09 LC 18
8113
House
Bill 441
By:
Representative O`Neal of the
146th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 2 of Chapter 2 of Title 48 of the Official Code of Georgia
Annotated, relating to state administration of revenue and taxation, so as to
provide for the expedited payment of sales and use tax refund claims secured by
a satisfactory bond; to provide for frivolous or excessive sales and use tax
refund claims; to provide for civil and criminal penalties; to provide an
effective date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
2 of Chapter 2 of Title 48 of the Official Code of Georgia Annotated, relating
to state administration of revenue and taxation, is amended by revising Code
Section 48-2-35.1, relating to refund of sales and use taxes, to read as
follows:
"48-2-35.1.
(a)
If a certificate or exemption determination letter issued by the commissioner
certifying that the purchaser is entitled to purchase tangible personal property
or taxable services without the payment of sales and use tax has not been
obtained and used prior to purchasing such tangible personal property or taxable
services, a refund of sales and use taxes shall be made without
interest.
(b)
Any taxpayer who wishes to expedite the payment of a claim for refund may apply
to the commissioner for such expedited refund, and as part of such application
the taxpayer shall file a bond that is satisfactory to the commissioner as
security for the repayment of such refund and any applicable tax, interest,
penalties, fees, or costs in the event that the commissioner determines within
the applicable statute of limitations that all or a portion of such refund was
paid in error. Any assessment of tax, interest, penalties, fees, or costs
related to the payment of such refund claim shall be made within three years
after the date that such refund was paid by the commissioner.
(c)(1)
As used in this subsection, the term:
(A)
'Excessive amount' means that portion of the claim for refund that exceeds the
amount that is eligible for refund and for which there is no reasonable
basis.
(B)
'Frivolously filed' means filing a sales and use tax claim for refund when the
amount claimed exceeds the amount eligible for refund by at least 50
percent.
(C)
'Reasonable basis' means a position that is reasonably based on one or more of
the following authorities: applicable provisions of this title and other
statutory provisions; proposed and adopted regulations construing such statutes;
court cases; official opinions of the Attorney General; and letter rulings,
policy statements, informational bulletins, and other administrative
pronouncements published by the commissioner. Conclusions reached in treatises,
legal periodicals, legal opinions, or opinions rendered by tax professionals
shall not constitute authority. Notwithstanding the preceding list of
authorities, an authority shall not continue to be an authority to the extent it
is overruled or modified, implicitly or explicitly, by a body with the power to
overrule or modify the earlier authority.
(2)
Any taxpayer who frivolously files a sales and use tax claim for refund for an
excessive amount shall be subject to a penalty of 20 percent of such excessive
amount. No penalty shall be assessed pursuant to this subsection on any portion
of an excessive amount for which a refund is claimed in good faith and the
filing of which was not due to negligent disregard of the law or of regulations
and instructions issued pursuant to the law.
(3)(A)
In addition to the penalty imposed under paragraph (2) of this subsection, when
a taxpayer is penalized under paragraph (2) of this subsection on a second or
subsequent occasion, the commissioner shall require that the taxpayer, within 30
days, either provide a reasonable basis for that portion of the excessive amount
of the claim for which the commissioner has determined that no reasonable basis
exists or withdraw such portion from its refund claim. The failure of such
taxpayer to provide a reasonable basis for or withdraw such portion of the
refund claim within 30 days shall constitute a violation of this paragraph.
Such 30 day period shall be extended for such additional periods as may be
agreed upon in writing between the taxpayer and the commissioner during the
initial 30 day period or any extension thereof.
(B)
Any person who violates subparagraph (A) of this paragraph shall, upon
conviction thereof, be guilty of a
misdemeanor."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.