Bill Text: GA HB982 | 2009-2010 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Revenue and taxation; administrative garnishment; comprehensive revisions

Spectrum: Partisan Bill (Republican 2-0)

Status: (Engrossed - Dead) 2010-04-29 - House Reconsidered [HB982 Detail]

Download: Georgia-2009-HB982-Comm_Sub.html

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10 LC 18 9293S

COMMITTEE OF CONFERENCE SUBSTITUTE TO HB 982

A BILL TO BE ENTITLED
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 comprehensive provisions regarding administrative garnishment; to provide for procedures, conditions, and limitations; to provide for powers, duties, and authority of the state revenue commissioner and the Department of Revenue; to provide for 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 adding a new paragraph in subsection (c) of Code Section 48-2-55, relating to attachment and garnishment, to read as follows:

"(3) Within at least six months of, and no less than 30 days before, a levy, the commissioner shall provide a balance due notice to the taxpayer by first-class mail addressed to the taxpayer's last known address as shown on the records of the department. The notice shall identify the state tax executions issued against the taxpayer, state the total amount necessary to fully satisfy the tax executions as of the date of the notice, provide the taxpayer an opportunity to pay the total amount due within a certain time period not less than 30 days, and state that the department may levy and seize the taxpayer's property and rights to property if full payment is not received within that time period."

SECTION 2.

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

"(g)(1) Notwithstanding any other provision of this Code section which provides for the attachment, garnishment, or levy against property, rights to property, or money, the department may use the administrative garnishment process established in this subsection to collect from a delinquent taxpayer any delinquent taxes, fees, license fees, penalties, interest, or collection costs due the state that are imposed by this title or which the commissioner or the department is responsible for collecting under any other law.

(2)(A) The department may initiate an administrative garnishment to have property or rights to property belonging to the delinquent taxpayer, or wages or other compensation due the delinquent taxpayer, assigned by the garnishee to the department up to the amount of the full debt to be collected by the department.

(B) Notwithstanding this Code section, the exemptions from garnishment required or allowed by law, including, but not limited to, exemptions provided by Code Sections 18-4-20 and 18-4-22, shall be applicable to an administrative garnishment.

(3)(A) The commissioner or the commissioner's authorized representative shall serve the summons of administrative garnishment upon the garnishee and shall file a return of service with the department. In addition to any other methods of service, the summons of administrative garnishment may be served by the commissioner or the commissioner's authorized representative to the garnishee by registered or certified mail or statutory overnight delivery, return receipt requested. Either the return receipt indicating receipt by the garnishee or the envelope bearing the official notification from the United States Postal Service of the garnishee's refusal to accept delivery of such registered or certified mail or statutory overnight delivery shall be filed with the department. If statutory overnight delivery was accomplished through a commercial firm as provided under paragraph (1) of subsection (b) of Code Section 9-10-12, the return receipt indicating receipt by the garnishee or the envelope bearing the official notification from such commercial firm of the garnishee's refusal to accept delivery shall be filed with the department.

(B) Not more than three business days after the summons of administrative garnishment is served on the garnishee, the department shall send a written notice of the summons to the delinquent taxpayer at the taxpayer's last known address by registered or certified mail or statutory overnight delivery, return receipt requested. Either the return receipt indicating receipt by the taxpayer or evidence of the taxpayer's refusal to accept such registered or certified mail or statutory overnight delivery addressed to the taxpayer shall be deemed notice to the taxpayer. The department may also effect service on the taxpayer using one of the methods set forth in Code Section 18-4-64.

(4)(A) Upon receipt of a summons of administrative garnishment from the department, a garnishee shall immediately give effect to the administrative garnishment and hold whatever property, rights to property, or money belonging to the delinquent taxpayer to the extent of the debt indicated in the summons from the department.

(B) Except as provided in subparagraph (C) or (D) of this paragraph, the garnishee shall send the department an answer stating what money or other property is subject to the garnishment and shall forward to the department the delinquent taxpayer's property, rights to property, or money, to the extent required in the summons, no sooner than 30 days and not later than 45 days after the garnishee receives service of the summons of administrative garnishment. The garnishee may deduct $50.00 from the amount of the property transferred to the department as reimbursement for reasonable expenses in making a true answer of garnishment.

(C) Under circumstances where the delinquent taxpayer has been an employee of the garnishee, the delinquent taxpayer is no longer employed by the garnishee, and the garnishee has no money or property of the delinquent taxpayer subject to garnishment, the garnishee may immediately send an answer; however, such answer shall be sent not later than 45 days after the service of the summons.

(D) If the delinquent taxpayer appeals the administrative garnishment pursuant to paragraph (5) of this subsection, the department shall notify the garnishee and require that the garnishee hold all money or other property subject to garnishment until the conclusion of the appeal, but the garnishee shall continue to answer the department in the manner provided for in this subsection. Upon final determination of the delinquent taxpayer's appeal of the administrative garnishment, the department shall notify the garnishee that the administrative garnishment has either been dismissed, modified, or upheld and, if modified or upheld, shall notify the garnishee to forward the money or other property subject to garnishment to the department.

(E) If the garnishee fails to answer or fails to surrender any property, rights to property, or money subject to administrative garnishment by the forty-fifth day after service of the summons of administrative garnishment, the garnishee shall automatically be assessed a sum equal to the taxpayer's liability as stated on the summons of administrative garnishment. Within 15 days of the date of the assessment, the assessment may be cured as a matter of right by the filing of an answer, and surrendering any property belonging to the delinquent taxpayer not to exceed the total amount of the assessment. If the assessment has not been cured by the expiration of the 15 day period, the garnishee shall be issued an official assessment. The liability imposed in this subparagraph shall be paid upon notice and demand by the commissioner or the commissioner's authorized representative and shall be assessed and collected in the same manner, with the same right of appeal under Code Section 48-2-59, as taxes administered by the commissioner, except as otherwise provided under subparagraph (G) of this paragraph.

(F) If the garnishee serves its answer on the department as provided for in this subsection, the department shall reply to the answer within 15 days after it is served or the liability imposed by the summons shall be discharged. The department shall have 15 days from the filing of the reply to set a date for a hearing on the garnishee's answer and the reply of the department. The garnishee may appeal any final administrative ruling to superior court under Code Section 48-2-59 within 30 days from receipt of the final administrative ruling.

(G) When an official assessment is issued against a garnishee under subparagraph (E) of this paragraph, the garnishee may file a request to modify the official assessment as a matter of right with the commissioner within 60 days from the date the garnishee receives actual notice of the official assessment and upon payment of all actual costs of service incurred by the department. The official assessment shall be modified so that the amount of the assessment is reduced to an amount equal to $50.00 plus:

(i) The amount by which the garnishee was indebted to the delinquent taxpayer at the time of service; and

(ii) All money, other property, or effects belonging to the delinquent taxpayer which came into the garnishee's hands from the time of service of the summons of garnishment through the last day on which an answer and delivery of property could have been made by the garnishee.

Such amount shall not exceed the taxpayer's liability as stated on the summons of administrative garnishment. The garnishee may appeal the official assessment to superior court under Code Section 48-2-59 within 30 days from the expiration of the modification period.

(H) Any garnishee who, upon service of an administrative garnishment by the commissioner or the commissioner's authorized representative, surrenders such property, rights to property, or money or otherwise discharges such obligation to the commissioner or the commissioner's authorized representative shall be discharged from any obligation or liability to the delinquent taxpayer with respect to such property, rights to property, or money arising from such surrender or payment.

(5)(A) A delinquent taxpayer shall have 15 days from receipt of the notice of summons of the administrative garnishment to appeal the administrative garnishment in writing to the department or to appeal to superior court under Code Section 48-2-59. Upon the filing of an appeal the delinquent taxpayer shall be a party to all further proceedings upon the administrative garnishment.

(B) Upon receipt of a written administrative appeal, the department shall review the facts of the administrative garnishment and, if requested by the taxpayer, hold a hearing. Only a mistake of fact, including, but not limited to, a mistake in the identity of the delinquent taxpayer, a mistake in the amount owed to or being collected by the department, or a mistake of ownership of the property being garnished, shall be considered as a reason to dismiss or modify the administrative garnishment.

(C) The department shall have 15 days from receipt of a written administrative appeal to set a hearing date for the appeal. The delinquent taxpayer may appeal any final administrative ruling to superior court under Code Section 48-2-59 within 30 days from the date of the final administrative ruling.

(D) A challenge to an administrative action under this subsection shall not extend or reopen the statute of limitations to protest other departmental actions or to contest the amount or validity of the tax.

(6)(A) At any time before a final administrative ruling pursuant to this subsection is entered on the garnishee's answer or money or other property subject to garnishment is distributed, any person other than the delinquent taxpayer may file a claim in writing under oath stating that such person has a claim superior to that of the department to the money or other property in the possession of the garnishee subject to the process of administrative garnishment. The claimant shall be a party to all further proceedings upon the administrative garnishment.

(B) The department shall have ten days to set a hearing date from the later of (i) the date that the claim is filed, or (ii) the date when appeals, if any, have been finally determined under both subparagraph (F) of paragraph (4) of this subsection and under paragraph (5) of this subsection.

(C) The department shall have the burden of proving that its claim to the money or other property subject to the garnishment proceeding is superior to that of the claimant. No money or other property subject to the garnishment and upon which the claimant has filed its claim shall be distributed until the hearing is held and an administrative ruling has been issued by the department. To the extent that the administrative ruling is in favor of the claimant, such money or other property to that extent shall be retained by or restored to the garnishee and any claim thereto by the claimant shall be made directly on the garnishee.

(7)(A) A notice of summons of administrative garnishment given to the delinquent taxpayer is effective without the serving of another notice until the earliest of either the date that the debt owed to the department is paid in full or the date that the delinquent taxpayer receives notice that the garnishment shall cease.

(B) In the event no summons of garnishment has been issued on an assessment for two years or more, the garnishment proceeding based on that assessment shall automatically stand dismissed."

SECTION 3.

Title 50 of the Official Code of Georgia Annotated, relating to state government, is amended by revising paragraph (1) of Code Section 50-13-2, relating to definitions regarding administrative procedure, to read as follows:

"(1) 'Agency' means each state board, bureau, commission, department, activity, or officer authorized by law expressly to make rules and regulations or to determine contested cases, except the General Assembly; the judiciary; the Governor; the State Board of Pardons and Paroles; the State Financing and Investment Commission; the State Properties Commission; the Board of Bar Examiners; the Board of Corrections and its penal institutions; the State Board of Workers' Compensation; all public authorities except as otherwise expressly provided by law; the State Personnel Board (Merit System); the Department of Administrative Services or commissioner of administrative services; the Technical College System of Georgia; the Department of Revenue when conducting hearings relating to alcoholic beverages or administrative garnishments; the Georgia Tobacco Community Development Board; the Georgia Higher Education Savings Plan; any school, college, hospital, or other such educational, eleemosynary, or charitable institution; or any agency when its action is concerned with the military or naval affairs of this state. The term 'agency' shall include the State Board of Education and Department of Education, subject to the following qualifications:

(A) Subject to the limitations of subparagraph (B) of this paragraph, all otherwise valid rules adopted by the State Board of Education and Department of Education prior to January 1, 1990, are ratified and validated and shall be effective until January 1, 1991, whether or not such rules were adopted in compliance with the requirements of this chapter; and

(B) Effective January 1, 1991, any rule of the State Board of Education or Department of Education which has not been proposed, submitted, and adopted in accordance with the requirements of this chapter shall be void and of no effect."

SECTION 4.

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

SECTION 5.

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