(Ga. L. 1960, p. 210, §§ 1, 2; Code 1933, § 91A-251, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 6; Ga. L. 2001, p. 984, § 1.)
Law reviews.- For article, "2014 Georgia Corporation and Business Organization Case Law Developments," see 20 Ga. St. B. J. 26 (April 2015). For note on the 2001 amendment to this Code section, see 18 Ga. St. U. L. Rev. 294 (2001).
JUDICIAL DECISIONS
Dealers are within scope of section.
- Since an officer or employee may also be a dealer, as defined in Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3), it is clear that a dealer can violate Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52), though by definition only if the dealer is also an officer or employee in charge. Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979).
"Willful" construed.
- "Willful" as here used does not carry with it connotations of bad motives, fraud, or an intent to deprive the state of the state's tax claim. All that this statute requires is that the preference in favor of other creditors be made voluntarily with knowledge of the existence of the valid tax claim. Blackmon v. Mazo, 125 Ga. App. 193, 186 S.E.2d 889 (1971).
Subsequent conduct relevant in determining willfulness.
- While a defendant's subsequent attempts at payment of sales taxes cannot eradicate past willful failure to report and remit sales taxes, subsequent conduct may be relevant in determining whether such failure was willful in the first instance. Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979).
When liability for sales taxes attaches.
- Liability attaches upon the failure to pay the sales taxes imposed under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) at the time such taxes are due. Liability attaches upon the defendant's failure, if willful, to report or remit taxes, and not upon the defendant's receipt of notice and demand for payment. Bunge v. State, 149 Ga. App. 712, 256 S.E.2d 23 (1979).
Right to recoup taxes forfeited.
- Superior court did not err in reversing the decision of the Georgia Department of Revenue that a corporate officer was liable for a restaurant's sales and use taxes pursuant to O.C.G.A. § 48-2-52 because the release of and refund payment to the majority owner of the restaurant operated as a release of the officer; under O.C.G.A. § 13-1-13, by voluntarily paying the owner a settlement amount with full awareness of any potential joint claim the department had against the officer, the department forfeited any right the department had to recoup from the officer the payment the department made to the owner. Ga. Dep't of Revenue v. Moore, 317 Ga. App. 31, 730 S.E.2d 671 (2012).
Assessment prima facie correct under Art. 2, Ch. 8.
- An assessment made under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52) in the same manner as against the corporation is entitled to be considered or deemed to be prima facie correct as under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Art. 2, Ch. 8, T. 48) in general. Hawes v. Le Craw, 121 Ga. App. 532, 174 S.E.2d 382 (1970).
Duty to state evidence or findings as to liability.
- Statute merely states the conditions under which a corporate employee is liable and imposes no requirement on the commissioner to state the findings which the commissioner may have made or the evidence on which any findings are based, except as may be incorporated by reference by the language empowering the commissioner to assess and collect the tax under this statute. Hawes v. Le Craw, 121 Ga. App. 532, 174 S.E.2d 382 (1970).
Finding as to whether second responsible party was necessary in refund action was required.
- In an assessment action under O.C.G.A. § 48-2-52, the Georgia Court of Appeals erred by concluding that because the Georgia Department of Revenue voluntarily refunded a tax payment made by a majority owner of a restaurant, the department could not seek payment from a second responsible party as the voluntary payment doctrine applied to contracts, not tax indebtedness; it was necessary to remand the case to see if the second responsible party was a necessary party to the majority owner's refund action. Ga. Dep't of Revenue v. Moore, 294 Ga. 20, 751 S.E.2d 57 (2013).
Assessment prima facie correct on appeal.
- When a party assessed under Ga. L. 1960, p. 210, §§ 1 and 2 (see now O.C.G.A. § 48-2-52) has invoked the appeal procedure under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59) to contest the validity of the assessment in the superior court, thereby opening the door to a de novo judicial investigation, the assessment is one which must be regarded as prima facie correct. Hawes v. Le Craw, 121 Ga. App. 532, 174 S.E.2d 382 (1970).
Burden of proof on appeal from assessment.
- An assessment pursuant to this statute is deemed to be "prima facie correct," and when the assessed party invokes the appeal procedure to the superior court to contest the validity of the assessment, which is a de novo proceeding, the party comes into court in the status of a plaintiff who has the burden of proof, while the commissioner occupies the status of a defendant, who by transmitting the record showing the fact of the assessment, has provided sufficient answer to entitle the defendant to the defendant's day in court on the merits to rebut whatever proof the other party may offer to support the plaintiff's contention that the plaintiff is not liable for the tax deficiency. Blackmon v. Ross, 123 Ga. App. 89, 179 S.E.2d 548 (1970).
RESEARCH REFERENCES
Am. Jur. 2d.
- 72 Am. Jur. 2d, State and Local Taxation, § 771.