Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 83, § 1, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Tax does not violate commerce clause.

- Cigarette tax laid not upon the privilege of receiving cigarettes in this state, but levied upon the privilege of retaining, keeping, holding, or possessing cigarettes for personal use, after the cigarettes have been received, acquired, or brought into this state, is not violative of the commerce clause, U.S. Const., Art. I, Sec. 8, Cl. 3. Head v. Cigarette Sales Co., 188 Ga. 452, 4 S.E.2d 203 (1939) (decided under Ga. L. 1937, p. 83, § 1).

Tax is an excise tax, not ad valorem, and not unconstitutional for nonuniformity.

- Tax imposed upon every person who received by means in this state, and who held or possessed for his or her own personal use in this state, or for the use of any member of their family, cigarettes which had been stamped as required, is an excise upon the privilege of holding or possessing such cigarettes for personal use, and not a direct or ad valorem tax upon such articles, and accordingly, does not violate Ga. Const. 1877, Art. VII, Sec. II, Para. I because it was not uniform with an ad valorem tax levied by the state upon tangible property. Head v. Cigarette Sales Co., 188 Ga. 452, 4 S.E.2d 203 (1939) (decided under Ga. L. 1937, p. 83, § 1).

Different treatment of those holding stamped or unstamped cigarettes constitutional.

- State does not create an unreasonable classification in violation of the uniformity clause, Ga. Const. 1877, Art. VII, Sec. II, Para. I, in levying a tax upon persons who hold or possess for personal use unstamped cigarettes, while exempting those who hold or possess cigarettes for such purpose which have been stamped by a dealer as required by law. Head v. Cigarette Sales Co., 188 Ga. 452, 4 S.E.2d 203 (1939) (decided under Ga. L. 1937, p. 83, § 1).

Tax is not part of cost of property sold for sales and use tax purposes.

- If the imposition of taxes, such as those on cigarettes, falls upon the consumer or the incident of the sale by the retailer to the consumer they are not included as part of the retail sale price for calculating the sales and use tax. If, however, the tax is imposed at a time prior to the point of retail sale or other consumer transaction, it is an element of the cost of the property sold and must be included as part of the retail sale price for purposes of calculating the sales and use tax imposed by Ga. L. 1951, p. 360 (see O.C.G.A. Art. 1, Ch. 8, T. 48). The state cigarette tax is not an element of the "cost of the property sold" and is not, therefore, included in "gross sales" and "sales price" upon which the sales and use tax is calculated. Blackmon v. Coastal Serv., Inc., 125 Ga. App. 28, 186 S.E.2d 441 (1971), aff'd, 229 Ga. 471, 192 S.E.2d 372 (1972).

Tax collected once, but imposed on every step in distribution and consumption.

- Cigar and cigarette tax is an excise tax, to be collected only once, but nevertheless imposed upon each separate transaction and event in the process of distribution and consumption. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

Cigar and cigarette tax is levied against the distributor. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

There is no substantial independent significance in the distinction between the words "distributor" and "taxpayer." In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

Inability to collect from vendees does not absolve the distributor of the burden to pay the excise tax imposed by this section although the state, in the state's discretion, may pursue whatever entity appears most likely to yield results. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

Under this section, there is no doubt that the distributor's liability is absolute, without regard to whether or not the distributor is able to pass on the economic burden to retail distributors and the ultimate retail consumers. If the cigarettes are destroyed in a fire before the ultimate retail sale, while in the hands of a retail distributor, or if the retail distributor becomes a bankrupt, the distributor's obligation is nevertheless fixed. In re Jim Clay Tobacco Co., 355 F. Supp. 274 (N.D. Ga. 1973).

Am. Jur. 2d.

- 71 Am. Jur. 2d, State and Local Taxation, §§ 22, 23, 434, 439, 492.

C.J.S.

- 53 C.J.S., Licenses, § 55. 84 C.J.S., Taxation, § 159 et seq.

ALR.

- Deductibility of other taxes or fees in computing excise or license taxes, 174 A.L.R. 1263.

What constitutes a sale "at retail" within federal retailers' excise tax statute (26 USC (IRC 1954) chap 31), 93 A.L.R.2d 1120.