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2018 Georgia Code 48-5-16 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 48-5-16 Case Law from Google Scholar Amendments to OCGA 48-5-16

TITLE 48 REVENUE AND TAXATION

Section 5. Ad Valorem Taxation of Property, 48-5-1 through 48-5-607.

ARTICLE 1 GENERAL PROVISIONS

48-5-16. Return of tangible personal property in county where business conducted; exemptions; boats; aircraft.

  1. Any person who conducts a business enterprise upon real property, which is not taxable in the county in which the person resides or in which the person's office is located, shall return for taxation the tangible personal property of the business enterprise to the tax commissioner or tax receiver of the county in which is taxable the real property upon which the business enterprise is located or conducted.
  2. When the agent in this state of any person who is a resident of another state has on hand and for sale, storage, or otherwise merchandise or other tangible property, he shall return the property for taxation as provided in Code Section 48-5-12.
  3. This Code section shall not apply to public utilities and other companies required to make returns of their properties and franchises to the commissioner under Articles 9, 11, and 12 of this chapter.
    1. As used in this subsection, the term:
      1. "Boat" means every description of watercraft used or capable of being used as a means of transportation on the water.
      2. "Functionally located" means located in a county in this state for 184 days or more during the immediately preceding calendar year.The 184 days or more requirement of this subsection shall mean the cumulative total number of days during such calendar year, which days may, but shall not be required to be, consecutive.
    2. Any person who owns tangible personal property in the form of a boat which is functionally located for recreational or convenience purposes in a county in this state other than the county in which such person maintains a permanent legal residence shall return such property for taxation to the tax commissioner or tax receiver of the county in which such property is functionally located.Tangible personal property of a person which does not meet the 184 days or more requirement provided for in this subsection shall be returned for taxation in the manner provided for in Code Section 48-5-11.
    1. As used in this subsection, the term:
      1. "Aircraft" means any contrivance used or designed for navigation through the air; provided, however, that such term does not include commercial airliners.
      2. "Primary home base" means an airport where an aircraft is principally hangared or tied down and out of which its flights normally originate.
    2. Any person who owns tangible personal property in the form of an aircraft which has its primary home base in a county in this state other than the county in which such person maintains a permanent legal residence shall return such property for taxation to the tax commissioner or tax receiver of the county in which such primary home base is located. Such aircraft which does not have a primary home base in a county of this state other than the county in which the owner maintains a permanent legal residence shall be returned for taxation in the manner provided for in Code Section 48-5-11.

(Ga. L. 1855-56, p. 275, § 1; Code 1863, §§ 756, 757, 759; Code 1868, §§ 823, 824, 826; Code 1873, §§ 827, 828, 830; Code 1882, §§ 827, 828, 830; Civil Code 1895, §§ 816, 818, 826; Ga. L. 1903, p. 15, § 1; Ga. L. 1904, p. 54, § 1; Civil Code 1910, §§ 1064, 1066, 1069, 1075; Ga. L. 1927, p. 56, § 8; Code 1933, §§ 92-6204, 92-6207, 92-6208, 92-6209; Ga. L. 1935, p. 11, § 8; Code 1933, § 91A-1012, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1992, p. 2480, § 1; Ga. L. 1994, p. 1776, § 1; Ga. L. 1995, p. 10, § 48.)

Law reviews.

- For comment on Collins v. Mills, 198 Ga. 18, 30 S.E.2d 866 (1944), see 7 Ga. B. J. 357 (1945).

JUDICIAL DECISIONS

Subsection (b) is not intended to create tax exemption.

- Former Code 1933, § 92-101 (see now O.C.G.A. § 48-5-3) and the definition of "personal property" in former Code 1933, § 92-102 (see now O.C.G.A. § 48-1-2) declare in effect that the kinds of property mentioned in former Code 1933, § 92-6208 (see now O.C.G.A. § 48-5-16) shall be taxed in Georgia if within the state's jurisdiction. Manifestly § 92-6208 was not intended to create an exception to taxability or to exempt property of any kind that is otherwise taxable, merely because, if belonging to a nonresident, an agent does not have the property "on hand" in this state. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495, 19 S.E.2d 396 (1942).

Requirement of subsection (e) of O.C.G.A. § 48-5-16 to return for taxation an aircraft in the county in which the aircraft has the aircraft's primary home base does not effectively create a prohibited separate class of tangible property in violation of the constitutional requirement for uniformity of taxation. Rogers v. DeKalb County Bd. of Tax Assessors, 269 Ga. 31, 495 S.E.2d 33 (1998).

Requirements as to permanence of business location.

- Personal property is ordinarily taxed in the county where the owner resides. In order for personal property to acquire a situs for taxation in some other county, it must be connected with some business enterprise that is situated more or less permanently in a different county as distinguished from an enterprise whose location is merely transitory or temporary. Joiner v. Pennington, 143 Ga. 438, 85 S.E. 318 (1915); Collins v. Mills, 198 Ga. 18, 30 S.E.2d 866 (1944) for comment, see, 7 Ga. B.J. 357 (1945).

What constitutes property used in a business enterprise.

- When the contractor agreed in writing to maintain certain vending machines in operation in a given county, the location of such machines in the county was such a business enterprise of the contractor as to cause the personal property thus located in that county to be subject to ad valorem taxes in that county. Macon Coca-Cola Bottling Co. v. Evans, 214 Ga. 1, 102 S.E.2d 547 (1958).

Apportionment of ad valorem taxes not required.

- County was not required to apportion ad valorem taxes under O.C.G.A. § 48-5-543 since the aircraft had not been used for commercial purposes in the tax year and the owner was not an airline company. White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805, 520 S.E.2d 708 (1999).

Evidence of "primary home base" of aircraft.

- Even though an aircraft owner's principal place of business was in another state, the aircraft at issue was principally hangared at an airport within the county as shown by the number of days the aircraft was located at the airport and the number of flights originating there. White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805, 520 S.E.2d 708 (1999).

O.C.G.A. § 48-5-16 does not require that the aircraft itself be physically present in a county on the first day of the calendar year. White Cloud Charter, Inc. v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805, 520 S.E.2d 708 (1999).

Consigned merchandise owned by out-of-state residents.

- State ad valorem tax was properly applied to an agent for consigned merchandise owned by out-of-state residents but offered for sale in the state by the agent, notwithstanding that such jewelry customarily remained in the state only for brief periods. Brown & Co. Jewelry v. Fulton County Bd. of Assessors, 248 Ga. App. 651, 548 S.E.2d 404 (2001).

Issue of taxability barred by collateral estoppel.

- County board of tax assessors was collaterally estopped from re-litigating the issue of whether funeral vaults sold through pre-need burial packages but stored by their seller in the county were subject to ad valorem taxes under O.C.G.A. § 48-5-16 by a 2001 consent decree between the seller and the assessors that stated the vaults were not taxable. Morgan County Bd. of Tax Assessors v. Vantage Prods. Corp., 323 Ga. App. 823, 748 S.E.2d 468 (2013).

Cited in Cornett Bridge, Inc. v. Hall County, 216 Ga. App. 397, 454 S.E.2d 607 (1995).

OPINIONS OF THE ATTORNEY GENERAL

Construing former Code 1933, §§ 92-6202 and 92-6208 (see now O.C.G.A. §§ 48-5-10 and48-5-16) together, a dealer engaged in business in one county on January 1 who, subsequent to that date removes the dealer's business to another county, is liable under § 92-6208 to the first county for ad valorem taxes on all personal property of whatever kind, connected with or used in such business. The fact that the property was moved from the county after January 1 would not relieve the owner from taxation in the county in which the property was located on January 1. 1958-59 Op. Att'y Gen. p. 350.

Owner's residence is not tax situs for business merchandise if business permanently located elsewhere.

- Merchandise used in connection with a business permanently located in a county is taxable in that county, regardless of the owner's residence. 1945-47 Op. Att'y Gen. p. 558.

Business location must be more or less permanent, not merely transitory or temporary.

- Property which is temporarily located in a county other than that of the owner's residence, even though used to carry on a business, does not come within the exception provided for in this section and is taxable in the county in which its owner resides, when the property is moved from place to place according to where the owner decides that its operation would be most profitable to the owner. 1945-47 Op. Att'y Gen. p. 558.

Personal property is ordinarily taxed in the county where the owner resides. In order for personal property to acquire a situs for taxation in some other county, it must be connected with some business enterprise that is situated more or less permanently in a different county, as distinguished from an enterprise whose location is merely transitory or temporary. 1954-56 Op. Att'y Gen. p. 683; 1958-59 Op. Att'y Gen. p. 350.

Farm equipment located on a farm outside the municipality where the owner resides is taxable as personal property, but not by the municipality.

Situs for taxation of vehicle used in business.

- Trucks which are used for business purposes elsewhere than the owner's place of residence, and which never enter the city limits but do not pay municipal taxes elsewhere, would be taxed at the residence of the owner unless such property acquires a taxable situs in some other county in connection with some business enterprise that is situated more or less permanently in certain counties. 1954-56 Op. Att'y Gen. p. 681.

When property is connected with some trade or business and that trade or business is situated more or less permanently in another county, then the tax situs is in the county where the business is situated. The fact that a vehicle is not in the county on January 1 does not cause the vehicle to be exempt from taxation. 1965-66 Op. Att'y Gen. No. 65-113.

Tax situs of vessels owned by navigation company.

- Taxable situs of a vessel owned by a navigation company is not determined by the place where the owner may have paid taxes nor by the place where the vessel is registered, but is determined by the domicile of the owner. 1958-59 Op. Att'y Gen. p. 350 (See also subsection (d) added in 1992).

State does not have a special tax upon business inventories, but such property is taxable under the general laws relating to ad valorem taxation. 1952-53 Op. Att'y Gen. p. 186.

RESEARCH REFERENCES

Am. Jur. 2d.

- 72 Am. Jur. 2d, State and Local Taxation, § 624.

ALR.

- Situs for property taxation as between different states or counties, of personal property, or interests therein, held by trustees, executors, or administrators, 67 A.L.R. 393; 127 A.L.R. 379; 172 A.L.R. 341.

License or excise tax on merchandise brokers or persons performing similar functions as affected by commerce clause, 155 A.L.R. 239.

Domicile of debtor within state, or location therein of real property securing debt, as giving debt to nonresident a situs within state for purpose of property taxation, 160 A.L.R. 788.

Cases Citing O.C.G.A. § 48-5-16

Total Results: 2  |  Sort by: Relevance  |  Newest First

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Marion v. Floyd Cnty. Bd. of Equalization, 270 Ga. 475 (Ga. 1999).

Cited 2 times | Published | Supreme Court of Georgia | Feb 8, 1999 | 511 S.E.2d 512, 99 Fulton County D. Rep. 542

...Marion, a resident of Floyd County, Georgia, owned a boat which was located in Cherokee County, Alabama for some part of the tax year with which this case is concerned. In order to determine tax liability, the Floyd County Board of Tax Assessors, purporting to act under OCGA § 48-5-16, requested that Marion sign an affidavit stating that his boat was indeed located in Alabama for at least 184 days of the tax year....
...994. The Floyd County Board of Equalization upheld the tax assessment. Marion appealed that decision to the Superior Court of Floyd County, which granted summary judgment to the Board of Tax Assessors and the Board of Equalization, holding that OCGA § 48-5-16 is the statute controlling the assessment of tax in this case, and that OCGA § 48-5-11 is constitutional....
...process under the U. S. Constitution. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings. 1. The basis for this Court’s jurisdiction over this case is Marion’s contention that OCGA §§ 48-5-11 and 48-5-16 are unconstitutional....
...uch property is functionally located. Tangible personal property of a person which does not meet the 184 days or more requirement provided for in this subsection shall be returned for taxation in the manner provided for in Code Section 48-5-11. OCGA § 48-5-16 (d) (2). “It is axiomatic that when the language of a statute is unambiguous, the court has no authority to imply a contrary intent.” Jersawitz v....
...riod of time sufficient for it to acquire a tax situs there. The pretrial order contains a stipulation that the boat was “functionally located” in Alabama during the tax year in question, but the phrase “functionally located” is used in OCGA § 48-5-16 in determining the appropriate tax situs as between two counties in Georgia and, as noted in Division 1 of this opinion, does not apply to the situation present in this case....
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Rogers v. DeKalb Cnty. Bd. of Tax Assessors, 269 Ga. 31 (Ga. 1998).

Published | Supreme Court of Georgia | Feb 2, 1998 | 495 S.E.2d 33, 98 Fulton County D. Rep. 386

Hines, Justice. This is a challenge to the constitutionality of OCGA § 48-5-16 (e).1 Rogers, a certified public accountant, was assessed by DeKalb County for the 1996 ad valorem property taxes on his aircraft....
...Rogers’ legal address was in DeKalb County; however, his unincorporated public accountancy practice was located in Fulton County, and the aircraft was used primarily in connection *32with Rogers’ practice. Rogers challenged the assessment of his aircraft based upon valuation and on the ground that OCGA § 48-5-16 (e) violates requirements of uniformity of assessment under the State and Federal Constitutions because it requires taxation of the aircraft in DeKalb County, where the aircraft is hangared, rather than in Fulton County, where the public accountancy business for which the aircraft is used is located....
...ursuant to OCGA § 48-5-311 (e) (1), and the Board affirmed the assessment. Rogers appealed to the superior court pursuant to OCGA § 48-5-311 (g). In the appeal, he expressly abandoned his challenge to valuation. The superior court found that OCGA § 48-5-16 (e) is constitutional and does not create a separate class of personal property. It further concluded that the primary home base of Rogers’ aircraft is in DeKalb County, and consequently, that the aircraft is subject to taxation in DeKalb County at the determined fair market value.2 1. The requirement of OCGA § 48-5-16 (e) to return for taxation an aircraft in the county in which it has its primary home base does not effectively create a prohibited separate class of tangible property in violation of the uniformity of taxation provision of the State Constitution, as discussed in Griggs v....
...property differently based on location inside or outside the city limits, thereby creating an arbitrary subclassification of real property. See Thomas County Bd. of Tax Assessors v. Balfour Land Co., 214 Ga. App. 181, 182 (446 SE2d 745) (1994). OCGA § 48-5-16 (e) does not result in such an arbitrary subclassification....
...of Tax Assessors, 247 Ga. 726, 729 (2) (279 SE2d 223) (1981). Decided February 2, 1998. Philip D. Rogers, pro se. Thurbert E. Baker, Attorney General, Dearing & Klauber, James E. Dearing, Jr., Lisa F. Stuckey, Jonathan A. Weintraub, for appellee. 3. OCGA § 48-5-16 (e) has not been shown to contravene either the State or Federal Constitution, and the superior court did not err in determining that Rogers’ aircraft was subject to ad valorem taxation in DeKalb County. Judgment affirmed. All the Justices concur. OCGA § 48-5-16 (e) provides: (1) As used in this subsection, the term: (A) “Aircraft” means any contrivance used or designed for navigation through the air; provided, however, that such term does not include commercial airliners. (B) “Primary ho...