O.C.G.A. § 48-9-8 (2019)

Annotations

Code Commission notes. Pursuant to Code Section 28-9-5, in 1985, “is exempt” was substituted for “are exempt” in subsection (c). Pursuant to Code Section 28-9-5, in 1986, a hyphen was inserted in “prima facie” in the second sentence of paragraph (a)(2) and “ultimate” was substituted for “utlimate” in the second sentence of division (b)(7)(B)(i).

Pursuant to Code Section 28-9-5, in 2022, “March 18, 2022” was substituted for “the effective date of this paragraph” in paragraph (b)(12). Editor’s notes. Ga. L. 2015, p. 236, § 9-1(b)/HB 170, 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 Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act.” This Act became effective July 1, 2015. Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Transportation Funding Act of 2015.’” Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: “It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state.” Law reviews. For article, “Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government,” see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015).

JUDICIAL DECISIONS Section is constitutional. Road Bldrs., Inc. v. Hawes, 228 Ga. 608, 187 S.E.2d 287, 1972 Ga. LEXIS 862 (1972). Classification for taxation of distributors of motor fuels is not arbitrary, unreasonable, or unnatural because the classification seeks to place in the same class and tax under one head distributors of motor fuel engaged in business as an occupation and for profit, and a political subdivision of the state not engaged in business, which uses such fuels for a purely governmental purpose. Wright v. Fulton County, 169 Ga. 354, 150 S.E. 262, 1929 Ga. LEXIS 356 (1929). Intent and purpose. - It is manifest from the terms of this section that the General Assembly did not intend to impose motor fuel tax on fuels if those fuels were neither sold for use nor used in the propulsion of motor vehicles on the public highways. The scheme of former Code 1933, Ch. 92-14 afforded to the distributor, the dealer, and the ultimate consumer the means of ascertaining the taxability or nontaxability of such motor fuels, the means of reporting the sales and paying the tax, or claiming the exemption, and when the exemption is drawn in question, of proving the exemption. Undercofler v. Standard Oil Co., 111 Ga. App. 592, 142 S.E.2d 298, 1965 Ga. App. LEXIS 1033 (1965). Local sales and use taxes separate and distinct and not motor fuel taxes. - Trial court did not err in dismissing the plaintiffs’ complaint that local sales and use taxes on motor fuels were not allocated to the maintenance and construction of public roads and bridges as the Motor Fuel Provision revealed that motor fuel taxes were limited to per-gallon taxes on distributors of motor fuel, and did not include sales and use taxes imposed on retail sales of motor fuels because the local sales and use taxes authorized by Ga. L. 2015, pp. 236, 241-264, §§ 5-8 (HB 170) were separate and distinct from the taxes on distributors and were not “motor fuel taxes” as that term was used in the Motor Fuel Provision; and, as a result, the defendants had no duty to appropriate for public

roads an amount of revenue equal to the proceeds from local sales and use taxes. Ga. Motor Trucking Ass’n v. Georgia Dep’t of Revenue, 301 Ga. 354, 801 S.E.2d 9, 2017 Ga. LEXIS 457 (2017). Consumer may personally acquire a distributor’s license. - This serves to release the dealer from responsibility for the payment of motor fuel taxes while at the same time assuring the consumer that the consumer need pay taxes only on that portion of fuel relegated to highway uses. Scott v. Blackmon, 132 Ga. App. 578, 208 S.E.2d 589, 1974 Ga. App. LEXIS 1748 (1974). Tax assessments are made when one has the potential for highway use, that is, whether one owns or operates a vehicle capable of highway use at the time of the sale. Scott v. Blackmon, 132 Ga. App. 578, 208 S.E.2d 589, 1974 Ga. App. LEXIS 1748 (1974). Tax not part of retail sales price for sales and use tax purposes. - Tax imposed by this section is upon the incident of the sale to the consumer and should not be included as a part of the retail sales price for calculating the sales and use tax. State v. Thoni Oil Magic Benzol Gas Stations, Inc., 121 Ga. App. 454, 174 S.E.2d 224, 1970 Ga. App. LEXIS 1252, aff’d, 226 Ga. 883, 178 S.E.2d 173, 1970 Ga. LEXIS 724 (1970). Municipal tax based on storage capacity violates section. - Under the provision prohibiting municipalities from the levy of any fee, license, privilege, or excise tax or taxes upon the sale, purchase, storage, receipt, distribution, use, consumption, or other disposition of motor fuel, but not proscribing the levying by municipalities of reasonable license fees or taxes upon the business of selling motor fuel, a license and tax ordinance imposing graduated taxes on gasoline stations having storage capacities within various limits is void, since, although clothed in the language of merely imposing a tax on the gasoline storage capacity of filling stations, its necessary effect was to tax the storage of the fuel itself; and consequently to impose a prohibited additional tax on the

commodity itself. Southern Oil Stores, Inc. v. City of Macon, 188 Ga. 544, 4 S.E.2d 243, 1939 Ga. LEXIS 578 (1939). Exemption of instrumentalities of United States government. - Federal Land Bank and other corporations composing the Farm Credit Administration of Columbia are instrumentalities of the United States government, within the meaning of this

section, and by the express terms of this section no tax is levied in respect to sale of gasoline made to them. An action for injunction brought by such corporations against the commissioner states a cause of action, and should not have been dismissed on demurrer (now motion to dismiss). Federal Land Bank v. Forrester, 192 Ga. 446, 15 S.E.2d 517, 1941 Ga. LEXIS 484 (1941).

OPINIONS OF THE ATTORNEY GENERAL American National Red Cross was not liable for the second motor fuel tax on its purchases of motor fuel because it was a federal instrumentality for purposes of immunity from state taxation; and former Code 1933, § 92-1420 imposing the tax adopted the exemption of the original Motor Fuel Tax Act under former Code 1933, § 92-1403 for sales of motor fuel to the United States. 1980 Op. Att’y Gen. No. 80-28. So-called “economy” gasolines are taxed in the same manner as other grades of gasoline and the fact that those gasolines are sold at a lower rate to the consumer would not affect the eligibility for refund of the tax when other refund conditions are met. 1962 Ga. Op. Att’y Gen. 518. No exemption for motor fuel purchased with funds appropriated by the federal government for use of

the Georgia National Guard since the fuel is not paid for by the United States. 1963-65 Ga. Op. Att’y Gen. 92. Municipalities are not exempt from the tax on motor fuel. 1950-51 Ga. Op. Att’y Gen. 188. Municipal corporation is not exempt from payment of the motor fuel tax. 1945-47 Ga. Op. Att’y Gen. 583. Proof by aviation gasoline distributors of refund claims. - Refunds may be made to the distributor when satisfactory proof submitted by the distributor that aviation gasoline for which refund is claimed was sold to the ultimate consumer. Such refunds may be refused when the accounting records of the distributor are not maintained in such manner as will readily permit verification of claims for refund by the commissioner’s field auditors. 1962 Ga. Op. Att’y Gen. 492.

RESEARCH REFERENCES Am. Jur. 2d. 71 Am. Jur. 2d, State and Local Taxation, §§ 23 et seq., 33 et seq., 501 et seq. C.J.S. 53 C.J.S., Licenses, §§ 5, 56, 57. ALR. Municipal tax imposed upon or measured by sales of gasoline of one conducting business within city limits as payable in respect of sales or deliveries beyond city limits, 106 A.L.R. 1332. Validity of privilege tax as applied to

contractor performing contract with federal government, 114 A.L.R. 347. Tax exemptions and the contract clause, 173 A.L.R. 15. Legislative power to exempt from taxation property, purposes, or uses additional to those specified in Constitution, 61 A.L.R.2d 1031. What constitutes a sale “at retail” within federal retailers’ excise tax statute (26 USC (IRC 1954) chap 31), 93 A.L.R.2d 1120.