O.C.G.A. § 48-7-126 (2019)
The penalty imposed by this subsection shall be paid upon notice and demand by the commissioner or the commissioner’s delegate and shall be assessed and collected in the same manner as the withholding tax imposed by this article
(e)(1) Notwithstanding subsection (a) of this Code section, a partnership, Subchapter “S” corporation, or limited liability company shall not be required to deduct and withhold tax for a nonresident member if:
(A) A composite return is filed on behalf of nonresident members pursuant to the requirements of filing such composite returns as set by the commissioner;
(B) The aggregate amount of a nonresident member’s share of the taxable income sourced to this state is less than $1,000.00;
(C) A federally chartered Subchapter “S” corporation fails to meet the requirements of subparagraph (b)(7)(B) of Code Section 48-7-21 and is therefore required to remit corporate income tax;
(D) Compliance will cause undue hardship on the partnership, Subchapter “S” corporation, or limited liability company, provided that no partnership, Subchapter “S” corporation, or limited liability company shall be exempt from complying with the withholding requirements imposed under subsection (a) of this Code section unless the commissioner approves in writing a written petition for exemption from the withholding requirements based on undue hardship. The commissioner may prescribe the form and contents of such a petition and specify standards for when a partnership, Subchapter “S” corporation, or limited liability company shall not be required to comply with the withholding requirements due to undue hardship;
(E) The partnership is a publicly traded partnership as defined in Section 7704 of the Internal Revenue Code of 1986; or
(F) The member meets one of the exceptions as set forth in the rules and regulations promulgated by the commissioner.
(2) Where a nonresident member’s share of the taxable income sourced to this state is subject to withholding under other provisions of Georgia law, such amount shall not be subject to withholding under subsection (a) of this Code section. (e.1) This Code section shall not apply to electing Subchapter “S” corporations as defined in paragraph (7) of subsection (b) of Code Section 48-7-21 and electing partnerships as defined in paragraph (1) of subsection (b) of Code Section 48-7-23.
(f) The commissioner shall be authorized to prescribe forms and to promulgate rules and regulations which the commissioner deems necessary in order to effectuate this Code section.
History
Code 1981, § 48-7-129, enacted by Ga. L. 1993, p. 597, § 3; Ga. L. 1997, p. 450, § 3; Ga. L. 2008, p. 898, § 12/HB 1151; Ga. L. 2012, p. 796, § 2/HB 965; Ga. L. 2021, p. 277, § 6/HB 149.
Annotations
Code Commission notes. Pursuant to Code Section 28-9-5, in 1993, the Code Section 48-7-128 enacted by Ga. L. 1993, p. 597, § 3, was redesignated as Code Section 48-7-129, since Ga. L. 1993, p. 768, § 2, also enacted a Code Section 48-7-128. Editor’s notes. Ga. L. 1993, p. 597, § 4, not codified by the General Assembly, makes this Code section applicable with respect to any distribution paid or credited after January 1, 1994. Ga. L. 1997, p. 450, § 4, not codified by the General Assembly, makes the 1997 amendment to this Code section applicable to all taxable years beginning on or after January 1, 1997. Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly,
provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008. Ga. L. 2012, p. 796, § 3/HB 965, not codified by the General Assembly, provides that the 2012 amendment shall be applicable to all taxable years beginning on or after January 1, 2012. Ga. L. 2021, p. 277, § 7/HB 149, not codified by the General Assembly, provides, in part, that: “This Act shall be applicable to all taxable years beginning on or after January 1, 2022.” Law reviews. For note on the 1993 enactment of this Code section, see 10 Georgia St. U.L. Rev. 218 (1993). For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 271 (1997). For article, “Post-Creation Checklist for Georgia Business Entities,” see 9 Ga. St. B. J. 24 (2004). For annual survey on state and local taxation, see 3 Mercer L. Rev. 231 (2022).
RESEARCH REFERENCES ALR. State
income
tax
treatment
of
S
corporations and their shareholders, 118 A.L.R.5th 597.
ARTICLE 6 LOCAL INCOME TAXES Editor’s notes. Ga. L. 2010, p. 156, § 1/HB 984, effective May 20, 2010, repealed the Code sections formerly codified at this article and enacted the current article. The former article consisted of Code Sections 48-7-140 through 48-7-149, relating to local income taxes, and was based on Code 1933, §§ 91A-4001 - 91A-4010, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1974, p. 506, §§ 1-5, 7-9, 11; Ga. L. 1995, p. 714, § 3. Ga. L. 2010, p. 156, § 3(b)/HB 984, not codified by the General Assembly, provides that: “Tax, penalty, and interest liabilities and refund eligibility for prior
taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of general law as it existed immediately prior to the effective date of this Act.” This Act became effective May 20, 2010. Ga. L. 2010, p. 156, § 3(c)/HB 984, not codified by the General Assembly, provides that: “This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of this Act.” This Act became effective May 20, 2010.