Definitions

  1. Law
  2. Georgia Code
  3. Revenue and Taxation
  4. Taxation of Intangibles
  5. Intangible Recording Tax
  6. Definitions

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As used in this article, the term:

  1. "Collecting officer" means the clerk of the superior court of the county; provided, however, that in each county of this state having a population of 50,000 or less according to the United States decennial census of 1990 or any future such census, at the discretion of the clerk of the superior court of the county, "collecting officer" may mean the tax collector or tax commissioner of the county.
  2. "Instrument" or "security instrument" means any written document presented for recording for the purpose of conveying or creating a lien or encumbrance on real estate for the purpose of securing a long-term note secured by real estate.
  3. "Long-term note secured by real estate" means any note representing credits secured by real estate by means of mortgages, deeds to secure debt, purchase money deeds to secure debt, bonds for title, or any other form of security instrument, when any part of the principal of the note falls due more than three years from the date of the note or from the date of any instrument executed to secure the note and conveying or creating a lien or encumbrance on real estate for such purpose.
  4. "Short-term note secured by real estate" means any note which would be a long-term note secured by real estate were it not for the fact that the whole of the principal of the note falls due within three years from the date of the note or from the date of any instrument executed to secure the note.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 3; Code 1933, § 91A-3201, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 1; Ga. L. 1998, p. 1656, § 1.)

Cross references.

- Mortgages, conveyances to secure debt, and liens, T. 44, C. 14.

Administrative Rules and Regulations.

- Intangible recording tax, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Local Government Services Division, Chapter 560-11-8.

Law reviews.

- For comment, "If It Quacks Like a Duck: In Light of Today's Financial Environment, Should Credit Unions Continue to Enjoy Tax Exemptions?," see 28 Ga. St. U. L. Rev. 1367 (2012).

JUDICIAL DECISIONS

In taxing intangibles, this state recognizes a distinction between bonds and notes secured by real estate, in that the tax on bonds is at a different rate from the tax on long-term notes secured by real estate. Cosgro v. Quinn, 219 Ga. 272, 133 S.E.2d 343 (1963).

Credit card debt did not fit the definition of a long term note secured by real estate. In re Felker, 181 Bankr. 1017 (Bankr. M.D. Ga. 1995).

Renewal of pre-existing note.

- Renewal of a pre-existing note is a new note and does not become a long term note by piecing together, in serial fashion, all pre-existing and subsequent notes for the purposes of O.C.G.A. § 48-6-77. NationsBank v. Tucker, 231 Ga. App. 622, 500 S.E.2d 378 (1998).

No statutory authority for right of appeal.

- There is no statutory authority that gives an appellant a right of direct appeal from a review by the superior court of the state revenue commissioner's denial of a refund of an intangible recording tax. Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512 S.E.2d 378 (1999).

Cited in Moister v. Citizens Trust Bank (In re Truitt), 11 Bankr. 15 (Bankr. N.D. Ga. 1981).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality.

- Intangible property tax on long-term notes secured by real estate is not unconstitutional. 1970 Op. Att'y Gen. No. 70-56.

Legislative intent as to taxation of bonds and long-term notes.

- It is clearly the legislative intent of Ga. L. 1953, Nov.-Dec. Sess., p. 379, §§ 3 and 4 (see now O.C.G.A. §§ 48-6-60 and48-6-61) to tax long-term notes at a rate different from that on bonds. The definition of "long-term notes" is possibly broad enough to include bonds and would possibly include bonds were it not for the fact that Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 2 (see now O.C.G.A. § 48-6-23) imposes a different annual tax on bonds. 1957 Op. Att'y Gen. p. 300.

Distribution of tax based on property location.

- Distribution of the intangibles tax levied under Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48) will be based solely on the location of the property. 1954-56 Op. Att'y Gen. p. 581.

How short-term and long-term notes distinguished.

- Note secured by real estate is to be classified as a short-term note or a long-term note as of the time of the note's execution, according to the maturity date stated therein. The note remains in this classification as long as the note remains outstanding, notwithstanding that the indulgence of the creditor allows the indebtedness to extend beyond a three-year period. If the creditor takes a renewal note in payment thereof, the renewal note is to be classified according to the note's own terms and without regard to the period of indebtedness under the original note. 1960-61 Op. Att'y Gen. p. 519.

Whether instrument is bond or long-term note is a fact question.

- Determination of whether an instrument is a bond or a long-term loan secured by real estate for purposes of determining which intangibles tax provisions shall apply is a fact question. 1954-56 Op. Att'y Gen. p. 772.

Length of period rather than number of notes determines classification of notes.

- Intent of this statute is to impose a tax upon the entire long-term debt secured by real estate. It is not a tax upon the mortgage, but a tax upon the principal amount of the long-term debt as evidenced by the notes. If the debt secured by the real estate and evidenced by the loan deed is in the form of a series of notes payable in staggered annual dates over a long-term period rather than one note payable in a series of annual installments, the holder of such series of notes maturing at staggered terms cannot, by this separation of the single debt into several notes, escape the intangible tax imposed by this statute on those notes falling due in less than three years. 1954-56 Op. Att'y Gen. p. 773.

When notes secured by real estate are all part of a single transaction representing one loan, some payable within three years and some payable after a longer period, the notes are all to be considered long-term notes secured by real estate and taxable within the meaning of this statute. 1962 Op. Att'y Gen. p. 531.

Mortgage to secure a sublease agreement is a long-term note secured by real estate within the meaning of this statute. 1962 Op. Att'y Gen. p. 527.

Sales contract for purchase of a house and lot is a long-term note secured by real estate within the meaning of this statute. 1963-65 Op. Att'y Gen. p. 272.

Taxation of long-term notes on which taxes not paid due to former exception.

- There is no obligation on banking associations currently holding long-term notes upon which no recording taxes have been paid, due to the former exception for banking associations, to pay the recording tax on previously recorded deeds. 1975 Op. Att'y Gen. No. 75-125.

Notes held by nonresidents when not secured by realty nor connected with business.

- Notes held by a nonresident, which notes are not secured by real estate nor connected with any business done in Georgia, are not subject to ad valorem taxation in this state; mere notice of promissory notes creating no lien on property is not subject to being recorded. 1970 Op. Att'y Gen. No. U70-52.

Long-term notes secured by real estate held by the Georgia Development Authority are public property so as to be exempt from intangible taxes imposed by Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48). 1973 Op. Att'y Gen. No. U73-40.

RESEARCH REFERENCES

Am. Jur. 2d.

- 71 Am. Jur. 2d, State and Local Taxation, § 519.


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