Compromise Settlements; Penalty Refunds

1. Law
2. Georgia Code
3. Revenue and Taxation
4. State Administrative Organization, Administration, and Enforcement
5. Administration
6. Compromise Settlements; Penalty Refunds

1. No action or other judicial proceeding for the enforcement of this chapter or for the collection of state taxes shall be settled except by agreement, compromise, or judgment in open court.
2. No compromise or agreed judgment shall be entered in any such action or other judicial proceeding until there has been filed with the commissioner a verified statement setting forth the facts and showing the reasons why a compromise or agreed judgment should be entered and certifying that no agreement or settlement other than the one stated in the proposed judgment has been directly or indirectly entered into by the commissioner or by anyone for the commissioner and that the proposed judgment is, in the opinion of the Attorney General, for the best interest of the state.
3. When any penalty is paid without the commencement of an action to recover on the penalty and the commissioner, within three years after the date of the payment, determines that the circumstances giving rise to the penalty were reasonably beyond the control of the taxpayer, the commissioner may authorize a refund of all or any part of the penalty so paid and any interest paid on the penalty.

(Ga. L. 1931, p. 7, § 85; Ga. L. 1931, Ex. Sess., p. 24, § 58; Code 1933, § 92-3007; Ga. L. 1937-38, Ex. Sess., p. 77, § 9; Ga. L. 1978, p. 1469, § 1; Code 1933, § 91A-256, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 16.)

Law reviews.

- For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).

JUDICIAL DECISIONS

State is not bound by any unauthorized settlement, and if the taxpayer is party to an unlawful conspiracy to settle, the taxpayer remains liable for the full debt less the amount paid on good faith. Oxford v. Jessup, 101 Ga. App. 612, 115 S.E.2d 434 (1960).

OPINIONS OF THE ATTORNEY GENERAL

Refund of penalties paid prior to January 1, 1980 not authorized.

- Subsection (c) of this statute does not authorize the state revenue commissioner to refund penalties paid prior to January 1, 1980. 1980 Op. Att'y Gen. No. 80-48.

Construction with penalty provisions.

- Former Code 1933, § 92-3211 (see now O.C.G.A. § 48-7-57), which imposed a penalty for failure to file a return, was not by necessary implication or otherwise inconsistent with or repugnant to former Code 1933, § 92-3007 (see now O.C.G.A. § 48-2-60), and penalties fixed under former Code 1933, § 92-3211 may be compromised under former Code 1933, § 92-3007. 1954-56 Op. Att'y Gen. p. 764.

Word "compromise" in former Code 1933, § 92-3007 (see now O.C.G.A. § 48-2-60) meant that when the penalty had been fixed in accordance with former Code 1933, § 92-3211 (see now O.C.G.A. § 48-7-57) and added to the tax, it may be collected in whole or in part or not at all according to the circumstances of the particular case. When, in the judgment of the commissioner, after the penalty had been duly and legally assessed, concessions from the taxpayer of value to the state can be secured by waiving the penalty, then a compromise within the meaning of former Code 1933, § 92-3007 had been effected. 1954-56 Op. Att'y Gen. p. 764.

RESEARCH REFERENCES

Am. Jur. 2d.

- 72 Am. Jur. 2d, State and Local Taxation, § 734 et seq.

C.J.S.

- 85 C.J.S., Taxation, §§ 1046 et seq., 1073 et seq.

ALR.

- Constitutionality and construction of statute providing for or authorizing waiver or reduction of penalty or interest in respect of taxes in default, 68 A.L.R. 431; 79 A.L.R. 999.

Liability to penalty imposed for failure to pay tax of one who in good faith contested its validity, 96 A.L.R. 925; 147 A.L.R. 142.

Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Voluntary payment doctrine as bar to recovery of payment of generally unlawful tax, 1 A.L.R.6th 229.

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