Procedure for Protesting Intangible Recording Tax; Payment Under Protest; Special Escrow Fund; Filing Claim; Approval or Denial by Commissioner; Action for Refund

  1. Law
  2. Georgia Code
  3. Revenue and Taxation
  4. Taxation of Intangibles
  5. Intangible Recording Tax
  6. Procedure for Protesting Intangible Recording Tax; Payment Under Protest; Special Escrow Fund; Filing Claim; Approval or Denial by Commissioner; Action for Refund

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  1. If a taxpayer files with the collecting officer at the time of payment of tax as provided in Code Section 48-6-61 a written protest in duplicate of the collection or any part of the collection of the tax as erroneous or illegal, the collecting officer receiving the payment under written protest shall be deemed to have made a conditional collection of the protested amount of the payment.Each protested collection shall be effective to discharge any duty of the taxpayer to pay the tax and to require the collecting officer to enter upon or attach to the instrument securing the obligation upon which the tax is claimed to be due a certification in the form prescribed in Code Section 48-6-62 of the fact that the intangible recording tax as provided by Code Section 48-6-61 has been paid.Each collection as provided in this Code section shall be subject to the conditions set forth in this article as to refund upon determination by the commissioner or by final judgment in a refund action that the collection was erroneous or illegal.
  2. A collecting officer receiving a payment under written protest shall deposit the protested amount of the payment in a separate account in a bank approved as a depository for state funds, shall hold the protested amount as a special escrow fund for the purposes provided in this article, and, except as provided in this Code section, shall not distribute the amount under Code Section 48-6-74 or retain from the amount or pay into the county treasury any commission under Code Section 48-6-73.Immediately upon receiving a payment under written protest, the collecting officer shall forward to the commissioner one executed copy of the protest.
  3. The taxpayer making a payment under written protest may file at any time within 30 days after the date of the payment a claim for refund of the protested amount of the payment with the commissioner.Each claim shall be in writing, shall be in the form and contain such information as the commissioner requires, and shall include a summary statement of the grounds upon which the taxpayer relies in contending that the collection of the amount was erroneous or illegal.A copy of the claim shall be filed by the taxpayer within the 30 day period with the collecting officer or said officer's successor who collected the protested amount.
  4. The commissioner shall consider the claim for refund and shall approve or deny it and shall notify the taxpayer and the collecting officer or said officer's successor who collected the protested amount of said officer's action.If the commissioner approves the claim in whole or in part, the collecting officer or said officer's successor shall forthwith pay to the taxpayer the amount so approved, without interest, from the special escrow fund held by said officer, and no appropriation or further authorization shall be necessary to authorize and require the payment to the taxpayer from the special escrow fund.
    1. Any taxpayer whose claim for refund is denied entirely or in part by the commissioner or with respect to whose claim no decision is rendered by the commissioner within 30 days from the date of filing the claim shall have the right to bring an action for refund of the amount so claimed and not approved against the collecting officer or said officer's successor who collected the amount, in said officer's official capacity, in the superior court of the county whose official collected the amount or in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50.
    2. No action for refund shall be brought after the expiration of 60 days from the date of denial of the taxpayer's claim for refund by the commissioner.
    3. For the purposes of this Code section, a failure by the commissioner to grant or deny the taxpayer's claim for refund within the 30 day period shall not constitute a constructive denial of the claim.
  6. The commissioner in said commissioner's official capacity shall be made a party defendant to each action for refund in order that the interests of the state may be represented in the action, and the Attorney General shall represent the defendants in each action.If it is determined in the action that the amount claimed by the taxpayer was erroneously or illegally collected from the taxpayer, the taxpayer shall be entitled to judgment against the defendant county tax official in said tax official's official capacity for the amount erroneously or illegally collected, without interest to the date of judgment. Court costs charged against the defendant in such an action and any interest payable on a judgment in favor of the taxpayer in such an action for a period before the judgment becomes final shall be paid by the commissioner as part of the expenses of administering this article.The principal amount of a final judgment in favor of the taxpayer in such an action, exclusive of court costs, shall be paid forthwith to the taxpayer by the defendant county tax official from the special escrow fund, and no appropriation or further authorization shall be necessary to authorize and require the payment of a judgment from the special escrow fund.
    1. Upon expiration of the period for filing a claim for refund of a protested payment without any claim being filed, upon expiration of the period for filing an action for refund of a protested payment without any action being filed, upon dismissal of such an action, or upon final judgment in such an action, whichever event occurs first, the collecting officer holding the protested amount in a special escrow fund shall retain from that portion of the amount which is not payable to the protesting taxpayer or shall pay into the county treasury, as provided in Code Section 48-6-73, the percentage of such portion which is allowed by Code Section 48-6-73 as compensation for such collecting officer's services in collecting the tax.
    2. The balance of the portion after the deduction provided in paragraph (1) of this subsection shall be distributed as provided in Code Section 48-6-74 with respect to revenues derived, for the year during which the amount was paid by the taxpayer, from the intangible recording tax imposed by this article.

(Ga. L. 1956, p. 720, § 1; Ga. L. 1977, p. 635, § 7; Code 1933, § 91A-3216, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1990, p. 1843, § 4; Ga. L. 1992, p. 6, § 48; Ga. L. 1994, p. 1767, § 8; Ga. L. 2012, p. 318, § 9/HB 100.)

Editor's notes.

- Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides, in part, that: "Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case."

JUDICIAL DECISIONS

Nature of tax.

- Intangible taxes imposed on long term notes secured by real estate were excise taxes, not ad valorem taxes, since the taxes were paid for the privilege of filing a document to protect the note secured by the recording of the security instrument, and the fact that the taxes were based on the value of the property was only ancillary. Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512 S.E.2d 378 (1999).

Cited in Moosa Co. LLC v. Dep't of Revenue, 353 Ga. App. 429, 838 S.E.2d 108 (2020).

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.

Purpose.

- Purpose of this statute is to provide a way for a person to pay the tax for purposes of getting a prompt and unquestionable recordation of the person's security instrument, yet not pay the tax for purposes of distribution to the various local taxing districts, so that the payment could be available for refund upon an administrative or judicial decision that there is no liability. 1960-61 Op. Att'y Gen. p. 521.

Only authority for refunding of intangible taxes is that found in this statute; there is no other provision of law authorizing the refund of intangible taxes voluntarily paid. 1957 Op. Att'y Gen. p. 316.

RESEARCH REFERENCES

C.J.S.

- 85 C.J.S., Taxation, §§ 1822, 1824.


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