12 LC
36 2018
House
Bill 826
By:
Representatives Peake of the
137th,
Williams of the
4th,
Abrams of the
84th,
McBrayer of the
153rd,
Baker of the
78th,
and others
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 that any taxes imposed on cigars and little
cigars on or after January 1, 2013, shall be collected and paid
through the use of stamps; to provide for definitions; to establish a rate of
the tax on certain tobacco products; to provide that the commissioner of revenue
shall provide by regulation for stamps to be affixed to cigars and little cigars
prior to April 10, 2013, for which taxes are collected and paid prior to
January 1, 2013; to provide for changes throughout the chapter to certain
provisions in order to remove references to the collection and payment of taxes
on cigars using an alternate method; to provide for annual renewal of licenses;
to provide exemptions from certain taxes; to authorize the collection and
payment of the first transaction in the state; to change certain provisions
regarding civil and criminal penalties; to provide for related matters; to
provide for effective dates; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART
I
SECTION
1-1.
Title
48 of the Official Code of Georgia Annotated, relating to revenue and taxation,
is amended by revising Code Section 48-11-1, relating to definitions, as
follows:
"48-11-1.
As
used in this chapter, the term:
(1)
'Cigar' means any roll for smoking made wholly or in part of tobacco when the
cover of the roll is also tobacco.
(2)
'Cigar dealer' means any person located within the borders of this state who
sells or distributes cigars
or little
cigars to a consumer in this
state.
(3)
'Cigar distributor' means any person, whether located within or outside the
borders of this state, other than a cigar dealer, who sells or distributes
cigars or
little cigars within or into the
boundaries of this state and who:
(A)
Maintains a warehouse, warehouse personnel, and salespersons who regularly
contact and call on cigar dealers; and
(B)
Is engaged in the business of:
(i)
Importing cigars
or little
cigars into this state or purchasing
cigars or
little cigars from other cigar
manufacturers or cigar distributors; and
(ii)
Selling the cigars
or little
cigars to cigar dealers in this state for
resale but is not in the business of selling the cigars
or little
cigars directly to the ultimate consumer
of the cigars.
(4)
'Cigar importer' means any person who imports into or who brokers within the
United States, either directly or indirectly, a finished cigar
or little
cigar for sale or
distribution.
(5)
'Cigar manufacturer' means any person who manufactures, fabricates, assembles,
processes, or labels a finished cigar
or little
cigar.
(6)
'Cigarette' means any roll for smoking made wholly or in part of tobacco when
the cover of the roll is paper or any substance other than tobacco.
(7)
'Cigarette dealer' means any person located within the borders of this state who
sells or distributes cigarettes to a consumer in this state.
(8)
'Cigarette distributor' means any person, whether located within or outside the
borders of this state, other than a cigarette dealer, who sells or distributes
cigarettes within or into the boundaries of this state and who:
(A)
Maintains a warehouse, warehouse personnel, and salespersons who regularly
contact and call on cigarette dealers; and
(B)
Is engaged in the business of:
(i)
Importing cigarettes into this state or purchasing cigarettes from other
cigarette manufacturers or cigarette distributors; and
(ii)
Selling the cigarettes to cigarette dealers in this state for resale but is not
in the business of selling the cigarettes directly to the ultimate consumer of
the cigarettes.
Such
term shall not include any cigarette manufacturer, export warehouse proprietor,
or cigarette importer with a valid permit under 26 U.S.C. Section 5712, if such
person sells or distributes cigarettes in this state only to cigarette
distributors who hold valid and current licenses under Code Section 48-11-4 or
to an export warehouse proprietor or another cigarette manufacturer with a valid
permit under 26 U.S.C. Section 5712.
(9)
'Cigarette importer' means any person who imports into or who brokers within the
United States, either directly or indirectly, a finished cigarette for sale or
distribution.
(10)
'Cigarette manufacturer' means any person who manufactures, fabricates,
assembles, processes, or labels a finished cigarette.
(11)
'Counterfeit cigarette' means cigarettes that are manufactured, fabricated,
assembled, processed, packaged, or labeled by any person other than the
trademark owner of a cigarette brand or the owner's designated
agent.
(12)
'Dealer' means any person who is a cigar dealer, a cigarette dealer, or a loose
or smokeless tobacco dealer.
(13)
'Distributor' means any person who is a cigar distributor, a cigarette
distributor, or a loose or smokeless tobacco distributor.
(14)
'First taxable transaction' means the first sale, receipt, purchase, possession,
consumption, handling, distribution, or use of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco within this state.
(15)
'Little cigar' means any roll for smoking weighing not more than four pounds per
thousand made wholly or in part of tobacco when the cover of the roll contains
tobacco but is not a natural leaf tobacco wrapper.
(15)(16)
'Loose or smokeless tobacco' means granulated, plug cut, crimp cut, ready
rubbed, and other smoking tobacco; snuff or snuff flour; cavendish; plug and
twist tobacco; fine-cut and other chewing tobaccos; shorts; refuse scraps,
clippings, cuttings, and sweepings of tobacco; and other kinds and forms of
tobacco, prepared in such manner as to be suitable for chewing or smoking in a
pipe or otherwise, or both for chewing and smoking but does not include
cigarettes
or
cigars, little
cigars, or cigarettes or tobacco purchased
for the manufacture of
cigarettes
or
cigars, little
cigars, or cigarettes by cigarette
manufacturers or cigar manufacturers.
(16)(17)
'Loose or smokeless tobacco dealer' means any person located within the borders
of this state who sells or distributes loose or smokeless tobacco to a consumer
in this state.
(17)(18)
'Loose or smokeless tobacco distributor' means any person who:
(A)
Maintains a warehouse, warehouse personnel, and salespersons who regularly
contact and call on loose or smokeless tobacco dealers; and
(B)
Is engaged in the business of:
(i)
Importing loose or smokeless tobacco into this state or purchasing loose or
smokeless tobacco from other loose or smokeless tobacco manufacturers or loose
or smokeless tobacco distributors; and
(ii)
Selling the loose or smokeless tobacco to loose or smokeless tobacco dealers in
this state for resale but is not in the business of selling the loose or
smokeless tobacco directly to the ultimate consumer of the loose or smokeless
tobacco.
(18)(19)
'Loose or smokeless tobacco importer' means any person who imports into or who
brokers within the United States, either directly or indirectly, finished loose
or smokeless tobacco for sale or distribution.
(19)(20)
'Loose or smokeless tobacco manufacturer' means any person who manufactures,
fabricates, assembles, processes, or labels finished loose or smokeless
tobacco.
(20)(21)
'Related machinery' means any item, device, conveyance, or vessel of any kind or
character used in manufacturing, packaging, labeling, stamping, transporting,
distributing, selling, or possessing counterfeit cigarettes.
(21)(22)
'Sale' means any sale, transfer, exchange, theft, barter, gift, or offer for
sale and distribution in any manner or by any means whatever.
(22)(23)
'Stamp' means any impression, device, stamp, label, or print manufactured,
printed, made, or affixed as prescribed by the commissioner.
(23)(24)
'Vending machine' means any coin-in-the-slot device used for the automatic
merchandising of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco."
SECTION
1-2.
Said
title is further amended by revising Code Section 48-11-3, relating to
collection of tax by stamps, sale at discount to distributors, basis of discount
percentage, alternate method of collection of tax on cigars, prohibition of sale
or exchange of stamps with another distributor, and redemption, as
follows:
"48-11-3.
(a)
Except as otherwise provided in this Code section, the taxes imposed by Code
Section 48-11-2 shall be collected and paid through the use of stamps. The
commissioner shall secure stamps of such design and materials as the
commissioner deems appropriate to protect the revenue and shall sell the stamps
to licensed distributors at a discount of
not less
than 2 percent and not more than 8
4
percent of the value of the stamps.
The exact
percentage of the discount shall be based on brackets according to the volume of
cigars, cigarettes, and loose or smokeless tobacco handled by the distributor
pursuant to regulations promulgated by the
commissioner. The commissioner shall
prescribe by regulation the condition, method, and manner in which stamps are to
be affixed to containers of cigars, cigarettes, and loose or smokeless
tobacco.
(b)(1)(A)
The
Prior to
January 1, 2013, the commissioner may
prescribe by regulation an alternate method, in lieu of the sale of stamps, of
collecting and paying the tax imposed upon cigars and little cigars.
Any such
regulations shall be promulgated so that the use of the alternate method will
result in the same revenue to the state as the state would realize through the
sale of stamps to the distributors.
(B)
Beginning on January 1, 2013, the taxes imposed upon cigars and little cigars
shall be collected and paid through the use of stamps as provided in subsection
(a) of this Code Section. The commissioner shall prescribe by regulation the
condition, method, and manner in which stamps are to be affixed to containers of
cigars and little cigars for which taxes imposed upon cigars and little cigars
were collected and paid by an alternate method prior to January 1, 2013, such
that all such containers of cigars and little cigars for which taxes have been
collected and paid imposed by Code Section 48-11-2 shall be required to have an
affixed stamp as of April 10, 2013.
(2)
The commissioner may
also
prescribe by regulation an alternate method, in lieu of the sale of stamps, of
collecting and paying the tax imposed on loose or smokeless tobacco. Any such
regulations shall be promulgated so that use of the alternate method will result
in the same revenue to the state as the state would realize through the sale of
stamps to the distributors.
(c)
No distributor shall sell or exchange with another distributor any stamps issued
pursuant to this chapter. The commissioner is authorized to redeem at cost
price any stamps presented for redemption by a licensed distributor when the
commissioner determines from physical inspection that no cigars, cigarettes, or
loose or smokeless tobacco has been sold by the distributor under pretense of
the tax imposed by this chapter having been paid through use of the
stamps."
PART
II
SECTION
2-1.
Said
title is further amended by revising Chapter 11, relating to taxes on tobacco
products, as follows:
"48-11-1.
As
used in this chapter, the term:
(1)
'Cigar' means any roll for smoking made wholly or in part of tobacco when the
cover of the roll is also tobacco.
(2)
'Cigar dealer' means any person located within the borders of this state who
sells or distributes cigars
or little
cigars to a consumer in this
state.
(3)
'Cigar distributor' means any person, whether located within or outside the
borders of this state, other than a cigar dealer, who sells or distributes
cigars or
little cigars within or into the
boundaries of this state and who:
(A)
Maintains a warehouse, warehouse personnel, and salespersons who regularly
contact and call on cigar dealers; and
(B)
Is engaged in the business of:
(i)
Importing cigars
or little
cigars into this state or purchasing
cigars or
little cigars from other cigar
manufacturers or cigar distributors; and
(ii)
Selling the cigars
or little
cigars to cigar dealers in this state for
resale but is not in the business of selling the cigars
or little
cigars directly to the ultimate consumer
of the cigars.
(4)
'Cigar importer' means any person who imports into or who brokers within the
United States, either directly or indirectly, a finished cigar
or little
cigar for sale or
distribution.
(5)
'Cigar manufacturer' means any person who manufactures, fabricates, assembles,
processes, or labels a finished cigar
or little
cigar.
(6)
'Cigarette' means any roll for smoking made wholly or in part of tobacco when
the cover of the roll is paper or any substance other than tobacco.
(7)
'Cigarette dealer' means any person located within the borders of this state who
sells or distributes cigarettes to a consumer in this state.
(8)
'Cigarette distributor' means any person, whether located within or outside the
borders of this state, other than a cigarette dealer, who sells or distributes
cigarettes within or into the boundaries of this state and who:
(A)
Maintains a warehouse, warehouse personnel, and salespersons who regularly
contact and call on cigarette dealers; and
(B)
Is engaged in the business of:
(i)
Importing cigarettes into this state or purchasing cigarettes from other
cigarette manufacturers or cigarette distributors; and
(ii)
Selling the cigarettes to cigarette dealers in this state for resale but is not
in the business of selling the cigarettes directly to the ultimate consumer of
the cigarettes.
Such
term shall not include any cigarette manufacturer, export warehouse proprietor,
or cigarette importer with a valid permit under 26 U.S.C. Section 5712, if such
person sells or distributes cigarettes in this state only to cigarette
distributors who hold valid and current licenses under Code Section 48-11-4 or
to an export warehouse proprietor or another cigarette manufacturer with a valid
permit under 26 U.S.C. Section 5712.
(9)
'Cigarette importer' means any person who imports into or who brokers within the
United States, either directly or indirectly, a finished cigarette for sale or
distribution.
(10)
'Cigarette manufacturer' means any person who manufactures, fabricates,
assembles, processes, or labels a finished cigarette.
(11)
'Counterfeit cigarette' means cigarettes that are manufactured, fabricated,
assembled, processed, packaged, or labeled by any person other than the
trademark owner of a cigarette brand or the owner's designated
agent.
(12)
'Dealer' means any person who is a cigar dealer, a cigarette dealer, or a loose
or smokeless tobacco dealer.
(13)
'Distributor' means any person who is a cigar distributor, a cigarette
distributor, or a loose or smokeless tobacco distributor.
(14)
'First taxable transaction' means the first sale, receipt, purchase, possession,
consumption, handling, distribution, or use of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco within this state.
(15)
'Little cigar' means any roll for smoking made wholly or in part of tobacco if
the product is wrapped in any substance containing tobacco, other than a natural
leaf tobacco wrapper, and weighing not more than four pounds per
thousand.
(15)(16)
'Loose or smokeless tobacco' means granulated, plug cut, crimp cut, ready
rubbed, and other smoking tobacco; snuff or snuff flour; cavendish; plug and
twist tobacco; fine-cut and other chewing tobaccos; shorts; refuse scraps,
clippings, cuttings, and sweepings of tobacco; and other kinds and forms of
tobacco, prepared in such manner as to be suitable for chewing or smoking in a
pipe or otherwise, or both for chewing and smoking but does not include
cigarettes
or
cigars, little
cigars, or cigarettes or tobacco purchased
for the manufacture of
cigarettes
or
cigars, little
cigars, or cigarettes by cigarette
manufacturers or cigar manufacturers.
(16)(17)
'Loose or smokeless tobacco dealer' means any person located within the borders
of this state who sells or distributes loose or smokeless tobacco to a consumer
in this state.
(17)(18)
'Loose or smokeless tobacco distributor' means any person who:
(A)
Maintains a warehouse, warehouse personnel, and salespersons who regularly
contact and call on loose or smokeless tobacco dealers; and
(B)
Is engaged in the business of:
(i)
Importing loose or smokeless tobacco into this state or purchasing loose or
smokeless tobacco from other loose or smokeless tobacco manufacturers or loose
or smokeless tobacco distributors; and
(ii)
Selling the loose or smokeless tobacco to loose or smokeless tobacco dealers in
this state for resale but is not in the business of selling the loose or
smokeless tobacco directly to the ultimate consumer of the loose or smokeless
tobacco.
(18)(19)
'Loose or smokeless tobacco importer' means any person who imports into or who
brokers within the United States, either directly or indirectly, finished loose
or smokeless tobacco for sale or distribution.
(19)(20)
'Loose or smokeless tobacco manufacturer' means any person who manufactures,
fabricates, assembles, processes, or labels finished loose or smokeless
tobacco.
(20)(21)
'Related machinery' means any item, device, conveyance, or vessel of any kind or
character used in manufacturing, packaging, labeling, stamping, transporting,
distributing, selling, or possessing counterfeit cigarettes.
(22)
'Retail unit' means the quantity or packaging bundle as determined by the
commissioner that must bear a stamp.
(21)(23)
'Sale' means any sale, transfer, exchange, theft, barter, gift, or offer for
sale and distribution in any manner or by any means whatever.
(22)(24)
'Stamp' means any impression, device, stamp, label, or print manufactured,
printed, made, or affixed as prescribed by the commissioner.
(23)(25)
'Vending machine' means any coin-in-the-slot device used for the automatic
merchandising of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco.
48-11-2.
(a)
An excise tax, in addition to all other taxes of every kind imposed by law, is
imposed upon the sale, receipt, purchase, possession, consumption, handling,
distribution, or use of cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco in this state at the following rates:
(1)
Little
cigars weighing not more than three pounds per thousand: two and one-half mills
each
Cigars other
than little cigars: 10¢ per
cigar;
(2)
All other
cigars: 23 percent of the wholesale cost price, exclusive of any trade, cash, or
other discounts or any promotion, advertising, display, or similar
allowances
Little cigars:
37¢ per pack of 20 little cigars and a like rate, pro rata, for other size
packages;
(3)
Cigarettes: 37¢ per pack of 20 cigarettes and a like rate, pro rata, for
other size packages; and
(4)
Loose or smokeless tobacco: 10 percent of the wholesale cost price, exclusive of
any trade, cash, or other discounts or any promotion, advertising, display, or
similar allowances.
(b)
When the retail selling price is referred to in this chapter as the basis for
computing the tax, it is intended to mean the ordinary retail selling price of
the article to the consumer before adding the amount of the tax.
(c)
The taxes imposed by this chapter are levied with respect to the purchase or use
of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco by the state or any department, institution, or agency of the state and
by the political subdivisions of the state and their departments, institutions,
and agencies. The taxes imposed by this chapter are not imposed with respect to
cigars, little
cigars, cigarettes, or loose or smokeless
tobacco purchased exclusively for use by the patients at the Georgia War
Veterans Home and the Georgia War Veterans Nursing Home.
(d)
The taxes imposed by this chapter are not levied with respect to cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco the purchase or use of which this state is prohibited from taxing under
the Constitution or statutes of the United States.
(e)
The taxes imposed by this chapter shall be advanced and paid by
the dealer
or distributor
licensed
pursuant to this chapter to the
commissioner for deposit and distribution as provided in this chapter upon the
first
taxable
transaction within the state, whether or not the transaction involves the
ultimate purchaser or consumer. The
seller
licensed
dealer or distributor shall collect the
tax on the
first transaction within the state from
the purchaser or consumer and the purchaser or consumer shall pay the tax to the
seller or distributor. The
seller
dealer
or distributor shall be responsible for the collection of the tax and the
payment of the tax to the commissioner. Whenever cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is shipped from outside the state to anyone other than a distributor,
the person receiving the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco shall be deemed to be a distributor and shall be
immediately
responsible for the tax on the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco and the payment of the tax to the commissioner.
No tobacco
products shall be sold in or shipped into this state unless lawfully obtained
from a person licensed pursuant to this chapter.
(f)
The amount of taxes advanced and paid to the state as provided in this Code
section shall be added to and collected as a part of the sales price of the
cigars, little
cigars, cigarettes, or loose or smokeless
tobacco sold or distributed. The amount of the tax shall be stated separately
from the price of the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco.
(g)
The cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco tax imposed shall be collected only once upon the same
cigarettes,
cigars, little cigars,
cigarettes,
or loose or smokeless tobacco.
48-11-3.
(a)
Except as otherwise provided in this Code section, the taxes imposed by Code
Section 48-11-2 shall be collected and paid through the use of stamps. The
commissioner shall secure stamps of such design and materials as the
commissioner deems appropriate to protect the revenue and shall sell the stamps
to licensed distributors at a discount of
not less
than 2 percent and not more than 8
4
percent of the value of the stamps.
The exact
percentage of the discount shall be based on brackets according to the volume of
cigars, cigarettes, and loose or smokeless tobacco handled by the distributor
pursuant to regulations promulgated by the
commissioner. The commissioner shall
prescribe by regulation the condition, method, and manner in which stamps are to
be affixed to containers
or retail
units of cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco.
(b)
The
commissioner may prescribe by regulation an alternate method, in lieu of the
sale of stamps, of collecting and paying the tax imposed upon cigars and little
cigars. The commissioner may
also
prescribe by regulation an alternate method, in lieu of the sale of stamps, of
collecting and paying the tax imposed on loose or smokeless tobacco. Any such
regulations shall be promulgated so that use of the alternate method will result
in the same revenue to the state as the state would realize through the sale of
stamps to the distributors.
(c)
No distributor shall sell or exchange with another distributor any stamps issued
pursuant to this chapter. The commissioner is authorized to redeem at cost
price any stamps presented for redemption by a licensed distributor when the
commissioner determines from physical inspection that no cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco has been sold by the distributor under pretense of the tax imposed by
this chapter having been paid through use of the stamps.
48-11-4.
(a)
No person shall engage in or conduct the business of manufacturing, importing,
brokering, purchasing, selling, consigning, vending, dealing in,
shipping,
receiving, or distributing cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco in this state without first obtaining a license from the
commissioner.
(b)
All licenses shall be issued by the commissioner, who shall make rules and
regulations with respect to applications for and issuance of the licenses and
for other purposes of enforcing this chapter. The commissioner may refuse to
issue any license under this chapter when the commissioner has reasonable cause
to believe that the applicant has willfully withheld information requested of
the applicant or required by the regulations to be provided or reported or when
the commissioner has reasonable cause to believe that the information submitted
in any application or report is false or misleading and is not given in good
faith.
(c)(1)
The fee for a manufacturer's, importer's,
or
distributor's,
or dealer's license shall be $50.00
annually,
except that for a person commencing business as a manufacturer, importer, or
distributor for the first time the first year's fee shall be $250.00. Each
dealer shall have a permanent license issued by the commissioner free of
charge.
(2)
All renewal applications shall be filed at least 30 days in advance of the
expiration date shown on the license.
Each license, except a dealer's license, shall begin on July 1 and end on June
30 of the next succeeding year.
Each dealer's
license shall be valid for 12 months from the date of issue for the initial
license and shall be valid for 12 months from the first day of the month of
issue for all subsequent licenses. The
prescribed fee shall accompany every application for a license and shall apply
for any portion of the annual period.
(3)
Each manufacturer's, importer's, distributor's, or dealer's license shall be
subject to suspension or revocation for violation of any of the provisions of
this chapter or of the rules and regulations made pursuant to this chapter. A
separate license shall be required for each place of business. No person shall
hold a distributor's license and a dealer's license at the same
time.
(d)
The commissioner may make rules and regulations governing the sale of cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, and other tobacco products in vending machines. The commissioner shall
require annually a special registration of each vending machine for any
operation in this state and charge a license fee for the registration in the
amount of
$1.00
$10.00
for each machine. The annual registration shall indicate the location of the
vending machine. No vending machine shall be purchased or transported into this
state for use in this state when the vending machine is not so designed as to
permit inspection without opening the machine for the purpose of determining
that
all
cigars, little
cigars, cigarettes, loose or smokeless
tobacco, and other tobacco products contained in the machine bear the tax stamp
required under this chapter.
(e)
The manufacturer's, importer's, distributor's, or dealer's license shall be
exhibited in the place of business for which it is issued in the manner
prescribed by the commissioner. The commissioner shall require each licensed
manufacturer, importer, or distributor to file with the commissioner a bond in
an amount of not less than $1,000.00 to guarantee the proper performance of the
manufacturer's, importer's, or distributor's duties and the discharge of the
manufacturer's, importer's, or distributor's liabilities under this chapter.
The bond shall run concurrently with the manufacturer's, importer's, or
distributor's license but shall remain in full force and effect for a period of
one year after the expiration or revocation of the manufacturer's, importer's,
or distributor's license unless the commissioner certifies that all obligations
due the state arising under this chapter have been paid.
(f)
The jurisdiction of the commissioner in the administration of this chapter shall
extend to every person using or consuming cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco in this state and to every person dealing in cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco in any way for business purposes and maintaining a place of business in
this state. For the purpose of this chapter, the maintaining of an office,
store, plant, warehouse, stock of goods, or regular sales or promotional
activity, whether carried on automatically or by salespersons or other
representatives, shall constitute, among other activities, the maintaining of a
place of business. For the purpose of enforcement of this chapter and the rules
and regulations promulgated
hereunder
under this
chapter, notwithstanding any other
provision of law, the commissioner or his or her duly appointed hearing officer
is granted authority to conduct hearings which shall at all times be exercised
in conformity
with the rules
and regulations promulgated by the commissioner and
consistent with Chapter 13 of Title 50,
the 'Georgia Administrative Procedure Act.'
(g)
The commissioner may provide for the licensing of promotional activities, not
including the sale of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco, carried on by the manufacturer. The fee for any such license shall be
$10.00 annually.
48-11-5.
(a)(1)
If the commissioner finds that the collection of the tax imposed by this chapter
would be facilitated by such action, the commissioner may authorize any person
residing or located outside this state who is engaged in the business of
manufacturing cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco or any person residing or located outside this state who ships cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco into this state for sale to licensed dealers in this state, to be
licensed as a distributor and, after the person complies with the commissioner's
requirements, to affix or cause to be affixed the stamps required by this
chapter on behalf of the purchasers of the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco who would otherwise be taxable for the cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco. The commissioner may sell tax stamps to an authorized person or may
authorize the use of a metering machine by the person as provided in Code
Section 48-11-3.
(2)
The commissioner shall require a bond of a nonresident distributor satisfactory
to the commissioner and in an amount of not less than
$1,000.00
$5,000.00,
conditioned upon the payment of the tax and compliance with any other
requirements specified by the commissioner. As a condition of authorization as
provided in this Code section, a nonresident distributor shall agree to submit
the distributor's books, accounts, and records for examination by the
commissioner or the commissioner's duly authorized agent during reasonable
business hours and shall appoint in writing an agent who resides in this state
for the purpose of service. Service upon an agent shall be sufficient service
upon the nonresident distributor and made by leaving a duly attested copy of the
process with the agent. When legal process against any nonresident distributor
is served upon the agent, the agent shall notify the nonresident distributor in
the manner specified in Code Section 40-12-2.
(3)
Upon the grant of authorization as provided in this subsection and except as may
otherwise be determined by the commissioner, a nonresident distributor shall
become a licensed distributor within the meaning of this chapter and shall be
subject to all provisions of this chapter applicable to licensed
distributors.
(b)
Every nonresident manufacturer, importer, or distributor of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco making shipments of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco by common carrier or otherwise for their own account or for the account
of others to distributors or dealers of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco located within this state shall make reports of the shipments when and
as required by rules and regulations of the commissioner.
48-11-6.
The
commissioner may suspend or refuse to renew a license issued to any person under
this chapter for violation of any provision of this chapter or of any rule or
regulation of the commissioner made pursuant to this chapter. After notice and
opportunity for hearing, the commissioner may revoke a license issued to any
person under this chapter for violation of any provision of this chapter or of
any rule or regulation of the commissioner made pursuant to this chapter. Any
person aggrieved by the suspension of or refusal to renew his license may apply
to the commissioner for a hearing as provided in subsection (a) of Code Section
48-11-18; and any person aggrieved by the action of the commissioner in revoking
or refusing to renew his license after hearing may further appeal to the courts
as provided in subsection (b) of Code Section 48-11-18. No legal proceedings or
other action by the commissioner shall be barred or abated by the suspension,
revocation, or expiration of any license issued under this chapter.
48-11-7.
Each
bond required to be filed pursuant to this chapter shall be executed by the
distributor as principal and, as surety, by a corporation authorized to engage
in business as a surety company in this state.
48-11-8.
(a)(1)
No person shall sell, offer for sale, or possess with intent to sell any
cigarettes in this state when the cigarette container does not bear the tax
stamps required by Code Section 48-11-3.
(2)
No person shall sell, offer for sale, or possess with intent to sell in this
state any cigars or little cigars
upon which
the tax has not been paid under the alternate method of collecting the taxes
provided in Code Section 48-11-3 or which
do not bear
the
tax stamps
required by
Code Section 48-11-3.
(3)
No person shall sell, offer for sale, or possess with intent to sell any loose
or smokeless tobacco in this state when the loose or smokeless tobacco container
does not bear the tax stamps required by Code Section 48-11-3 or upon which the
tax has not been paid under the alternate method of collecting the tax provided
under Code Section 48-11-3.
(4)
No person shall sell, offer for sale, or possess with intent to sell cigarettes
as prohibited by Code Section 10-13A-5.
(b)
Each distributor at the location for which such distributor's license is issued
and in the manner specified by the commissioner shall affix the stamps required
by this Code section to each individual package
or retail
unit of
cigarettes,
cigars, or little cigars sold or
distributed by such distributor, except as prohibited by Code Section 10-13A-5.
Each distributor shall comply with the commissioner's regulations for the
payment of the tax on
cigars
or loose or smokeless tobacco as provided
in Code Section 48-11-3 or shall affix to each container of
cigars
or loose or smokeless tobacco sold by such
distributor or from which such distributor sells
cigars
or loose or smokeless tobacco the stamps
required by this chapter. The stamps may be affixed or the tax under the
alternate method may be paid by a distributor at any time before the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is transferred out of such distributor's possession.
(c)
It is the intent of this chapter that the tax imposed by this chapter be paid
only once and that, if the distributor acquires stamped cigarettes,
tax-paid
cigars, stamped cigars,
stamped little
cigars, stamped loose or smokeless
tobacco, or tax-paid loose or smokeless tobacco, such distributor is not
required to affix additional stamps or provide other evidence of payment of the
tax.
(d)
Every dealer
or
person who comes into possession of
cigars, little
cigars, cigarettes, or loose or smokeless
tobacco not bearing proper tax stamps or other evidence of the tax imposed by
this chapter shall
immediately
report the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco to the commissioner prior to displaying, selling, using, or otherwise
disposing of the cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco. After a report, the commissioner shall authorize a licensed
distributor to affix the proper stamps to the cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco or, in the case of
cigars
or loose or smokeless tobacco, authorize
the dealer to remit the tax by the alternate method promulgated by the
commissioner in accordance with Code Section 48-11-3. A licensed distributor
shall affix the stamps or comply with the alternate regulations when presented a
permit for such action issued by the commissioner. A licensed distributor shall
stamp
cigarettes,
cigars, or little cigars or comply with
the alternate method provided in this chapter with respect to
cigars
or loose or smokeless tobacco, other than
such distributor's own, only when authorized by the permit issued by the
commissioner.
(e)
No wholesale or retail distributor or wholesale or retail dealer shall accept
deliveries of unstamped
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco or nontax-paid
cigars
or loose or smokeless tobacco which is
shipped to such distributor or acquired by such distributor at any place within
the state except as authorized and provided in this Code section. All cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco shall be examined by the
distributor,
or
dealer, or
person on receipt, and the
distributor,
dealer, or person shall immediately report
the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco to the commissioner as provided in subsection (d) of this Code
section.
(f)
The commissioner may prescribe the charges which may be made by a distributor to
any person for the services of the distributor as provided in this chapter in
affixing the tax stamps to each individual package
or retail
unit of
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco and may prescribe the charges which may be made by
a distributor in complying with the commissioner's alternate regulations for the
collection of the tax on
cigars and
little cigars or loose or smokeless
tobacco.
(g)
This Code section shall not apply to unstamped
cigars and
little cigars or loose or smokeless
tobacco upon which the tax has been paid in accordance with the alternate
regulations promulgated by the commissioner under Code Section
48-11-3.
48-11-9.
(a)(1)
Any cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco found at any place in this state without stamps affixed to them as
required by this chapter and any cigarettes seized pursuant to subsection (b) of
Code Section 10-13A-8 are declared to be contraband articles and
may
shall
be seized by the commissioner, the commissioner's agents or employees, or any
peace officer of this state when directed by the commissioner to do
so.
(2)
Paragraph (1) of this subsection shall not apply when:
(A)
The tax has been paid on the unstamped
cigars and
little cigars or loose or smokeless
tobacco in accordance with the commissioner's regulations promulgated pursuant
to Code Section 48-11-3;
(B)
The cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is in the possession of a licensed distributor;
(C)
The cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is in course of transit from outside the state and is consigned to a
licensed distributor;
(D)
The cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is in the possession of a transporter who is in compliance with Code
Section 48-11-22; or
(E)
The cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is in the possession of a registered taxpayer as defined in Code Section
48-11-14 and the time for making the report required by Code Section 48-11-14
has not expired.
(3)
This subsection shall not be construed to require the commissioner to confiscate
unstamped or nontax-paid cigars, cigarettes, and loose or smokeless tobacco or
other property when the commissioner has reason to believe that the owner of the
cigars, cigarettes, loose or smokeless tobacco, or property is not willfully or
intentionally evading the tax imposed by this chapter.
(b)
Any cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or other property seized pursuant to this chapter may be offered for
sale by the commissioner, at the commissioner's discretion, at public auction to
the highest bidder after advertisement as provided in this Code section. The
commissioner shall deliver to the Office of the State Treasurer the proceeds of
any sale made under this Code section. Before delivering any cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco sold to a purchaser at the sale, the commissioner shall require the
purchaser to affix to the packages
or retail
units the amount of stamps required by
this chapter or to comply with the commissioner's alternate method. The seizure
and sale of any cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or property pursuant to this chapter shall not relieve any person from
a fine, imprisonment, or other penalty for violation of this
chapter.
(c)
When any cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or other property has been seized pursuant to this chapter, the
commissioner, at the commissioner's discretion, may advertise it for sale in a
newspaper published or having a circulation in the place in which the seizure
occurred, at least five days before the sale. Any person claiming an interest
in the cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or other property may make written application to the commissioner for
a hearing. The application shall state the person's interest in the cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or other property and such person's reasons why the cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or other property should not be forfeited. Further proceedings on the
application for hearing shall be taken as provided in subsection (a) of Code
Section 48-11-18. No sale of any cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or property seized pursuant to this chapter shall be made while an
application for a hearing is pending before the commissioner. The pendency of
an appeal under subsection (b) of Code Section 48-11-18 shall not prevent the
sale unless the appellant posts a satisfactory bond with surety in an amount
double the estimated value of the cigars,
little
cigars, cigarettes, loose or smokeless
tobacco, or other property and conditioned upon the successful termination of
the appeal.
(d)
Any vending machine containing or dispensing any
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco which does not bear the tax stamps required under
this chapter or containing or dispensing any
cigars
or loose or smokeless tobacco upon which
the tax has not been paid either through the purchase of stamps or the alternate
procedure provided by the commissioner as required under this chapter shall be a
contraband article. The commissioner
may
shall
seize any such machine and deal with it in the same manner as provided by law
for the seizure and sale of unstamped
cigarettes,
cigars, little cigars, or loose or
smokeless tobacco and nontax-paid
cigars
or loose or smokeless
tobacco.
48-11-10.
(a)
Every licensed distributor shall file with the commissioner, on or before the
tenth day of each month, a report in the form prescribed by the commissioner
and
disclosing:
(1)
The quantity of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco on hand on the first and last days of the calendar month immediately
preceding the month in which the report is filed;
(2)
Information required by the commissioner concerning the amount of stamps
purchased, used, and on hand during the report period; and
(3)
Information otherwise required by the commissioner for the report
period.
(b)
The commissioner may require other reports as the commissioner deems necessary
for the proper administration of this chapter including, but not limited to,
reports from common carriers and warehousemen with respect to cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco delivered to or stored at any point in this state.
(c)
Any person who fails to file any report when due shall forfeit as a penalty for
each day after the due date until the report is filed the sum of
$1.00
$25.00,
to be collected in the manner provided in subsection (c) of Code Section
48-11-24 for the collection of penalties.
48-11-11.
(a)
Each distributor and each dealer shall keep complete and accurate records of all
cigars, little
cigars, cigarettes, and loose or smokeless
tobacco manufactured, produced, purchased, and sold. The
original
records
shall be of
the kind and in the form prescribed by the
commissioner
or a complete
and legible photocopy or electronic image
and shall be safely preserved for three years in an appropriate manner to ensure
permanency and accessibility for inspection by the commissioner and the
commissioner's authorized agents. The commissioner and the commissioner's
authorized agents may examine the books, papers, and records of any distributor
or dealer in this state for the purpose of determining whether the tax imposed
by this chapter has been fully paid and, for the purpose of determining whether
the provisions of this chapter are properly observed, may investigate and
examine the stock of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco in or upon any premises including, but not limited to, public and
private warehouses where the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is possessed, stored, or sold.
Invoices
sufficient to cover current inventory at a licensed location shall be maintained
at that licensed location and made available for immediate inspection. All
other records may be kept at a locality other than the licensed location and
shall be provided for inspection within two business days after receipt of
notification from the commissioner or the commissioner's authorized agents to
make such records available.
(b)
The commissioner and his authorized agents may examine the books, papers, and
records of any transportation company, any common, contract, or private carrier,
and any public or private warehouse for the purpose of determining whether the
provisions of this chapter are properly observed.
48-11-12.
(a)(1)
The commissioner shall assess a deficiency and may assess a penalty of 10
percent of the deficiency if, after an examination of the invoices, books, and
records of a licensed distributor or dealer or of any other information obtained
by the commissioner or the commissioner's authorized agents, the commissioner
determines that:
(A)
The report of the licensed distributor or licensed dealer is
incorrect;
(B)
The licensed distributor or dealer has not paid the tax in accordance with the
alternate regulations promulgated by the commissioner under Code Section
48-11-3; or
(C)
The licensed distributor or dealer has not purchased sufficient stamps to cover
such licensed distributor or dealer's receipts for sales or other disposition of
unstamped
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco and nontax-paid
cigars
or loose or smokeless
tobacco.
(2)
In any case where a licensed distributor or dealer cannot produce evidence of
sufficient stamps purchased or other payment of the tax to cover the receipt of
unstamped
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco or nontax-paid
cigars
or loose or smokeless tobacco, it shall be
assumed that the cigars, cigarettes, and loose or smokeless tobacco were sold
without having either the proper stamps affixed or the tax paid on unstamped
cigars
or loose or smokeless
tobacco.
(b)
If the commissioner determines that the deficiency or any part of the deficiency
is due to a fraudulent intent to evade the tax, a penalty of 50 percent of the
deficiency shall be added to the amount due.
48-11-13.
(a)
There is imposed a tax on every person for the privilege of using, consuming, or
storing cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco in this state on which the tax imposed by Code Section 48-11-2 has not
been paid. The tax shall be measured by and graduated in accordance with the
volume of cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco used, consumed, or stored as set forth in Code Section
48-11-2.
(b)
This Code section shall not apply to:
(1)
Cigars, little
cigars, cigarettes, or loose or smokeless
tobacco in the hands of a licensed distributor or dealer;
(2)
Cigars, little
cigars, cigarettes, or loose or smokeless
tobacco in the possession of a carrier complying with Code Section
48-11-22;
(3)
Cigars, little
cigars, cigarettes, or loose or smokeless
tobacco stored in a public warehouse;
(4)
Cigarettes in an amount not exceeding 200 cigarettes which have been brought
into the state on the person;
(5)
Cigars in an amount not exceeding 20 cigars which have been brought into the
state on the person;
or
(6)
Little cigars in an amount not exceeding 200 little cigars which have been
brought into the state on the person; or
(6)(7)
Loose or smokeless tobacco in an amount not exceeding six containers which has
been brought into the state on the person.
48-11-14.
(a)
Before any person acquires cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco subject to the tax imposed by Code Section 48-11-13, such person shall
register with the commissioner as a responsible taxpayer subject to the
obligation of maintaining records and making reports in the form prescribed by
the commissioner. The report shall be made on or before the tenth day of the
month following the month in which the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco was acquired and shall be accompanied by the amount of tax
due.
(b)
If any person subject to the tax imposed by Code Section 48-11-13 fails to make
the required report or makes an incorrect report, the commissioner shall assess
the correct amount of tax due from that person from the best information
available to him
or
her. A copy of the assessment shall be
furnished the person by registered or certified mail or statutory overnight
delivery, return receipt requested, or by personal service. Any person
aggrieved by any assessment pursuant to this Code section may request a hearing
in the manner provided in subsection (a) of Code Section 48-11-18.
(c)
Every person subject to the tax imposed by Code Section 48-11-13 who fails to
register with the commissioner as a responsible taxpayer, who fails to make a
report within the time specified, or who fails to remit the tax within the time
specified may be required to pay a penalty of not less than $25.00 nor more than
$250.00 in addition to the tax and any other penalties imposed by law and found
due by the commissioner. The commissioner may proceed to collect the tax and
penalty in the manner provided in subsection (c) of Code Section
48-11-24.
(d)
Except as otherwise provided in this Code section, the sanctions and penalties
set forth in Code Sections 48-11-15, 48-11-17, 48-11-18, and 48-11-20 through
48-11-24 and in Code Sections 48-7-2 and 48-13-38 shall be imposed where
applicable for any violations of this chapter by consumers.
48-11-15.
The
Office of the State Treasurer is authorized to pay, on the order of the
commissioner, claims for refunds of cigar,
little
cigar, cigarette, or loose or smokeless
tobacco taxes found by the commissioner or the courts to be due any distributor,
dealer, or taxpayer. The commissioner, upon proof satisfactory to the
commissioner and in accordance with regulations promulgated by the commissioner,
shall refund the cost price of stamps affixed to any package
or retail
unit of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco or shall refund the tax paid on
cigars
or loose or smokeless tobacco under the
alternate method when the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco has become unfit for use, consumption, or sale and has been
securely
destroyed or shipped out of the state.
48-11-16.
(a)
The commissioner may permit licensed distributors to purchase tax stamps from
the department on account. Permits may be granted only to licensed distributors
who post bonds with the commissioner in amounts sufficient in the opinion of the
commissioner to secure payment for stamps delivered on account. Tax stamps
purchased by licensed distributors shall be paid for in full on or before the
twentieth day of the month next succeeding the purchase. The bond provided in
this Code section shall be secured by cash which shall bear no interest, by
negotiable securities approved by the Office of the State Treasurer, or by a
surety bond executed by a surety company licensed to do business in this state
and approved by the commissioner.
(b)
The commissioner may cancel without notice any permit
or
authorization issued under this Code
section if the licensed distributor fails or refuses to comply with the
requirements of this Code section or with the rules and regulations adopted
under authority of this Code section.
(c)
On or before June 30 of each fiscal year, the licensed distributor shall pay in
its entirety any liability for the purchase of tax stamps due at that
time.
48-11-17.
The
amount of any unpaid tax shall be a lien against the property of any distributor
or dealer who sells cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco without collecting the tax and against the property of any person using
or consuming cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco without proper stamps affixed to the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco or without the tax paid on the
cigars
or loose or smokeless tobacco as otherwise
provided in this chapter. The commissioner or the commissioner's authorized
agents are authorized to seize the property of a delinquent distributor, dealer,
or taxpayer and sell it as provided by law to satisfy the claim for taxes due
under this chapter; or the commissioner may record the commissioner's lien
specifying and describing the property against which the lien is effective, and
the lien shall be good as against any other person until the claim for taxes is
satisfied.
48-11-18.
(a)
Any person aggrieved by any action of the commissioner or the commissioner's
authorized agent may apply to the commissioner, in writing within ten days after
the notice of the action is delivered or mailed to the commissioner, for a
hearing. The application shall set forth the reasons why the hearing should be
granted and the manner of relief sought. The commissioner shall notify the
applicant of the time and place fixed for the hearing. After the hearing, the
commissioner may make an order as may appear to the commissioner to be just and
lawful and shall furnish a copy of the order to the applicant. The commissioner
at any time by notice in writing may order a hearing on the commissioner's own
initiative and require the taxpayer or any other person whom the commissioner
believes to be in possession of information concerning any manufacture,
importation,
delivery,
receipt, use, consumption, storage, or
sale of cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco which has escaped taxation to appear before the commissioner or the
commissioner's duly authorized agent with any specific books of account, papers,
or other documents for examination under oath relative to the
information.
(b)
Any person aggrieved because of any
final
action or decision of the commissioner, after hearing, may appeal from the
decision to the superior court of the county in which the appellant resides.
The appeal shall be returnable at the same time and shall be served and returned
in the same manner as required in the case of a summons in a civil action. The
authority issuing the citation shall take from the appellant a bond of
recognizance to the state, with surety, conditioned to prosecute the appeal and
to effect and comply with the orders and decrees of the court. The action of
the commissioner shall be sustained unless the court finds that
he
the
commissioner misinterpreted this chapter
or that there is no evidence to support
his
the
commissioner's action. If the
commissioner's action is not sustained, the court may grant equitable relief to
the appellant. Upon all appeals which are denied, costs may be taxed against
the appellant at the discretion of the court. No costs of any appeal shall be
taxed against the state.
48-11-19.
(a)
Each person appointed by the commissioner as a special agent or enforcement
officer of the department for the enforcement of the laws of this state with
respect to the manufacture, transportation, distribution, sale, possession, and
taxation of cigars,
little
cigars, cigarettes,
little
cigars, and loose or smokeless tobacco
shall have the authority throughout the state to:
(1)
Obtain and execute warrants for arrest of persons charged with violations of
such laws;
(2)
Obtain and execute search warrants in the enforcement of such laws;
(3)
Arrest without warrant any person violating such laws in the officer's presence
or within such officer's immediate knowledge when there is likely to be a
failure of enforcement of such laws for want of a judicial officer to issue a
warrant;
(4)
Make investigations in the enforcement of such laws and, in connection with such
investigations, to go upon any property outside buildings, whether posted or
otherwise, in the performance of such officer's duties;
(5)
Seize and take possession of all property which is declared contraband under
such laws; and
(6)
Carry firearms while performing such officer's duties.
(b)
Each special agent or enforcement officer shall file with the commissioner a
public official's bond in the amount of $1,000.00, the cost of the bond to be
borne by the department. Nothing in this chapter shall be construed to relieve
agents and officers, after making an arrest, from the duties imposed generally
to obtain a warrant promptly and to return arrested persons without undue delay
before a person authorized to examine, commit, or receive bail as required by
general law.
(c)
After a special agent or enforcement officer has accumulated 25 years of service
with the department, upon leaving the department under honorable conditions,
such special agent or enforcement officer shall be entitled as part of such
officer's compensation to retain his or her weapon and badge pursuant to
regulations promulgated by the commissioner.
(d)
As used in this subsection, the term 'disability' means a disability that
prevents an individual from working as a law enforcement officer. When a
special agent or enforcement officer leaves the department as a result of a
disability arising in the line of duty, such special agent or enforcement
officer shall be entitled as part of such officer's compensation to retain his
or her weapon and badge in accordance with regulations promulgated by the
commissioner.
48-11-20.
The
failure to do any act required by this chapter shall be deemed an act committed
in part at the office of the commissioner in Atlanta. The certificate of the
commissioner to the effect that any act required by this chapter has not been
done shall be prima-facie evidence that the act has not been done.
48-11-21.
The
superior courts of this state shall have jurisdiction of offenses against this
chapter which are punishable by fine or imprisonment, or both.
48-11-22.
(a)
Every person who transports upon the public highways, roads, and streets of this
state cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco not stamped or on which tax has not been paid in accordance with the
alternate regulations provided by the commissioner under Code Section 48-11-3
shall have in such person's actual possession invoices or delivery tickets for
the cigars,
little
cigars, cigarettes, and loose or smokeless
tobacco which show the true name and address of the consignor or seller, the
true name of the consignee or purchaser, the quantity and brands of the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco transported, and the name and address of the person who has assumed or
shall assume the payment of the tax at the point of ultimate destination. In
the absence of the invoices or delivery tickets, the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco being transported and the vehicles in which the cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco is being transported shall be confiscated and disposed of as provided in
Code Section 48-11-9; and the transporter may be liable for a penalty of not
more than
$25.00 for
each individual carton of cigarettes,
$50.00 for each individual box of cigars,
$50.00 for
each individual carton of little cigars, $50.00 for each individual carton of
cigarettes, and
$25.00
$50.00
for each individual container of loose or smokeless tobacco being transported by
such person. The penalty shall be recovered as provided in subsection (c) of
Code Section 48-11-24.
(b)
This Code section shall apply only with respect to the transportation of more
than 200 cigarettes, more than 20 cigars, or more than six containers of loose
or smokeless tobacco.
48-11-23.
(a)
It shall be unlawful for any person, with intent to evade the tax imposed by
this chapter, to transport cigars,
little
cigars, cigarettes, or loose or smokeless
tobacco in violation of Code Section 48-11-22.
(b)
Any person who violates Code Section 48-11-22
by
transporting more than 20 but less than 60 cigars, more than 200 but less than
600 little cigars, more than 200 but less than 600 cigarettes, or more than six
but less than 18 containers of loose or smokeless
tobacco shall be guilty of a
misdemeanor.
(c)
Any person who violates Code Section 48-11-22 by transporting 60 or more but
less than 200 cigars; 600 or more but less than 2,000 little cigars; 600 or more
but less than 2,000 cigarettes; or 18 or more but less than 60 containers of
loose or smokeless tobacco shall be guilty of a misdemeanor of a high and
aggravated nature.
(d)
Any person who violates Code Section 48-11-22 by transporting 200 or more
cigars; 2,000 or more little cigars; 2,000 or more cigarettes; or 60 or more
containers of loose or smokeless tobacco shall be guilty of a felony and, upon
conviction thereof, shall be imprisoned for not less than three years nor more
than ten years.
48-11-23.1.
(a)
As used in this Code section, the term 'package' means a pack, carton, or
container of any kind in which
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco is offered for sale, sold, or otherwise
distributed, or intended for distribution, to consumers.
(b)
No tax stamp may be affixed to, or made upon, any package
or retail
unit of
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco if:
(1)
The package differs in any respect with the requirements of the Federal
Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1331, et seq., for the
placement of labels, warnings, or any other information upon a package of
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco that is to be sold within the United
States;
(2)
The package is labeled 'For Export Only,' 'U.S. Tax Exempt,' 'For Use Outside
U.S.,' or similar wording indicating that the manufacturer did not intend that
the product be sold in the United States;
(3)
The package or
retail unit, or a package
or retail
unit containing individually stamped
packages or
retail units, has been altered by adding
or deleting the wording, labels, or warnings described in paragraph (1) or (2)
of this subsection;
(4)
The package has been imported into the United States after January 1, 2000, in
violation of 26 U.S.C. Sec. 5754;
(5)
The package in any way violates federal trademark or copyright laws;
or
(6)
The package in any way violates Code Section 10-13A-5.
(c)
Any person who sells or holds for sale a
cigar, little
cigar,
cigarette,
or loose or smokeless tobacco package to which is affixed a tax stamp in
violation of subsection (b) of this Code section shall be guilty of a
misdemeanor.
(d)
Notwithstanding any other provision of law, the commissioner may revoke any
license issued under this chapter to any person who sells or holds for sale a
cigar, little
cigar,
cigarette,
or loose or smokeless tobacco package
or retail
unit to which is affixed a tax stamp in
violation of subsection (b) of this Code section.
(e)
Notwithstanding any other provision of law, the commissioner may seize and
destroy or sell to the manufacturer, only for export, packages
or retail
units that do not comply with subsection
(b) of this Code section.
(f)
A violation of subsection (b) of this Code section shall constitute an unfair
and deceptive act or practice under Part 2 of Article 15 of Chapter 1 of Title
10, the 'Fair Business Practices Act of 1975.'
48-11-24.
(a)
Any person who possesses unstamped
cigars, little
cigars, or cigarettes
or loose or
smokeless tobacco or nontax-paid
cigars
or loose or smokeless tobacco in violation
of this chapter shall be liable for a penalty of not more than
$25.00
$50.00
for each individual carton
or retail
unit of unstamped
cigars, little
cigars, or cigarettes
or loose or
smokeless tobacco and $50.00 for each
individual
box
container
of nontax-paid
cigars
or loose or smokeless tobacco in his or
her possession.
(b)
Any person who engages in any business or activity for which a license is
required by this chapter without first having obtained a license to do so or any
person who continues to engage in or conduct the business after
his
the
person's license has been revoked or
during a suspension of the license shall be
liable for
a penalty of not more than $250.00
guilty of a
misdemeanor of a high and aggravated nature and, upon conviction thereof, shall
be imprisoned for a period not to exceed 12 months, a fine of not more than
$5,000.00, or both. Each day that the
business is engaged in or conducted shall be deemed a separate
offense.
(c)
Proceedings to enforce and collect the penalties provided by this chapter shall
be brought by and in the name of the commissioner. With respect to offenses
committed within the territorial jurisdiction of the court, each superior court
shall have jurisdiction to enforce and collect the penalty. The costs
recoverable in any such proceeding shall be recovered by the commissioner in the
event of judgment in
his
the
commissioner's favor. If the judgment is
for the defendant, it shall be without costs against the commissioner. All
expenses incident to the recovery of any penalty pursuant to this Code section
shall be paid in the same manner as any other expense incident to the
administration of this chapter.
48-11-25.
(a)(1)
It shall be unlawful for any person, with the intent to evade the tax imposed by
this chapter, to possess unstamped
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco or nontax-paid
cigars
or loose or smokeless
tobacco.
(2)
Any person who violates paragraph (1) of this subsection shall be guilty of a
misdemeanor.
(b)(1)
It shall be unlawful for any person, with the intent to evade the tax imposed by
this chapter, to:
(A)
Sell cigars,
little cigars,
cigarettes,
or loose or smokeless tobacco without the stamps required by this chapter being
affixed to the
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco; or
(B)
Sell cigars
or loose or smokeless tobacco without the
stamp or stamps required by this chapter or without the tax being paid on the
cigars
or loose or smokeless tobacco in
accordance with the alternate method.
(2)
Any person who violates paragraph (1) of this subsection shall be guilty of a
felony and, upon conviction thereof, shall be imprisoned for not less than
one
year
three
years nor more than ten
years.
48-11-26.
(a)
With respect to this chapter, it shall be unlawful for any person, with the
intent to defraud the state or evade the payment of any tax, penalty, or
interest or any part of a payment when due, to:
(1)
Willfully fail or refuse to file any report or statement required to be filed
pursuant to this chapter or by the commissioner's rules and
regulations;
(2)
File or cause to be filed with the commissioner any false or fraudulent report
or statement; or
(3)
Aid or abet another in the filing with the commissioner of any false or
fraudulent report or statement.
(b)
Any person who violates subsection (a) of this Code section shall be guilty of a
misdemeanor of
a high and aggravated nature and, upon conviction thereof, shall be punished by
a fine of not more than $1,000.00 for each separate
offense.
48-11-27.
(a)
It shall be unlawful for any person to:
(1)
Make a false entry upon any invoices or any record relating to the purchase,
possession, or sale of
cigars, little
cigars,
cigarettes,
or loose or smokeless tobacco; or
(2)
With intent to evade any tax imposed by this chapter, present any false entry
upon any such invoice or record for the inspection of the commissioner or the
commissioner's authorized agents.
(b)
Any person who violates subsection (a) of this Code section shall be guilty of a
misdemeanor of
a high and aggravated nature and, upon
conviction thereof, shall be punished by a fine of not more than
$250.00
$1,000.00
for each separate offense.
48-11-28.
(a)
With respect to this chapter, it shall be unlawful for any person
to:
(1)
Fraudulently make, utter, forge, or counterfeit any stamp prescribed by the
commissioner;
(2)
Cause or procure a violation of paragraph (1) of this subsection to be
done;
(3)
Willfully utter, publish, pass, or render as true any false, altered, forged, or
counterfeited stamp;
(4)
Knowingly possess any false, altered, forged, or counterfeited
stamp;
(5)
For the purpose of evading the tax imposed, use more than once any stamp
required by this chapter; or
(6)
Tamper with or cause to be tampered with any metering machine authorized to be
used.
(b)
Any person who violates subsection (a) of this Code section shall be guilty of a
felony and, upon conviction thereof, shall be imprisoned for not less than
one
year
three
years nor more than ten
years.
48-11-29.
(a)
It shall be unlawful for any person to:
(1)
Knowingly swear to or affirm any false or fraudulent statement with intent to
evade the payment of any tax imposed by this chapter; or
(2)
Under oath, testify falsely at any hearing held pursuant to this
chapter.
(b)
Any person who violates subsection (a) of this Code section shall be guilty of a
misdemeanor
Reserved.
48-11-30.
(a)
Notwithstanding any other provision of law, the sale or possession for sale of
counterfeit cigarettes by any person shall result in the seizure of the product
and related machinery by the commissioner or his or her authorized agents and
any law enforcement agency at the direction of the commissioner and shall be
punishable as follows:
(1)
A first violation with a total quantity of less than two cartons of cigarettes
shall be punishable by a fine of $1,000.00 or five times the retail value of the
cigarettes involved, whichever is greater, or imprisonment not to exceed five
years, or both the fine and imprisonment;
(2)
A subsequent violation with a total quantity of less than two cartons of
cigarettes shall be punishable by a fine of $5,000.00 or five times the retail
value of the cigarettes involved, whichever is greater, or imprisonment not to
exceed five years, or both the fine and imprisonment;
(3)
A first violation with a total quantity of two cartons of cigarettes or more
shall be punishable by a fine of $2,000.00 or five times the retail value of the
cigarettes involved, whichever is greater, or imprisonment not to exceed five
years, or both the fine and imprisonment; and
(4)
A subsequent violation with a quantity of two cartons of cigarettes or more
shall be punishable by a fine of $50,000.00 or five times the retail value of
the cigarettes involved, whichever is greater, or imprisonment not to exceed
five years, or both the fine and imprisonment.
(b)
An act committed by or on behalf of a licensed cigarette manufacturer, cigarette
importer, cigarette distributor, or cigarette dealer in violation of paragraph
(2) or (4) of subsection (a) of this Code section shall also result in the
revocation of the license by the department pursuant to Code Section
48-11-6.
(c)
Any counterfeit cigarette seized by or at the direction of the commissioner
shall be destroyed by the commissioner or his or her designee. Any related
machinery seized by or at the direction of the commissioner may be sold by the
commissioner at public auction in accordance with the requirements of Code
Section 48-11-9."
PART
III
SECTION
3-1.
(a)
Except as provided in subsection (b) of this section, this Act shall become
effective on July 1, 2012.
(b) Part II
of this Act shall become effective on April 10, 2013, on which date the
amendments made to Code Section 48-11-3 by Part I of this Act shall stand
repealed.
SECTION
3-2.
All
laws and parts of laws in conflict with this Act are repealed.