Imposition of tax; rates; collection.

(k) The prepaid local tax shall be imposed at the time tax is imposed under Code Section 48-9-3. History. Ga. L. 1951, p. 360, § 2; Ga. L. 1960, p. 153, § 1; Ga. L. 1967, p. 284, § 1; Code 1933, § 91A-4502, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1980, p. 10, § 24; Ga. L. 1989, p. 62, § 5; Ga. L. 1990, p. 1243, §§ 2-4; Ga. L. 1992, p. 6, § 48; Ga. L. 1996, p. 1635, § 1; Ga. L. 1998, p. 602, § 4; Ga. L. 2001, p. 4, § 48; Ga. L. 2001, p. 984, § 17; Ga. L. 2007, p. 309, § 2/HB 219; Ga. L. 2010, p. 662, § 7/HB 1221; Ga. L. 2011, p. 674, § 1-4/HB 117; Ga. L. 2013, p. 141, § 48/HB 79; Ga. L. 2015, p. 236, § 5-5/HB 170; Ga. L. 2018, p. 259, § 2/HB 61; Ga. L. 2019, p. 282, § 2/HB 182; Ga. L. 2020, p. 1, § 2/HB 276. The 2019 amendment, effective April 28, 2019, deleted former subsection (c.2), which read: “(1) For the purposes of this subsection, the term: “(A) “Delivery retailer” means a retailer that does not collect and remit the tax imposed by this Code section and that in the previous or current calendar year: “(i) Obtains gross revenue, in an amount exceeding $250,000.00 from retail sales of tangible personal property to be delivered electronically or physically to a location within this state or used, consumed, distributed, or stored for use or consumption in this state; “(ii) Conducts 200 or more retail sales of tangible personal property to be delivered electronically or physically to a location within this state or used, consumed, distributed, or stored for use or consumption in this state. “(B) “Purchaser” means a person or agent thereof who gives consideration to a delivery retailer in exchange for tangible personal property to be delivered electronically or physically to a location within this state or used, consumed, distributed, or stored for use or consumption in this state. “(2) A delivery retailer shall collect and remit the tax imposed by this Code section or shall: “(A) Notify each potential purchaser immediately prior to the completion of each retail sale transaction with the following statement: ‘Sales or use tax may be due to the State of Georgia on this purchase. Georgia law requires certain consumers to file a sales and use tax return remitting any unpaid taxes due to the State of Georgia.’; “(B) On or before January 31 of each year, send a sales and use tax statement to each purchaser who completed one or more retail sales with such delivery retailer that totaled $500.00 or more in aggregate during the prior calendar year in an envelope containing the words ‘IMPORTANT TAX DOCUMENT ENCLOSED’ on the exterior of the mailing by first class mail and separate from any other shipment; and “(C) On or before January 31 of each year, file a copy of each sales and use tax statement required under subparagraph (B) of this paragraph with the department in a manner to be prescribed by the department. “(3) For the purposes of this subsection, a sales and use tax statement shall: “(A) Be on a form to be prescribed by the department; “(B) Contain the total amount paid by the purchaser for retail sales from the delivery retailer during the previous calendar year, as well as, if available, the dates of purchases, the amounts of each purchase, and the category of each purchase, including, if known by the retailer, whether the purchase is exempt from taxation under this article; and “(C) Include the following statement: ‘Sales or use taxes may be due to the State of Georgia on the purchase(s) identified in this statement as Georgia taxes were not collected at the time of purchase. Georgia law requires certain consumers to file a sales and use tax return remitting any unpaid taxes due to the State of Georgia.’ “(4) Unless determined by the commissioner upon a showing of reasonable cause: “(A) Failure to provide the notice required by subparagraph (A) of paragraph (2) of this subsection shall subject a delivery retailer to a penalty of $5.00 for each failure; “(B) Failure to send a sales and use statement as required by subparagraph (B) of paragraph (2) of this subsection shall subject a delivery retailer to a penalty of $10.00 for each failure; and “(C) Failure to file a copy of a sales and use tax statement with the department as required by subparagraph (C) of paragraph (2) of this subsection shall subject a delivery retailer to a penalty of $10.00 for each failure. “(5) It shall be prima-facie evidence that such property is to be used, consumed, distributed, or stored for use or consumption in this state if that property is delivered electronically or physically to a location within this state to the purchaser or agent thereof.” The 2020 amendment, effective April 1, 2020, added subsection (c.2). See Editor’s notes for applicability. Editor’s notes. Ga. L. 1989, p. 62, § 1, not codified by the General Assembly, provides: “It is the intention of the General Assembly that the revenue generated by the increase in the state sales and use tax provided for in this Act shall be used in part for general governmental purposes and in part for grants of funds to political subdivisions of the state to provide ad valorem tax relief. The General Assembly recognizes and intends that all such revenue is to be paid into the general fund of the state treasury and subject to the normal budgetary and appropriations process, but it is the intention of the General Assembly that a portion of such revenue shall be appropriated to fund such grants for ad valorem tax relief purposes.” Ga. L. 1989, p. 62, § 14, not codified by the General Assembly, provides: “In the event that any other Act of the 1989 General Assembly amends Article 3 of Chapter 13 of Title 48 of the Official Code of Georgia Annotated, it is the intention of the General Assembly that the provisions of such other Act control over the provisions of this Act, except that it is the intention of the General Assembly that the increase in the rate of state sales and use taxation provided for in this Act shall not operate to decrease the maximum rate of taxes which may be imposed by local governments under said article as now existing or as it may be amended; and for this limited purpose, the provisions of this Act and particularly of this statement of intent shall control over the provisions of such other Act, notwithstanding any limitation on maximum aggregate amounts of taxation which may be contained in such other Act.” Ga. L. 1989, p. 62, § 15, not codified by the General Assembly, provides: “(a) As used in this section, the term ‘building and construction materials’ means all building and construction materials, supplies, fixtures, or equipment, any combination of such items, and any other leased or purchased articles when the materials, supplies, fixtures, equipment, or articles are to be utilized or consumed during construction or are to be incorporated into construction work pursuant to a bona fide written construction contract. “(b) The increased rate of state sales and use taxation provided for in this Act shall not apply with respect to the sale or use of building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid prior to April 1, 1989, and the contract was entered into as a result of a bid actually submitted in response to the advertisement prior to April 1, 1989; provided, however, that any such sale or use shall remain fully taxable at the prior rate of taxation. “(c) With respect to services which are regularly billed on a monthly basis, the increased rate of state sales and use taxation provided for in this Act shall apply to services billed on or after April 1, 1989; provided, however, that any such services billed prior to such date shall remain fully taxable at the prior rate of taxation.” Former paragraph (f)(3), concerning accrual of assessments for state sales and use tax, was repealed by operation of law on June 30, 2014, pursuant to Ga. L. 2011, p. 674, § 1-4/HB 117. Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Transportation Funding Act of 2015.’ ” Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides that: “It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state.” Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides that: “Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act.” This Act became effective July 1, 2015. Ga. L. 2018, p. 259, § 3/HB 61, not codified by the General Assembly, provides that the amendment to subsection (c.1) and addition of subsection (c.2) shall apply to all sales made on or after January 1, 2019. Ga. L. 2020, p. 1, § 3/HB 276, not codified by the General Assembly, provides, in part, that the addition of subsection (c.2) shall apply to all sales occurring on or after April 1, 2020. Law reviews. For comment on National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753, 87 S. Ct. 1389, 18 L. Ed. 2d 505 (1967), as to constitutionality of imposing state use taxes on out-of-state mail order form, see 19 Mercer L. Rev. 257 (1968). For article surveying Georgia cases in the area of state and local taxation from June 1979 through May 1980, see 32 Mercer L. Rev. 203 (1980). For article, “Clarification Needed in Georgia Retail Sales and Use Tax Statute,” see 41 Mercer L. Rev. 1 (1989). For note on the 2001 amendment to this Code section, see 18 Georgia St. U.L. Rev. 294 (2001). For article, “Revenue and Taxation: Amend Titles 48, 2, 28, 33, 36, 46, and 50 of the Official Code of Georgia Annotated, Relating Respectively to Revenue and Taxation, Agriculture, the General Assembly, Insurance, Local Government, Public Utilities, and State Government,” see 28 Georgia St. U.L. Rev. 217 (2011). For article on the 2015 amendment of this Code section, see 32 Georgia St. U.L. Rev. 261 (2015). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U. L. Rev. 187 (2018). For annual survey on state and local taxation: a two-year survey, see 71 Mercer L. Rev. 279 (2019). JUDICIAL DECISIONS General Consideration Interstate Transactions Liability for Collection and Payment General Consideration “Moment of sale” or “moment of purchase” test should be applied to sales and use tax computations, respectively. Rich's, Inc. v. Blackmon, 133 Ga. App. 665, 211 S.E.2d 916, 1975 Ga. App. LEXIS 2234 (1975). Substance of a transaction, rather than the appellation chosen by the parties, controls its tax treatment. Footpress Corp. v. Strickland, 242 Ga. 686, 251 S.E.2d 278, 1978 Ga. LEXIS 1324 (1978). Purpose of Ga. L. 1951, p. 360, § 2 (see now O.C.G.A. § 48-8-30) differs from that of Ga. L. 1951, p. 360, § 8 (see now O.C.G.A. § 48-8-39). Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Ga. L. 1951, p. 360, § 2 (see now O.C.G.A. § 48-8-30) and Ga. L. 1951, p. 360, § 8 (see now O.C.G.A. § 48-8-39) operate to tax sales made under different circumstances. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Tax on personal use followed by tax on sale to customer permissible. — Tax of retail purchaser who makes any use of property other than retention, demonstration, or display while holding the property for sale in the regular course of business, under Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8), and subsequent tax if that purchaser thereafter sells the property to a consuming purchaser, involve two distinct sales transactions which are independent taxable events, and are not violative of the prohibition against duplication of taxes under Ga. L. 1951, p. 360. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Article does not provide for taxation of real property. — No provision is made in Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8) for a tax upon sales of real property as elsewhere defined and distinguished from personal property by the law of this state. State v. Dyson, 89 Ga. App. 791, 81 S.E.2d 217, 1954 Ga. App. LEXIS 581 (1954). Bracket system illegal when overpayment results. — Bracket system which requires the payment or collection of more tax than that contemplated by the General Assembly, that is, to collect a whole cent of tax when a fractional part of a cent of tax (by mathematical calculation) is involved, would exceed the authority granted. Hawes v. Phillips, 122 Ga. App. 714, 178 S.E.2d 759, 1970 Ga. App. LEXIS 1011 (1970). Attachment and priority of lien for sales and use tax. — Lien and the lien’s rank is provided for the state for sales and use taxes. Such lien attaches on the day on which the dealer is required to make a return and remittance to the commissioner, and is declared to be superior to all other liens. State v. Atlanta Provision Co., 90 Ga. App. 147, 82 S.E.2d 145, 1954 Ga. App. LEXIS 655 (1954). Effect of failure to record fi. Fa. For sales taxes. — Recording of the fi. fa. issued by the commissioner on the general execution docket is not a condition precedent to attachment of the lien for sales taxes, and the only effect of a failure to record the lien is that as against innocent purchasers the lien will be lost. State v. Atlanta Provision Co., 90 Ga. App. 147, 82 S.E.2d 145, 1954 Ga. App. LEXIS 655 (1954). When maintenance charges not within meaning of “gross lease or rental proceeds”. — When maintenance charges are separately stated, are based upon maintenance costs, and may be changed after the initial year independently of the rental or lease charge, such charges are not within the meaning of “gross lease or rental proceeds” as set forth in O.C.G.A. § 48-8-30. Strickland v. Sperry Rand Corp., 248 Ga. 535, 285 S.E.2d 1, 1981 Ga. LEXIS 1094 (1981). Taxation of separately stated maintenance charges. — Separately stated maintenance charges which are included in a lease transaction on tangible personal property are not taxable as part of the gross lease or rental proceeds. Strickland v. Sperry Rand Corp., 248 Ga. 535, 285 S.E.2d 1, 1981 Ga. LEXIS 1094 (1981). Standing to claim tax refund. — Electrical membership corporation lacked direct standing to pursue a claim for a refund of sales tax on behalf of its members/patrons, pursuant to O.C.G.A. § 48-2-35(b)(1) (now (c)(1)), as it was not a “taxpayer” within O.C.G.A. § 48-2-35(b)(4) (now (c)(4)), for purposes of bringing an action for a tax refund when it did not bear the burden of the tax because the tax was passed on to its members/patrons; one purpose of the EMC was to furnish electrical energy and service to its members, pursuant to O.C.G.A. § 46-3-200(1), and the sale of electricity required a retail sales tax paid to the EMC, which was passed onto the Georgia Commissioner of Revenue, pursuant to O.C.G.A. § 48-8-30(a). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22, 608 S.E.2d 611, 2005 Ga. LEXIS 117 (2005). Trial court did not err in dismissing a bank’s complaint alleging that the bank was entitled to a refund for sales tax paid under the General Refund Statute, O.C.G.A. § 48-2-35, because the bank was not a taxpayer entitled to a refund under § 48-2-35 since the bank was simply a third-party lender that contracted to advance the money for the consumer, and ultimately the merchant, to meet the merchant’s obligations to pay the sales tax; the bank’s recourse was against the consumer who defaulted on the debt or possibly through any provisions in the credit card program contracts assigning responsibility for bad debts among the various parties. Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120, 726 S.E.2d 617, 2012 Ga. App. LEXIS 330 (2012), cert. denied, No. S12C1281, 2012 Ga. LEXIS 1017 (Ga. Oct. 1, 2012). Interstate Transactions Nondiscriminatory use tax on goods transported in interstate commerce not a violation of commerce clause. — Nondiscriminatory tax on goods transported in interstate commerce, which is imposed under this section not upon the operations of interstate commerce but upon the privilege of use after commerce has ended, is not a regulation contrary to the commerce clause of the United States Constitution. Independent Publishing Co. v. Hawes, 119 Ga. App. 858, 168 S.E.2d 904, 1969 Ga. App. LEXIS 1280 (1969). Purpose of use tax on property purchased outside the state. — To preclude avoidance of the sales tax when enforcement directly against the retail sale is not practicable, this section imposes a complementary use tax on property purchased outside the state. Independent Publishing Co. v. Hawes, 119 Ga. App. 858, 168 S.E.2d 904, 1969 Ga. App. LEXIS 1280 (1969). Intent as to credit for like taxable incidents occurring in other states. — Intent in Georgia is to allow credit for a like taxable incident which first occurs in another state and to collect a tax based on a taxable incident in Georgia occurring thereafter, but only to the extent of the difference between a lesser like tax previously paid and the Georgia tax, and only if the other state has a reciprocal law. Hawes v. National Serv. Indus., Inc., 121 Ga. App. 775, 175 S.E.2d 34, 1970 Ga. App. LEXIS 1353 (1970), aff'd, 227 Ga. 221, 179 S.E.2d 765, 1971 Ga. LEXIS 646 (1971). Use tax on out-of-state purchase by resident purchaser upon which sales tax not collected. — Law imposes a tax on a Georgia purchaser who purchases personal property outside the state from an out-of-state seller, when the seller is not required to collect and remit a sales tax on the purchase to this state. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Taxation of goods purchased outside state by nonresident for delivery in state. — When a nonresident taxpayer purchased telephone directories from nonresident printers for delivery by the printers within this state pursuant to the taxpayer’s contracts with certain telephone companies in this state, the taxpayer is considered a consumer within the meaning of Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8, A. 1) and is not relieved of liability from the tax by the fact that the directories were purchased outside the state nor by the fact that the directories were shipped by the printers directly to the telephone companies. L.M. Berry & Co. v. Blackmon, 129 Ga. App. 347, 199 S.E.2d 610, 1973 Ga. App. LEXIS 1000 (1973), aff'd, 231 Ga. 659, 203 S.E.2d 520, 1974 Ga. LEXIS 1176 (1974). Direct mail advertising materials purchased by a corporation outside the state for distribution to residents within the state were subject to use tax. Collins v. J.C. Penney Co., 218 Ga. App. 405, 461 S.E.2d 582, 1995 Ga. App. LEXIS 750 (1995). Preprinted newspaper advertising inserts purchased by a corporation did not become a component or integral part of the newspaper through which the inserts were distributed and were subject to use tax. Collins v. J.C. Penney Co., 218 Ga. App. 405, 461 S.E.2d 582, 1995 Ga. App. LEXIS 750 (1995). Liability for Collection and Payment Order of liability for sales tax. — Liability for sales tax is imposed primarily on the purchaser with secondary liability on the seller to collect and remit the tax. Blackmon v. Nichols, 494 F.2d 1179, 1974 U.S. App. LEXIS 8443 (5th Cir. 1974). Ultimate liability for use tax is upon purchaser, not seller, who is merely the state’s collecting agent. For this service the seller is compensated, provided the taxes due are not delinquent at the time of payment. Independent Publishing Co. v. Hawes, 119 Ga. App. 858, 168 S.E.2d 904, 1969 Ga. App. LEXIS 1280 (1969). Intent is that seller be responsible for collection. — Although ultimate liability for payment of sales and use tax falls upon the purchaser, and although in the event of failure to pay such tax the commissioner may proceed against either purchaser or seller, it is nevertheless the intent of the law that the seller or dealer is the entity responsible for collecting and forwarding the tax, and the seller’s failure to do so subjects the seller to both civil and criminal penalties in addition to the tax liability. Dittler Bros. v. AMR Int'l, Inc., 142 Ga. App. 570, 236 S.E.2d 544, 1977 Ga. App. LEXIS 1701 (1977). Authority to proceed against purchaser is permissive, not mandatory. — Dealer liability for the tax is not altered because the state may also proceed against the purchaser for the tax. The law, in permissive and not mandatory language, provides that when the purchaser has not paid the sales tax, the commissioner may proceed directly against the purchaser to recover the tax. Nimmer v. Strickland, 242 Ga. 430, 249 S.E.2d 233, 1978 Ga. LEXIS 1240 (1978). Party designated as “owner” in lease contract liable for collection and remittance. — If one who is designated in a written contract as the “owner” of described personal property grants to another designated as “user” the right to possess and use described personal property in consideration for a specified sum of money, which sum is designated in such contract as rental and, when by the terms of such contract the personalty remains the property of the owner and is to be returned to the owner at the termination of the period of the lease contract, the one designated therein as the “owner” is liable for collection and remittance of the sales tax imposed thereby on the gross proceeds received under such lease contract. Undercofler v. Whiteway Neon Ad, Inc., 114 Ga. App. 644, 152 S.E.2d 616, 1966 Ga. App. LEXIS 883 (1966). Purchaser has right to hearing regarding assessment for sales tax. — Purchaser who has paid the sales tax to the seller has the right to prove such payment at a hearing in which the purchaser is contesting the assessment against the purchaser. Gainesville-Hall County Economic Opportunity Org., Inc. v. Blackmon, 233 Ga. 507, 212 S.E.2d 341, 1975 Ga. LEXIS 1360 (1975). Proof of remittance at hearing. — At a hearing contesting a tax assessment, the purchaser has a right to show that the seller remitted the tax on the transaction to the state, and this is a question of fact. Gainesville-Hall County Economic Opportunity Org., Inc. v. Blackmon, 233 Ga. 507, 212 S.E.2d 341, 1975 Ga. LEXIS 1360 (1975). OPINIONS OF THE ATTORNEY GENERAL General Consideration Entities and Transactions Subject to Tax Amount Subject to Tax Interstate Transactions First Use in State of Property Purchased Outside State General Consideration Purpose of use tax. — Intent of the General Assembly was not to levy a primary use tax from which would be exempt transactions involving sales at retail in this state, upon which sales tax has been collected. Rather, the use tax supplements the sales tax and is intended as a collection device. Williams v. Suwannee Longleaf Mfg. Co., 97 Ga. App. 431, 103 S.E.2d 123, 1958 Ga. App. LEXIS 793 (1958), aff'd, 214 Ga. 613, 106 S.E.2d 797, 1959 Ga. LEXIS 284 (1959). Purpose of taxes on use and rentals. — Rentals tax imposed by Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8, A. 1) is, like the use tax imposed by Ga. L. 1951, p. 360, a supplementary or compensating tax designed to deter sales tax avoidance through renting instead of selling tangible personal property and to equalize the tax treatment of persons engaged in the business of renting with those engaged in selling tangible personal property. It treats the rental of tangible personal property as a pro tanto sale, that is, a retail sale to the extent of the rent and for the term of the rental. 1958-59 Ga. Op. Att'y Gen. 382. Legislative intent as to distinction between services and leases or rentals. — Analytically, if inquiry be pursued to the limit of its logic, it might be said that every lease or rental involves some element of service, while every service involves some utilization of personal property; but here, as in all cases, the law does not deal in absolutes for the General Assembly has, by employing two concepts differing in their consequences, manifested the legislature’s intention that a line is to be drawn somewhere separating the areas of taxability and nontaxability. 1963-65 Ga. Op. Att'y Gen. 172. Taxation of representative from foreign country. — Representative from foreign country is not exempt from either Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8, A. 1) or former Code 1933, Ch. 92-14 (see now O.C.G.A. T. 48, C. 9, A. 1). 1962 Ga. Op. Att'y Gen. 514. Building and construction materials. — Under Ga. L. 1989, p. 62, § 15(a) and (b), the increased state sales and use tax rate does not apply to the sale or use of certain building and construction materials when the contract pursuant to which the materials are purchased or used was advertised for bid and the bid was submitted prior to April 1, 1989, even though the contract is awarded or entered into after April 1, 1989. 1989 Op. Atty Gen. No. U89-5. Entities and Transactions Subject to Tax Housing authorities are not exempt from payment of state sales taxes upon purchases made by those authorities. 1952-53 Ga. Op. Att'y Gen. 476. Agricultural commodity commissions are subject to taxes imposed under Ga. L. 1951, p. 360. 1975 Op. Att'y Gen. No. 75-136. Taxation of Georgia Prison Store. — Georgia Prison Store is a dealer under Ga. L. 1951, p. 360 and is required to register, collect, and remit sales tax on all the store’s retail sales. 1974 Op. Att'y Gen. No. 74-29. Inmates in Georgia prisons are neither exempt nor constitutionally protected from tax on purchases of items from inmate stores. 1974 Op. Att'y Gen. No. 74-29. Automobile dealers furnishing vehicles for high school driver education classes are exempt from sales tax thereon. 1952-53 Ga. Op. Att'y Gen. 473. Taxation of sales by area vocational-technical schools to students. — Area vocational-technical schools, operated by local units of school administration, engaged in selling books and other miscellaneous materials to their students on a nonprofit basis, must collect and remit sales taxes on sales made by them. Upon failure to make such collections and remittances, the local units are liable themselves for the tax. 1973 Op. Att'y Gen. No. 73-83 (Overruled to some extent by Op. Atty Gen. 86-18). Sales by executors and administrators are subject to payment of the state sales tax. 1952-53 Ga. Op. Att'y Gen. 474. Drying and cleaning of peanuts is a service which is not taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8, A. 1). 1962 Ga. Op. Att'y Gen. 561. Amount Subject to Tax Royalty payments. — Sales tax is only based upon gross proceeds from rentals and is not imposed upon the payment of royalties. 1954-56 Ga. Op. Att'y Gen. 845. Taxes imposed prior to retail sale included in base for computing sales tax. — If a tax is imposed on an event prior to a retail sale, that tax must be included in the base on which the sales tax is computed. 1971 Op. Atty Gen. No. U71-121. Sales tax paid on federal excise tax if not listed separately. — Sales tax is not paid on federal excise tax when purchasing a new car unless federal excise tax is not listed separately, but simply included in the gross price of the car. 1954-56 Ga. Op. Att'y Gen. 852. Other excise taxes on beer included in sales price. — Sales of beer are subject to payment of the state sales tax, but such tax is to be computed on the actual sales price excluding other excise taxes imposed thereon. 1952-53 Ga. Op. Att'y Gen. 472. Use tax on property furnished to contractor by government. — When a government contractor under a fixed-price type maintenance, overhaul, and modification contract uses up and consumes government furnished property in performing a contract, although having previously purchased such property as agent for the government, the contractor becomes liable for use tax based upon the fair market value of the property so used up and consumed. 1962 Ga. Op. Att'y Gen. 547. Interstate Transactions Sales tax applies when title passes in this state. — Sales tax applies to the purchase of property by an out-of-state purchaser if the title passes in this state, even if the property is immediately removed from the state. 1971 Op. Atty Gen. No. U71-92. Tax when title passes in another state to purchasers in this state. — When title passes in another state to a purchaser in this state, and the items are distributed gratuitously to persons within this state, the sales tax would not apply, but use tax should be collected. 1960-61 Ga. Op. Att'y Gen. 554. Sale and delivery of property in this state is subject to this state’s sales tax, even though the purchaser is a nonresident. 1970 Op. Atty Gen. No. U70-63. Rental contracts which are completed fully within this state are subject to Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 9, A. 1), notwithstanding the fact that physical possession of the rented property is delivered outside this state. 1969 Op. Att'y Gen. No. 69-146. Tax situs for lease transaction is where lessee first takes exclusive control. — Situs of the taxable event under Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 9, A. 1) is the place where the tangible personal property is first put under the exclusive control of the renter for use under the rental agreement, this being considered as the equivalent of delivery were the transaction a sale. When this taxable event takes place within this state the dealer who rents is subject to the tax imposed by Ga. L. 1951, p. 360, irrespective of the fact that the rented property may be used in interstate commerce, and when this taxable event takes place outside this state, then, upon the property being brought into this state, whether in interstate commerce or not, the tax imposed by Ga. L. 1951, p. 360 applies against the renter as if the tangible personal property had been originally rented within this state, subject to the credit for like taxes paid elsewhere. 1958-59 Ga. Op. Att'y Gen. 382. Store in this state may not require out-of-state customer to pay state sales tax on goods ordered shipped to such customer. 1952-53 Ga. Op. Att'y Gen. 479. Tax on lease of trucks for use outside state. — Any person or company engaged in the business of leasing trucks in this state has an obligation to pay tax on the gross proceeds and to pass the tax on to the lessee as an additional charge. The fact that a leased truck may be used outside this state is immaterial so long as there is any use within this state. 1954-56 Ga. Op. Att'y Gen. 845. Tax on use of machinery belonging to nonresident corporation. — Use of machinery by a Georgia corporation, which machinery belongs to a nonresident corporation and for which the Georgia corporation pays a royalty, is subject to use tax. 1954-56 Ga. Op. Att'y Gen. 846. Property delivered to out-of-state location by buyer. — When property is delivered pursuant to sales to out-of-state locations by a means of transportation which is leased or rented by the buyer, the sales occur in this state and are taxable under Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 9, A. 1). 1969 Op. Att'y Gen. No. 69-146. Use tax on advertising materials purchased outside state. — Manufacturer who buys advertising materials outside state, ships the materials directly to dealers, at no cost to dealers, with dealers using the materials to promote local sales, is liable for use tax on such materials. 1962 Ga. Op. Att'y Gen. 556. Dual operator liable for tax on property consumed in performance of contract. — Since a dual operator, or person who, as a retail dealer, sells tangible personal property in performing contracts, is a consumer of the property used in performing contracts, irrespective of where the contracts may be performed, the person would owe this state a sales tax with respect to the purchase of such property in this state and would owe this state a use tax with respect to such property purchased outside this state and then brought to rest in this state. 1968 Op. Att'y Gen. No. 68-96. First Use in State of Property Purchased Outside State Meaning of “fair market value” of imported advertising materials. — For purposes of O.C.G.A. § 48-8-30(c), fair market value of advertising materials imported by department stores into Georgia is that price that a willing buyer with similar advertising needs would pay to purchase like advertising from a willing seller. In absence of evidence to the contrary, fair market value of these advertising materials at time of their first use within Georgia should be taken to be the materials’ purchase price. 1981 Op. Att'y Gen. No. 81-93. RESEARCH REFERENCES Am. Jur. 2d. 67B Am. Jur. 2d, Sales and Use Taxes, §§ 34 et seq., 41 et seq., 50 et seq., 137, 166, 205 et seq. C.J.S. 84 C.J.S., Taxation, §§ 20, 159 et seq. ALR. Computation of sales tax, 107 A.L.R. 267; 135 A.L.R. 1485; 150 A.L.R. 1311. Who is liable for tax in case of conditional sale, or option for purchase, of personal property, 116 A.L.R. 325. Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542. Sale of article intended for consumption or use by customers or patrons of the buyer on the latter’s premises as retail sale within sales tax law, 157 A.L.R. 557. Applicability of sales tax to judicial or bankruptcy sales, 27 A.L.R.2d 1219. Use tax on property purchased by nonresident in another state, 41 A.L.R.2d 535. Federal retail luxury or other excise tax as includable in amount on which state sales or use tax is computed, 43 A.L.R.2d 862. Validity and construction of provision exempting from use tax property which is “not readily obtainable” in the state, 88 A.L.R.2d 811. Sales by automatic vending machine as subject to retail sales tax, 91 A.L.R.2d 1138. Sales and use taxes: exemption of casual, isolated, or occasional sales, 42 A.L.R.3d 292. Sales or use tax on motor vehicle purchased out of state, 45 A.L.R.3d 1270. Applicability of sales tax to “tips” or service charges added in lieu of tips, 73 A.L.R.3d 1226. Reusable soft drink bottles as subject to sales or use taxes, 97 A.L.R.3d 1205. Sales and use taxes on leased tangible personal property, 2 A.L.R.4th 859. Transportation, freight, mailing, or handling charges billed separately to purchaser of goods as subject to sales or use tax, 2 A.L.R.4th 1124. Eyeglasses or other optical accessories as subject to sales or use tax, 14 A.L.R.4th 1370. Sales and use taxes on sale or lease of mailing or customer list, 80 A.L.R.4th 1126. Computer software or printout transactions as subject to state sales or use tax, 36 A.L.R.5th 133. Sufficient nexus for state to require foreign entity to collect state’s compensating, sales, or use tax — post-complete auto transit cases, 71 A.L.R.5th 671.