Bill Text: GA HB441 | 2009-2010 | Regular Session | Comm Sub

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Bill Title: Sales and use tax; refund claims; expedited payment; provisions

Spectrum: Partisan Bill (Republican 2-0)

Status: (Passed) 2009-05-05 - Effective Date [HB441 Detail]

Download: Georgia-2009-HB441-Comm_Sub.html

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09 LC 18 8343S

The Senate Finance Committee offered the following substitute to HB 441:

A BILL TO BE ENTITLED
AN ACT

To amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, so as to provide for the expedited payment of sales and use tax refund claims secured by a satisfactory bond; to provide for civil and criminal penalties regarding certain sales and use tax refund claims; to authorize refunds to credit card issuers for certain motor fuel sales to tax-exempt entities; to provide for procedures, conditions, and limitations; 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 48-2-35.1, relating to sales and use tax refunds, to read as follows:

"48-2-35.1.

(a) If a certificate or exemption determination letter issued by the commissioner certifying that the purchaser is entitled to purchase tangible personal property or taxable services without the payment of sales and use tax has not been obtained and used prior to purchasing such tangible personal property or taxable services, a refund of sales and use taxes shall be made without interest.

(b) Any taxpayer who wishes to expedite the payment of a sales and use tax claim for refund may apply to the commissioner for such expedited refund; and as part of such application the taxpayer shall file a bond that is satisfactory to the commissioner as security for the repayment of such refund and any applicable tax, interest, penalties, fees, or costs in the event that the commissioner determines within the applicable statute of limitations that all or a portion of such refund was paid in error. The commissioner shall issue the refund within 30 days of the date of the posting of the approved bond. Any assessment of tax, interest, penalties, fees, or costs related to the payment of such refund claim shall be made within three years after the date that such refund was paid by the commissioner.

(c)(1) As used in this subsection, the term:

(A) 'Disregard' means any careless, reckless, or intentional disregard.

(B) 'Excessive amount' means that portion of the claim for refund that exceeds the amount that is eligible for refund and for which there is no reasonable basis.

(C) 'Frivolously filed' means a sales and use tax claim for refund in which the amount claimed exceeds the amount eligible for refund by at least 50 percent.

(D) 'Negligence' includes any failure to make a reasonable attempt to comply with the provisions of this title.

(E) 'Reasonable basis' means a position that is reasonably based on one or more of the following authorities: applicable provisions of this title and other statutory provisions; proposed and adopted regulations construing such statutes; court cases; official opinions of the Attorney General; and letter rulings, policy statements, informational bulletins, and other administrative pronouncements published by the commissioner. Notwithstanding the preceding list of authorities, an authority shall not continue to be an authority to the extent it is overruled or modified, implicitly or explicitly, by a body with the power to overrule or modify the earlier authority.

(2) Any taxpayer who frivolously files a sales and use tax claim for refund shall be subject to a penalty of 20 percent of the excessive amount. No penalty shall be assessed pursuant to this subsection against any portion of an excessive amount for which a refund is claimed in good faith and the filing of which was not due to negligence or disregard of the law. The determination of whether a taxpayer acted in good faith shall be made on a case-by-case basis, taking into account all pertinent facts and circumstances. Generally, the most important factor in such determination is the extent of the taxpayer's effort to assess the taxpayer's proper tax liability. Circumstances that may indicate good faith shall include an honest misunderstanding of fact or law that is reasonable in light of all the facts and circumstances, including the experience, knowledge, and education of the taxpayer. An isolated computational or transcriptional error generally is not inconsistent with good faith.

(3) In addition to the penalty imposed under paragraph (2) of this subsection, when all or part of the excessive amount of the taxpayer's claim for refund is based on a position which is knowingly and willfully advanced in bad faith and is patently improper, such taxpayer shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than $1,000.00."

SECTION 2.

Said title is further amended by adding a new Code section to read as follows:

"48-9-10.1.

(a) As used in this Code section, the term:

(1) 'Credit card issuer' means the party that extends credit, through the issuance of a credit card, to the qualified governmental tax-exempt entity that purchases 'motor fuel' for 'highway use' as those terms are defined under Code Section 48-9-2 for a qualified governmental tax-exempt entity's exclusive use.

(2) 'Qualified governmental tax-exempt entity' means a government entity that is exempt from sales and use tax under Chapter 8 of Title 48, or other provision of general law.

(b) In the event that a sale of 'motor fuel' for 'highway use' is made to a qualified governmental tax-exempt entity, by means of a credit card issued by a credit card issuer to the qualified governmental tax-exempt entity when such credit card issuer invoices and bills such qualified governmental tax-exempt entity net of the applicable taxes, such credit card issuer may obtain a refund for the sales and use taxes paid on such sales.

(c) In order for a credit card issuer to be eligible to claim a refund of sales and use taxes provided under this Code section, the credit card issuer must be registered with Internal Revenue Service under Section 4101 of the Internal Revenue Code as a credit card issuer; establish that it has not collected the tax from the qualified governmental tax-exempt entity who purchased the motor fuel; establish that it repaid the amount of the tax to the dealer in full with all applicable taxes included; and has obtained the written consent of the dealer to the allowance of the credit or refund or has otherwise made arrangements which directly or indirectly provide the dealer with reimbursement of the tax.

(d) Refunds of sales and use tax pursuant to this Code section shall be made without interest.

(e) The commissioner is authorized to promulgate rules and regulations deemed necessary in order to administer and effectuate this Code section."

SECTION 3.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 4.

All laws and parts of laws in conflict with this Act are repealed.