TITLE 48 REVENUE AND TAXATION

Section 6. Taxation of Intangibles, 48-6-1 through 48-6-98.

ARTICLE 1 REAL ESTATE TRANSFER TAX

48-6-2. Exemption of certain instruments, deeds, or writings from real estate transfer tax; requirement that consideration be shown.

The tax imposed by Code Section 48-6-1 shall not apply to:
1. Any instrument or writing given to secure a debt;
2. Any deed of gift;
3. Any deed, instrument, or other writing to which any of the following is a party: the United States; this state; any agency, board, commission, department, or political subdivision of either the United States or this state; any public authority; or any nonprofit public corporation;
4. Any lease of lands, tenements, standing timber, or other realty or any lease of any estate, interest, or usufruct in any lands, tenements, standing timber, or other realty;
5. Any transfer of real estate between a husband and wife in connection with a divorce case;
6. Any order for year's support awarding an interest in real property as provided in former Code Section 53-5-11 as such existed on December 31, 1997, if applicable, or Code Section 53-3-11;
7. Any deed issued in lieu of foreclosure if the deed issued in lieu of foreclosure is for a purchase money deed to secure debt that has been in existence and properly executed and recorded for a period of 12 months prior to the recording of the deed in lieu of foreclosure;
  (7.1) The deed from the debtor to the first transferee at a foreclosure sale;
8. Transfer of property which is acquired as provided in Code Sections 32-3-2 and 32-3-3;
  (8.1) Any deed that seeks to return any property sold at a tax sale back to the defendant in fi. fa.;
9. Any deed of assent or distribution by an executor, administrator, guardian, trustee, or custodian; any deed or other instrument carrying out the exercise of a power of appointment; and any other instrument transferring real estate to or from a fiduciary; provided, however, that the exemption provided under this paragraph shall apply only if the transfer is without valuable consideration;
10. Any deed, instrument, or other writing which effects a division of real property among joint tenants or tenants in common if the transaction does not involve any consideration other than the division of the property; and
11. 1. Any deed, instrument, or other writing through which real property is transferred from one or more individual owners to a corporation, partnership, or other entity if the individual owner or owners of the real property also have a majority ownership interest in the corporation, partnership, or other entity to which the property is transferred; or
  2. Any deed, instrument, or other writing through which real property is transferred from a corporation, partnership, or other entity to one or more individuals if the individual or individuals to whom the property is transferred also have a majority ownership interest in the corporation, partnership, or other entity by which the property is transferred.
In order to exercise any exemption provided in this Code section, the total consideration of the transfer for real and personal property conveyed shall be shown on the form prescribed in subsection (c) of Code Section 48-6-4.

(Ga. L. 1967, p. 788, § 3; Ga. L. 1968, p. 1102, § 1; Ga. L. 1969, p. 109, § 1; Ga. L. 1975, p. 782, § 1; Ga. L. 1976, p. 1059, § 3; Ga. L. 1977, p. 680, § 1; Code 1933, § 91A-3003, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 52A; Ga. L. 1980, p. 491, § 2; Ga. L. 1984, p. 936, § 1; Ga. L. 1991, p. 965, § 1; Ga. L. 1996, p. 736, § 1; Ga. L. 1998, p. 128, § 48; Ga. L. 2003, p. 874, § 1; Ga. L. 2006, p. 770, § 7/SB 585; Ga. L. 2011, p. 752, § 48/HB 142; Ga. L. 2015, p. 1219, § 24/HB 202.)

The 2015 amendment, effective January 1, 2016, substituted "for real and personal property conveyed shall be shown on the form prescribed in subsection (c) of Code Section 48-6-4" for "shall be shown" at the end of subsection (b).

Editor's notes.

- Ga. L. 2006, p. 770, § 8/SB 585, not codified by the General Assembly, provides the amendment by that Act shall apply to all executions transferred on or after July 1, 2006, and executions transferred prior to July 1, 2006, shall not be affected.

Law reviews.

- For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004).

JUDICIAL DECISIONS

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 its request for a refund of real estate transfer tax, paid pursuant to O.C.G.A. § 48-6-1, was denied since 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).

Cited in Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Conveyance of right of way to Department of Transportation.

- Conveyance of property as a right of way by the urban renewal agency of a city to the State Highway Department (now Department of Transportation) is not subject to the real estate transfer tax. 1969 Op. Att'y Gen. No. 69-145.

Exemption of deeds to which director of veterans service is party.

- Deeds in which the administrator of veterans affairs (now director of veterans service) is either the grantor or the grantee are not subject to taxation. 1968 Op. Att'y Gen. No. 68-72.

Exemption of deeds under power of sale by director of veterans service.

- Deeds under power of sale by the administrator of veterans affairs (now director of veterans service) as attorney-in-fact for a mortgagor who has obtained a direct loan are not subject to taxation under Ga. L. 1967, p. 788 (see now O.C.G.A. Art. 1, Ch. 6, T. 48) if the property is bid in by the administrator (now director). 1968 Op. Att'y Gen. No. 68-72.

Person holding a contract permitting 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.

RESEARCH REFERENCES

C.J.S.

- 84 C.J.S., Taxation, § 264 et seq. 85 C.J.S., Taxation, § 1815.

ALR.

- Validity of tax on land trust certificates, 100 A.L.R. 804.

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.

Gift tax, 133 A.L.R. 986; 141 A.L.R. 452; 60 A.L.R.2d 1304.

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

Presumption of consideration from revenue stamps on deed, 51 A.L.R.2d 1004.

Valuation of gift property for purposes of gift tax, 60 A.L.R.2d 1304.

Legislative power to exempt from taxation property, purposes, or uses additional to those specified in constitution, 61 A.L.R.2d 1031.

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