Syfert Injury Law Firm

Your Trusted Partner in Personal Injury & Workers' Compensation

Call Now: 904-383-7448

2018 Georgia Code 48-2-52 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 48-2-52 Case Law from Google Scholar Amendments to OCGA 48-2-52

TITLE 48 REVENUE AND TAXATION

Section 2. State Administrative Organization, Administration, and Enforcement, 48-2-1 through 48-2-115.

ARTICLE 2 ADMINISTRATION

48-2-52. Personal liability of corporate officer or employee for tax delinquency.

  1. Any officer or employee of any corporation, any member, manager, or employee of any limited liability company, or any partner or employee of any limited liability partnership who has control or supervision of collecting from purchasers or others amounts required under this title or of collecting from employees any taxes required under this title, and of accounting for and paying over the amounts or taxes to the commissioner, and who willfully fails to collect the amounts or taxes or truthfully to account for and pay over the amounts or taxes to the commissioner, or who willfully attempts to evade or defeat any obligation imposed under this title, shall be personally liable for an amount equal to the amount evaded, not collected, not accounted for, or not paid over.
  2. The liability imposed by this Code section shall be paid upon notice and demand by the commissioner or his delegate and shall be assessed and collected in the same manner as the tax in connection with which the act or failure to act under this Code section occurs or has occurred.

(Ga. L. 1960, p. 210, §§ 1, 2; Code 1933, § 91A-251, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 6; Ga. L. 2001, p. 984, § 1.)

Law reviews.

- For article, "2014 Georgia Corporation and Business Organization Case Law Developments," see 20 Ga. St. B. J. 26 (April 2015). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 294 (2001).

JUDICIAL DECISIONS

Dealers are within scope of section.

- Since an officer or employee may also be a dealer, as defined in Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3), it is clear that a dealer can violate Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52), though by definition only if the dealer is also an officer or employee in charge. Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979).

"Willful" construed.

- "Willful" as here used does not carry with it connotations of bad motives, fraud, or an intent to deprive the state of the state's tax claim. All that this statute requires is that the preference in favor of other creditors be made voluntarily with knowledge of the existence of the valid tax claim. Blackmon v. Mazo, 125 Ga. App. 193, 186 S.E.2d 889 (1971).

Subsequent conduct relevant in determining willfulness.

- While a defendant's subsequent attempts at payment of sales taxes cannot eradicate past willful failure to report and remit sales taxes, subsequent conduct may be relevant in determining whether such failure was willful in the first instance. Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979).

When liability for sales taxes attaches.

- Liability attaches upon the failure to pay the sales taxes imposed under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) at the time such taxes are due. Liability attaches upon the defendant's failure, if willful, to report or remit taxes, and not upon the defendant's receipt of notice and demand for payment. Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979).

Right to recoup taxes forfeited.

- Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant's sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13, by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim the department had against the officer, the department forfeited any right the department had to recoup from the officer the payment the department made to the owner. Ga. Dep't of Revenue v. Moore, 317 Ga. App. 31, 730 S.E.2d 671 (2012).

Assessment prima facie correct under Art. 2, Ch. 8.

- An assessment made under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52) in the same manner as against the corporation is entitled to be considered or deemed to be prima facie correct as under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) in general. Hawes v. Le Craw, 121 Ga. App. 532, 174 S.E.2d 382 (1970).

Duty to state evidence or findings as to liability.

- Statute merely states the conditions under which a corporate employee is liable and imposes no requirement on the commissioner to state the findings which the commissioner may have made or the evidence on which any findings are based, except as may be incorporated by reference by the language empowering the commissioner to assess and collect the tax under this statute. Hawes v. Le Craw, 121 Ga. App. 532, 174 S.E.2d 382 (1970).

Finding as to whether second responsible party was necessary in refund action was required.

- In an assessment action under O.C.G.A. § 48-2-52, the Georgia Court of Appeals erred by concluding that because the Georgia Department of Revenue voluntarily refunded a tax payment made by a majority owner of a restaurant, the department could not seek payment from a second responsible party as the voluntary payment doctrine applied to contracts, not tax indebtedness; it was necessary to remand the case to see if the second responsible party was a necessary party to the majority owner's refund action. Ga. Dep't of Revenue v. Moore, 294 Ga. 20, 751 S.E.2d 57 (2013).

Assessment prima facie correct on appeal.

- When a party assessed under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52) has invoked the appeal procedure under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59) to contest the validity of the assessment in the superior court, thereby opening the door to a de novo judicial investigation, the assessment is one which must be regarded as prima facie correct. Hawes v. Le Craw, 121 Ga. App. 532, 174 S.E.2d 382 (1970).

Burden of proof on appeal from assessment.

- An assessment pursuant to this statute is deemed to be "prima facie correct," and when the assessed party invokes the appeal procedure to the superior court to contest the validity of the assessment, which is a de novo proceeding, the party comes into court in the status of a plaintiff who has the burden of proof, while the commissioner occupies the status of a defendant, who by transmitting the record showing the fact of the assessment, has provided sufficient answer to entitle the defendant to the defendant's day in court on the merits to rebut whatever proof the other party may offer to support the plaintiff's contention that the plaintiff is not liable for the tax deficiency. Blackmon v. Ross, 123 Ga. App. 89, 179 S.E.2d 548 (1970).

RESEARCH REFERENCES

Am. Jur. 2d.

- 72 Am. Jur. 2d, State and Local Taxation, § 771.

Cases Citing Georgia Code 48-2-52 From Courtlistener.com

Total Results: 2

Georgia Department of Revenue v. Moore

Court: Supreme Court of Georgia | Date Filed: 2013-11-04

Citation: 294 Ga. 20, 751 S.E.2d 57, 2013 Fulton County D. Rep. 3342, 2013 WL 5878141, 2013 Ga. LEXIS 885

Snippet: River Room[,] Personal Liability[,] Per OCGA [§] 48-2-52” an Official Assessment and Demand for Payment

Perrin v. Richardson

Court: Supreme Court of Georgia | Date Filed: 1914-09-18

Citation: 142 Ga. 394, 83 S.E. 102, 1914 Ga. LEXIS 721

Snippet: 482 (48 S. E. 148); Shaw v. Fender, 138 Ga. 48 (2), 52 (74 S. E. 792); Moor v. Farlinger, 138 Ga. 359