Final return and payment upon sale of or quitting business; withholding of sufficient amount of purchase money by successor; effect of failure to withhold.

If any dealer liable for any tax, interest, or penalty imposed by this article sells out his business or stock of goods or equipment or quits the business, he shall make a final return and payment within 15 days after the date of selling or quitting the business. The dealer’s successor or assigns, if any, shall withhold a sufficient amount of the purchase money to cover the amount of the taxes, interest, and penalties due and unpaid until the former owner produces either a receipt from the commissioner showing that the taxes, interest, and penalties have been paid or a certificate from the commissioner stating that no sales and use taxes, interest, or penalties are due. If the purchaser of a business or stock of goods or equipment fails to withhold the purchase money as required by this Code section, he shall be personally liable for the payment of any sales and use taxes, interest, and penalties accruing and unpaid by any former owner or assignor. The personal liability of the purchaser in such a case shall not exceed the amount of the total purchase money, but the property being transferred shall in all cases be subject to the full amount of the tax lien arising from the delinquencies of the former owner. History. Ga. L. 1951, p. 360, § 15; Ga. L. 1960, p. 153, § 6; Code 1933, § 91A-4519, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1983, p. 1834, § 11. Law reviews. For article, “Common State Tax Pitfalls in the Acquisition or Disposition of Businesses in Georgia,” see 22 Ga. St. B. J. 82 (1985). JUDICIAL DECISIONS Section comports with due process and equal protection requirements. — Ga. L. 1951, p. 360, § 15 (see now O.C.G.A. § 48-8-46) is not unconstitutional under U.S. Const., amend. 14 or Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I) because it must be considered in pari materia with Ga. L. 1937-38, Ex. Sess., p. 77, § 44 and Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. §§ 48-2-50 and 48-2-59) which provide for due process. Richards v. Blackmon, 233 Ga. 739, 213 S.E.2d 638, 1975 Ga. LEXIS 1430 (1975). Stock of goods or equipment. — Buyer’s purchase of the inventory, furniture, fixtures, equipment, vehicles, goodwill, and other assets from its predecessor in interest constituted the purchase of the “stock of goods or equipment” of a dealer liable for sales taxes due and brought the sale within the purview of O.C.G.A. § 48-8-46. JD Design Group, Inc. v. Graham, 282 Ga. 130, 646 S.E.2d 227, 2007 Ga. LEXIS 409 (2007). Section does not deprive a purchaser of due process and equal protection of the law when a purchaser can prevent liability by compliance with this section’s provisions. Richards v. Blackmon, 233 Ga. 739, 213 S.E.2d 638, 1975 Ga. LEXIS 1430 (1975). Buyer’s duty to search lien recordings. — Buyer’s claim that the buyer was an innocent purchaser for value did not afford the buyer relief from liability for the taxes owed under O.C.G.A. § 48-8-46 as the statute effectively put the buyer on notice of the possibility of tax liability not apparent from a search of the lien recordings because the statute imposed a duty to inquire on the buyer; additionally, the buyer could have prevented the buyer’s liability by withholding part of the purchase money to cover such taxes, or could have required the buyer’s predecessor to produce a certificate from the commissioner that no taxes were due. JD Design Group, Inc. v. Graham, 282 Ga. 130, 646 S.E.2d 227, 2007 Ga. LEXIS 409 (2007). Relationship of debtor and creditor does not exist between the state and the dealer. — Dealer’s relationship to the state is that of a taxpayer. Richards v. Blackmon, 233 Ga. 739, 213 S.E.2d 638, 1975 Ga. LEXIS 1430 (1975). Uniform Commercial Code provisions on bulk transfers did not deal with taxpayers; therefore, it does not impliedly repeal Ga. L. 1951, p. 360, § 15. Richards v. Blackmon, 233 Ga. 739, 213 S.E.2d 638, 1975 Ga. LEXIS 1430 (1975). Effect of affidavit listing no creditors. — Affidavit of a seller of a business listing no creditors pursuant to the provisions on bulk transfers does not relieve the purchaser from a tax assessment made under this section. Richards v. Blackmon, 233 Ga. 739, 213 S.E.2d 638, 1975 Ga. LEXIS 1430 (1975). Summary judgment as to the issue of a successor in interest’s liability for unpaid taxes in favor of that successor was reversed as the successor failed to protect itself from successor liability for the unpaid sales and use taxes owed by its predecessor under O.C.G.A. § 48-8-46, and the successor failed to protect itself against unrecorded tax liens to the extent allowed by the statute. Graham v. JD Design Group, Inc., 281 Ga. App. 347, 636 S.E.2d 66, 2006 Ga. App. LEXIS 1101 (2006), aff'd, 282 Ga. 130, 646 S.E.2d 227, 2007 Ga. LEXIS 409 (2007). No successor liability. — Appellee that purchased assets used in a business was not liable for sales and use taxes as a successor to a corporation under O.C.G.A. § 48-8-46 as the appellee had not purchased the assets from the corporation itself. Graham v. Palmtop Props., 284 Ga. App. 730, 645 S.E.2d 343, 2007 Ga. App. LEXIS 396 (2007). Statutory estoppel did not apply to lien. — No statutory estoppel applied to a lien to which the Georgia Department of Revenue was entitled with regard to delinquent sales taxes. JD Design Group, Inc. v. Graham, 282 Ga. 130, 646 S.E.2d 227, 2007 Ga. LEXIS 409 (2007). OPINIONS OF THE ATTORNEY GENERAL Section applicable even when purchaser does not continue business as going concern. — One who purchases either stock of goods or equipment from a going business does so at one’s own peril unless and until one receives a certificate from the commissioner, even if the purchaser does not continue to operate the business as a going concern. 1963-65 Ga. Op. Att'y Gen. 337. Liability when one purchases franchise agreements and another the business property. — Company which purchases franchise agreements of a retail dealer and a company which purchases the business property are both liable for any sales tax, interest, and penalty thereon which became due by reason of taxable sales made by the retail dealer, the former owner, and are unpaid. 1969 Op. Att'y Gen. No. 69-186. RESEARCH REFERENCES Am. Jur. 2d. 67B Am. Jur. 2d, Sales and Use Taxes, § 222.