Effect of use other than retention, demonstration, or display by giver of certificate or by processor, manufacturer, or converter.

(b) (1) (A) If a person who engages in the business of processing, manufacturing, or converting industrial materials into articles of tangible personal property for sale, whether as custom-made or stock items, makes any use of the article of tangible personal property other than retaining, demonstrating, or displaying it for sale, the use shall be deemed a retail sale as of the time the article is first used by such person and its fair market value at the time shall be deemed the sales price of the article, except as otherwise provided in subparagraph (B) of this paragraph.

(B) (i) As used in this subparagraph, the term “total raw material cost” means the manufactured cost of floor covering samples; supplies used in the manufacturing of floor covering samples such as binding, grommets, and similar items; floor covering sample display devices such as racks, binders, and similar items; and inbound freight charges. Such term does not mean or include labor or overhead for assembling or producing samples from finished floor covering and does not mean or include outbound freight charges which may be charged to the expense account for floor covering samples.

(ii) As used in this subparagraph, the term “floor covering sample” or “floor covering samples” includes, but is not limited to, samples of carpet floor covering, hardwood floor covering, engineered hardwood floor covering, laminate floor covering, stone floor covering, tile floor covering, vinyl floor covering, resilient floor covering, linoleum floor covering, and other floor coverings.

(iii) For purposes of subparagraph (A) of this paragraph, the fair market value of any floor covering sample shall be equal to 21.9 percent of the total raw material cost of the sample, except that the fair market value of a sample of any floor covering that is manufactured exclusively for commercial use shall be equal to 1 percent of the total raw material cost of the sample.

(2) If the sole use of the article other than retaining, demonstrating, or displaying it for sale is the rental of the article while holding it for sale, the processor, manufacturer, or converter may elect to treat the amount of the rental charged rather than the fair market value of the article as its sales price. History. Ga. L. 1951, p. 360, § 8; Ga. L. 1968, p. 496, § 1; Ga. L. 1970, p. 595, § 1; Code 1933, § 91A-4508, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 2003, p. 385, § 1; Ga. L. 2006, p. 470, § 1/HB 1040; Ga. L. 2010, p. 662, § 11/HB 1221; Ga. L. 2015, p. 910, § 1/HB 277. Law reviews. For article, “Administrative Law,” see 53 Mercer L. Rev. 81 (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). JUDICIAL DECISIONS For constitutionality, see Ingalls Iron Works Co. v. Chilivis, 237 Ga. 479, 228 S.E.2d 866, 1976 Ga. LEXIS 1276 (1976). Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8, A. 1) was not impliedly repealed by Ga. L. 1960, p. 989, § 1 (see now O.C.G.A. § 48-8-61). Bailes Oldsmobile, Inc. v. Hawes, 122 Ga. App. 395, 177 S.E.2d 170, 1970 Ga. App. LEXIS 875 (1970). 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 and 8 (see now O.C.G.A. §§ 48-8-30 and 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). This section creates nothing more than a rebuttable presumption. Bailes Oldsmobile, Inc. v. Hawes, 122 Ga. App. 395, 177 S.E.2d 170, 1970 Ga. App. LEXIS 875 (1970). O.C.G.A. § 48-8-39 applies to property held for sale to general public. — Words “holding it for sale in the regular course of business” in the first sentence of this section refer to holding for sale to the general public. Superior Type, Inc. v. Williams, 98 Ga. App. 89, 105 S.E.2d 14, 1958 Ga. App. LEXIS 512 (1958). No exemption is permitted for personal uses of property. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Use other than demonstration or display deemed taxable purchase. — As soon as a retail seller makes any use of the property other than demonstration or display in the regular course of business, the seller is deemed to have purchased the property personally and will be taxed on the property. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Seller must pay tax when personal use made of property. — If a retailer takes merchandise to the retailer’s home for personal use the retailer would at that time be liable for the tax, regardless of the fact that at some subsequent time the retailer sells the machine in the regular course of business. Similarly, if the seller makes personal use of materials used for producing goods for sale, the seller is liable for the tax even if such materials are used to fill an order and are sold to a customer along with the order. Superior Type, Inc. v. Williams, 98 Ga. App. 89, 105 S.E.2d 14, 1958 Ga. App. LEXIS 512 (1958). Sale of small portion otherwise used for personal use not taxable. — One who sells at retail a small portion of industrial materials one has otherwise produced or manufactured for own use will not be subject to a sales or use tax on the fair market value of those materials one uses personally. Strickland v. W.E. Ross & Sons, 251 Ga. 324, 304 S.E.2d 719, 1983 Ga. LEXIS 776 (1983). 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, § 8 (see now O.C.G.A. § 48-8-39), and subsequent tax if the 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, § 2 (see now O.C.G.A. § 48-8-30). Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Personal use of a demonstrator automobile for over six months is not a use which this section will excuse. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Rebuttable presumption that automobiles held more than six months not used solely for demonstration. — Under the Official Compilation of Rules and Regulations of the State of Georgia, Rules of the Department of Revenue, § 560-12-2-09(5), a rebuttable presumption arises that automobiles held in excess of six months are not being used solely for retention, demonstration, or display. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Personal and business use of demonstrator cars by employees of dealer. — When demonstrator cars are driven by employees of dealer for both personal and business purposes for more than six months, the dealer could not escape tax liability by simply denominating personal uses of the automobiles as displays to the community. Law Lincoln Mercury, Inc. v. Strickland, 246 Ga. 237, 271 S.E.2d 152, 1980 Ga. LEXIS 1049 (1980). Contractor liable for tax on raw materials even if purchaser exempt. — Fabrication of raw materials by a contractor into products to be installed and incorporated into realty constitutes a use or consumption by the contractor, who is liable for the tax, regardless of the fact that the entity with whom it is contracting is a political subdivision exempt from the payment of sales tax. Macon Mach. Shop, Inc. v. Hawes, 118 Ga. App. 280, 163 S.E.2d 440, 1968 Ga. App. LEXIS 1367 (1968). Use of materials sold to customer together with order produced from such materials. — When materials are purchased by seller from another who has prepared such materials to order for the benefit of a customer who has placed an order, and are then resold to such customer, the use is for the benefit of the customer, and this section did not apply. Superior Type, Inc. v. Williams, 98 Ga. App. 89, 105 S.E.2d 14, 1958 Ga. App. LEXIS 512 (1958). Use of items furnished by customer not taxable. — Use made of an item produced from materials furnished by the customer for the purpose of producing goods for such customer is not a use contemplated by this section for the reason that it is solely for the benefit of the buyer who ultimately receives both title and right of possession of such item, and pays the sales tax thereon. Its purchase in the first instance by the seller is for the purpose of resale after use for the benefit of the person to whom it is resold by producing goods which the customer has ordered. Superior Type, Inc. v. Williams, 98 Ga. App. 89, 105 S.E.2d 14, 1958 Ga. App. LEXIS 512 (1958). Carpet manufacturer’s use of carpet samples in connection with its sales of carpeting constituted a “fictional sale” under O.C.G.A. § 48-8-39(b) and the samples were subject to tax; however, the fair market value of the samples was zero so that no taxes were owed for such sales. Collins v. Prince St. Technologies Ltd., 220 Ga. App. 492, 469 S.E.2d 700, 1996 Ga. App. LEXIS 137 (1996). Contact lenses. — Lenses given to eye-care professionals for their use in any way they saw fit was simply a marketing scheme designed to promote the sale of lenses manufactured by the plaintiff; therefore, those lenses were properly classified as deemed retail sales. However, lenses in packages which sales representatives opened for demonstration purposes were exempt from taxation. CIBA Vision Corp. v. Jackson, 248 Ga. App. 688, 548 S.E.2d 431, 2001 Ga. App. LEXIS 378 (2001), cert. denied, No. S01C1022, 2001 Ga. LEXIS 699 (Ga. Sept. 7, 2001). Ophthalmic drugs. — Drugs packaged or designated as samples were taxable because those drugs were not purchased for resale. CIBA Vision Corp. v. Jackson, 248 Ga. App. 688, 548 S.E.2d 431, 2001 Ga. App. LEXIS 378 (2001), cert. denied, No. S01C1022, 2001 Ga. LEXIS 699 (Ga. Sept. 7, 2001). OPINIONS OF THE ATTORNEY GENERAL Manufacturer taxable for own use of goods. — Manufacturer of personal property for sale is subject to sales tax on use of such manufactured goods based on fair market value of goods at time of use. 1969 Op. Att'y Gen. No. 69-139. Cost of items purchased under a certificate for resale but withdrawn from stock for other use is subject to tax. 1969 Op. Att'y Gen. No. 69-126. Dispensing of drugs by pharmacist. — Pharmacist, with respect to dispensing drugs under Medicaid, is in a position analogous to that of a dealer who withdraws goods from inventory to provide a service. The use is taxable to the pharmacist at cost. 1971 Op. Att'y Gen. No. 71-145.