Certification of Payment of Tax; Effect of Filing Instrument Prior to Payment; Alternate Procedure for Filing New or Modified Note Secured by Previously Recorded Instrument

  1. Law
  2. Georgia Code
  3. Revenue and Taxation
  4. Taxation of Intangibles
  5. Intangible Recording Tax
  6. Certification of Payment of Tax; Effect of Filing Instrument Prior to Payment; Alternate Procedure for Filing New or Modified Note Secured by Previously Recorded Instrument

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    1. Upon payment of the correct tax as disclosed from the information recited on the face of the security instrument, the collecting officer shall enter upon or attach to the security instrument a certification that the intangible recording tax as provided by Code Section 48-6-61 has been paid, the date, and the amount of the tax. The certificate shall be signed by the collecting officer or said officer's deputy.The holder of a security instrument upon which the tax has been paid as provided by this article may then present the security instrument together with the certificate to the clerk of superior court of the county in which the real property is located, who may then file the security instrument for record.It is the intention of the General Assembly that the intangible tax levied by Code Section 48-6-61 shall be paid to the collecting officer prior to and as a prerequisite to the filing for record of the real property instrument securing the note with the clerk of superior court and that the clerk shall not be permitted to file the instrument for record unless the security instrument discloses on its face the principal amount of the note, the date executed, the due date, and the certificate of the collecting officer or said officer's deputy showing that the tax has been paid on the instrument.Presentation for recording of a sworn statement as to the principal amount of the note, as authorized in Code Section 48-6-61, shall suffice for purposes of permitting the filing of a security instrument which is in compliance with this paragraph other than for the fact that the security instrument does not disclose the principal amount of the note.
    2. However, any instrument otherwise in a form sufficient for recording and actually recorded by the clerk of superior court shall constitute legal notice of the interest and title of the holder of the note in and to the real estate which, under the instrument, secures a long-term note; and this paragraph shall apply even if the intangibles tax, interest, and penalty, if any, required by this article have not been paid.
    3. The certificate entered upon or attached to the security instrument shall be recorded with the security instrument, shall be in the form required by the commissioner, and shall in each instance bear the signature of the collecting officer or said officer's deputy.
  2. In the case of a new note or modification of a preexisting note, when the instrument securing the new note or modification is taxable under Code Section 48-6-61 and is secured by a previously recorded instrument which requires no further recording, the holder of the instrument, in lieu of recording a new or amended instrument as provided for in subsection (a) of this Code section, may elect alternatively to execute a sworn affidavit in the form required by the commissioner, which affidavit shall set forth the information required by Code Section 48-6-66.The holder of the instrument shall present the sworn affidavit to the collecting officer of the county in which the real estate is located. The tax collector or tax commissioner shall collect from the holder the tax due under Code Section 48-6-61 and upon payment of the tax shall enter upon or attach to the affidavit the certification provided for in subsection (a) of this Code section.The certification shall evidence the payment of the required tax with respect to the new instrument or modification.

(Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 5; Ga. L. 1955, p. 288, § 2; Ga. L. 1973, p. 271, § 1; Ga. L. 1977, p. 635, § 2; Code 1933, § 91A-3203, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 34; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

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

Tax exempt transferee of note may not record until original holder pays intangible recording tax.

- When, subsequent to execution, a "graduated payment adjustable mortgage loan" is assigned by the original holder to an entity which is exempt from the payment of an intangible recording tax, the transfer by assignment or otherwise does not relieve the original holder of the note of the holder's liability for intangible recording tax and the tax commissioner may properly refuse to record the security instrument until the tax is paid. 1983 Op. Att'y Gen. No. 83-22.

Tax due from tax-exempt transferee is amount original holder would have paid.

- When, subsequent to execution, a "graduated payment adjustable mortgage loan" is assigned by the original holder to an otherwise tax-exempt entity which presents the security instrument for recording, the intangible recording tax should be computed as though the note had not been transferred by the original holder; i.e., on the total extension of credit contemplated under the terms of the note. 1983 Op. Att'y Gen. No. 83-22.

"Graduated payment adjustable mortgage loans."

- Georgia intangible recording tax must be imposed on the total extension of credit contemplated under the terms of so-called "graduated payment adjustable mortgage loans" and the total extension of credit contemplated must be shown on the face of the document presented for recording. 1983 Op. Att'y Gen. No. 83-22.

Effect of clerk's failure to charge recordation fee.

- If a financial institution submits a security deed for recordation and the county clerk does not charge the recordation fee as is incumbent upon the clerk, the bank's lien would be jeopardized. 1975 Op. Att'y Gen. No. 75-125.

Original holder not relieved of tax obligation upon transfer to national bank.

- Transfer by assignment or otherwise of long-term notes secured by real estate to a national bank does not relieve the original holder of the holder's tax obligation and does not change the tax status of the instrument. 1963-65 Op. Att'y Gen. p. 511.

RESEARCH REFERENCES

C.J.S.

- 85 C.J.S., Taxation, §§ 1817, 1818, 1820.

ALR.

- Mortgage tax as applied to supplementary or amendatory instruments, 6 A.L.R.2d 306.


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