Filing instruments securing long-term notes; procedure; intangible recording tax; rate; maximum tax.

Every holder of a long-term note secured by real estate shall, within 90 days from the date of the instrument executed to secure the note, record the security instrument in the county in which is located the real estate conveyed or encumbered or upon which a lien is created to secure the note and shall present, prior to presenting the instrument to the clerk of superior court for recording, the security instrument to the collecting officer of the county in which the real estate is located. The collecting officer shall determine from the face of the security instrument the date of execution of the instrument, the maturity date of the note, and the principal amount of the note. There is imposed on each instrument an intangible recording tax at the rate of $1.50 for each $500.00 or fraction thereof of the face amount of the note secured by the recording of the security instrument. The collecting officer shall collect the tax due on the security instrument from the holder of the instrument; provided, however, the holder may pass on the amount of such tax to the borrower or mortgagor but the amount of such tax passed to the borrower or mortgagor shall not be considered or treated as part of any finance charge imposed by the holder in connection with the loan transaction. If the security instrument reflects an amount greater than the principal amount of the note and, at the time the security instrument is presented for recording, the holder of the note also presents for recording with the security instrument said holder’s sworn statement itemizing the principal amount of the note and the other charges included within the amount shown on the face of the security instrument, the collecting officer shall determine the principal amount of the note from the sworn statement. The maximum amount of any intangible recording tax payable as provided in this Code section with respect to any single note shall be $25,000.00. History. Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4; Ga. L. 1955, p. 288, § 1; Ga. L. 1977, p. 635, § 1; Code 1933, § 91A-3202, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1981, p. 1857, § 33; Ga. L. 1990, p. 1843, § 4; Ga. L. 1994, p. 1767, § 2; Ga. L. 1995, p. 224, § 1. JUDICIAL DECISIONS Section is constitutional. — Statute is a proper and constitutional exercise of the state’s right to tax the transactions described therein. Columbia Bank for Coops. v. Blackmon, 232 Ga. 344, 206 S.E.2d 424, 1974 Ga. LEXIS 946 (1974). Scope of state’s power to levy this tax. — Reach of this taxing power by the state may extend to objects of the taxation beyond the borders of the state to tax such intangible property of nonresidents if it is derived from or is used as an incident of property owned or a business conducted by such nonresident or the nonresident’s agent in this state. Columbia Bank for Coops. v. Blackmon, 232 Ga. 344, 206 S.E.2d 424, 1974 Ga. LEXIS 946 (1974). It is the conduct of business in this state which furnishes the taxable connection, not merely the location of an office in this state. Columbia Bank for Coops. v. Blackmon, 232 Ga. 344, 206 S.E.2d 424, 1974 Ga. LEXIS 946 (1974). Taxable situs must be in Georgia. — For this state to impose such a tax, the taxable situs of the note or notes must be in Georgia. First Fed. Sav. & Loan Ass'n v. Abbott, 231 Ga. 864, 204 S.E.2d 594, 1974 Ga. LEXIS 1262 (1974). Basis of tax. — Intangible tax imposed by O.C.G.A. § 48-6-61 is analogous to the real estate transfer tax imposed by O.C.G.A. § 48-6-1, both being based on increments in the value of the instrument being recorded and being calculated in the same manner. Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512 S.E.2d 378, 1999 Ga. App. LEXIS 212 (1999). Nature of tax. — Intangible taxes imposed on long term notes secured by real estate are excise taxes, not ad valorem taxes, since the taxes are paid for the privilege of filing a document to protect the note secured by the recording of the security instrument, and the fact that it is based on the value of the property is only ancillary. Bankers Trust Co. v. Jackson, 236 Ga. App. 490, 512 S.E.2d 378, 1999 Ga. App. LEXIS 212 (1999). Trusts liable for tax even if federally exempt. — Assessment under Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4 (see now O.C.G.A. § 48-6-61) on long-term notes secured by real estate was not included in the exemption given by Ga. L. 1937-38, Ex. Sess., p. 156, § 4(a) (see now O.C.G.A. § 48-6-22) to trusts which are exempt from federal taxes pursuant to § 401 of the Internal Revenue Code. Warestores, Inc. v. Nash, 125 Ga. App. 210, 186 S.E.2d 806, 1971 Ga. App. LEXIS 1415, 1971 Ga. App. LEXIS 1431, 1971 Ga. App. LEXIS 783 (1971). Party exempt from tax may compel recordation by writ of mandamus. — When a bank chartered under the laws of this state, not being subject to the payment of an ad valorem recording fee for the recording of a deed to real estate, secures a note having a maturity date in excess of three years, it is error to sustain a general demurrer (now motion to dismiss) to the bank’s petition for a writ of mandamus to require the clerk of the superior court to record a security deed given to secure the payment of a long-term note without payment of the recording fee. Washington Loan & Banking Co. v. Golucke, 212 Ga. 98, 90 S.E.2d 575, 1955 Ga. LEXIS 560 (1955). Credit card debt did not fit the definition of a long term note secured by real estate. In re Felker, 181 Bankr. 1017, 1995 Bankr. LEXIS 714 (Bankr. M.D. Ga. 1995). 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. Legislative intent as to taxation of bonds and long-term notes. — It is clearly the legislative intent of Ga. L. 1953, Nov.-Dec. Sess., p. 379, §§ 3 and 4 (see now O.C.G.A. §§ 48-6-60 and 48-6-61) to tax long-term notes at a rate different from that on bonds. The definition of “long-term notes” is possibly broad enough to include bonds and would possibly include bonds were it not for the fact that Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 2 (see now O.C.G.A. § 48-6-22) imposes a different annual tax on bonds. 1957 Ga. Op. Att'y Gen. 300. Construction with other provisions. — Tax imposed by this statute is not independent of Ga. L. 1937-38, Ex. Sess., p. 156, § 1 et seq. (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48), but is to be read as supplementing it. 1958-59 Ga. Op. Att'y Gen. 368. Construction with exemption provisions. — Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4 (see now O.C.G.A. § 48-6-61) is not complete and exhaustive within its own terms of the law relative to this tax on long-term real estate notes, but that the statute must be read along with, and be subject to, exemptions theretofore prescribed by statutes such as Ga. L. 1937-38, Ex. Sess., p. 156, §§ 4(a) and 7 (see now O.C.G.A. § 48-6-22). 1954-56 Ga. Op. Att'y Gen. 797. Meaning of “real estate.” — Term “real estate” as it appeared in Ga. L. 1953, Nov.-Dec. Sess., p. 379, § 4 (see now O.C.G.A. § 48-6-61) should be given the meaning ascribed to it by former Code 1933, § 85-201 (see now O.C.G.A. § 44-1-2). 1958-59 Ga. Op. Att'y Gen. 379. What constitutes a security instrument covering real estate. — Deed to secure debt conveying “all the trees and timber now standing or growing, or down, and all hereafter growing or to grow” on certain tracts of land described therein is a security instrument covering real estate, within the purview of this statute. The fact that the subject security deed embraces trees and timbers which are down, as well as those standing or growing, does not alter the deed’s effect insofar as the intangibles tax is concerned, but merely means that the holder has the additional protection of personal property as security for the holder’s loan. 1958-59 Ga. Op. Att'y Gen. 379. Tax exempt transferee of note may not record until original holder pays intangible recording tax. — When, subsequent to execution, a “graduated payment adjustable mortgage loan” is assigned by the original holder to an entity which is exempt from the payment of intangible recording tax, the transfer by assignment or otherwise does not relieve the original holder of the note of the holder’s liability for intangible recording tax and the tax commissioner may properly refuse to record the security instrument until the tax is paid. 1983 Op. Att'y Gen. No. 83-22. Tax due from tax-exempt transferee is amount original holder would have paid. — When, subsequent to execution, a “graduated payment adjustable mortgage loan” is assigned by the original holder to an otherwise tax-exempt entity which presents the security instrument for recording, the intangible recording tax should be computed as though the note had not been transferred by the original holder; i.e., on the total extension of credit contemplated under the terms of the note. 1983 Op. Att'y Gen. No. 83-22. Tax collector or tax commissioner is required to determine principal amount of a long-term debt solely from the face of the security deed, without resorting to any other information. Furthermore, when two or more notes are secured by the same security deed, one must determine whether the notes represent portions of the same debt, or whether the notes represent distinct and separate debts. 1980 Op. Att'y Gen. No. 80-141. Georgia intangible recording tax must be imposed on the total extension of credit contemplated under the terms of so-called “graduated payment adjustable mortgage loans” and the total extension of credit contemplated must be shown on the face of the document presented for recording. 1983 Op. Att'y Gen. No. 83-22. Tax held applicable. — Intangible recording tax imposed by O.C.G.A. § 48-6-61 is applicable to a long-term note secured by real estate held by a lender who was enabled to make the loan through the deposit of the proceeds of revenue bonds issued by a local housing authority and which deposit was conditioned upon the lender making the loan. 1984 Op. Att'y Gen. No. 84-17. Distribution of tax based on property location. — Distribution of the intangible tax levied under the provisions of Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48) will be based solely on the location of the property. 1954-56 Ga. Op. Att'y Gen. 581. Tax based on amount of indebtedness. — Recording tax levied by this statute is imposed upon the amount of the indebtedness, the total amount of the note. The tax is not upon the instrument securing the note, nor upon the value of the real estate security. It is upon long-term notes which are the subject of the debt secured by real estate, and is not a tax upon the security instrument evidencing the debt on the clerk’s records. 1954-56 Ga. Op. Att'y Gen. 787; 1960-61 Ga. Op. Att'y Gen. 519. This tax is due on the entire amount of the loan whether it is evidenced by one note or a series of notes, some of which mature within a three-year period. 1960-61 Ga. Op. Att'y Gen. 519. Classification of demand notes as short-term notes. — For the purposes of classification for intangibles taxation of notes secured by real estate, a true demand note is always a short-term note, and may be classified as such by a statement in the instrument to be filed that the note may fall due within three years from the date of the note or from the date of the instrument to be filed. If a maturity date is set out in the instrument to be filed, the note, regardless of the note’s recitals, is not a demand note, and the tax collector or tax commissioner must classify the note by the date as set out. 1970 Op. Atty Gen. U70-9. When any of debt is repayable more than three years from date, it is all long-term and subject to the rates applicable thereto. 1960-61 Ga. Op. Att'y Gen. 519. Burden of paying the recording tax is upon the holder of the notes. Therefore, it is the holder of the long-term note rather than the borrower or maker who is required to pay the tax. 1954-56 Ga. Op. Att'y Gen. 787. Responsibility for collection of this tax is upon the clerk of the superior court of the county in which is situated the real estate conveyed or encumbered, or upon which a lien is created to secure such note. 1954-56 Ga. Op. Att'y Gen. 787. Effect of clerk’s failure to charge recordation fee. — If a financial institution submits a security deed for recordation and the county clerk does not charge the recordation fee as is incumbent upon the clerk, the bank’s lien would be jeopardized. 1975 Op. Att'y Gen. No. 75-125. Tax based on principal when that portion clearly shown. — When a note on a security instrument clearly indicates what portion of the face amount of the note is principal and what portion is interest, the amount of the principal indebtedness determines the base of the tax, and the amount designated as interest does not figure in the computation. 1957 Ga. Op. Att'y Gen. 300; 1967 Op. Att'y Gen. No. 67-263. Tax basis when principal and interest not separately indicated. — When the instrument does not disclose clearly the amount of the debt by virtue of a failure to separate the payments into principal and interest, the tax has been held to apply to the amount obtained by multiplying the stated payments by the number of monthly installments due. 1967 Op. Att'y Gen. No. 67-263. Tax on original indebtedness and new or additional indebtedness. — Original indebtedness on which the tax is paid when the instrument securing it is recorded is not a tax-free line of secured credit but is reduced in amount as the note or notes evidencing it are paid in, total or partially. Any long-term note secured by real estate evidencing indebtedness beyond the remaining balance of the original indebtedness is subject to the tax imposed by this statute on the amount of the new or additional indebtedness. 1963-65 Ga. Op. Att'y Gen. 654. Taxation of new note and security instrument issued upon cancellation of existing note. — Even though the intangibles tax has been paid upon a long-term note secured by real estate, when such note is cancelled and a new note and security instrument are executed as to the same property by a new maker, such new note is subject to the intangibles tax. 1970 Op. Atty Gen. No. U70-58. Payment of an insufficient tax has been held to be constructive notice as to the pro rata portion of the note upon which the tax has been paid. 1967 Op. Att'y Gen. No. 67-263. It has been held that even though an insufficient tax has been paid, the record constitutes notice when the amount paid was the amount demanded by the tax official. 1967 Op. Att'y Gen. No. 67-263. Exemption of notes held by nonresidents when not secured by realty nor connected with business. — Notes held by a nonresident, which notes are not secured by real estate nor connected with any business done in this state, are not subject to ad valorem taxation in this state. Mere notice of promissory notes creating no lien on property is not subject to being recorded. 1970 Op. Atty Gen. No. U70-52. Long-term notes secured by real estate held by the Georgia Development Authority are public property so as to be exempt from intangible taxes imposed by Ga. L. 1953, Nov.-Dec. Sess., p. 379 (see now O.C.G.A. Arts. 2 and 3, Ch. 6, T. 48). 1973 Op. Atty Gen. No. U73-40. Imposition of this tax upon national banking associations as holders is without authority and such associations are immune from this tax. It is of no difference by what name the tax is designated. 1954-56 Ga. Op. Att'y Gen. 776. Immunity granted to national banks not transferrable. — Immunity of a national bank to the tax on a long-term note secured by real estate does not attach itself to the instrument. When a nonexempt building and loan association becomes the owner and holder of this instrument as transferee, the association thereby becomes liable under this statute. 1963-65 Ga. Op. Att'y Gen. 605. Original holder not relieved of tax obligation upon transfer to national bank. — Transfer by assignment or otherwise of long-term notes secured by real estate to a national bank does not relieve the original holder of the holder’s tax obligation and does not change the tax status of the instrument. 1963-65 Ga. Op. Att'y Gen. 511. RESEARCH REFERENCES C.J.S. 85 C.J.S., Taxation, § 1813 et seq.