O.C.G.A. § 48-6-1 (2019)

Annotations

Editor’s notes. The 1998 amendment was contingent on approval of the constitutional amendment (Ga. L. 1998, p. 1684) creating the Land, Water, Wildlife, and Recreation Heritage Fund which was defeated at the November, 1998, general election and was not given effect. Administrative rules and regulations. Substantive Regulations, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of

Department of Revenue, Local Government Services Division, Rule 560-11-2-.01 et seq. Intangible recording tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-8. Law reviews. For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).

JUDICIAL DECISIONS Nature of tax. - Intangible tax imposed by O.C.G.A. § 48-6-61 is analogous to the real estate transfer tax imposed by O.C.G.A. § 48-6-1, both being based on increments in the value of the instrument being recorded and being calculated in the same manner. Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512 S.E.2d 378. Real estate tax is an excise tax on transactions involving the sale of property. Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512 S.E.2d 378. Because Georgia’s ad valorem taxation scheme is contained in its own chapter, entirely separate from the chapter that describes the real estate transfer tax, the definition of taxable property in O.C.G.A. § 48-5-3 did not support an argument regarding the nature of the transfer tax in O.C.G.A. § 48-6-1 et seq. Athens-Clarke County Unified Gov’t v. Fed. Hous. Fin.

Agency, 945 F. Supp. 2d 1401, 2013 U.S. Dist. LEXIS 68225 (M.D. Ga. 2013), aff’d, 776 F.3d 1247, 2015 U.S. App. LEXIS 705 (11th Cir. 2015). Recordation of deed and effect as notice when tax not paid. - Warranty deed which shows on the deed’s face both that the deed was for a consideration in excess of $100.00, and that no tax has been paid is not entitled to be recorded nor can such a deed serve as constructive notice to a later buyer. Higdon v. Gates, 238 Ga. 105, 231 S.E.2d 345, 1976 Ga. LEXIS 1116 (1976). Municipal Electric Authority of Georgia is exempt from the transfer tax imposed by this statute. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720, 1976 Ga. LEXIS 1077 (1976). Florida public authority not entitled to exemption. - Florida public authority’s action under O.C.G.A.

§ 48-6-7(b), protesting the denial by the Revenue Commissioner of the State of Georgia of the authority’s request for a refund of real estate transfer tax, paid pursuant to O.C.G.A. § 48-6-1, was denied when it was found that the exemption provided in O.C.G.A. § 48-6-2(a)(3) did not apply to the out-of-state public authority; the commissioner’s determination that the exemption did not apply to such an entity was entitled to deference pursuant to the principles of O.C.G.A. § 48-2-12. Hicks v. Fla. State Bd. of Admin., 265 Ga. App. 545, 594 S.E.2d 745, 2004 Ga. App. LEXIS 179 (2004). Federal mortgage companies exempt. - Exemptions from state taxation in 12 U.S.C. §§ 1452(e), 1723a(c)(2), and 4617(j)(2) apply to specific entities, not property, and include

excise taxes; thus, imposition of Georgia’s real estate transfer tax, O.C.G.A. § 48-6-1 et seq., on these federal mortgage companies’ real estate transactions in Georgia was precluded. Athens-Clarke County Unified Gov’t v. Fed. Hous. Fin. Agency, 945 F. Supp. 2d 1401, 2013 U.S. Dist. LEXIS 68225 (M.D. Ga. 2013), aff’d, 776 F.3d 1247, 2015 U.S. App. LEXIS 705 (11th Cir. 2015). Exemption of Fannie Mae, Freddie Mac, and the Federal Housing Finance Agency from “all taxation” applies to Georgia’s real estate transfer tax and the exception allowing taxation of real property does not extend to transfer taxes, which are excise taxes and not taxes imposed on the property itself. Montgomery County Comm’n v. Fed. Hous. Fin. Agency, 776 F.3d 1247, 2015 U.S. App. LEXIS 705 (11th Cir. 2015).

OPINIONS OF THE ATTORNEY GENERAL Conveyances pursuant to AT&T divestiture. - Conveyances of real estate from Southern Bell to Southern States, Southeast, and AT&T Information Systems, Inc. in connection with the divestiture of AT&T are subject to the Georgia real estate transfer tax. 1983 Op. Att’y Gen. No. 83-81. Easements acquired by public utilities through condemnation. - Real estate transfer tax applies to easements acquired by public utilities through condemnation. 1998 Op. Att’y Gen. No. 98-19. Exemption of transactions to which political subdivision is party. - Statute does not specifically impose a tax on transactions in which a political subdivision is a party. Accordingly, when a political subdivision is a party, it is not subject to the transfer tax. The other party is not subject to the tax on the transaction since, when the party primarily liable for the tax is not subject to it, the tax cannot be imposed on the party secondarily liable. 1968 Op. Att’y Gen. No. 68-65. National banks, regardless of the location of their principal offices, are subject to the documentary tax imposed by Ga. L. 1967, p. 788 (see now O.C.G.A.

Art. 1, Ch. 6, T. 48). 1970 Op. Att’y Gen. No. 70-52. Foreclosure is a sale and is subject to the transfer tax. 1968 Op. Att’y Gen. No. 68-67. Deed given in lieu of foreclosure is a sale. - Transaction involving a deed from a mortgagor to a mortgagee in lieu of foreclosure is subject to Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48). 1968 Op. Att’y Gen. No. 68-89. Deed from the administrator of an intestate estate to the heirs of the intestate is not a taxable transfer under Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48). 1969 Op. Att’y Gen. No. 69-225. Deed of gift. - Statute applies only to realty sold, and a deed of gift is not a sale. 1968 Op. Att’y Gen. No. 68-67. Estate for years. - Real estate transfer tax is applicable to conveyance of an estate for years. 1968 Op. Att’y Gen. No. 68-474. Lease may be subject to the transfer tax when the lease may be construed to convey an interest in realty. 1968 Op. Att’y Gen. No. 68-157. Person holding a contract permitting the person to cut and remove timber during a stated period

is obligated to pay ad valorem taxes on the standing timber as the person’s interest therein may appear on January 1 of the tax year. A contract to remove timber is in the nature of a deed rather than a lease. 1973 Op. Att’y Gen. No. U73-96. Cemetery deed not taxable. - Cemetery deed for interment rights is only an easement in the soil for the purpose of the grant. Since an easement in land is a mere license and does not convey an interest in land, no land has been sold and no real estate transfer tax is due. 1968 Op. Att’y Gen. No. 68-78. Exchange of corporate stocks. - Tax is due when stock of one corporation is

exchanged for property of another, even when both are owned by the same people. 1969 Op. Att’y Gen. No. 69-515. When promissory note secured by deed is an encumbrance existing at time of sale. - Promissory note secured by a deed to secure debt given as part of the consideration in a sale of real estate is a lien or encumbrance remaining on the property at the time of sale within the meaning of this statute, when such promissory note and deed to secure debt are executed and delivered prior to the delivery of the warranty deed by the vendor to the purchaser. 1968 Op. Att’y Gen. No. 68-203.

RESEARCH REFERENCES ALR. Discrimination between notes or obligations secured by real estate

mortgage, and those unsecured, as regards property taxation or exemption therefrom, 129 A.L.R. 682.