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2018 Georgia Code 48-8-89 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 48-8-89 Case Law from Google Scholar Amendments to OCGA 48-8-89

TITLE 48 REVENUE AND TAXATION

Section 8. Sales and Use Taxes, 48-8-1 through 48-8-278.

ARTICLE 2 JOINT COUNTY AND MUNICIPAL SALES AND USE TAX (LOST)

48-8-89. Distribution and use of proceeds; certificate specifying percentage of proceeds for each political subdivision; determination of proceeds for absent municipalities; procedure for filing certificates; effect of failure to file; renegotiation of certificate.

  1. The proceeds of the tax collected by the commissioner in each special district under this article shall be disbursed as soon as practicable after collection as follows:
    1. One percent of the amount collected shall be paid into the general fund of the state treasury in order to defray the costs of administration; and
    2. Except for the percentage provided in paragraph (1) of this subsection, the remaining proceeds of the tax shall be distributed to the governing authority of each qualified municipality within the special district and to the governing authority of the county whose geographical boundary is conterminous with that of the special district for the purpose of assisting such political subdivisions in funding all or any portion of those services which are to be provided by such governing authorities pursuant to and in accordance with Article IX, Section II, Paragraph III of the Constitution of this state.
  2. It is the intent of the General Assembly that no agreement as to the distribution of the proceeds of the tax shall enrich any political subdivision beyond a sum which in the absence of the distribution would be raised through other sources of revenue.The distribution shall be in accordance with a certificate which shall be executed in behalf of each respective governing authority, except as otherwise provided in this subsection, and which shall encompass all respective political subdivisions, shall be filed with the commissioner, and shall specify by percentage that portion of the remaining proceeds of the tax available for distribution which each such political subdivision shall receive.On or after July 1, 1995, the distribution of proceeds of the tax as specified in the certificate shall be based upon, but not be limited to, the following criteria:
    1. The service delivery responsibilities of each political subdivision to the population served by the political jurisdiction and served during normal business hours, conventions, trade shows, athletic events and the inherent value to a community of a central business district and the unincorporated areas of the county and the obligation of all residents of the county for the maintenance and prosperity of the central business district and the unincorporated areas of the county;
    2. The service delivery responsibilities of each political subdivision to the resident population of the subdivision;
    3. The existing service delivery responsibility of each political subdivision;
    4. The effect of a change in sales tax distribution on the ability of each political subdivision to meet its short-term and long-term debt;
    5. The point of sale and use which generates the tax to be apportioned;
    6. The existence of intergovernmental agreements among and between the political subdivisions;
    7. The use by any political subdivision of property taxes and other revenues from some taxpayers to subsidize the cost of services provided to other taxpayers of the levying subdivision; and
    8. Any coordinated plan of county and municipal service delivery and financing.

      Notwithstanding the fact that a certificate shall not contain an execution in behalf of one or more qualified municipalities within the special district, if the combined total of the populations of all such absent municipalities is less than one-half of the aggregate population of all qualified municipalities located within the special district, the submitting political subdivisions shall, in behalf of the absent municipalities, specify a percentage of that portion of the remaining proceeds which each such municipality shall receive, which percentage shall not be less than that proportion which each absent municipality's population bears to the total population of all qualified municipalities within the special district multiplied by that portion of the remaining proceeds which are received by all qualified municipalities within the special district.For the purpose of determining the population of the absent municipalities, only that portion of the population of each such municipality which is located within the special district shall be computed. No certificate may contain a total of specified percentages in excess of 100 percent.The certificate shall be filed with the commissioner by March 1, 1980, for those special districts in which the tax authorized by this article is being levied on January 1, 1980.For all other special districts in which the tax shall be imposed subsequent to January 1, 1980, the certificate shall be filed with the commissioner within 60 days after the tax is imposed within the district.The commissioner shall continue to distribute the proceeds of the tax as otherwise provided in this Code section until the first day of the next calendar year following the month in which the commissioner receives a certificate as provided in this Code section, which certificate shall provide other percentages upon which the commissioner shall make the distribution to the political subdivisions entitled to the proceeds of the tax.At such time, the commissioner shall thereafter distribute the proceeds of the tax in accordance with the directions of the certificate.

  3. If the certificate provided for in subsection (b) of this Code section is not received by the commissioner by the required date, the authority to impose the tax authorized by Code Section 48-8-82 shall cease on the first day of the second calendar month following the month in which the tax was initially imposed and the tax shall not be levied in the special district after such date unless the reimposition of the tax is subsequently authorized pursuant to Code Section 48-8-85. When the imposition of the tax is so terminated, the commissioner shall retain the proceeds of the tax which were to be distributed to the governing authorities of the county and qualified municipalities within the special district until he receives a certificate in behalf of each such governing authority specifying the percentage of the proceeds which each such governing authority shall receive. If no such certificate is received by the commissioner within 120 days of the date on which the authority to levy the tax was terminated, the proceeds shall escheat to the state and the commissioner shall transfer the proceeds to the state's general fund.
    1. A certificate providing for the distribution of the proceeds of the tax authorized by this article shall expire on December 31 of the second year following the year in which the decennial census is conducted. No later than December 30 of the second year following the year in which the census is conducted, a new distribution certificate meeting the requirements for certificates specified by subsection (b) of this Code section shall be filed with and received by the commissioner. The General Assembly recognizes that the requirement for government services is not always in direct correlation with population. Although a new distribution certificate is required within a time certain of the decennial census, this requirement is not meant to convey an intent by the General Assembly that population as a criterion should be more heavily weighted than other criteria. It is the express intent of the General Assembly in requiring such renegotiation that eligible political subdivisions shall analyze local service delivery responsibilities and the existing allocation of proceeds made available to such governments under the provisions of this article and make rational the allocation of such resources to meet such service delivery responsibilities. Political subdivisions in their renegotiation of such distributions shall at a minimum consider the criteria specified in subsection (b) of this Code section.
    2. The commissioner shall be notified in writing of the commencement of renegotiation proceedings by the county governing authority on behalf of all eligible political subdivisions within the special district. The eligible political subdivisions shall commence renegotiations at the call of the county governing authority before July 1 of the second year following the year in which the census is conducted. If the county governing authority does not issue the call by that date, any eligible municipality may issue the call and so notify the commissioner and all eligible political subdivisions within the special district.
    3. Following the commencement of such renegotiation, if the parties necessary to an agreement fail to reach an agreement within 60 days, such parties shall submit the dispute to nonbinding arbitration, mediation, or such other means of resolving conflicts in a manner which attempts to reach a resolution of the dispute. Any renegotiation agreement reached pursuant to this paragraph shall be in accordance with the requirements specified in paragraph (1) of this subsection.
    4. Reserved.
    5. If a new distribution certificate as provided for in this Code section is not received by the commissioner, the authority to impose the tax authorized by Code Section 48-8-82 shall cease, and the tax shall not be levied in the special district after such date unless the reimposition of the tax is subsequently authorized pursuant to Code Section 48-8-85. When the imposition of the tax is so terminated, the commissioner shall retain the proceeds of the tax which were to be distributed to the governing authorities of the county and qualified municipalities within the special district until the commissioner receives a certificate on behalf of each such governing authority specifying the percentage of the proceeds which each such governing authority shall receive. If no such certificate is received by the commissioner within 120 days of the date on which the authority to levy the tax was terminated, the proceeds shall escheat to the state, and the commissioner shall transfer the proceeds to the state's general fund.
    6. If the commissioner receives a new distribution certificate by the required date, the commissioner shall distribute the proceeds of the tax in accordance with the directions of the new distribution certificate commencing on January 1 of the year immediately following the year in which such certificate was executed by the parties or the judge or the first day of the second calendar month following the month such certificate was executed by the parties or the judge, whichever is sooner.
    7. Costs of any conflict resolution under paragraph (3) or (4) of this subsection shall be borne proportionately by the affected political subdivisions in accordance with the final percentage distributions of the proceeds of the tax as reflected by the new distribution certificate.
    8. Political subdivisions shall be authorized, at their option, to renegotiate distribution certificates on a more frequent basis than is otherwise required under this subsection.
    9. No provision of this subsection shall apply to any county which is authorized to levy or which levies a local sales tax, local use tax, or local sales and use tax for educational purposes pursuant to a local constitutional amendment or to any county which is authorized to expend all or any portion of the proceeds of any sales tax, use tax, or sales and use tax for educational purposes pursuant to a local constitutional amendment.

(Ga. L. 1975, p. 984, § 2; Ga. L. 1976, p. 1019, § 2; Code 1933, § 91A-4606, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 446, § 1; Code 1933, § 91A-4608, enacted by Ga. L. 1979, p. 446, § 2; Ga. L. 1983, p. 3, § 64; Ga. L. 1994, p. 1816, §§ 1, 2; Ga. L. 2010, p. 958, § 1/HB 991; Ga. L. 2014, p. 840, § 2/HB 719; Ga. L. 2014, p. 866, § 48/SB 340.)

Law reviews.

- For annual survey on local government law, see 66 Mercer L. Rev. 135 (2014).

JUDICIAL DECISIONS

All qualified municipalities share proportionally in sales and use tax proceeds.

- General Assembly intended that all qualified municipalities share proportionally in the proceeds of the sales and use tax approved and paid for by the municipalities' citizens. City of Winder v. Collins, 259 Ga. 570, 385 S.E.2d 71 (1989).

2010 amendment to O.C.G.A.

§ 48-8-89(d)(4) violates separation of powers doctrine. - To the extent the 2010 amendment to the Local Option Sales Tax Act (LOST), O.C.G.A. § 48-8-89(d)(4), permits judicial resolution of the issue of whether LOST should be renewed and the governing bodies of the special district should be required to levy and collect the tax, the amendment violates the separation of powers doctrine of Ga. Const. 1983, Art. I, Sec II, Para. III. Turner County v. City of Ashburn, 293 Ga. 739, 749 S.E.2d 685 (2013).

Georgia Supreme Court is not invalidating the tax and not striking the Local Option Sales Tax Act, O.C.G.A. § 48-8-80 et seq., or the statute's terms for how the tax may be levied or for what purposes the proceeds may be applied; rather, the Court is striking only the 2010 amendment, O.C.G.A. § 48-8-89(d)(4), which effectively grants judicial resolution of the allocation and distribution of tax proceeds, a process that the Court deems to be a clear violation of the separation of powers doctrine. Turner County v. City of Ashburn, 293 Ga. 739, 749 S.E.2d 685 (2013).

Trial court erred when the court denied a county's motion to dismiss and sustained the constitutionality of the 2010 amendment to the Local Option Sales Tax Act (LOST), O.C.G.A. § 48-8-89(d)(4), because the 2010 amendment, which effectively grants judicial resolution of the allocation and distribution of tax proceeds, was deemed to be a clear violation of the separation of powers doctrine by the Georgia Supreme Court. Turner County v. City of Ashburn, 293 Ga. 739, 749 S.E.2d 685 (2013).

There is no constitutional requirement that local option sales tax revenues be used for educational purposes. Salem v. Tattnall County, 250 Ga. 881, 302 S.E.2d 99 (1983).

Only the portion of a city's population that resides within the special tax district is included when calculating a municipality's pro rata share of the local option sales tax proceeds in that district. City of Atlanta v. Collins, 262 Ga. 261, 417 S.E.2d 141 (1992).

Use of local option sales tax proceeds to reduce county-wide millage rate.

- When a county creates a special service tax district which consists of the unincorporated area of the county, and it levies a special service district tax on property located therein, it may use its proceeds from the local option sales tax (O.C.G.A. § 48-8-80 et seq.) to reduce the millage rate of the general maintenance and operation tax which is levied county-wide (i.e., is levied on property located in municipalities in the county and in the unincorporated area), and not just to reduce the millage rate in the special service tax district. Nielubowicz v. Chatham County, 252 Ga. 330, 312 S.E.2d 802 (1984).

Distribution plan could not be imposed.

- When one city within a special tax district chose to be treated as an absent municipality, neither the revenue department nor the trial court had authority to impose a distribution plan on the county and cities. Jackson v. City of College Park, 230 Ga. App. 487, 496 S.E.2d 777 (1998).

Effective date for a new distribution formula for local option sales tax, when a minority municipality requests treatment as an absent municipality, is January 1 of the next calendar year, whether the county's political subdivisions file a distribution certificate or the commissioner institutes a new distribution formula that includes an absent municipality. City of Roswell v. City of Atlanta, 261 Ga. 657, 410 S.E.2d 28 (1991).

Effective date for a replacement certificate shall be January 1 following the month when the governing authorities file a distribution certificate with the commissioner or the commissioner institutes a new distribution formula after notifying the county that a minority municipality elects absent municipality status. City of Roswell v. City of Atlanta, 261 Ga. 657, 410 S.E.2d 28 (1991).

Cited in City of Union Point v. Greene County, 303 Ga. 449, 812 S.E.2d 278 (2018).

OPINIONS OF THE ATTORNEY GENERAL

Neither initial nor replacement certificates expire, whether or not the certificates carry expiration dates, assuming, that the tax itself has not been discontinued pursuant to Ga. L. 1979, p. 446, § 2 (see now O.C.G.A. § 48-8-80 et seq.). 1980 Op. Att'y Gen. No. 80-46 (issued prior to the 1994 addition of subsection (d), which provides for expiration of distribution certificates).

Replacement certificates may be filed at any time after the filing of an initial certificate, and replacement certificates always take effect on the January 1 next succeeding the date the replacement certificate is filed. 1980 Op. Att'y Gen. No. 80-46 (issued prior to the 1994 addition of subsection (d), which provides for expiration of distribution certificates).

Percentage of local option sales and use tax to absent municipality.

- Absent municipality cannot be forced under O.C.G.A. § 48-8-89 to accept a smaller percentage of the local option sales and use tax proceeds distributed to all qualified municipalities in the county than the percentage the absent municipality's population is of the total population of all such qualified municipalities, regardless of whether that distribution is pursuant to a negotiated certificate or is based instead on an order by a superior court judge when the necessary parties are unable to agree. 2012 Op. Att'y Gen. No. U12-1.

RESEARCH REFERENCES

C.J.S.

- 20 C.J.S., Counties, § 382 et seq. 64A C.J.S., Municipal Corporations, § 2495 et seq.

Cases Citing Georgia Code 48-8-89 From Courtlistener.com

Total Results: 8

City of Union Point v. Greene Cnty.

Court: Supreme Court of Georgia | Date Filed: 2018-03-15

Citation: 812 S.E.2d 278

Snippet: the Local Option Sales Tax Act, former OCGA § 48-8-89 (d) (4), violated the "separation of powers doctrine

Turner County v. City of Ashburn

Court: Supreme Court of Georgia | Date Filed: 2013-10-07

Citation: 293 Ga. 739, 749 S.E.2d 685, 2013 Ga. LEXIS 856

Snippet: in accordance with criteria set forth in OCGA § 48-8-89 (b), based in part upon population distribution

Wells v. City of Baldwin

Court: Supreme Court of Georgia | Date Filed: 2002-05-13

Citation: 275 Ga. 228, 565 S.E.2d 439, 2002 Fulton County D. Rep. 1400, 2002 Ga. LEXIS 380

Snippet: which lies within a special district. See OCGA § 48-8-89.3 (d), which provides that “[flor the purpose of

City of Atlanta v. Collins

Court: Supreme Court of Georgia | Date Filed: 1992-06-11

Citation: 417 S.E.2d 141, 262 Ga. 261, 92 Fulton County D. Rep. 927, 1992 Ga. LEXIS 437

Snippet: municipalities within the special district. OCGA § 48-8-89 (b). Under this formula, absent municipalities

City of Roswell v. City of Atlanta

Court: Supreme Court of Georgia | Date Filed: 1991-11-01

Citation: 410 S.E.2d 28, 261 Ga. 657, 1991 Ga. LEXIS 852

Snippet: distribution formula on the grounds that OCGA § 48-8-89 requires the formula to change on January 1, 1992

City of Winder v. Collins

Court: Supreme Court of Georgia | Date Filed: 1989-10-19

Citation: 385 S.E.2d 71, 259 Ga. 570

Snippet: can elect to be an “absent municipality.” OCGA § 48-8-89 (b). The political subdivisions that submit the

Nielubowicz v. Chatham County

Court: Supreme Court of Georgia | Date Filed: 1984-03-07

Citation: 312 S.E.2d 802, 252 Ga. 330, 1984 Ga. LEXIS 677

Snippet: Const. 1976 (Code Ann. § 2-6102)), and OCGA § 48-8-89 (a) (2) (Code Ann. § 91A-4608), to use the proceeds

Salem v. Tattnall County

Court: Supreme Court of Georgia | Date Filed: 1983-05-03

Citation: 302 S.E.2d 99, 250 Ga. 881, 1983 Ga. LEXIS 681

Snippet: tax), be used for educational purposes. OCGA § 48-8-89 (a) (Code Ann. § 91A-4608) allows this tax income