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(a) (1) The commissioner shall assess a deficiency and may assess a penalty of 10 percent of the deficiency if, after an examination of the invoices, books, and records of a licensed distributor or dealer or of any other information obtained by the commissioner or the commissioner’s authorized agents, the commissioner determines that:
(A) The report of the licensed distributor or dealer is incorrect;
(B) The licensed distributor or dealer has not paid the tax in accordance with the alternate regulations promulgated by the commissioner under Code Section 48-11-3; or
(C) The licensed distributor or dealer has not purchased sufficient stamps to cover such licensed distributor’s or dealer’s receipts for sales or other disposition of unstamped cigarettes or loose or smokeless tobacco and nontax-paid cigars, nontax-paid loose or smokeless tobacco, nontax-paid alternative nicotine products, or nontax-paid vapor products.
(2) In any case where a licensed distributor or dealer cannot produce evidence of sufficient stamps purchased or other payment of the tax to cover the receipt of unstamped cigarettes or loose or smokeless tobacco or nontax-paid cigars, nontax-paid loose or smokeless tobacco, nontax-paid alternative nicotine products, or nontax-paid vapor products, it shall be assumed that the cigars, cigarettes, and loose or smokeless tobacco were sold without having either the proper stamps affixed or the tax paid on unstamped cigars or loose or smokeless tobacco.
(b) If the commissioner determines that the deficiency or any part of the deficiency is due to a fraudulent intent to evade the tax, a penalty of 50 percent of the deficiency shall be added to the amount due. History. Ga. L. 1955, p. 268, § 13; Ga. L. 1967, p. 563, § 10; Code 1933, § 91A-5512, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 665, § 27; Ga. L. 2009, p. 8, § 48/SB 46; Ga. L. 2017, p. 774, § 48/HB 323; Ga. L. 2020, p. 257, § 2/SB 375. The 2020 amendment, effective January 1, 2021, substituted “, nontax-paid loose or smokeless tobacco, nontax-paid alternative nicotine products, or nontax-paid vapor products” for “or loose or smokeless tobacco” in subparagraph (a)(1)(C) and paragraph (a)(2), and inserted a comma in paragraph (a)(2). Editor’s notes. 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.’ ” JUDICIAL DECISIONS Inability to collect from vendees does not absolve the distributor of the burden to pay the excise tax imposed on cigars and cigarettes by Ga. L. 1955, p. 268; although the state, in the state’s discretion, may pursue whatever entity appears most likely to yield results. In re Jim Clay Tobacco Co., 355 F. Supp. 274, 1973 U.S. Dist. LEXIS 14769 (N.D. Ga. 1973). OPINIONS OF THE ATTORNEY GENERAL Cigarettes must be stamped even though stolen or lost. — Ga. L. 1955, p. 268, § 13 (see now O.C.G.A. § 48-11-12) read in conjunction with Ga. L. 1955, p. 268, § 2 (see now O.C.G.A. § 48-11-1) requires that cigarettes be stamped even though the cigarettes are stolen or lost. 1963-65 Ga. Op. Att'y Gen. 779. RESEARCH REFERENCES C.J.S. 53 C.J.S., Licenses, § 121 et seq.