Prohibition of Political Subdivisions From Imposing Various Taxes; Ceiling on Local Sales and Use Taxes; Taxation of Mobile Telecommunications

  1. Law
  2. Georgia Code
  3. Revenue and Taxation
  4. Sales and Use Taxes
  5. State Sales and Use Tax
  6. General Provisions
  7. Prohibition of Political Subdivisions From Imposing Various Taxes; Ceiling on Local Sales and Use Taxes; Taxation of Mobile Telecommunications

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  1. There shall not be imposed in any jurisdiction in this state or on any transaction in this state local sales taxes, local use taxes, or local sales and use taxes in excess of 2 percent. For purposes of this prohibition, the taxes affected are any sales tax, use tax, or sales and use tax which is levied in an area consisting of less than the entire state, however authorized, including such taxes authorized by or pursuant to constitutional amendment, except that the following taxes shall not count toward or be subject to such 2 percent limitation:
    1. A sales and use tax for educational purposes exempted from such limitation under Article VIII, Section VI, Paragraph IV of the Constitution;
    2. Any tax levied for purposes of a metropolitan area system of public transportation, as authorized by the amendment to the Constitution set out at Georgia Laws, 1964, page 1008; the continuation of such amendment under Article XI, Section I, Paragraph IV(d) of the Constitution; and the laws enacted pursuant to such constitutional amendment; provided, however, that the exception provided for under this paragraph shall only apply:
      1. In a county in which a tax is being imposed under subparagraph (a)(1)(D) of Code Section 48-8-111 in whole or in part for the purpose or purposes of a water capital outlay project or projects, a sewer capital outlay project or projects, a water and sewer capital outlay project or projects, water and sewer projects and costs as defined under paragraph (4) of Code Section 48-8-200, or any combination thereof and with respect to which the county has entered into an intergovernmental contract with a municipality, in which the average waste-water system flow of such municipality is not less than 85 million gallons per day, allocating proceeds to such municipality to be used solely for water and sewer projects and costs as defined under paragraph (4) of Code Section 48-8-200. The exception provided for under this subparagraph shall apply only during the period the tax under such subparagraph (a)(1)(D) is in effect. The exception provided for under this subparagraph shall not apply in any county in which a tax is being imposed under Article 2A of this chapter;
      2. In a county in which the tax levied for purposes of a metropolitan area system of public transportation is first levied after January 1, 2010, and before January 1, 2021. Such tax shall not apply to the following:
        1. The sale or use of jet fuel; and
        2. The sale of motor vehicles; or
      3. In a county in which a tax is levied and collected pursuant to Part 2 of Article 2A of this chapter;
    3. In the event of a rate increase imposed pursuant to Code Section 48-8-96, only the amount in excess of the initial 1 percent sales and use tax and in the event of a newly imposed tax pursuant to Code Section 48-8-96, only the amount in excess of a 1 percent sales and use tax;
    4. A sales and use tax levied under Article 4 of this chapter;
    5. Either a sales and use tax levied under Article 5 of this chapter or a sales and use tax levied under Article 5B of this chapter;
    6. A sales and use tax levied under Article 5A of this chapter; and
    7. A sales and use tax levied under Article 2 of Chapter 9 of Title 32.

      If the imposition of any otherwise authorized local sales tax, local use tax, or local sales and use tax would result in a tax rate in excess of that authorized by this subsection, then such otherwise authorized tax may not be imposed.

  2. Reserved.
  3. Where the exception specified in paragraph (2) of subsection (a) of this Code section applies, the tax imposed under subparagraph (a)(1)(D) of Code Section 48-8-111 shall not apply to the sale of motor vehicles.
  4. Notwithstanding any law or ordinance to the contrary, any tax, charge, or fee levied by any political subdivision of this state and applicable to mobile telecommunications services, as defined in Section 124(7) of the federal Mobile Telecommunications Sourcing Act, 4 U.S.C. Section 124(7), shall apply only if the customer's place of primary use is located within the boundaries of the political subdivision levying such local tax, charge, or fee. For purposes of this subsection, the provisions of Code Section 48-8-13 shall apply in the same manner and to the same extent as such provisions apply to the tax levied by Code Section 48-8-1 on mobile telecommunications services. This subsection shall not be construed to authorize the imposition of any tax, charge, or fee.

(c.1)Where the exception specified in paragraph (2) of subsection (a) of this Code section applies, on and after July 1, 2007, the aggregate amount of all excise taxes imposed under paragraph (5) of subsection (a) of Code Section 48-13-51 and all sales and use taxes shall not exceed 14 percent.

(Ga. L. 1951, p. 360, § 25; Ga. L. 1965, p. 451, § 3; Ga. L. 1971, p. 85, § 1A; Ga. L. 1971, p. 95, § 1; Ga. L. 1975, p. 984, § 1; Ga. L. 1975, p. 1002, § 6; Ga. L. 1977, p. 744, § 5; Code 1933, § 91A-4534, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 3, § 37; Ga. L. 1985, p. 232, § 3; Ga. L. 2002, p. 576, § 1; Ga. L. 2002, p. 970, § 1; Ga. L. 2003, p. 665, § 13; Ga. L. 2004, p. 69, § 5; Ga. L. 2005, p. 60, § 48/HB 95; Ga. L. 2010, p. 662, § 3/HB 1221; Ga. L. 2010, p. 778, § 5/HB 277; Ga. L. 2010, p. 813, § 1/HB 1393; Ga. L. 2010, p. 878, § 48/HB 1387; Ga. L. 2014, p. 475, § 1/HB 1009; Ga. L. 2014, p. 649, § 2/HB 265; Ga. L. 2015, p. 217, § 1/HB 215; Ga. L. 2015, p. 236, § 7-4/HB 170; Ga. L. 2018, p. 377, § 1-2/HB 930; Ga. L. 2018, Ex. Sess., p. ES7, § 3-4/HB 5EX.)

The 2015 amendments. The first 2015 amendment, effective May 4, 2015, in subparagraph (a)(2)(A), substituted "such subparagraph" for "said subparagraph" in the second sentence and deleted "or" at the end of subparagraph (a)(2)(A); in division (a)(2)(B)(i), substituted "this state" for "the state" near the end; inserted "or" at the end of division (a)(2)(B)(ii); and added subparagraph (a)(2)(C). The second 2015 amendment, effective July 1, 2015, in subsection (a), deleted "and" at the end of paragraph (a)(4), substituted "; and" for a period at the end of paragraph (a)(5), and added paragraph (a)(6). See Editor's notes for applicability.

The 2018 amendment, effective January 1, 2019, substituted "January 1, 2021" for "November 1, 2016" at the end of the first sentence of subparagraph (a)(2)(B); substituted the present provisions of paragraph (a)(5) for the former provisions, which read: "A sales and use tax levied under Article 5 of this chapter; and"; added "; and" at the end of paragraph (a)(6); and added paragraph (a)(7).

The 2018 Ex. Sess. amendment, effective December 1, 2018, deleted "to or by a qualifying airline at a qualifying airport. For purposes of this division, a 'qualifying airline' means any person which is authorized by the Federal Aviation Administration or another appropriate agency of the United States to operate as an air carrier under an air carrier operating certificate and which provides regularly scheduled flights for the transportation of passengers or cargo for hire. For purposes of this division, a 'qualifying airport' means any airport in this state that has had more than 750,000 takeoffs and landings during a calendar year" following "use of jet fuel" in division (a)(2)(B)(i); and rewrote subsection (c), which read: "(c) Where the exception specified in paragraph (2) of subsection (a) of this Code section applies, the tax imposed under subparagraph (a)(1)(D) of Code Section 48-8-111 shall not apply to:

"(1) Reserved; and

"(2) The sale of motor vehicles."

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2002, subsection (c) as enacted by Ga. L. 2002, p. 970, § 1, was redesignated as subsection (d).

Pursuant to Code Section 28-9-5, in 2004, subsection (d) as added by Ga. L. 2004, p. 69, § 5 was redesignated as subsection (c.1).

Pursuant to Code Section 28-9-5, in 2010, subsection (b) was set out as reserved and "paragraph (2) of subsection (a)" was substituted for "paragraph (2) of subsection (b)" in the introductory language of subsection (c) and in subsection (c.1).

Editor's notes.

- Ga. L. 2002, p. 970, § 4, not codified by the General Assembly, provides that: "If a court of competent jurisdiction enters a final judgment on the merits that is based on federal law, is no longer subject to appeal, and substantially limits or impairs the essential elements of Sections 116 through 126 of Title 4 U.S.C., then all provisions and applications of this Act are declared to be invalid and have no legal effect as of the date of entry of such judgment."

Ga. L. 2002, p. 970, § 5, not codified by the General Assembly, provides that this Act "shall apply to charges for mobile telecommunications services reflected on customer bills issued on or after August 2, 2002."

Ga. L. 2003, p. 665, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Tax Revision Act of 2003.'"

Ga. L. 2004, p. 69, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'State and Local Taxation, Financing, and Service Delivery Revision Act of 2004.'"

Ga. L. 2010, p. 778, § 1/HB 277, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Transportation Investment Act of 2010.'"

Ga. L. 2014, p. 649, § 3/HB 265, not codifed by the General Assembly, provides that the 2014 amendment "shall become effective on June 1, 2014, only if an Act providing for the suspension of restrictions on the use of annual proceeds from sales and use taxes by the Metropolitan Atlanta Rapid Transit Authority and reconstituting the board of directors of the Metropolitan Atlanta Rapid Transit Authority is enacted at the 2014 regular session of the General Assembly." This contingency was met by the passage of HB 264 (Ga. L. 2014, p. 634).

Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.' "

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Ga. L. 2018, p. 377, § 5-1(c)/HB 930, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act became effective January 1, 2019.

Law reviews.

- For article on the 2004 amendment of this Code section, see 21 Georgia St. U.L. Rev. 226 (2004). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For note on the 2003 amendment to this Code section, see 20 Georgia St. U.L. Rev. 233 (2003).

JUDICIAL DECISIONS

Tax forbidden whether incidence is on seller or purchaser.

- This section forbids the imposition of a sales or use tax by a municipality, regardless of whether the legal incidence of such tax is placed on the seller or the purchaser. City of Columbus v. Atlanta Cigar Co., 111 Ga. App. 774, 143 S.E.2d 416 (1965).

Exception for taxes otherwise authorized by General Assembly is not a grant of power to tax.

- This section grants no power. It merely states that the section was not intended as a prohibition upon any otherwise existing power of counties to levy an excise tax upon these items. Chanin v. Bibb County, 234 Ga. 282, 216 S.E.2d 250 (1975).

Ordinance imposing cigarette tax violates Constitution, this section, and Ch. 11 of this title.

- City ordinance which placed a tax on cigarettes sold, stored, or delivered within the municipality was contrary to Ga. L. 1951, p. 360, § 25 (see now O.C.G.A. § 48-8-6), former Code 1933, Ch. 92-22 (see now O.C.G.A. Ch. 11, T. 48), and Ga. Const. 1945, Art. I, Sec. IV, Para. I (see now Ga. Const. 1983, Art. III, Sec. VI, Para. IV) which forbid the enactment of special laws for which provision had been made by an existing general law. City of Columbus v. Atlanta Cigar Co., 111 Ga. App. 774, 143 S.E.2d 416 (1965).

RESEARCH REFERENCES

ALR.

- Constitutionality, construction, and application of state and local public-utility-gross-receipts-tax statutes - modern cases, 58 A.L.R.5th 187.


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