Bill Text: GA HB441 | 2009-2010 | Regular Session | Comm Sub
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
09 LC 18
8343S
The
Senate Finance Committee offered the following substitute to HB
441:
A
BILL TO BE ENTITLED
AN ACT
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.