Is engaged in the business of selling tangible personal property;
(2)
Holds the permit provided for in this article; and
(3)
At the time of purchasing the tangible personal property, intends to sell it in
the regular course of business or is unable to ascertain at the time of purchase
whether the property will be sold or will be used for some other
purpose.
(c)
The certificate
stating
that the property is purchased for resale
shall:
include such
information as is determined by the commissioner and is signed by the purchaser
if it is a paper exemption certificate.
(1)
Be signed by and bear the name and address of the purchaser;
(2)
Indicate the number of the permit issued to the purchaser; and
(3)
Indicate the general character of the tangible personal property sold by the
purchaser in the regular course of
business."
SECTION
11.
Said
title is further amended by revising Code Section 48-8-39, relating to property
retention, demonstration, or display, as follows:
"48-8-39.
(a)
If a purchaser who gives a certificate stating that property is purchased for
resale makes any use of the property other than retention, demonstration, or
display while holding it for sale in the regular course of business, the use
shall be deemed a retail sale by the purchaser as of the time the property is
first used by him and the
cost
purchase
price of the property to him shall be
deemed the gross receipts from the retail sale. If the sole use of the property
other than retention, demonstration, or display in the regular course of
business is the rental of the property while holding it for sale or the
transportation of persons for hire while holding the property for sale, the
purchaser may elect to include in his gross receipts either the amount of the
rental charged or the total amount of the charges made by him for the
transportation rather than the cost of the property to him.
(b)(1)(A)
If a person who engages in the business of processing, manufacturing, or
converting industrial materials into articles of tangible personal property for
sale, whether as custom-made or stock items, makes any use of the article of
tangible personal property other than retaining, demonstrating, or displaying it
for sale, the use shall be deemed a retail sale as of the time the article is
first used by such person and its fair market value at the time shall be deemed
the sales price of the article, except as otherwise provided in subparagraph (B)
of this paragraph.
(B)(i)
As used in this subparagraph, the term 'total raw material cost' means the
manufactured cost of carpet samples; supplies used in the manufacturing of
carpet samples such as binding, grommets, and similar items; carpet sample
display devices such as racks, binders, and similar items; and inbound freight
charges. Such term does not mean or include labor or overhead for assembling or
producing samples from finished carpet and does not mean or include outbound
freight charges which may be charged to the expense account for carpet
samples.
(ii)
For purposes of subparagraph (A) of this paragraph, the fair market value of any
carpet sample shall be equal to 21.9 percent of the total raw material cost of
the sample, except that the fair market value of a sample of carpet that is
manufactured exclusively for commercial use shall be equal to 1 percent of the
total raw material cost of the sample.
(2)
If the sole use of the article other than retaining, demonstrating, or
displaying it for sale is the rental of the article while holding it for sale,
the processor, manufacturer, or converter may elect to treat the amount of the
rental charged rather than the fair market value of the article as its sales
price."
SECTION
12.
Said
title is further amended by revising Code Section 48-8-45, relating to reporting
of sales and accounting methods, as follows:
"48-8-45.
(a)
Any person taxable under this article having both cash and credit sales may
report the sales on either the cash or accrual basis of accounting. Each
election of a basis of accounting shall be made on the first return filed and,
once made, the election shall be irrevocable unless the commissioner grants
written permission for a change. Permission for a change in the basis of
accounting shall be granted only upon written application and under rules and
regulations promulgated by the commissioner.
(b)
Any person reporting on a cash basis of accounting shall include in each return
all cash sales made during the period covered by the return and all collections
made in any period on credit sales of prior periods and shall pay the tax on the
sales at the time of filing the return.
(c)
Any person reporting on the accrual basis of accounting shall be allowed a
deduction for bad debts under rules and regulations of the commissioner
on the same
basis that bad debts are allowed as a deduction on state income tax
returns.
(d)
An assignee of private label credit card debt purchased directly from a dealer
without recourse or a credit card bank which extends such credit to customers
under a private label credit card program shall be allowed a deduction for
private label credit card bad debts under rules and regulations of the
commissioner
on the same
basis that private label credit card bad debts are allowed as a deduction on
state income tax returns. An issuer or
assignee of private label credit card debt may claim its deduction for private
label credit card bad debts on a return filed by a member of an affiliated group
as defined under 26 U.S.C. Section 1504."
SECTION
13.
Said
title is further amended by revising Code Section 48-8-49, relating to dealer
returns and estimated tax liability, as follows:
"48-8-49.
(a)
Each dealer, on or before the twentieth day of each month, shall transmit
returns to the commissioner showing the gross sales and purchases arising from
all sales and purchases taxable under this article during the preceding calendar
month. The commissioner may provide by regulation for quarterly or annual
returns or, upon application, may permit a dealer to file a return on a
quarterly or annual basis if deemed advisable by the commissioner. The returns
required by this subsection shall be made upon forms prescribed, prepared, and
furnished by the commissioner.
(b)(1)
As used in this subsection, the term 'estimated tax liability' means a dealer's
tax liability, adjusted to account for any subsequent change in the state sales
and use tax rate, based on the dealer's average monthly payments for the last
fiscal year.
(2)
If the
estimated
tax liability of a dealer
for any
taxable period exceeds $5,000.00
in the
preceding calendar year was greater than $30,000.00 excluding local sales
taxes, the dealer shall file a return and
remit to the commissioner not less than 50 percent of the estimated tax
liability for the taxable period on or before the twentieth day of the period.
The amount of the payment of the estimated tax liability shall be credited
against the amount to be due on the return required under subsection (a) of this
Code section. This subsection shall not apply
to any
dealer unless during the previous fiscal year the dealer's monthly payments
exceeded $5,000.00 per month for three consecutive months or more nor shall this
subsection apply to any dealer whose
primary business is the sale of motor fuels who is remitting prepaid state tax
under paragraph (2) of subsection (b) of Code Section 48-9-14.
No local
sales taxes shall be included in determining any estimated tax
liability.
(c)
Gross proceeds from rentals or leases of tangible personal property shall be
reported and the tax shall be paid with respect to the gross proceeds in
accordance with the rules and regulations prescribed by the
commissioner.
(d)(1)
The commissioner, in his discretion, may grant extensions, upon written
application, to the end of the calendar month in which any tax return is due
under this Code section.
(2)
No extension granted pursuant to paragraph (1) of this subsection shall be valid
unless granted in writing and only for a period of not more than 12 consecutive
months.
(3)
Upon the grant of any extension authorized by this subsection, the taxpayer
shall remit to the commissioner on or before the date the tax would otherwise
become due without the grant of the extension an amount which, when added to the
amount previously remitted for the period pursuant to subsection (b) of this
Code section, equals not less than 100 percent of the dealer's payment for the
corresponding period of the preceding tax year.
(4)
No interest or penalty shall be charged, assessed, or collected by reason of the
granting of an extension pursuant to this subsection.
(5)
This subsection shall apply to all extensions granted pursuant to this
subsection on or after July 1, 1980, and to all extensions granted pursuant to
this subsection and in effect on July 1, 1980."
SECTION
14.
Said
title is further amended by revising Code Section 48-8-50, relating to dealer
compensation, as follows:
"48-8-50.
(a)
As used in this Code section, the term 'affiliated entity' means with respect to
any corporation, sole proprietorship, partnership, limited partnership,
enterprise, franchise, association, trust, joint venture, or other entity, any
other corporation, sole proprietorship, partnership, limited partnership,
enterprise, franchise, association, trust, joint venture, or other entity
related thereto:
(1)
As a parent, subsidiary, sister, or daughter corporation, sole proprietorship,
partnership, limited partnership, enterprise, franchise, association, trust,
joint venture, or other entity;
(2)
By control of one corporation, sole proprietorship, partnership, limited
partnership, enterprise, franchise, association, trust, joint venture, or other
entity by the other; or
(3)
By any other common ownership or control.
(b)
Each dealer required to file a return under this article shall include such
dealer's certificate of registration number or numbers for each sales location
or affiliated entity of such dealer on such return. In reporting and paying the
amount of tax due under this article, each dealer shall be allowed the following
deduction, but only if the return was timely filed and the amount due was not
delinquent at the time of payment; and that deduction shall be subject to the
provisions of subsection (f) of this Code section pertaining to calculation of
the deduction when more than one tax is reported on the same
return:
(1)
With respect to each certificate of registration number on such return, a
deduction of 3 percent of the first $3,000.00 of the combined total amount of
all sales and use taxes reported due on such return for each location other than
the taxes specified in paragraph (3) of this subsection;
(2)
With respect to each certificate of registration number on such return, a
deduction of one-half of 1 percent of that portion exceeding $3,000.00 of the
combined total amount of all sales and use taxes reported due on such return for
each location other than the taxes specified in paragraph (3) of this
subsection;
(3)
With respect to each certificate of registration number on such return, a
deduction of 3 percent of the combined total amount due of all sales and use
taxes on motor fuel as defined under paragraph (9) of Code Section 48-9-2, which
are imposed under any provision of this title, including, but not limited to,
sales and use taxes on motor fuel imposed under any of the provisions described
in subsection (f) of this Code section but not including Code Section 48-9-14;
and
(4)
A deduction with respect to Code Section 48-9-14, as defined in
paragraph
(5.2) of Code Section 48-8-2, shall be at
the rate of one-half of 1 percent of the total amount due of the prepaid state
tax reported due on such return, so long as the return and payment are timely,
regardless of the classification of tax return upon which the remittance is
made.
(c)
The department shall compile and maintain a master registry of the certificate
of registration numbers filed on such returns with respect to all the affiliated
business entities and multiple locations of each dealer and shall assign a
master number to each dealer. Each dealer required to file a return under this
article shall also include such dealer's master number on such return if such
number has been assigned by the department under this subsection.
(d)
With respect to a dealer which consists of only a single sales location or which
consists of a group of fewer than four sales locations or affiliated entities,
or any combination thereof, claiming such deduction, a separate return shall be
filed for each sales location and affiliated entity for each reporting period.
With respect to a dealer which consists of a group of four or more sales
locations or affiliated entities, or any combination thereof, claiming such
deduction, a single, consolidated return shall be filed for such entire group. A
consolidated return under this subsection shall be used for the purpose of
identifying the sales locations or affiliated entities of a dealer and such
consolidated return shall identify separately the reporting and paying of the
tax due under this article for each sales location or affiliated entity of such
dealer. The deduction requirements of subsection (b) of this Code section shall
apply separately to each certificate of registration number on such
return.
(e)
No deduction shall be allowed under this Code section unless all of the
requirements of subsections (b), (c), and (d) of this Code section have been
satisfied.
(f)
The deduction authorized under this Code section shall be combined with and
calculated with the deductions authorized under Code Section 48-8-87, Code
Section 48-8-104, Code Section 48-8-113, Code Section 48-8-204, Section 25 of an
Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the
'Metropolitan Atlanta Rapid Transit Authority Act of 1965,' and any other sales
tax, use tax, or sales and use tax which is levied and imposed in an area
consisting of less than the entire state, however authorized, by applying the
deduction rate specified in this Code section against the combined total of all
such taxes reported due on the same return.
(g)
The reimbursement deduction authorized under Section 25 of an Act approved March
10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid
Transit Authority Act of 1965,' shall be at the rate and subject to the
requirements specified under subsections (b) through (f) of this Code
section.
(h)
Each certified service provider as defined in Code Section 48-8-161 shall
receive the amount provided in the contract between the certified service
provider and the Streamlined Sales Tax Governing
Board."
SECTION
15.
Said
title is further amended by revising Code Section 48-8-52, relating to dealers'
duty to keep records, examination, assessment, and collection, as
follows:
"48-8-52.
(a)(1)
Each dealer required to make a return and pay any tax under this article shall
keep and preserve:
(A)
Suitable records of the sales and purchases taxable under this
article;
(B)
Other books of account which are necessary to determine the amount of tax
due;
(C)
Other information as required by the commissioner; and
(D)
For a period of three years, all invoices and other records of goods, wares,
merchandise, and other subjects of taxation under this article.
(2)
All books, invoices, and other records required to be kept by this subsection
shall be open to examination at all reasonable hours by the commissioner or any
of his duly authorized agents.
(b)
In the event the dealer has imported tangible personal property and fails to
produce an invoice showing the
cost
purchase
price of each article subject to tax or if the invoice does not reflect the true
or actual
cost
purchase
price, the commissioner shall ascertain in any manner feasible the true
cost
purchase
price and shall assess and collect the tax with interest and penalties as
accrued on the true
cost
purchase
price as assessed by the commissioner. The assessment so made shall be
considered prima facie correct and the burden to show the contrary shall rest
upon the dealer.
(c)
In the case of the lease or rental of tangible personal property when the
consideration reported by the dealer does not, in the judgment of the
commissioner, represent the true or actual consideration, the commissioner may
fix the true or actual consideration and collect the tax on the consideration in
the same manner as provided in Code Section 48-8-51, with interest and penalties
as accrued."
SECTION
16.
Said
title is further amended by revising Code Section 48-8-58, relating to return
allowances, as follows:
"48-8-58.
(a)(1)
As used in this subsection, the term 'return allowance' means the amount of the
sales price or
cost
purchase
price refunded by the dealer to the purchaser in cash or credit. No credit
shall be allowed to the dealer under this subsection for taxes collected by such
dealer from the purchaser unless the taxes collected have been returned by the
dealer to the purchaser.
(2)
When property sold is subsequently returned by agreement to the dealer by the
purchaser, the dealer shall be entitled to credit for the tax imposed by this
article with respect to the return allowance, in the manner prescribed by the
commissioner, as follows:
(A)
The dealer in the original return for the taxable period in which the return of
the property is allowed may deduct from the dealer's gross sales the amount of
the return allowance; or
(B)
When a dealer has retired from business and has filed a final return, a claim
for refund of the tax for which the dealer would be entitled to credit under
this subsection may be filed within the time and in the manner prescribed under
Code Section 48-2-35.
(b)
The commissioner shall make available to dealers all necessary forms for filing
returns and instructions to ensure a full collection from dealers and an
accounting for the taxes due. Failure of any dealer to secure the commissioner's
forms shall not relieve the dealer from the payment of the tax at the time and
in the manner provided in this article.
(c)
The commissioner shall promulgate any rules and regulations necessary to
implement this Code section."
SECTION
17.
Said
title is further amended by revising Code Section 48-8-59, relating to dealer
certificates of registration, as follows:
"48-8-59.
(a)(1)
Every person desiring to engage in or conduct business as a seller or dealer in
this state shall file with the commissioner an application for a certificate of
registration for each place of business.
(2)
Each person whose business extends into more than one county shall be required
to secure only one certificate of registration under this article. The
certificate of registration shall cover all operations of the company throughout
this state.
(b)
Every application for a certificate of registration shall be made upon a form
prescribed by the commissioner and shall contain the name under which the
applicant transacts or intends to transact business, the location of his place
or places of business, and such other information as the commissioner may
require.
The
Except for
sellers or dealers who register with the Streamlined Sales Tax Governing Board,
the application shall be
signed:
(1)
If the owner is an individual, by the individual;
(2)
In the case of an association or partnership, by a member or partner;
or
(3)
In the case of a corporation, by an executive officer or some other person
specifically authorized by the corporation to sign the application. Written
evidence of this authority to sign shall be attached to the
application.
(c)
When the required application has been made, the commissioner shall issue to the
applicant a separate certificate of registration for each place of business
within the state. A certificate of registration is not assignable and is valid
only for the person in whose name it is issued and for the transaction of
business at the place designated in the certificate. The certificate shall be
conspicuously displayed at all times at the place for which the certificate is
issued.
(d)
A seller whose certificate of registration has been previously suspended or
revoked shall pay the commissioner a fee of $1.00 for the renewal or issuance of
a certificate of registration."
SECTION
18.
Said
title is further amended by adding new Code sections to read as
follows:
"48-8-68.
If
the sales tax rate changes with less than 30 days between the enactment of the
rate change and the effective date of such rate change, sellers shall be
relieved of liability for failing to collect tax at the new rate
if:
(1)
The seller collected tax at the immediately preceding effective rate;
and
(2)
The seller's failure to collect at the newly effective rate does not extend
beyond 30 days after the date of enactment of the new rate.
The
provisions of this Code section do not apply if the commissioner establishes
that the seller fraudulently failed to collect at the new rate or solicits
purchasers based on the immediately preceding effective rate.
48-8-69.
(a)
Any local sales tax rate changes made pursuant to this chapter shall apply to
purchases from printed catalogs wherein the purchaser computed the tax based
upon local tax rates published in the catalog only on the first day of a
calendar quarter after a minimum of 120 days' notice to sellers.
(b)
For sales and use tax purposes only, local jurisdiction boundary changes are
effective only on the first day of a calendar quarter after a minimum of 60
days' notice to sellers.
48-8-70.
If
a nine-digit ZIP code designation is not available for a street address or if a
seller or certified service provider is unable to determine the nine-digit ZIP
code designation applicable to a purchase after exercising due diligence to
determine the designation, the seller or certified service provider may apply
the rate for the five-digit ZIP code area. For the purposes of this Code
section, there is a rebuttable presumption that a seller or certified service
provider has exercised due diligence if the seller has attempted to determine
the nine digit ZIP code designation by utilizing software approved by the
Streamlined Sales Tax Governing Board that makes this designation from the
street address and the five-digit ZIP code applicable to a
purchase.
48-8-71.
Sellers
and certified service providers shall not be liable for having charged and
collected the incorrect amount of sales or use tax resulting from the seller or
certified service provider relying on erroneous data provided by this state on
state and local tax rates, local boundaries, and taxing jurisdiction
assignments.
48-8-72.
(a)
A cause of action against a seller for over-collected sales or use taxes does
not accrue until a purchaser has provided written notice to the seller and the
seller has had 60 days to respond. Such notice to the seller must contain the
information necessary to determine the validity of the request.
(b)
In connection with a purchaser's request from a seller of over-collected sales
or use taxes, a seller shall be presumed to have a reasonable business practice,
if in the collection of such sales or use taxes, the seller:
(1)
Uses either a provider or a system, including a proprietary system, that is
certified by the state; and
(2)
Has remitted to the state all taxes collected less any deductions, credits, or
collection allowances.
48-8-73.
A
seller and certified service provider are relieved of liability for having
charged and collected the incorrect amount of sales or use tax resulting from
the seller or certified service provider relying on erroneous data provided by
this state in the taxability matrix.
48-8-74.
The
effective date for a sales tax rate change for services covering a period
starting before and ending after the statutory effective date shall be as
follows:
(1)
For a rate increase, the new rate shall apply to the first billing period
starting on or after the effective date; and
(2)
For a rate decrease, the new rate shall apply to bills rendered on or after the
effective date.
48-8-75.
(a)
A purchaser shall be relieved from liability for penalty for having failed to
pay the correct amount of sales or use tax if:
(1)
A purchaser's seller or certified service provider relied on erroneous data
provided by this state on tax rates, boundaries, taxing jurisdiction
assignments, or in the taxability matrix completed by this state;
(2)
A purchaser holding a direct pay permit relied on erroneous data provided by
this state on tax rates, boundaries, taxing jurisdiction assignments, or in the
taxability matrix completed by this state;
(3)
A purchaser relied on erroneous data provided by this state in the taxability
matrix completed by this state; or
(4)
A purchaser using databases provided by this state relied on erroneous data
provided by this state on tax rates, boundaries, or taxing jurisdiction
assignments.
(b)
A purchaser shall be relieved from liability for tax and interest for having
failed to pay the correct amount of sales or use tax in the circumstances
described subsection (a) of this Code section provided that, with respect to
reliance on the taxability matrix completed by this state, such relief is
limited to the state's erroneous classification in the taxability matrix of
terms included in the Library of Definitions as 'taxable' or 'exempt,' 'included
in sales price,' or 'excluded from sales price' or 'included in the definition'
or 'excluded from the definition.'
48-8-76.
(a)
A seller who registers to pay or to collect and remit applicable sales or use
tax on sales made to purchasers in this state in accordance with the terms of
the Streamlined Sales and Use Tax Agreement is relieved from the obligation to
remit uncollected sales tax provided the seller was not so registered in this
state in the twelve-month period preceding the effective date of this state's
participation in the Streamlined Sales and Use Tax Agreement.
(b)
The relief provided in subsection (a) of this Code section precludes an
assessment for uncollected or unpaid sales together with penalty or interest for
sales made during the period the seller was not registered in this state,
provided that the registration occurs within 12 months of the effective date of
this state's participation in the Streamlined Sales and Use Tax
Agreement.
(c)
The relief provided in subsection (a) of this Code section shall not be
available to a seller with respect to any matter or matters for which the seller
received notice of the commencement of an audit and which audit is not yet
finally resolved including any related administrative and judicial
processes.
(d)
The relief provided in subsection (a) of this Code section shall not be
available for sales or use taxes already paid or remitted to this state or to
taxes collected by the seller.
(e)
The relief provided in subsection (a) of this Code section is fully effective,
absent the seller's fraud or intentional misrepresentation of a material fact,
as long as the seller continues registration and continues payment or collection
and remittance of applicable sales or use taxes for a period of at least 36
months. The statute of limitations applicable to asserting a tax liability is
tolled during this 36 month period.
(f)
The relief provided in subsection (a) of this Code section is applicable only to
sales or use taxes due from a seller in its capacity as a seller and not to
sales or use taxes due from a seller in its capacity as a buyer.
48-8-77.
(a)
This Code section shall not be construed to impose sales and use tax on any
tangible personal property or service which was not subject to such tax prior to
January 1, 2011.
(b)(1)
The retail sale, excluding lease or rental, of a product shall be sourced as
follows:
(A)
When the product is received by the purchaser at a business location of the
seller, the sale is sourced to that business location;
(B)
When the product is not received by the purchaser at a business location of the
seller, the sale is sourced to the location where receipt by the purchaser, or
the purchaser's donee, designated as such by the purchaser, occurs, including
the location indicated by instructions for delivery to the purchaser or donee,
known to the seller;
(C)
When subparagraph (A) or (B) of this paragraph does not apply, the sale is
sourced to the location indicated by an address for the purchaser that is
available from the business records of the seller that are maintained in the
ordinary course of the seller's business when use of this address does not
constitute bad faith;
(D)
When subparagraph (A), (B), or (C) of this paragraph does not apply, the sale is
sourced to the location indicated by an address for the purchaser obtained
during the consummation of the sale, including the address of a purchaser's
payment instrument, if no other address is available, when use of this address
does not constitute bad faith;
(E)
When subparagraph (A), (B), (C), or (D) of this paragraph does not apply,
including the circumstance in which the seller is without sufficient information
to apply the previous rules, then the location will be determined by the address
from which tangible personal property was shipped, from which the digital good
or the computer software delivered electronically was first available for
transmission by the seller, or from which the service was provided, disregarding
for these purposes any location that merely provided the digital transfer of the
product sold.
(2)
The lease or rental of tangible personal property, other than property
identified in paragraph (3) or (4) of this subsection, shall be sourced as
follows:
(A)
For a lease or rental that requires recurring periodic payments, the first
periodic payment is sourced the same as a retail sale in accordance with the
provisions of paragraph (1) of this subsection. Periodic payments made
subsequent to the first payment are sourced to the primary property location for
each period covered by the payment. The primary property location shall be as
indicated by an address for the property provided by the lessee that is
available to the lessor from its records maintained in the ordinary course of
business, when use of this address does not constitute bad faith. The property
location shall not be altered by intermittent use at different locations, such
as use of business property that accompanies employees on business trips and
service calls.
(B)
For a lease or rental that does not require recurring periodic payments, the
payment is sourced the same as a retail sale in accordance with the provisions
of paragraph (1) of this subsection.
(C)
This subsection does not affect the imposition or computation of sales or use
tax on leases or rentals based on a lump sum or accelerated basis, or on the
acquisition of property for lease.
(3)
The lease or rental of motor vehicles, trailers, semitrailers, or aircraft that
do not qualify as transportation equipment, as defined in paragraph (4) of this
subsection, shall be sourced as follows:
(A)
For a lease or rental that requires recurring periodic payments, each periodic
payment is sourced to the primary property location. The primary property
location shall be as indicated by an address for the property provided by the
lessee that is available to the lessor from its records maintained in the
ordinary course of business, when use of this address does not constitute bad
faith. This location shall not be altered by intermittent use at different
locations.
(B)
For a lease or rental that does not require recurring periodic payments, the
payment is sourced the same as a retail sale in accordance with the provisions
of paragraph (1) of this subsection.
(C)
This subsection shall not affect the imposition or computation of sales or use
tax on leases or rentals based on a lump sum or accelerated basis, or on the
acquisition of property for lease.
(4)
The retail sale, including lease or rental, of transportation equipment shall be
sourced the same as a retail sale in accordance with the provisions of paragraph
(1) of this subsection, notwithstanding the exclusion of lease or rental in
paragraph (1) of this subsection. As used in this paragraph, 'transportation
equipment' means any of the following:
(A)
Locomotives and railcars that are utilized for the carriage of persons or
property in interstate commerce.
(B)
Trucks and truck-tractors with a Gross Vehicle Weight Rating of 10,001 pounds or
greater, trailers, semitrailers, or passenger buses that are:
(i)
Registered through the International Registration Plan; and
(ii)
Operated under authority of a carrier authorized and certificated by the U.S.
Department of Transportation or another federal authority to engage in the
carriage of persons or property in interstate commerce.
(C)
Aircraft that are operated by air carriers authorized and certificated by the
U.S. Department of Transportation or another federal or a foreign authority to
engage in the carriage of persons or property in interstate or foreign
commerce.
(D)
Containers designed for use on and component parts attached or secured on the
items set forth in subparagraph (A), (B), or (C) of this paragraph.
(c)
For the purposes of paragraph (1) of subsection (b) of this Code section, the
terms 'receive' and 'receipt' mean:
(1)
Taking possession of tangible personal property;
(2)
Making first use of services; or
(3)
Taking possession or making first use of digital goods, whichever comes
first.
The
terms 'receive' and 'receipt' shall not include possession by a shipping company
on behalf of the purchaser.
(d)(1)
Notwithstanding subsection (b) of this Code section, the following provisions
shall apply to sales of 'advertising and promotional direct mail':
(A)
A purchaser of 'advertising and promotional direct mail' may provide the seller
with either:
(i)
A direct pay permit;
(ii)
An agreement certificate of exemption claiming 'direct mail' or other written
statement approved, authorized, or accepted by the state; or
(iii)
Information showing the jurisdictions to which the 'advertising and promotional
direct mail' is to be delivered to recipients;
(B)
If the purchaser provides the permit, certificate, or statement referred to in
division (i) or (ii) of subparagraph (A) of this paragraph, the seller, in
the absence of bad faith, is relieved of all obligations to collect, pay, or
remit any tax on any transaction involving 'advertising and promotional direct
mail' to which the permit, certificate, or statement applies. The purchaser
shall source the sale to the jurisdictions to which the 'advertising and
promotional direct mail' is to be delivered to the recipients and shall report
and pay any applicable tax due;
(C)
If the purchaser provides the seller information showing the jurisdictions to
which the 'advertising and promotional direct mail' is to be delivered to
recipients, the seller shall source the sale to the jurisdictions to which the
'advertising and promotional direct mail' is to be delivered and shall collect
and remit the applicable tax. In the absence of bad faith, the seller is
relieved of any further obligation to collect any additional tax on the sale of
'advertising and promotional direct mail' where the seller has sourced the sale
according to the delivery information provided by the purchaser;
and
(D)
If the purchaser does not provide the seller with any of the items listed in
subparagraph (A) of this paragraph, the sale shall be sourced according to
Section 310.A.5 of the Streamlined Sales and Use Tax Agreement. The state to
which the 'advertising and promotional direct mail' is delivered may disallow
credit for tax paid on sales sourced under this paragraph.
(2)
Notwithstanding subsection (b) of this Code section, the following provisions
shall apply to sales of 'other direct mail':
(A)
Except as otherwise provided in this paragraph, sales of 'other direct mail' are
sourced in accordance with subparagraph (l)(1)(A) of this Code
section;
(B)
A purchaser of 'other direct mail' may provide the seller with
either:
(i)
A direct pay permit; or
(ii)
An agreement certificate of exemption claiming 'direct mail' or other written
statement approved, authorized, or accepted by the state; and
(C)
If the purchaser provides the permit, certificate, or statement referred to in
paragraph (1) or (2) of this subsection, the seller, in the absence of bad
faith, is relieved of all obligations to collect, pay or remit any tax on any
transaction involving 'other direct mail' to which the permit, certificate, or
statement apply. Notwithstanding paragraph (l) of this subsection, the sale
shall be sourced to the jurisdictions to which the 'other direct mail' is to be
delivered to the recipients and the purchaser shall report and pay applicable
tax due.
(3)
For purposes of this subsection, the term:
(A)
'Advertising and promotional direct mail' means:
(i)
Printed material that meets the definition of 'direct mail,' under Code Section
48-8-2;
(ii)
The primary purpose of which is to attract public attention to a product,
person, business, or organization, or to attempt to sell, popularize, or secure
financial support for a product, person, business, or organization. As used in
this division, the term 'product' means tangible personal property, a product
transferred electronically or a service.
(B)
'Other direct mail' means any direct mail that is not 'advertising and
promotional direct mail' regardless of whether 'advertising and promotional
direct mail' is included in the same mailing. The term includes, but is not
limited to:
(i)
Transactional direct mail that contains personal information specific to the
addressee including, but not limited to, invoices, bills, statements of account,
and payroll advices;
(ii)
Any legally required mailings including, but not limited to, privacy notices,
tax reports, and stockholder reports; and
(iii)
Other nonpromotional direct mail delivered to existing or former shareholders,
customers, employees, or agents including, but not limited to, newsletters and
informational messages.
Other
direct mail does not include the development of billing information or the
provision of any data processing service that is more than
incidental.
(4)(A)(i)
This paragraph shall apply to a transaction characterized under this chapter as
the sale of services only if the service is an integral part of the production
and distribution of printed material that meets the definition of 'direct
mail.'
(ii)
This paragraph shall not apply to any transaction that includes the development
of billing information or the provision of any data processing service that is
more than incidental regardless of whether 'advertising and promotional direct
mail' is included in the same mailing.
(B)
If a transaction is a 'bundled transaction' that includes 'advertising and
promotion direct mail,' this subsection shall apply only if the primary purpose
of the transaction is the sale of products or services that meet the definition
of 'advertising and promotional direct mail.'
(C)
Nothing in this paragraph shall limit any purchaser's:
(i)
Obligation for sales or use tax to any state to which the direct mail is
delivered,
(ii)
Right under local, state, federal, or constitutional law, to a credit for sales
or use taxes legally due and paid to other jurisdictions; or
(iii)
Right to a refund of sales or use taxes overpaid to any
jurisdiction.
(D)
This subsection applies for purposes of uniformly sourcing 'direct mail'
transactions and does not otherwise impose requirements regarding the taxation
of products that meet the definition of 'direct mail' or to the application of
sales for resale or other exemptions.
(e)(1)
Except for the defined telecommunication services in paragraph (3) of this
subsection, the sale of telecommunication service sold on a call-by-call basis
shall be sourced to:
(A)
Each level of taxing jurisdiction where the call originates and terminates in
that jurisdiction; or
(B)
Each level of taxing jurisdiction where the call either originates or terminates
and in which the service address is also located.
(2)
Except for the defined telecommunication services in paragraph (3) of this
subsection, a sale of telecommunications services sold on a basis other than a
call-by-call basis, is sourced to the customer's place of primary
use.
(3)
A sale of prepaid calling service or a sale of a prepaid wireless calling
service is sourced in accordance with subsection (b) of this Code section;
provided, however, that in the case of a sale of prepaid wireless calling
service, the rule provided in subparagraph (b)(1)(E) of this Code Section
shall include as an option the location associated with the mobile telephone
number.
(4)
The sale of an ancillary service is sourced to the customer's place of primary
use."
SECTION
19.
Said
title is further amended by revising Code Section 48-8-82, relating to
imposition of the joint county and municipal sales and use tax, as
follows:
"48-8-82.
When
the imposition of a joint county and municipal sales and use tax is authorized
according to the procedures provided in this article within a special district,
the county whose geographical boundary is conterminous with that of the special
district and each qualified municipality located wholly or partially within the
special district shall levy a joint sales and use tax at the rate of 1 percent.
Except as to rate, the joint tax shall correspond to the tax imposed and
administered by Article 1 of this chapter. No item or transaction which is not
subject to taxation by Article 1 of this chapter shall be subject to the tax
levied pursuant to this article, except that the joint tax provided in this
article shall be applicable to sales of motor fuels as prepaid local tax as that
term is defined
by
paragraph (5.1) of
in
Code Section 48-8-2 and shall be applicable to the sale of food
and food
ingredients and
alcoholic
beverages only to the extent provided for in paragraph (57) of Code Section
48-8-3."
SECTION
20.
Said
title is further amended by revising Code Section 48-8-87, relating to sales tax
returns, as follows:
"48-8-87.
The
tax levied pursuant to this article shall be exclusively administered and
collected by the commissioner for the use and benefit of each county whose
geographical boundary is conterminous with that of a special district and of
each qualified municipality located wholly or partially therein. Such
administration and collection shall be accomplished in the same manner and
subject to the same applicable provisions, procedures, and penalties provided in
Article 1 of this chapter, except that the joint tax provided in this article
shall be applicable to sales of motor fuels as prepaid local tax as that term is
defined by
paragraph (5.1) of
in
Code Section 48-8-2; provided, however, that all moneys collected from each
taxpayer by the commissioner shall be applied first to such taxpayer's liability
for taxes owed the state. Dealers shall be allowed a percentage of the amount
of the tax due and accounted for and shall be reimbursed in the form of a
deduction in submitting, reporting, and paying the amount due if such amount is
not delinquent at the time of payment. The deduction shall be at the rate and
subject to the requirements specified under subsections (b) through (f) of Code
Section 48-8-50."
SECTION
21.
Said
title is further amended by revising subsection (h) of Code Section 48-8-96,
relating to levy of the joint county and municipal sales and use tax by
consolidated governments, as follows:
"(h)(1)
In the case of increase from 1 percent to 2 percent, the amount in excess of the
initial 1 percent sales and use tax shall not apply to the
furnishing
for value to the public of any room or rooms, lodgings, or accommodations which
are subject to taxation under Article 3 of Chapter 13 of this title or to
the sale of motor vehicles.
(2)
In the case of a newly imposed 2 percent sales and use tax under this Code
section, only the amount in excess of a 1 percent sales and use tax shall not
apply to the
furnishing
for value of any room or rooms, lodgings, or accommodations which are subject to
tax under Article 3 of Chapter 13 of this title or to
the sale of motor
vehicles."
SECTION
22.
Said
title is further amended by revising Code Section 48-8-102, relating to
imposition of the homestead option sales and use tax, as follows:
"48-8-102.
(a)
Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the
Constitution of this state, there are created within this state 159 special
districts. The geographical boundary of each county shall correspond with and
shall be conterminous with the geographical boundary of one of the 159 special
districts.
(b)
When the imposition of a local sales and use tax is authorized according to the
procedures provided in this article within a special district, the county whose
geographical boundary is conterminous with that of the special district shall
levy a local sales and use tax at the rate of 1 percent. Except as to rate, the
local sales and use tax shall correspond to the tax imposed and administered by
Article 1 of this chapter. No item or transaction which is not subject to
taxation by Article 1 of this chapter shall be subject to the sales and use tax
levied pursuant to this article, except that the sales and use tax provided in
this article shall be applicable to sales of motor fuels as prepaid local tax as
that term is defined
by
paragraph (5.1) of
in
Code Section 48-8-2 and shall be applicable to the sale of food
and food
ingredients and
alcoholic
beverages only to the extent provided for in paragraph (57) of Code Section
48-8-3.
(c)(1)
Except as otherwise provided in paragraph (2) of this subsection, the proceeds
of the sales and use tax levied and collected under this article shall be used
only for the purposes of funding capital outlay projects and of funding services
within a special district equal to the revenue lost to the homestead exemption
as provided in Code Section 48-8-104 and, in the event excess funds remain
following the expenditure for such purposes, such excess funds shall be expended
as provided in subparagraph (c)(2)(C) of Code Section 48-8-104.
(2)
Prior to January 1 of the year immediately following the first complete calendar
year in which the sales and use tax under this article is imposed, such proceeds
may be used for funding all or any portion of those services which are to be
provided by the governing authority of the county whose geographic boundary is
conterminous with that of the special district pursuant to and in accordance
with Article IX, Section II, Paragraph III of the Constitution of this
state.
(d)
Such sales and use tax shall only be levied in a special district following the
enactment of a local Act which provides for a homestead exemption of an amount
to be determined from the amount of sales and use tax collected under this
article. Such exemption shall commence with taxable years beginning on or after
January 1 of the year immediately following the first complete calendar year in
which the sales and use tax under this article is levied. Any such local Act
shall incorporate by reference the terms and conditions specified under this
article. Any such local Act shall not be subject to the provisions of Code
Section 1-3-4.1. Any such homestead exemption under this article shall be in
addition to and not in lieu of any other homestead exemption applicable to
county taxes for county purposes within the special district. Notwithstanding
any provision of such local Act to the contrary, the referendum which shall
otherwise be required to be conducted under such local Act shall only be
conducted if the resolution required under subsection (a) of Code Section
48-8-103 is adopted prior to the issuance of the call for the referendum under
the local Act by the election superintendent. If such ordinance is not adopted
by that date, the referendum otherwise required to be conducted under the local
Act shall not be conducted.
(e)
No sales and use tax shall be levied in a special district under this article in
which a tax is levied and collected under Article 2 of this
chapter."
SECTION
23.
Said
title is further amended in Code Section 48-8-104, relating to administration of
the homestead option sales and use tax, by revising subsection (a) as
follows:
"(a)
The sales and use tax levied pursuant to this article shall be exclusively
administered and collected by the commissioner for the use and benefit of each
county whose geographical boundary is conterminous with that of a special
district. Such administration and collection shall be accomplished in the same
manner and subject to the same applicable provisions, procedures, and penalties
provided in Article 1 of this chapter except that the sales and use tax provided
in this article shall be applicable to sales of motor fuels as prepaid local tax
as that term is defined
by
paragraph (5.1) of
in
Code Section 48-8-2; provided, however, that all moneys collected from each
taxpayer by the commissioner shall be applied first to such taxpayer's liability
for taxes owed the state. Dealers shall be allowed a percentage of the amount
of the sales and use tax due and accounted for and shall be reimbursed in the
form of a deduction in submitting, reporting, and paying the amount due if such
amount is not delinquent at the time of payment. The deduction shall be at the
rate and subject to the requirements specified under subsections (b) through (f)
of Code Section 48-8-50."
SECTION
24.
Said
title is further amended by revising Code Section 48-8-110.1, relating to
imposition of the county special purpose local option sales tax, as
follows:
"48-8-110.1.
(a)
Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the
Constitution of this state, there are created within this state 159 special
districts. The geographical boundary of each county shall correspond with and
shall be conterminous with the geographical boundary of the 159 special
districts.
(b)
When the imposition of a special district sales and use tax is authorized
according to the procedures provided in this part within a special district, the
governing authority of any county in this state may, subject to the requirement
of referendum approval and the other requirements of this part, impose within
the special district a special sales and use tax for a limited period of time
which tax shall be known as the county special purpose local option sales
tax.
(c)
Any tax imposed under this part shall be at the rate of 1 percent. Except as to
rate, a tax imposed under this part shall correspond to the tax imposed by
Article 1 of this chapter. No item or transaction which is not subject to
taxation under Article 1 of this chapter shall be subject to a tax imposed under
this part, except that a tax imposed under this part shall apply to sales of
motor fuels as prepaid local tax as that term is defined
by
paragraph (5.1) of
in
Code Section 48-8-2 and shall be applicable to the sale of food
and food
ingredients and
alcoholic
beverages as provided for in
division
(57)(D)(i) of Code Section
48-8-3."
SECTION
25.
Said
title is further amended by revising Code Section 48-8-113, relating to
administration of the county special purpose local option sales and use tax, as
follows:
"48-8-113.
A
tax levied pursuant to this part shall be exclusively administered and collected
by the commissioner for the use and benefit of the county and qualified
municipalities within such special district imposing the tax. Such
administration and collection shall be accomplished in the same manner and
subject to the same applicable provisions, procedures, and penalties provided in
Article 1 of this chapter except that the sales and use tax provided in this
article shall be applicable to sales of motor fuels as prepaid local tax as that
term is defined
by
paragraph (5.1) of
in
Code Section 48-8-2; provided, however, that all moneys collected from each
taxpayer by the commissioner shall be applied first to such taxpayer's liability
for taxes owed the state; and provided, further, that the commissioner may rely
upon a representation by or in behalf of the county and qualified municipalities
within the special district or the Secretary of State that such a tax has been
validly imposed, and the commissioner and the commissioner's agents shall not be
liable to any person for collecting any such tax which was not validly imposed.
Dealers shall be allowed a percentage of the amount of the tax due and accounted
for and shall be reimbursed in the form of a deduction in submitting, reporting,
and paying the amount due if such amount is not delinquent at the time of
payment. The deduction shall be at the rate and subject to the requirements
specified under subsections (b) through (f) of Code Section
48-8-50."
SECTION
26.
Said
title is further amended by revising Code Section 48-8-161, relating to
definitions regarding the Streamlined Sales and Use Tax Agreement, as
follows:
"48-8-161.
As
used in this article, the term:
(1)
'Agent' means a person appointed by a seller to represent the seller before the
member states.
(1)(2)
'Agreement' means the Streamlined Sales and Use Tax Agreement.
(2)(3)
'Certified automated system' means software certified jointly by the states that
are signatories to the agreement to calculate the tax imposed by each
jurisdiction on a transaction, determine the amount of tax to remit to the
appropriate state, and maintain a record of the transaction.
(3)(4)
'Certified service provider' means an agent certified jointly by the states that
are signatories to the agreement to perform all of the seller's sales tax
functions.
(5)
'Model 1 seller' means a seller registered under the agreement that has selected
a certified service provider as its agent to perform all the seller's sales and
use tax functions, other than the seller's obligation to remit tax on its own
purchases.
(6)
'Model 2 seller' means a seller registered under the agreement that has selected
a certified automated system to perform part of its sales and use tax functions,
but retains responsibility for remitting the tax.
(7)
'Model 3 seller' means seller registered under the agreement that has sales in
at least five member states, has total annual sales revenue of at least five
hundred million dollars, has a proprietary system that calculates the amount of
tax due each jurisdiction, and has entered into a performance agreement with the
member states that establishes a tax performance standard for the seller. As
used in this definition, a seller includes an affiliated group of sellers using
the same proprietary system.
(8)
'Model 4 seller' means a seller that is not a 'Model 1 seller', a 'Model 2
seller', or a 'Model 3 seller.'
(4)(9)
'Person' means an individual, trust, estate, fiduciary, partnership, limited
liability company, limited liability partnership, corporation, or any other
legal entity.
(5)(10)
'Sales tax' means the taxes levied under this chapter.
(6)(11)
'Seller' means any person making sales, leases, or rentals of personal property
or services.
(7)(12)
'State' means any state of the United
States,
and
the District of
Columbia, and
the Commonwealth of Puerto
Rico.
(8)(13)
'Use tax' means the taxes levied under this chapter."
SECTION
27.
Said
title is further amended by adding a new Code section to read as
follows:
"48-7-167.
The
Georgia members of the Streamlined Sales Tax Governing Board shall be a member
of the House of Representatives appointed by the Speaker of the House of
Representatives, a member of the Senate appointed by the President Pro Tempore
of the Senate, and a designee of the
commissioner."
SECTION
28.
Said
title is further amended in Code Section 48-8-200, relating to definitions
regarding the water and sewer projects and costs tax, by revising paragraph (2)
as follows:
"(2)
'Dealer' means a dealer as defined in
paragraph
(3) of Code Section
48-8-2."
SECTION
29.
Said
title is further amended by revising Code Section 48-8-201, relating to
intergovernmental contract for distribution of municipal option water and sewer
projects and costs tax proceeds, as follows:
"48-8-201.
(a)(1)
In any county in which the provisions of paragraph (2) of subsection
(b)
(a)
of Code Section 48-8-6 will be applicable if the tax under Part 1 of Article 3
of this chapter is imposed pursuant to subparagraph (a)(1)(D) of Code Section
48-8-111 in whole or in part for the purpose or purposes of a water capital
outlay project or projects, a sewer capital outlay project or projects, a water
and sewer capital outlay project or projects, or a combination of such projects,
the governing authority of a municipality, the majority of which is located
wholly or partially in such county, may deliver or mail a written copy of a
resolution of such municipal governing authority calling for the imposition by
the county of the tax under Part 1 of Article 3 of this chapter pursuant to
subparagraph (a)(1)(D) of Code Section 48-8-111 in whole or in part for the
purpose or purposes of a water capital outlay project or projects, a sewer
capital outlay project or projects, a water and sewer capital outlay project or
projects, water and sewer projects and costs, or any combination
thereof.
(2)
Within ten days following the date of delivery of such resolution to the
governing authority of such county, the governing authorities of such county and
municipality may enter into an intergovernmental contract as authorized by
Article IX, Section III of the Constitution which shall specify the allocation
of the proceeds of the tax between such county and municipality according to the
ratio the population of such municipality bears to the population of such county
according to the United States decennial census of 2000 or any future such
census so that such municipality's share of the total net proceeds shall be the
percentage of the total population of such municipality divided by the total
population of such county. Such intergovernmental contract shall specify that
the proceeds allocated to the municipality shall only be expended for water and
sewer projects and costs.
(3)
Immediately following the entering into of the intergovernmental contract under
paragraph (2) of this subsection, the governing authority of such county may
select the next practicable date authorized under Code Section 21-2-540 for
conducting a special election on the question of imposing such tax under Part 1
of Article 3 of this chapter. The governing authority of such county shall
notify the county election superintendent by forwarding to the superintendent a
copy of the resolution of the governing authority of such municipality calling
for the imposition of the tax in such county. Following receipt of the
resolution, the election superintendent shall issue the appropriate call for an
election for the purpose of submitting the question of the imposition of the tax
to the voters of such county in the manner specified in Code Section 48-8-111.
If approved in such referendum, the tax shall be levied and imposed as provided
in this Code section and Part 1 of Article 3 of this chapter.
(b)
If the governing authority of the county takes no action under paragraph (2) or
(3) of subsection (a) of this Code section, it shall provide notice thereof by
resolution to the governing authority of the municipality not later than ten
days following the date of delivery of such municipality's resolution to the
county under subsection (a) of this Code section. Upon receipt by the governing
authority of the municipality of such county resolution or if timely notice of
no action is not provided by the governing authority of the county to the
governing authority of the municipality or if the county referendum is conducted
but is not approved by the voters, the governing authority of any municipality
in this state may, subject to the requirement of referendum approval and the
other requirements of this article, immediately commence proceedings to seek to
impose within the municipality a special sales and use tax for a limited period
of time for the purpose of funding water and sewer projects and costs. Any tax
imposed under this article shall be at the rate of 1 percent. Except as
otherwise provided in this article, a tax imposed under this article shall
correspond to the tax imposed by Article 1 of this chapter.
(c)
In the event a tax imposed under this article is imposed only by the
municipality:
(1)
No item or transaction which is not subject to taxation under Article 1 of this
chapter shall be subject to a tax imposed under this article, except that a tax
imposed under this article shall apply to:
(A)
Sales of motor fuels as prepaid local tax as that term is defined
by
paragraph (5.1) of
in
Code Section 48-8-2;
(B)
The sale of food
and food
ingredients and
alcoholic
beverages as provided for in
division
(57)(D)(i) of Code Section
48-8-3;
(C)
The sale of natural or artificial gas used directly in the production of
electricity which is subsequently sold, notwithstanding paragraph (70) of Code
Section 48-8-3; and
(D)
The furnishing for value to the public of any room or rooms, lodgings, or
accommodations which is subject to taxation under Article 3 of Chapter 13 of
this title; and
(2)
A tax imposed under this article shall not apply to the sale of motor
vehicles.
(d)
On and after July 1, 2007, the aggregate amount of all excise taxes imposed
under paragraph (5) of subsection (a) of Code Section 48-13-51 and all sales and
use taxes shall not exceed 14 percent."
SECTION
30.
Said
title is further amended by revising Code Section 48-8-203, relating to
imposition of the municipal option water and sewer projects and costs tax, as
follows:
"48-8-203.
(a)(1)
If the imposition of the tax is approved by referendum, the tax shall be imposed
on the first day of the next succeeding calendar quarter which begins more than
70
80
days after the date of the election at which the tax was approved by the
voters.
(2)
With respect to services which are regularly billed on a monthly basis, however,
the resolution or ordinance imposing the tax shall become effective with respect
to and the tax shall apply to the first regular billing period coinciding with
or following the effective date specified in paragraph (1) of this subsection. A
certified copy of the ordinance or resolution imposing the tax shall be
forwarded to the commissioner so that it will be received within five business
days after certification of the election results.
(b)
The tax shall cease to be imposed on the earliest of the following
dates:
(1)
If the resolution or ordinance calling for the imposition of the tax provided
for the issuance of general obligation debt and such debt is the subject of
validation proceedings, as of the end of the first calendar quarter ending more
than 80 days after the date on which a court of competent jurisdiction enters a
final order denying validation of such debt;
(2)
On the final day of the maximum period of time specified for the imposition of
the tax; or
(3)
As of the end of the calendar quarter during which the commissioner determines
that the tax will have raised revenues sufficient to provide to the municipality
net proceeds equal to or greater than the amount specified as the maximum amount
of net proceeds to be raised by the tax.
(c)(1)
No municipality shall impose at any time more than a single 1 percent tax under
this article.
(2)
A municipality in which a tax authorized by this article is in effect may, while
the tax is in effect, adopt a resolution or ordinance calling for a reimposition
of a tax as authorized by this article upon the termination of the tax then in
effect; and a referendum may be held for this purpose while the tax is in
effect. Proceedings for such reimposition shall not be conducted more than two
times; shall be in the same manner as proceedings for the initial imposition of
the tax as provided for in Code Section 48-8-202 and shall be solely within the
discretion of the governing authority of the municipality without regard to any
requirement of county participation otherwise specified under subsection (a) of
Code Section 48-8-201. Such newly authorized tax shall not be imposed until the
expiration of the tax then in effect; provided, however, that in the event of
emergency conditions under which a municipality is unable to conduct a
referendum so as to continue the tax then in effect without interruption, the
commissioner may, if feasible administratively, waive the limitations of
subsection (a) of this Code section to the minimum extent necessary so as to
permit the reimposition of a tax, if otherwise approved as required under this
Code section, without interruption, upon the expiration of the tax then in
effect.
(3)
Following the expiration of a tax under this article which has been renewed two
times under paragraph (2) of this subsection, a municipality shall not be
authorized to initiate proceedings for the reimposition of a tax under this
article or to reimpose such tax."
SECTION
31.
Said
title is further amended by revising Code Section 48-8-204, relating to
administration of the water and sewer projects and costs tax, as
follows:
"48-8-204.
A
tax levied pursuant to this article shall be exclusively administered and
collected by the commissioner for the use and benefit of the municipality
imposing the tax. Such administration and collection shall be accomplished in
the same manner and subject to the same applicable provisions, procedures, and
penalties provided in Article 1 of this chapter except that the sales and use
tax provided in this article shall be applicable to sales of motor fuels as
prepaid local tax as that term is defined
by
paragraph (5.1) of
in
Code Section 48-8-2; provided, however, that all moneys collected from each
taxpayer by the commissioner shall be applied first to such taxpayer's liability
for taxes owed the state; and provided, further, that the commissioner may rely
upon a representation by or in behalf of the municipality or the Secretary of
State that such a tax has been validly imposed, and the commissioner and the
commissioner's agents shall not be liable to any person for collecting any such
tax which was not validly imposed. Dealers shall be allowed a percentage of the
amount of the tax due and accounted for and shall be reimbursed in the form of a
deduction in submitting, reporting, and paying the amount due if such amount is
not delinquent at the time of payment. The deduction shall be at the rate and
subject to the requirements specified under subsections (b) through (f) of Code
Section 48-8-50."
SECTION
32.
Title
50 of Official Code of Georgia Annotated, relating to state government, is
amended in Code Section 50-5-82, relating to limitations on contracting for
goods, by revising subsection (b) as follows:
"(b)
On or after May 13, 2004, the Department of Administrative Services and any
other state agency to which this article applies shall not enter into a
state-wide contract or agency contract for goods or services, or both, in an
amount exceeding $100,000.00 with a nongovernmental vendor if the vendor or an
affiliate of the vendor is a dealer as defined in
paragraph
(3) of Code Section 48-8-2, or meets one
or more of the conditions thereunder, but fails or refuses to collect sales or
use taxes levied under Chapter 8 of Title 48 on its sales delivered to
Georgia."
SECTION
33.
This
Act shall become effective on January 1, 2011.
SECTION
34.
All
laws and parts of laws in conflict with this Act are repealed.