O.C.G.A. § 48-8-38 (2019)
Burden of proof on seller as to taxability; certificate that property purchased for resale; proof of claimed exemption
(a) All gross sales of a retailer are subject to the tax imposed by this article until the contrary is established. The burden of proving that a sale of tangible personal property is not a sale at retail shall be upon the person who makes the sale unless such person, in good faith, takes from the purchaser a certificate stating that the property is purchased for resale or is otherwise tax exempt.
(b) The certificate relieves the seller from the burden of proof as provided in subsection (a) of this Code section if the seller acquires from the purchaser a properly completed certificate taken in good faith. A properly completed certificate taken in good faith means a seller shall obtain a certificate:
(1) That is fully completed, including, but not limited to, the name, address, sales tax number, and signature of the taxpayer when required;
(2) In a form appropriate for the type of exemption claimed;
(3) Claiming an exemption that was statutorily available on the date of the transaction in the jurisdiction where the transaction is sourced;
(4) Claiming an exemption that could be applicable to the item being purchased; and
(5) Claiming an exemption that is reasonable for the purchaser’s type of business.
(c) The certificate relieves the seller from the burden of proof on sales for resale as provided in subsection (a) of this Code section if the seller acquires from the purchaser a properly completed certificate, taken in good faith, from a purchaser who:
(1) Is engaged in the business of selling tangible personal property;
(2) Has a valid sales tax registration number at the time of purchase and has listed his or her sales tax number on the certificate; and
(3) At the time of purchasing the tangible personal property, the seller has no reason to believe that the purchaser does not intend to resell it in his or her regular course of business.
(d) The certificate shall include such information as is determined by the commissioner and is signed by the purchaser if it is a paper exemption certificate.
(e) A seller shall obtain the same information for proof of a claimed exemption regardless of the medium in which the transaction occurred.
(f) A sale of any specified digital product, other digital good, or digital code shall be considered a sale for resale if the specified digital product, other digital good, or digital code is subsequently sold, licensed, leased, broadcast, transmitted, or distributed, in whole or in part, as an integral, inseparable component part of a service or another such product, good, or code by the purchaser of the specified digital product, other digital good, or digital code to an ultimate consumer. The purchaser of the specified digital product, other digital good, or digital code for resale shall maintain records that substantiate such resale in a manner consistent with this subsection, as determined by the commissioner.
History
Ga. L. 1951, p. 360, §§ 5-7; Code 1933, § 91A-4507, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 94; Ga. L. 2010, p. 662, § 10/HB 1221; Ga. L. 2011, p. 38, § 5/HB 168; Ga. L. 2013, p. 7, § 6/HB 266; Ga. L. 2023, p. 335, § 3-4/SB 56, effective January 1, 2024. Amendments. The 2023 amendment, effective January 1, 2024, added subsection (f).
Annotations
Editor’s notes. Ga. L. 2023, p. 335, § 4-1(a)/SB 56, not codified by the General Assembly,
provides, in part, that the amendment of this Code section by that Act become effective on January 1, 2024, and shall be applicable to transactions occurring on or after January 1, 2024. Ga. L. 2023, p. 335, § 4-1(b)/SB 56, not codified by the General Assembly, provides: “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 Title 48 of the Official Code of Georgia Annotated as they existed for such prior taxable years.”
OPINIONS OF THE ATTORNEY GENERAL Section applies to sales to nonprofit organizations. - Nonprofit organizations are not, because of their status as such, exempt from sales and use taxes. When the organization is not
registered with the commissioner as a dealer, one who sells to the nonprofit organization must collect the tax. 1971 Op. Att’y Gen. No. U71-143.
RESEARCH REFERENCES Am. Jur. 2d. 67B Am. Jur. 2d, Sales and Use Taxes, § 209. ALR. Burden of proof as to amount for which
dealer is liable under sales tax or tax based on amount sold or offered for sale, 39 A.L.R. 273. Reusable soft drink bottles as subject to sales or use taxes, 97 A.L.R.3d 1205.