PocketLaw | Georgia Code | Payment of Tax Prerequisite to Filing Deed,

Payment of Tax Prerequisite to Filing Deed, Instrument, or Other Writing; Certification of Payment; Recording Certification With Deed

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It is the intent of the General Assembly that the tax imposed by this article be paid to the clerk of the superior court or his or her deputy, and that the actual consideration of real and personal property conveyed shall be shown separately on the form prescribed in subsection (c) of this Code section, prior to and as a prerequisite to the filing for record of any deed, instrument, or other writing described in Code Section 48-6-1.
No deed, instrument, or other writing described in Code Section 48-6-1 shall be filed for record or recorded in the office of the clerk of the superior court or filed for record or recorded in or on any other official record of this state or of any county until the tax imposed by this article has been paid and until the actual consideration of real and personal property conveyed has been shown separately on the form prescribed in subsection (c) of this Code section; provided, however, that any such deed, instrument, or other writing filed or recorded which would otherwise constitute constructive notice shall constitute such notice whether or not such tax was in fact paid.
The amount of tax to be paid on a deed, instrument, or other writing shall be determined on the basis of written disclosure of the actual consideration of the interest in the property granted, assigned, transferred, or otherwise conveyed. The disclosure of the amount of tax and the actual consideration shall be made on a form or in electronic format prescribed by the commissioner and provided by the clerk of the superior court. By the fifteenth day of the month following the month the deed, instrument, or other writing is recorded, a physical or electronic copy of each disclosure shall be forwarded or made available electronically to the state auditor and to the tax commissioner and the board of tax assessors in the county where the deed, instrument, or other writing is recorded.
Upon payment of the correct amount of tax, the clerk of the superior court or his or her deputy shall enter upon or attach to the deed, instrument, or other writing a certification of the fact that the tax as imposed by this article has been paid, the date, and the amount of the tax. The certification shall be signed by the clerk or deputy clerk receiving the tax. The certification may also be attested to electronically by the clerk or deputy clerk in such manner as may be prescribed by the commissioner.
The certificate entered upon or attached physically or electronically to the deed, instrument, or other writing shall be recorded with the deed, instrument, or other writing and shall be in the physical or electronic form required by the commissioner. In each case, however, the certificate shall bear the signature of the clerk or his or her deputy. The certificate may be relied upon by subsequent purchasers or lenders as evidence that the proper tax has been paid. In the event any deed, instrument, or other writing upon which tax is imposed by this article is required to be recorded in more than one county, the required tax shall be prorated among all applicable counties and the amount paid to the clerk or his or her deputy of the county in which the deed, instrument, or other writing is recorded shall be that proportion of the total tax due calculated by applying the ratio of the value of the real property in such county as it bears to the total value of the real properties in all counties described in the deed, instrument, or other writing to the total tax due. Such proportions shall be calculated pursuant to the most recently determined fair market valuations of the property as determined by the county board of tax assessors. All such values shall be disclosed on the face of the deed, instrument, or other writing or, alternatively, may be submitted in the form of an affidavit by the holder presenting the deed, instrument, or other writing for recording. The original or a duplicate original executed copy or counterpart of such deed, instrument, or other writing shall be presented for recording in all counties in which the real property is located, and the clerk or the clerk's deputy of each county may rely upon the sworn original or a duplicate original certification of values in determining the amount of tax due and payable in that county and collect such portion of the tax imposed by Code Section 48-6-1 and enter the same upon the deed, instrument, or other writing.

(Ga. L. 1967, p. 788, § 5; Ga. L. 1971, p. 266, § 3; Code 1933, § 91A-3005, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 725, § 1; Ga. L. 1990, p. 1843, § 1; Ga. L. 2003, p. 874, § 2; Ga. L. 2010, p. 526, § 1/HB 1192; Ga. L. 2015, p. 1219, § 25/HB 202.)

The 2015 amendment, effective January 1, 2016, in subsection (a), inserted ", and that the actual consideration of real and personal property conveyed shall be shown separately on the form prescribed in subsection (c) of this Code section," in the middle; in subsection (b), inserted "and until the actual consideration of real and personal property conveyed has been shown separately on the form prescribed in subsection (c) of this Code section" in the middle; and, in subsection (c), substituted "actual consideration of the interest" for "consideration or value of the interest" in the first sentence, and inserted "of the amount of tax and the actual consideration" near the beginning of the second sentence.

Law reviews.

- For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010).

JUDICIAL DECISIONS

Recordation of deed and effect as notice when tax not paid.

- Warranty deed which shows on the deed's face both that the deed was for a consideration in excess of $100.00, and that no tax has been paid is not entitled to be recorded nor can such a deed serve as constructive notice to a later buyer. Higdon v. Gates, 238 Ga. 105, 231 S.E.2d 345 (1976).

Property valuation.

- In the Rails-to-Trails takings action, the plaintiffs were entitled to just compensation pursuant to the Fifth Amendment based on the diminution in value between the "before" and "after" conditions. Although determination of the remaining property rights was a question of law, determining the value was a question of fact, and any nominal property rights in the burdened land could not affect the just compensation analysis because the rights had no pecuniary value. In determining property value, the court considered tax assessor data because it is verified data and data maintained by the tax assessors is more reliable than data provided by parties to a transaction several years after the fact. Hardy v. United States, 141 Fed. Cl. 1 (Fed. Cl. Dec. 14, 2018).

Cited in Five Star Partners v. Vincent Netherlands Properties, 169 Bankr. 994 (Bankr. N.D. Ga. 1994).

OPINIONS OF THE ATTORNEY GENERAL

Confidentiality of tax information.

- Information obtained from real estate transfer tax forms and included on county tax assessors' property record cards is not confidential. 1990 Op. Att'y Gen. No. U90-25.

Access to tax disclosure forms not limited to officials of state or political subdivisions.

- It is not the intention of the General Assembly to deny to federal internal revenue agents, or to all tax administrators other than those employed by either the Department of Revenue or Georgia's political subdivisions, access to real estate transfer tax disclosure forms. 1976 Op. Att'y Gen. No. U76-48.

RESEARCH REFERENCES

C.J.S.

- 85 C.J.S., Taxation, § 1820.

ALR.

- Discrimination in state taxation of national banks or national bank shares, 87 A.L.R. 846.

Tax on bank stock as payable out of assets of insolvent bank or trust company, 87 A.L.R. 1018.

"Business situs" for purposes of property taxation of intangibles in state other than domicile of owner, 143 A.L.R. 361.

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