Taxation of corporations; allocation and apportionment of income; formula for apportionment.

(b) (1) If the entire business income of the corporation is derived from property owned or business done in this state, the tax shall be imposed on the entire business income.

(2) If the business income of the corporation is derived in part from property owned or business done in this state and in part from property owned or business done outside this state, the tax shall be imposed only on that portion of the business income which is reasonably attributable to the property owned and business done within this state, such portion to be determined as provided in subsections (c) and (d) of this Code section.

(d) Net income of the classes described in subsection (c) of this Code section having been separately allocated and deducted, the remainder of the net business income shall be apportioned as follows:

(1) Where the net business income of the corporation is derived principally from the manufacture, production, or sale of tangible personal property, the portion of net income therefrom attributable to property owned or business done within this state shall be taken to be the portion arrived at by application of the following formula:

(A) Gross receipts factor.

(i) The gross receipts factor is a fraction, the numerator of which is the total gross receipts from business done within this state during the tax period and the denominator of which is the total gross receipts from business done everywhere during the tax period. For the purposes of this subparagraph, receipts shall be deemed to have been derived from business done within this state only if the receipts are received from products shipped to customers in this state, or from products delivered within this state to customers. In determining the gross receipts within this state, receipts from sales negotiated or effected through offices of the taxpayer outside this state and delivered from storage in this state to customers outside this state shall be excluded;

(ii) Where a taxpayer’s gross receipts are also derived from activities described in paragraph (2) of this subsection, gross receipts shall also include the gross receipts from the activities described in paragraph (2) of this subsection and shall be attributed to Georgia based upon division (2)(A)(i) of this subsection;

(B) Apportionment formula. The net income of the corporation shall be apportioned to this state according to the gross receipts factor pursuant to subparagraph (A) of this paragraph;

(2) Except as otherwise provided in paragraph (2.1) or (2.2) of this subsection, where the net business income is derived principally from business other than the manufacture, production, or sale of tangible personal property, the net business income of the corporation shall be determined by applying the following formula:

(A) Gross receipts factor.

(i) The gross receipts factor is a fraction, the numerator of which is the total gross receipts from business done within this state during the tax period and the denominator of which is the total gross receipts from business done everywhere during the tax period. For purposes of this subparagraph, the term “gross receipts” means all gross receipts received from activities which constitute the taxpayer’s regular trade or business. Gross receipts are in this state if the receipts are derived from customers within this state or if the receipts are otherwise attributable to this state’s marketplace;

(ii) Where a taxpayer’s gross receipts are also derived from activities described in paragraph (1) of this subsection, gross receipts shall also include the gross receipts from the activities described in paragraph (1) of this subsection and shall be attributed to Georgia based upon division (1)(A)(i) of this subsection;

(B) Apportionment formula. The net income of the corporation shall be apportioned to this state according to the gross receipts factor pursuant to subparagraph (A) of this paragraph;

(C) If the allocation and apportionment provisions provided for in this paragraph do not fairly represent the extent of the taxpayer’s business activity in this state, the taxpayer may petition the commissioner for, or the commissioner may by regulation require, with respect to all or any part of the taxpayer’s business activity, if reasonable:

(i) Separate accounting;

(ii) The exclusion of any one or more of the factors;

(iii) The inclusion of one or more additional factors that will fairly represent the taxpayer’s business activity within this state; or

(iv) The employment of any other method to effectuate an equitable allocation and apportionment of the taxpayer’s income. The denial of a petition under this subparagraph shall be appealable pursuant to Code Section 48-2-59. Such an appeal shall be filed within 30 days of the date of the commissioner’s notice of denial;

(2.1) (A) Except as otherwise provided in this paragraph, all terms used in this paragraph shall have the same meaning as such terms are defined in 49 U.S.C. Section 1301 and the United States Department of Transportation’s Uniform System of Accounts and Reports for Large Certificated Air Carriers, 14 C.F.R. Part 241, as now or hereafter amended.

(B) Where the net business income of the corporation is derived principally from transporting passengers or cargo in revenue flight, the portion of the net income therefrom attributable to property owned or business done within this state shall be taken to be the portion arrived at by application of the following three-factor formula:

(i) Revenue air miles factor. The revenue air miles factor is a fraction, the numerator of which shall be equal to the total, for each flight stage which originates or terminates in this state, of revenue passenger miles by aircraft type flown in this state and revenue cargo ton miles by aircraft type flown in this state and the denominator of which shall be equal to the total, for all flight stages flown everywhere, of total revenue passenger miles by aircraft type and total revenue cargo ton miles by aircraft type;

(ii) Tons handled factor. The tons handled factor is a fraction, the numerator of which shall be equal to the total of revenue passenger tons by aircraft type handled in this state and revenue cargo tons by aircraft type handled in this state and the denominator of which shall be equal to the total of revenue passenger tons by aircraft type flown everywhere and revenue cargo tons by aircraft type flown everywhere. For purposes of this division, the term “handled” means the product of 60 percent multiplied by the revenue passenger tons flown on each flight stage which originates in this state or 60 percent multiplied by the revenue cargo tons flown on each flight stage which originates in this state;

(iii) Originating revenue factor. The originating revenue factor is a fraction, the numerator of which shall be equal to the total of passenger and cargo revenue by aircraft type which is attributable to this state and the denominator of which shall be the total of passenger and cargo revenue by aircraft type everywhere. For purposes of this division, passenger or cargo revenue which is attributable to this state shall be equal to the product of passenger or cargo revenue everywhere by aircraft type multiplied by the ratio of revenue passenger miles or revenue cargo ton miles in this state to total revenue passenger miles everywhere or total revenue cargo ton miles everywhere for each aircraft type as separately determined in division (i) of this subparagraph. If records of total passenger revenue everywhere by aircraft type or total cargo revenue everywhere by aircraft type are not maintained, then for purposes of this division, total passenger revenue everywhere for all aircraft types or total cargo revenue everywhere for all aircraft types shall be allocated to each aircraft type based on the ratio of total revenue passenger miles everywhere for that aircraft type to all aircraft types or total revenue cargo ton miles everywhere for that aircraft type to all aircraft types;

(iv) The revenue air miles factor, the tons handled factor, and the originating revenue factor shall be separately determined and an apportionment fraction shall be calculated using the following formula:

(I) The revenue air miles factor shall represent 25 percent of the fraction;

(II) The tons handled factor shall represent 25 percent of the fraction; and

(III) The originating revenue factor shall represent 50 percent of the fraction. The net income of the corporation shall be apportioned to this state according to such average fraction;

(2.2) (A) As used in this paragraph, the term:

(i) “Credit card data processing and related services” shall include, but not be limited to, the provision of infrastructure services for bank credit card and private label card issuers, such as new account application processing, international and domestic clearing, statement preparation, point-of-sale authorization processing, card embossing, and other related processing services for managing cardholder accounts.

(ii) “Customer” means the banks and institutions to whom credit card data processing and related services are provided.

(iii) “Gross receipts factor” means a fraction, the numerator of which is the total gross receipts from the taxpayer’s customers during the tax period, if the principal office of the customer’s credit card operation is in this state or if the principal office of the taxpayer’s customer is in this state, and the denominator of which is the total gross receipts from all of the taxpayer’s customers during the tax period.

(B) Where more than 60 percent of the total gross receipts of a corporation are derived from the provision of credit card data processing and related services to banks and other institutions, the portion of the net income attributable to business done in this state shall be determined by multiplying the corporation’s net income by the gross receipts factor in division (iii) of subparagraph (A) of this paragraph;

(3) For the purposes of this subsection, the term “sale” shall include, but not be limited to, an exchange, and the term “manufacture” shall include, but not be limited to, the extraction and recovery of natural resources and all processes of fabricating and curing.

(e) The net income of a domestic or foreign corporation which is a subsidiary of another corporation or which is closely affiliated with another corporation by stock ownership shall be determined by eliminating all payments to the parent corporation or affiliated corporation in excess of fair value and by including fair compensation to the domestic business corporation for its commodities sold to or services performed for the parent corporation or affiliated corporation. For the purposes of determining net income as provided in this subsection, the commissioner may equitably determine the net income by reasonable rules of apportionment of the combined income of the subsidiary, its parent, and affiliates, or any combination of the subsidiary, its parent, and any one or more of its affiliates. History. Ga. L. 1931, Ex. Sess., p. 24, § 15; Ga. L. 1931, p. 7, § 85; Code 1933, § 92-3113; Ga. L. 1935, p. 121, § 4; Ga. L. 1937, p. 109, § 9; Ga. L. 1941, p. 210, § 5; Ga. L. 1950, p. 299, § 1; Ga. L. 1962, p. 455, § 1; Ga. L. 1969, p. 114, §§ 3, 4; Ga. L. 1974, p. 406, § 1; Code 1933, § 91A-3611, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 69; Ga. L. 1987, p. 191, § 2; Ga. L. 1995, p. 714, §§ 1, 2; Ga. L. 1996, p. 181, §§ 7, 8; Ga. L. 1996, p. 220, § 1; Ga. L. 1997, p. 459, §§ 1, 2; Ga. L. 1998, p. 6, § 1; Ga. L. 2001, p. 984, § 5; Ga. L. 2002, p. 415, § 48; Ga. L. 2005, p. 30, §§ 4-6/HB 191; Ga. L. 2005, p. 159, § 15/HB 488; Ga. L. 2012, p. 318, § 10/HB 100. 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. 1995, p. 714, § 4, not codified by the General Assembly, provides that the 1995 amendment shall be applicable to all taxable years beginning on or after January 1, 1995. Ga. L. 1996, p. 181, § 10, not codified by the General Assembly, provides for a study and report by the state revenue commissioner regarding the effect of the Act on revenue received by the state, counties, and cities in 1997 and 1998 from the tax imposed by Article 4 of Chapter 6 of Title 48 of the Code. Ga. L. 1996, p. 181, § 11, not codified by the General Assembly, provides that the 1996 amendment shall be applicable to all taxable years beginning on or after January 1, 1996. Ga. L. 1996, p. 220, § 11, not codified by the General Assembly, provides that the 1996 amendment shall be applicable to all taxable years beginning on or after January 1, 1996. Ga. L. 1997, p. 459, § 3, not codified by the General Assembly, provides that the 1997 amendment shall be applicable to all taxable years beginning on or after January 1, 1997. Ga. L. 1998, p. 6, § 2, not codified by the General Assembly, provides that the 1998 amendment shall be applicable to all taxable years beginning on or after January 1, 1998. Ga. L. 2001, p. 984, § 20, not codified by the General Assembly, provides that the 2001 amendment shall be applicable to all taxable years beginning on or after January 1, 2001. Ga. L. 2005, p. 30, § 7(d)/HB 191, not codified by the General Assembly, provides that the 2005 amendment to paragraphs (d)(1) and (d)(2) shall be applicable to all taxable years beginning on or after January 1, 2008. 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.’ ” Administrative rules and regulations. Corporations: Allocation and apportionment of income, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Revenue, Income Tax Division, Taxes, § 560-7-7-.03. Law reviews. For note discussing Georgia corporate income tax in light of commerce clause immunity, see 10 Ga. B. J. 172 (1947). For comment on Redwine v. Schenley Indus., Inc., 210 Ga. 769, 83 S.E.2d 16 (1954), see 17 Ga. B. J. 261 (1954). For comment, “Doing Business for Purposes of State Taxation of Foreign Corporations,” focusing on Minnesota v. Northwestern States Portland Cement Co., CCH State Tax Reports 16-001 (Hennepin County Dist. Court, October, 1955), see 5 J. Pub. L. 263 (1956). For comment on Williams v. Stockham Valves & Fittings, Inc., 358 U.S. 450, 79 S. Ct. 357, 3 L. Ed. 2d 421 (1959), upholding constitutionality of state net income tax levied on revenues of foreign corporation derived from interstate commerce where tax is “fairly apportioned,” see 22 Ga. B. J. 107 (1959). For comment on Hawes v. William L. Bonnell Co., 116 Ga. App. 184, 156 S.E.2d 536 (1967), see 19 Mercer L. Rev. 464 (1968). For article, “Foreign Corporations in Georgia,” see 10 Ga. St. B.J. 243 (1973). For article, “Primary Tax Incentives for Industrial Investment in the Southeastern United States,” see 25 Emory L.J. 789 (1976). For note on the 1995 amendment of this Code section, see 12 Georgia St. U.L. Rev. 347 (1995). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001). JUDICIAL DECISIONS General Considerations Doing Business Three-Factor Formula Gross Receipts Factor Net Income of Subsidiaries and Affiliates General Considerations History of this Code section through Ga. L. 1950, p. 299. State v. Coca Cola Bottling Co., 212 Ga. 630, 94 S.E.2d 708, 1956 Ga. LEXIS 475 (1956). Legislative intent. — General Assembly clearly and plainly showed the legislature’s intention to tax the activities or transactions which every corporation carries on within this state for the purpose of financial profit or gain. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316, 116 S.E.2d 293, 1960 Ga. LEXIS 456 (1960). Purpose of section. — Evident purpose of this section is to require the taxpayer to pay to this state income tax on that portion of the taxpayer’s business which is fairly attributable to its activities in this state. Twentieth Century-Fox Film Corp. v. Phillips, 76 Ga. App. 825, 47 S.E.2d 183, 1948 Ga. App. LEXIS 462 (1948). Obvious purpose of this section as a whole is to provide some of the rules for determining corporate net income within the state. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). Section fixes a legislative definition of what constitutes basis for assessing income taxes against corporations, foreign or domestic, which engage in any activities or transactions in this state for the purpose of financial profit or gain. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316, 116 S.E.2d 293, 1960 Ga. LEXIS 456 (1960). Alternative means of computing Georgia-derived income. — Under former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35), that part of the net income of a corporation engaged in the business of manufacturing or selling tangible personal property in this state, and elsewhere, which should be allocated and apportioned to this state, may be determined. This is especially true when such a corporation in the corporation’s regular business activities does not have all of the factors of the three factor formula. State v. Coca Cola Bottling Co., 212 Ga. 630, 94 S.E.2d 708, 1956 Ga. LEXIS 475 (1956). Former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-3 and 48-7-35) conferred upon nonresidents and corporations the right to seek alternative methods of determining their Georgia-derived income when such methods would more accurately reflect that income. Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634, 206 S.E.2d 842, 1974 Ga. App. LEXIS 1501 (1974), aff'd, 233 Ga. 412, 211 S.E.2d 711, 1975 Ga. LEXIS 1324 (1975). Purpose of apportionment provisions. — Common sense meaning of this section as to apportioning of business income is that a corporation carrying on an active interstate business in this state and one or more other states is entitled to apportion its total taxable income between or among those states. Its liability to this state is on the amount apportioned to Georgia. Blackmon v. Habersham Mills, Inc., 233 Ga. 501, 212 S.E.2d 337, 1975 Ga. LEXIS 1358 (1975). Amount of business in this state historically is primary factor in allocating net income. — Throughout the history of this section, one of the primary factors in determining the proportion of the net income properly to be allocated to this state has been the amount of business within the state. Twentieth Century-Fox Film Corp. v. Phillips, 76 Ga. App. 825, 47 S.E.2d 183, 1948 Ga. App. LEXIS 462 (1948). When interstate operations of foreign corporation may be taxed. — Net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing state forming a sufficient nexus to support the levy. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S. Ct. 357, 3 L. Ed. 2d 421, 1959 U.S. LEXIS 1488 (1959). Jurisdiction in other states for tax purposes immaterial to liability in this state. — Whether a corporation is subject to the taxing jurisdiction of other states is immaterial. If a domestic or foreign corporation has an apportioned tax liability in this state, the remainder of the corporation’s apportioned tax liability being in other states, whether those other states do or do not levy a state income tax is immaterial. Blackmon v. Habersham Mills, Inc., 233 Ga. 501, 212 S.E.2d 337, 1975 Ga. LEXIS 1358 (1975). Apportionment provisions inapplicable when entire net income derived from doing business in this state. — When corporation’s entire net income is derived from doing business in this state, the remainder of this section, relating to an apportionment of income when it is derived only in part from property owned or business done within this state and in part from property owned or business done elsewhere, is wholly inapplicable. State v. Coca-Cola Bottling Co., 214 Ga. 316, 104 S.E.2d 574, 1958 Ga. LEXIS 411 (1958). Apportionment under paragraph (d)(3) of section. — When subsection (5) of former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31) was applicable, equitable apportionment was mandatory unless the taxpayer made application for other treatment pursuant to former Code 1933, §§ 92-3114 and 92-3115 (see now O.C.G.A. §§ 48-7-34 and 48-7-35) and such application was granted by the commissioner. Blackmon v. Henry C. Beck Co., 233 Ga. 412, 211 S.E.2d 711, 1975 Ga. LEXIS 1324 (1975). Under former paragraph (d)(3) of O.C.G.A. § 48-7-31, a corporation engaged in a unitary-service related business with other corporations could use a unitary method of apportioning income since the provision, prior to the 1995 amendment, did not require a specific method of apportionment. Collins v. AT & T Co., 219 Ga. App. 196, 464 S.E.2d 642, 1995 Ga. App. LEXIS 1009 (1995), cert. denied, No. S96C0489, 1996 Ga. LEXIS 671 (Ga. Apr. 1, 1996). Separate business rule inapplicable under paragraph (d)(3) of section. — “Separate business” rule cannot be supported by subsection (5) of this section, which stated that the net income shall be equitably apportioned within and outside the state under rules and regulations of the commissioner, in the ratio that the business within the state was to the total business of the corporation. Blackmon v. Henry C. Beck Co., 233 Ga. 412, 211 S.E.2d 711, 1975 Ga. LEXIS 1324 (1975). Failure of commissioner to apportion income derived both within and outside state is abuse of discretion. — If the net income of a corporation is derived from the performance of the corporation’s business operations both within and outside this state, it is an abuse of the commissioner’s discretion to tax that corporation on a separate accounting basis, when the General Assembly has required that such income be equitably apportioned. Henry C. Beck Co. v. Blackmon, 131 Ga. App. 634, 206 S.E.2d 842, 1974 Ga. App. LEXIS 1501 (1974), aff'd, 233 Ga. 412, 211 S.E.2d 711, 1975 Ga. LEXIS 1324 (1975). Tax liability when principal office and place of business located in state. — When orders for the taxpayer’s product come to it unsolicited and when the taxpayer’s principal office and place of business is in this state, the taxpayer is liable to this state for income tax upon the net income derived from its entire business operations. Its business is done in this state and the destination or origin of its shipment in no wise alters this fact. State v. Coca-Cola Bottling Co., 214 Ga. 316, 104 S.E.2d 574, 1958 Ga. LEXIS 411 (1958). Sale of whiskey. — It is illogical and unreasonable to contend that the sale of whiskey in this state by an unlicensed nonresident, upon orders taken in this state and approved by the state revenue commissioner in conformity with regulations, is doing business in this state and is subject to income tax on the income arising therefrom. Redwine v. Schenley Indus., Inc., 210 Ga. 769, 83 S.E.2d 16, 1954 Ga. LEXIS 452 (1954); (commented on in) 17 Ga. B.J. 261 (1954). Doing Business Term “doing business” comports with due process requirements. — Term “doing business” within former Code 1933, §§ 92-2401 and 92-3113, which means any activity or transactions for the purpose of financial profit or gain, did not violate the due process requirement of either the Fourteenth Amendment or Ga. Const. 1976, Art. I, Sec. I, Para. I (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Chattanooga Glass Co. v. Strickland, 244 Ga. 603, 261 S.E.2d 599, 1979 Ga. LEXIS 1342 (1979). No prohibition against tax benefit or exemption for domestic corporation doing business outside state. — Regardless of constitutional limitations on the state’s power to tax foreign corporations, it is not prohibited from granting a tax benefit or exemption to a domestic corporation doing business outside the state. Blackmon v. Habersham Mills, Inc., 131 Ga. App. 59, 205 S.E.2d 21, 1974 Ga. App. LEXIS 1326 (1974). Constitutionality of tax on income from unsolicited orders received from outside state. — Income derived by a corporation from unsolicited orders received by the corporation from outside the state cannot, under the Fourteenth Amendment and the commerce clause of the United States Constitution, be taxed elsewhere than in the state. State v. Coca-Cola Bottling Co., 214 Ga. 316, 104 S.E.2d 574, 1958 Ga. LEXIS 411 (1958). Former “closed transaction” test replaced by “activities or transactions” test. — Georgia Laws 1950, p. 299, had the legal effect of shifting the operation of this section from the “closed transaction” test, which the courts of this state had previously applied to it, to the “activities or transactions” test, which Ga. L. 1950, p. 299 established as the criterion to be used thereafter in determining an income tax liability to this state of a corporation, foreign or domestic, which engages in any activities or transactions in this state for the purpose of financial profit or gain. Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316, 116 S.E.2d 293, 1960 Ga. LEXIS 456 (1960). “Doing business” identifies who is liable, not extent of liability. — First paragraph of this section defines who was liable for the tax. The references to “doing business” do not relate in any manner to the amount of the tax liability. Blackmon v. Habersham Mills, Inc., 233 Ga. 501, 212 S.E.2d 337, 1975 Ga. LEXIS 1358 (1975). “Doing business” means any activity or transaction for the purpose of financial profit or gain. Chattanooga Glass Co. v. Strickland, 244 Ga. 603, 261 S.E.2d 599, 1979 Ga. LEXIS 1342 (1979). “Doing business” encompasses substantial activity on behalf of the corporation. — Courts have interpreted the words “doing business” when applied to a foreign corporation to encompass a substantial activity on the corporation’s own behalf in this state. Likewise, the same test is applied as to a domestic corporation seeking to apportion the corporation’s income for “doing business” outside the state. Hawes v. William L. Bonnell Co., 116 Ga. App. 184, 156 S.E.2d 536, 1967 Ga. App. LEXIS 736 (1967) (for comment see 19 Mercer L. Rev. 464 (1968)). Same activity not necessarily likewise doing business both within and outside state. — This section is designed to provide a broad basis for taxation of foreign corporations and to offer domestic corporations doing business outside the state commensurate tax benefits. However, this section does not provide that whatsoever would be deemed to constitute doing business within the state shall similarly constitute doing business outside the state. It merely provides a definition of “doing business”. Hawes v. William L. Bonnell Co., 116 Ga. App. 184, 156 S.E.2d 536, 1967 Ga. App. LEXIS 736 (1967) (for comment see 19 Mercer L. Rev. 464 (1968)). What activities insufficient to constitute “doing business”. — Following activities have been found insufficient to constitute “doing business”: (1) customers and delivery of merchandise; (2) salaried salesman; and (3) sales arrangements and selling contracts with various companies. Hawes v. William L. Bonnell Co., 116 Ga. App. 184, 156 S.E.2d 536, 1967 Ga. App. LEXIS 736 (1967) (for comment see 19 Mercer L. Rev. 464 (1968)). What activity of foreign corporation constitutes doing business. — In order to incur tax liability under statutes imposing taxes on persons doing business in a state, a foreign corporation must transact some substantial part of its ordinary business, and it must be continuous in character as distinguished from a mere casual or occasional transaction. Hawes v. William L. Bonnell Co., 116 Ga. App. 184, 156 S.E.2d 536, 1967 Ga. App. LEXIS 736 (1967) (for comment see 19 Mercer L. Rev. 464 (1968)). Three-Factor Formula Gross receipts factor and apportionment formula comport with due process. — Gross receipts factor, when taken in connection with the two other factors of the three factor formula and subsection (4)(d) of this section did not violate the due process clause of either the federal or state Constitutions. United States Steel Corp. v. Undercofler, 220 Ga. 553, 140 S.E.2d 269, 1965 Ga. LEXIS 559 (1965). Discussion of the history of the three factor formula. — See Oxford v. Nehi Corp., 215 Ga. 74, 109 S.E.2d 329, 1959 Ga. LEXIS 398 (1959). Object of apportionment is to fairly allocate the net income of the taxpayer, which is accomplished by the selection of factors which are causally related to the production of the income. State v. Coca Cola Bottling Co., 212 Ga. 630, 94 S.E.2d 708, 1956 Ga. LEXIS 475 (1956). Fair and proper allocation is obtained only when all three factors actually exist and are used by the taxpayer in making an apportionment of the taxpayer’s net income. State v. Coca Cola Bottling Co., 212 Ga. 630, 94 S.E.2d 708, 1956 Ga. LEXIS 475 (1956). Use of fewer than all three factors in computations no longer allowed. — In determining the amount of the taxpayer’s net income which should be allocated and apportioned to this state, former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31), unlike former Code 1933, § 92-3113 as it existed prior to Ga. L. 1950, p. 299, did not permit the use of two or one of the factors making up the formula, but expressly declared that all the factors must be used by the taxpayer in determining the amount of the taxpayer’s net income which should be allocated and apportioned to this state. State v. Coca Cola Bottling Co., 212 Ga. 630, 94 S.E.2d 708, 1956 Ga. LEXIS 475 (1956). When out-of-state sales taxable as Georgia income. — Out-of-state sales of a taxpayer who is engaged in the sale of tangible goods both within and outside the state are taxable as Georgia income when the out-of-state deliveries are made under a contract that title to the goods passes to the purchaser at destination, and when the three factor formula is applicable. Oxford v. Nehi Corp., 98 Ga. App. 779, 106 S.E.2d 857, 1958 Ga. App. LEXIS 684 (1958), aff'd, 215 Ga. 74, 109 S.E.2d 329, 1959 Ga. LEXIS 398 (1959). When a corporation derives the corporation’s income from business done both within and without the state, Georgia taxes only that income which is “reasonably attributable to the property owned and business done within this state,” pursuant to a three-part statutory formula. The three factors which are considered are: the corporation’s property; payroll; and gross receipts. Strickland v. Patcraft Mills, Inc., 251 Ga. 43, 302 S.E.2d 544, 1983 Ga. LEXIS 687 (1983). Gross Receipts Factor Gross receipts factor comports with due process. — Gross receipts factor in view of the property and payroll factors of the three factor formula is not unreasonable on its face or violative of the taxpayer’s rights under the due process clause of either the federal or state Constitutions. United States Steel Corp. v. Undercofler, 220 Ga. 553, 140 S.E.2d 269, 1965 Ga. LEXIS 559 (1965). Taxable nexus for gross receipts purposes is the destination of the goods. — That the shipment of goods is F.O.B. an out-of-state factory to customers in this state makes no difference in the application of this factor. Undercofler v. United States Steel Corp., 109 Ga. App. 8, 135 S.E.2d 69, 1964 Ga. App. LEXIS 778 (1964), aff'd, 220 Ga. 553, 140 S.E.2d 269, 1965 Ga. LEXIS 559 (1965). Adoption of “destination” or “place of market” theory for apportioning gross receipts. — O.C.G.A. § 48-7-31(d)(2)(C) must be construed in accordance with prior judicial interpretations of the law, which held that the legislature, in enacting the predecessor to that section, intended to adopt the “destination” or “place of market” theory for apportioning gross receipts under the statute. Strickland v. Patcraft Mills, Inc., 251 Ga. 43, 302 S.E.2d 544, 1983 Ga. LEXIS 687 (1983). Destination test, as opposed to the “transfer of physical possession” theory, is easy to apply and is not subject to manipulation by taxpayers. Strickland v. Patcraft Mills, Inc., 251 Ga. 43, 302 S.E.2d 544, 1983 Ga. LEXIS 687 (1983). Destination test correctly recognizes the contribution by a consumer state to the realization of corporate income, and acknowledges that the process of manufacturing results in no profits until it ends in sales. Strickland v. Patcraft Mills, Inc., 251 Ga. 43, 302 S.E.2d 544, 1983 Ga. LEXIS 687 (1983). Limitations as to receipts included in computing gross receipts factor. — That portion of subdivision (4)(c) (now (d)(2)(c)) of this section which read, “for the purposes of this section (now subparagraph) receipts shall be deemed to have been derived from business done within this state only if received from products shipped to customers in this state, or delivered within this state to customers,” simply meant that receipts from products shipped to customers outside of this state or delivered to customers outside of this state should not be included as being Georgia receipts. Oxford v. Nehi Corp., 215 Ga. 74, 109 S.E.2d 329, 1959 Ga. LEXIS 398 (1959). Receipts referred to in a portion of subdivision (4)(c) of this section reading “in determining the gross receipts within this state, receipts from sales negotiated or effected through offices of the taxpayer outside the state and delivered from storage in this state to customers outside this state shall be excluded,” were receipts for sales effected outside of the state for products delivered to customers outside the state, have no reference to the kind of receipts referred to in the first part of that subdivision (now subparagraph), and neither included, limited, excluded, or affected the receipts from “products shipped to customers in this state or products delivered within this state to customers.” Oxford v. Nehi Corp., 215 Ga. 74, 109 S.E.2d 329, 1959 Ga. LEXIS 398 (1959). Receipts from carpet sales made by the taxpayer to out-of-state customers who took possession of the goods at the taxpayer’s place of business in Dalton, Georgia, for immediate transport and resale out of state did not constitute “gross receipts from business done within this state” for purposes of the three factor formula for determining the taxable income of multistate corporations in Georgia under O.C.G.A. § 48-7-31(d)(2). Strickland v. Patcraft Mills, Inc., 251 Ga. 43, 302 S.E.2d 544, 1983 Ga. LEXIS 687 (1983). Net Income of Subsidiaries and Affiliates Purpose of provisions as to subsidiaries and affiliates. — Obvious purpose of subsection (6) of this section, as a whole, as stated in the first sentence, was to pierce the veil of a corporate entity to reflect income as if all transactions with a parent corporation or an affiliate were at arm’s length. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). Construction of provisions as to subsidiaries and affiliates with other provisions. — Bifurcated accounting rule of subsection (6) of former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31) did not render former Code 1933, § 92-3209 (see now O.C.G.A. § 48-7-58) meaningless because the purpose of former Code 1933 § 92-3207 was much broader than specific accounting rules provided in that former section. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). Commissioner alone may pierce corporate veils and apply a unitary theory to determine equitably net income by reasonable rules of apportionment. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). Duty to determine net income of subsidiaries and affiliates. — First sentence of subsection (6) of this section, in failing to state who shall make adjustments, imposed a mandatory obligation on the taxpayer and the commissioner, to determine net income of the subsidiary or affiliate. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). Commissioner’s power discretionary. — The second sentence of subsection (6) of this section (see now subsection (e)), unlike the first, stated a discretionary rule. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). Commissioner’s power may be exercised only when mandatory rule cannot be used. — The two sentences of subsection (6) of this section must be read together, the second as limited by the first, which as a mandatory rule has priority. In order to exercise the discretion under the second rule, the commissioner must find that the income of the taxpayer cannot be adjusted in the manner first prescribed. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). No basis for application of unitary theory when taxpayer has done all the law requires. — When findings of fact reflect that the taxpayer has done all that the law requires, no basis exists for the commissioner to rely upon the second sentence of subsection (6) of this section as authority to apply the unitary theory. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). Mere existence of unitary business is not test for exercising discretion vested in the commissioner under the second sentence of subsection (6) of this section. Blackmon v. Campbell Sales Co., 125 Ga. App. 859, 189 S.E.2d 474, 1972 Ga. App. LEXIS 1491 (1972). OPINIONS OF THE ATTORNEY GENERAL Due process limits on what constitutes doing business. — This section is necessarily limited by the requirements of due process so that isolated, casual, and intermittent activity incidental to the conduct of a business conducted in another state does not constitute doing business in this state. 1960-61 Ga. Op. Att'y Gen. 497; 1960-61 Ga. Op. Att'y Gen. 498; 1960-61 Ga. Op. Att'y Gen. 500. Tax on net worth, not franchise or privilege of doing business. — Income tax is imposed upon net income of the corporation and not upon the franchise or the privilege of doing business. 1950-51 Ga. Op. Att'y Gen. 373. No right to file consolidated returns. — General Assembly, by adopting former Code 1933, § 92-3202 (see now § O.C.G.A. 48-7-51) did not give to corporate taxpayers, for Georgia income tax purposes, the right to file consolidated income tax returns. 1969 Op. Att'y Gen. No. 69-77. Taxpayer may amend filing unauthorized under § 48-7-34. — Company which filed the company’s income tax return under former Code 1933, § 92-3114 (see now O.C.G.A. § 48-7-34), which return was accepted by the commissioner, although no express consent was given by the latter permitting the filing under former § 92-3114, may nevertheless within the statute of limitations amend the company’s return by filing under former Code 1933, § 92-3113 (see now O.C.G.A. § 48-7-31) and procure any refund to which the company may be entitled, since the first filing was unauthorized and therefore did not work an estoppel. 1952-53 Ga. Op. Att'y Gen. 434. What activity constitutes doing business in this state. — Branch manufacturing shop in this state, shipping all its completed goods to a main plant located outside the state, which in turn makes all sales, is taxable under laws of this state to the extent that the operation in this state produced income to the main corporation and, therefore, is considered as doing business in Georgia. 1954-56 Ga. Op. Att'y Gen. 703. Corporation stocking wares in this state for shipment to consumers in southeast is doing business in this state and is subject to taxation. 1957 Ga. Op. Att'y Gen. 280. Foreign corporation which leases furniture, fixtures, and equipment to a company in this state for the operation of a store is doing business in this state, and is subject to the payment of income tax upon the rent received for such fixtures. 1958-59 Ga. Op. Att'y Gen. 366. When a foreign corporation merely qualifies as a fiduciary or merely holds a fiduciary title to property located in this state, and engages in no other activity in this state with respect to such property, it is not engaged in sufficient activity in this state to constitute its personally doing business in this state. Such corporation, as a fiduciary, would have an income tax liability on account of income or gains derived from such property. 1960-61 Ga. Op. Att'y Gen. 497. Foreign corporation which merely maintains a bank account in a bank located in this state is not engaged in sufficient activity in this state to constitute doing business under this section; nor would the activity of a bank located in this state which receives collections from the customers of such corporation and deposits those collections to such account be attributed to the foreign corporation. 1960-61 Ga. Op. Att'y Gen. 500. When an out-of-state lending institution intermittently merely purchases from a Georgia real estate and mortgage company notes secured by mortgages on Georgia real estate, such activity was not enough to constitute doing business in this state for purposes of income tax liability. 1960-61 Ga. Op. Att'y Gen. 501. Income received by a nonresident from a certificate of deposit issued by a Georgia bank would not be subject to income tax in this state unless the certificate of deposit had been acquired as income from property otherwise held in this state, or as the result of regular conduct by a nonresident of a business dealing in such intangibles within the State of Georgia. 1967 Op. Atty Gen. No. 67-250. Loan business conducted through employee, agent, or place of business in state constitutes doing business. — When a foreign corporation has a place of business in this state out of which an employee or agent solicits applications for loans to be there approved or executed, or to be submitted to an out-of-state office for approval or execution, or makes reports concerning applicants and the proffered security, etc., or makes collections on loans, or otherwise services such loans, it is doing business in this state. A foreign corporation which has no place of business in this state but does have an employee or agent in this state who is regularly engaged in any of the activities described above is doing business in this state. 1960-61 Ga. Op. Att'y Gen. 498. Joint venture or partnership in such business. — If a foreign corporation is in partnership or in a joint venture with a local independent business which negotiates, effects, sells, or assigns loans secured by property in this state, the activity of the local independent business is attributable to the foreign corporation and it is doing business in this state. 1960-61 Ga. Op. Att'y Gen. 498. When foreign corporation purchases or is assigned loans effected by local independent business. — When a local independent business, for the business’s own account and not as an employee or agent of a foreign corporation, negotiates and effects loans secured by mortgages against property located in this state, and thereafter sells or assigns outright such loans, in whole or part, to a foreign corporation which is not otherwise regularly engaged in activity within this state, such foreign corporation is not doing business in this state even though the corporation contracts with such local business to collect and service such loans, and makes occasional inspections of the security. 1960-61 Ga. Op. Att'y Gen. 498. When borrower contacts foreign corporation outside state even if loan secured by property in state. — If a foreign corporation has no place of business in this state nor any employee who is regularly engaged in activities in this state, and a borrower goes to or contacts the foreign corporation at the corporation’s place of business outside this state to arrange a loan secured by property located in this state, and the corporation is regularly engaged in no other activity in this state, the foreign corporation is not engaged in sufficient activities to constitute doing business in this state merely because the property securing such loan is located in this state or because the corporation sends or brings the security instrument into this state for incidental or recording purposes. 1960-61 Ga. Op. Att'y Gen. 498. What income taxable as result of foreclosure by out-of-state lender on Georgia realty. — When an out-of-state financial institution incidentally forecloses on Georgia property and holds that property for a reasonable time before the property can be disposed of by sale, there is no “doing business” within the state and such activities, while it would subject the income from the property involved to this state’s income tax, would not subject the out-of-state institution to income tax on that portion of its entire investment portfolio which incidentally happened to be secured by real property located in Georgia. 1968 Op. Atty Gen. No. 68-384. Any sale or distribution of any alcoholic beverage within this state falls within section. 1950-51 Ga. Op. Att'y Gen. 369. RESEARCH REFERENCES Am. Jur. 2d. 71 Am. Jur. 2d, State and Local Taxation, § 152 et seq. C.J.S. 84 C.J.S., Taxation, §§ 152 et seq., 163 et seq., 208. 85 C.J.S., Taxation, §§ 1976, 1977, 1989 et seq. ALR. “Business situs” for purposes of property taxation of intangibles in state other than domicile of owner, 76 A.L.R. 806; 143 A.L.R. 361. Power of state to extend its taxing power by its definition of residence or its declared policy of domesticating foreign corporations, 100 A.L.R. 1216. State excise, privilege, or franchise tax upon foreign corporation as affected by commerce clause, 105 A.L.R. 11; 139 A.L.R. 950. What constitutes doing business, business done, or the like, outside the state for purposes of allocation of income under tax laws, 167 A.L.R. 943. Income of subsidiary as taxable to it or to parent corporation, 10 A.L.R.2d 576. Loading or unloading interstate freight in performance of obligation resting upon one other than interstate carrier as interstate commerce as regards local taxation, 10 A.L.R.2d 651. Validity, under federal Constitution, of state tax on, or measured by, income of foreign corporation, 67 A.L.R.2d 1322. State income tax treatment of partnerships and partners, 2 A.L.R.6th 1. What constitutes trade or business under Internal Revenue Code (U.S.C.A. Title 26), 161 A.L.R. Fed. 245. Protection of out-of-state sellers from state income tax by Public Law 86-272 (15 U.S.C.A. §§ 381 to 384), 182 A.L.R. Fed. 291.