(ii) Performing services or owning, leasing, or operating tangible property in this state on a more or less permanent and not transitory basis; or
(iii) Having an officer, employee, agent, or other representative who has or maintains an office or who regularly or systematically solicits or promotes the person’s business in this state.
(B) “Office” as used in this paragraph includes, but is not limited to, the residence of any officer, employee, agent, or representative of a person if the residence is held out to be, or identified in the trade with, the person’s business.
(C) “Business” as used in this paragraph includes, but is not limited to, any particular activity, occupation, or employment habitually engaged in whether for financial gain or not.
(4) “Employee” means:
(A) Any individual who is a domiciliary or resident of this state and who performs services either within or outside, or both within and outside, this state for an employer;
(B) Any individual not a domiciliary or resident of this state who performs services within this state for an employer;
(C) An officer, employee, or elected official of any body politic or of any agency or instrumentality of a body politic, and an officer of a corporation; or
(D) Any person to whom a payment of wages is made whether or not the person is an employee of the payer of the wages at the time of payment.
(5) “Employer” means any person for whom an individual who is a resident or domiciliary of this state performs or performed any service of whatever nature within or outside this state or for whom a nonresident individual performs or performed any service of whatever nature within this state as the employee of the person, except that:
(A) If the person for whom the individual performs or performed the services does not have control of the payment of the wages for the service, the term “employer” includes the person having control of the payment of the wages; and
(B) In the case of a person paying wages on behalf of a nonresident individual, foreign partnership, or foreign corporation not doing business within this state, the term “employer” includes the person paying the wages.
(6) “Marital exemption” means the withholding exemption status claimed in a withholding exemption certificate in effect under subsection (c) of Code Section 48-7-102.
(6.1) “Member” shall mean partner, shareholder, or other person to whom the taxpaying obligation of the partnership, Subchapter “S” corporation, or limited liability company falls.
(6.2) “Nonresident” shall mean an individual or fiduciary member who resides outside this state and all other members whose headquarters or principal place of business is located outside this state.
(7) “Number of dependent exemptions claimed” means the number of dependent exemptions claimed in a withholding exemption certificate in effect under subsection (c) of Code Section 48-7-102.
(8) “Payroll period” means a period for which a payment of wages is ordinarily made to the employee by an employer. The term “miscellaneous payroll period” means a payroll period other than a daily, weekly, biweekly, semimonthly, monthly, quarterly, semiannual, or annual payroll period.
(8.1) “Periodic payment” means a designated distribution from a pension, annuity, or similar fund which is one of a series of substantially equal distributions made over:
(A) The life or life expectancy of the participant or the joint lives or joint life expectancies of the participant and his or her beneficiary; or
(B) A specified period of ten years or more.
(9) “Single exemption” means the withholding exemption status claimed in a withholding exemption certificate in effect under subsection (c) of Code Section 48-7-102.
(10) “Wages” means all remuneration paid including, but not limited to, the cash value of all remuneration paid in any medium other than cash, and shall be computed without any deduction of any amounts withheld by the employer for any reason and regardless of the terminology which the employer or employees may apply to the remuneration. The term does not include remuneration paid:
(A) For agricultural labor;
(B) For domestic service in a private home, local college club, or local chapter of a college fraternity or sorority;
(C) For services performed by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by the order;
(D) For services performed for a foreign government or an international organization;
(E) For service not in the course of the employer’s trade or business performed by an employee in any calendar quarter unless the cash remuneration paid for the service is $50.00 or more and the service is performed by an individual who is regularly employed, as defined in the rules and regulations of the commissioner, by the employer to perform the services;
(F) For services performed by an individual under the age of 18 in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution, or for services performed by an individual in, and at the time of, the sale of newspapers or magazines to ultimate consumers under an arrangement by which the newspapers or magazines are to be sold by the individual at a fixed price, the individual’s compensation being based on his retention of the excess of such price over the amount at which the newspaper or magazines are charged to him. This subparagraph shall apply whether or not the individual is guaranteed a minimum amount of compensation for the service or is entitled to be credited with the unsold newspapers or magazines returned;
(G) For services not in the course of the employer’s trade or business to the extent paid in any medium other than cash;
(H) For services for an employer performed by a resident or domiciliary of this state in another state if at the time of the payment of the remuneration the employer is required by the law of the other state to withhold income tax from the remuneration;
(I) For services performed as a master, officer, or any other seaman who is a member of the crew on a vessel engaged in foreign, coastal, intercoastal, interstate, or contiguous trade to the extent withholding from the remuneration is prohibited by the laws of the United States;
(J) To, or on behalf of, any employee:
(i) From or to a trust described in Section 401(a) of the Internal Revenue Code of 1986 which is exempt under Code Section 48-7-25 at the time of the payment unless the payment is made to an employee of the trust as remuneration for services rendered as an employee and not as a beneficiary of the trust;
(ii) Under or to an annuity plan which at the time of the payment meets the requirements of Section 401(a)(3), (4), (5), and (6) of the Internal Revenue Code of 1986;
(K) For services performed by a nonresident if the nonresident has been employed within this state for no more than 23 calendar days during the calendar quarter and the nonresident is not a taxable nonresident as defined in Code Section 48-7-1; or
(L) As fees to a public official for services employed by an employee for his employer.
(11) “Withholding agent” means any person required to deduct and withhold any tax under the provisions of Code Section 48-7-101. History. Ga. L. 1960, p. 7, § 2; Ga. L. 1978, p. 982, § 1; Code 1933, § 91A-3901, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 74; Ga. L. 1987, p. 191, § 4; Ga. L. 1993, p. 597, §§ 1, 2; Ga. L. 1994, p. 595, § 1; Ga. L. 2005, p. 159, §§ 19, 20/HB 488; Ga. L. 2007, p. 271, § 5/SB 184; Ga. L. 2008, p. 898, § 10/HB 1151; Ga. L. 2021, p. 277, § 5/HB 149. The 2021 amendment, effective May 4, 2021, added paragraph (1.1). See Editor’s notes for applicability. Code Commission notes. Pursuant to Code Section 28-9-5, in 1988, “United States” was deleted preceding “Internal Revenue Code” in subdivision (10)(J)(i). Editor’s notes. Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply. Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act. Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes. Ga. L. 1993, p. 597, § 4, not codified by the General Assembly, provides that paragraphs (2.1), (6.1), and (6.2) of this Code section are applicable with respect to any distribution paid or credited after January 1, 1994. Ga. L. 1994, p. 595, § 3, not codified by the General Assembly, provides that paragraph (8.1) of this Code section is applicable to all taxable years beginning on or after January 1, 1994. Ga. L. 2005, p. 159, § 1/HB 488, 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 2005.’ ” Ga. L. 2005, p. 159, § 27(d)/HB 488, not codified by the General Assembly, provides that subparagraph (10)(K) of this Code section is applicable to all calendar quarters on and after July 1, 2005. Ga. L. 2008, p. 898, § 13/HB 1151, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall be applicable to all taxable years beginning on or after January 1, 2008. Ga. L. 2021, p. 277, § 7/HB 149, not codified by the General Assembly, provides, in part, that: “This Act shall be applicable to all taxable years beginning on or after January 1, 2022.” U.S. Code. Section 401 of the United States Internal Revenue Code, referred to in subparagraph (10)(J)(i), is codified as 26 U.S.C. § 401. Law reviews. For note on the 1993 amendment of this Code section, see 10 Georgia St. U.L. Rev. 218 (1993). For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Rev. 255 (1994). OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. In light of the similarity of the statutory provisions, opinions under former Code 1933, § 92-3316, which was subsequently repealed but was succeeded by provisions of this Code section, are included in the annotations for this Code section. Amount to be withheld not affected by garnishment. — Computation of the amount to be withheld under Ga. L. 1960, p. 7 is not affected by a garnishment. 1960-61 Ga. Op. Att'y Gen. 511 (decided under former Code 1933, § 92-3316). When unrestricted subsistence allowance constitutes wages. — Unrestricted subsistence allowance that was an allowance which was in no wise limited to expenditures incurred on account of the employee’s business, was an allowance to defray the employee’s personal living expenses and was, in substance, a form of compensation or remuneration within the scope of former Code 1933, § 92-3107 (see now O.C.G.A. § 48-7-27) and the definition of “wages” in Ga. L. 1960, p. 7, § 2 (see now O.C.G.A. §§ 48-7-100 and 48-7-110). To the extent that an employee incurred expenses on account of the business of an employer, and the employee was not otherwise reimbursed therefor, so that such expenses were a charge against this subsistence allowance, then the situation was one to be handled under regulations of the commissioner promulgated in accordance with Ga. L. 1960, p. 7. 1960-61 Ga. Op. Att'y Gen. 506. RESEARCH REFERENCES C.J.S. 84 C.J.S., Taxation, §§ 485, 486. 85 C.J.S., Taxation, § 1975 et seq. ALR. Tips as taxable income, 10 A.L.R.2d 191. What constitutes trade or business under Internal Revenue Code (U.S.C.A. Title 26), 161 A.L.R. Fed. 245.
