Law governing municipal and county occupation taxes for certain salespersons and merchants.

The provisions of Article 1 of Chapter 13 of Title 48 shall govern municipal and county occupation taxes for the following: traveling salespersons engaged in taking orders for the sale of goods when no delivery of goods is made at the time of taking the order; a merchant or dealer, the situs of whose business is outside the taxing jurisdiction, who delivers goods previously ordered; and the employees of a merchant or dealer who are engaged in the delivery of the goods to customers. History. Code 1981, § 48-5-354, enacted by Ga. L. 1993, p. 1292, § 4. Cross references. Regulation of business of transient merchants, T. 43, C. 46. Restriction on power of local governments to charge license fees for wholesale dealers of malt beverages, § 3-5-43. JUDICIAL DECISIONS Editor’s notes. In light of the similarity of the statutory provisions, decisions under Ga. L. 1896, p. 36, § 1, former Civil Code 1910, § 868, and former Code 1933, § 92-4105 are included in the annotations for this Code section. Legislative intent. — One purpose of the General Assembly in passing the statute was to protect the traveling representatives of mercantile houses or manufacturers which are located in this state from municipal taxation because of the fact that the salespeople, or agents of merchants or manufacturers located and holding their goods in other states, can come into Georgia and take orders for such goods without paying any municipal tax whatever, being protected from such taxation by the Constitution of the United States. Fruit Co. v. City of Dalton, 184 Ga. 277, 191 S.E. 130, 1937 Ga. LEXIS 518 (1937) (decided under former Code 1933, § 92-4105). “Traveling salesperson” defined. — An agent of a firm or corporation who goes from town to town in this state, exhibiting samples of goods and taking orders on the agent’s employer or employers for such goods from consumers, is a traveling salesperson within the meaning of this statute. Kimmel v. Mayor of Americus, 105 Ga. 694, 31 S.E. 623, 1898 Ga. LEXIS 698 (1898) (decided under Ga. L. 1896, p. 36, § 1). Protection given to traveling salespeople extends to merchants and dealers represented by the salespeople, and prevents the municipality from levying any tax against a dealer the situs of whose business is elsewhere, and who merely delivers goods to customers in the municipality upon orders previously taken by the salespeople. Fruit Co. v. City of Dalton, 184 Ga. 277, 191 S.E. 130, 1937 Ga. LEXIS 518 (1937) (decided under former Code 1933, § 92-4105). Taxation of businesses which deal through traveling salespeople. — Municipality cannot require a license of a traveling salesperson when no delivery of goods is made at the time the orders are taken, and cannot split up a business into the business’s constituent parts and levy a tax on each element thereof, nor can it levy a tax upon the delivery of goods. Burroughs v. Town of Meigs, 209 Ga. 409, 73 S.E.2d 169, 1952 Ga. LEXIS 513 (1952) (decided under former Code 1933, § 92-4105). Exemption does not include persons traveling from town to town soliciting magazine subscriptions to be delivered in the future by mail sent from another city. Southern Ruralist v. Mayor of Carrollton, 169 Ga. 112, 149 S.E. 882, 1929 Ga. LEXIS 294 (1929) (decided under former Civil Code 1910, § 868). Tax on transient dealers who take orders from local agents is invalid. — Tax imposed upon transient dealers taking orders and sending certain goods to local agents in a city is invalid because contrary to the spirit and purpose of this statute. Hofmayer, Jones & Co. v. City of Blakely, 116 Ga. 777, 43 S.E. 69, 1902 Ga. LEXIS 258 (1902) (decided under Ga. L. 1896, p. 36, § 1). Farmers owning dairy farms upon which milk is produced for delivery to customers in the city are not exempt as a traveling salesperson from the license charge imposed by municipal ordinance on dairies. Rossman v. City of Moultrie, 189 Ga. 681, 7 S.E.2d 270, 1940 Ga. LEXIS 368 (1940) (decided under former Code 1933, § 92-4105). What constitutes an order previously taken. — When a sales contract constitutes a prior order from a company outside the municipality, and the quantity to be delivered is unascertainable until delivery, and title passes upon delivery, and when there are periodic deliveries carried out under the terms of the prior contract, it necessarily follows that the contract constituted a prior order and that the transaction is not one of simultaneous order and delivery. Thus, the municipal ordinance requiring the licensing of such dealers does not apply since the ordinance’s application would contravene the express provisions of statute. Segler v. City Council, 91 Ga. App. 481, 85 S.E.2d 799, 1955 Ga. App. LEXIS 781 (1955) (decided under former Code 1933, § 92-4105). What acts incident to delivery permissible within exemption. — When an oil company is engaged in one city in selling wholesale gasoline, oil, etc., and delivers by truck, upon orders received by telephone or mail, in the quantities required by the terms of such orders to retail dealers in other towns, the wholesale dealer is not engaged in selling by wholesale in the towns at which the retail dealers are located, although the payments are made there by the check of the retail dealers, payable to the wholesale dealer, the check at the time of delivery being handed to the driver of the truck of the wholesale dealer for the latter. Wofford Oil Co. v. City of Pitts, 178 Ga. 339, 173 S.E. 384, 1934 Ga. LEXIS 51 (1934) (decided under former Code 1933, § 92-4105). When under prior arrangements between consumers and a gas company, whose business was located outside the limits of a city, a truck driver for the company was to test the quantity of gas in the consumer’s tank and replenish the gas as necessary, the city ordinance requiring a license for selling or distributing gas was not applicable to sustain a conviction of the driver. Kirkpatrick v. City of Conyers, 90 Ga. App. 74, 81 S.E.2d 844, 1954 Ga. App. LEXIS 636 (1954) (decided under former Code 1933, § 92-4105). Ordinance imposing license fee or tax on a taxpayer for “delivering” gasoline and oils to filling stations belonging to a taxpayer, whose agent paid an occupation tax for operating such stations, when such delivery was made on orders previously obtained, is void as against the taxpayer under the general charter powers of the municipality, which seeks to tax only an incident or part of the taxpayer’s business. Wofford Oil Co. v. City of Boston, 170 Ga. 624, 154 S.E. 145, 1930 Ga. LEXIS 208 (1930) (decided under former Civil Code 1910, § 868). Exemption does not apply to vendors making both sales and deliveries in the levying municipality. Rossman v. City of Moultrie, 189 Ga. 681, 7 S.E.2d 270, 1940 Ga. LEXIS 368 (1940) (decided under former Code 1933, § 92-4105). Effect of single sale from samples. — Though an agent may in a single instance offer to sell, or even actually sell, one of the samples which the agent carries with the agent, this fact alone would not render the agent liable to pay the license imposed upon peddlers. Kimmel v. Mayor of Americus, 105 Ga. 694, 31 S.E. 623, 1898 Ga. LEXIS 698 (1898) (decided under Ga. L. 1896, p. 36, § 1). Municipal licensing of wholesale dealers of malt beverages. — While municipal authorities may not levy a tax on a traveling salesperson, the authorities may levy a license on a wholesale dealer of malt beverages. Collier v. State, 54 Ga. App. 346, 187 S.E. 843, 1936 Ga. App. LEXIS 574 (1936) (decided under former Code 1933, § 92-4105). Facts as stipulated did not warrant a finding that malt beverage wholesaler located in one county had established within a municipality in another county a sufficient trade nexus upon which the municipality could base the invocation of the municipality’s licensing power. City of Gainesville v. Georgia Crown Distrib. Co., 231 Ga. 352, 201 S.E.2d 410, 1973 Ga. LEXIS 695 (1973) (decided under former Code 1933, § 92-4105). OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-4105 are included in the annotations for this Code section. State Farmers’ Market. — Business operated upon the property of a State Farmers’ Market is exempted from municipal taxation and regulations of any kind except certain regulations as to police, fire, and health. Anyone operating a business on a State Farmers’ Market who leaves the market and solicits orders and makes deliveries in the adjacent municipality would be subject to municipal license laws, unless one is exempted under one of the statutes exempting agricultural products. 1954-56 Ga. Op. Att'y Gen. 494 (rendered under former Code 1933, § 92-4105). Vendors or businesses operating out of the State Farmers’ Market in Forest Park who solicit orders and make deliveries within the City of Forest Park could conceivably be required to obtain a business license from the City of Forest Park. 1987 Op. Atty Gen. No. 87-36, provided that the vendors or businesses were not exempt under O.C.G.A. § 48-5-356. Those businesses or vendors operating out of the State Farmers’ Market in Forest Park who solicit orders and subsequently make deliveries in municipalities other than the City of Forest Park would be exempt from any municipal license fee provided that the county in which the municipality is located does not have a population greater than 500,000. 1987 Op. Atty Gen. No. 87-36, provided that the businesses vendors do not fall outside the exceptions created in O.C.G.A. §§ 48-5-354 and 48-5-356. Businesses or vendors operating strictly within the State Farmers’ Market are not subject to any business license fee by the City of Forest Park. 1988 Op. Atty Gen. No. 88-8. Vendors or businesses operating out of the State Farmers’ Market in Forest Park who solicit orders and make deliveries within the City of Forest Park could conceivably be required to obtain a business license from the City of Forest Park provided the vendors or businesses were not exempt under O.C.G.A. § 48-5-356. 1988 Op. Att'y Gen. No. 88-8. Businesses or vendors operating out of the State Farmers’ Market in Forest Park who solicit orders and subsequently make deliveries in municipalities other than the City of Forest Park would be exempt from any municipal license fee provided that the businesses or vendors do not fall outside the exceptions created in O.C.G.A. §§ 48-5-354 and 48-5-356. 1988 Op. Att'y Gen. No. 88-8. Distributors of distilled spirits. — In determining whether a municipality may impose license fees upon wholesale distributors of distilled spirits who has business situs elsewhere, this statute, which restricts the taxation of traveling salespeople by municipal corporations, is applicable. 1971 Op. Atty Gen. No. U71-69 (rendered under former Code 1933, § 92-4105). Beer wholesalers. — Statute does not prohibit a municipality from levying a business tax on beer wholesalers and requiring the wholesalers to pay a license fee. 1952-53 Ga. Op. Att'y Gen. 458 (rendered under former Code 1933, § 92-4105). RESEARCH REFERENCES ALR. License or excise tax on merchandise brokers or persons performing similar functions as affected by commerce clause, 155 A.L.R. 239. Legislative power to exempt from taxation property, purposes, or uses additional to those specified in constitution, 61 A.L.R.2d 1031.