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(a) If any dealer required to make and file a return under this article fails to submit the return within the time required or submits a return which is false or fraudulent in that it contains statements which differ from the true gross sales, purchases, leases, or rentals taxable under this article or otherwise fails to comply with this article for the taxable period for which the return is made, the commissioner shall give the dealer ten days’ notice in writing prior to requiring the dealer to appear before him or his assistant with the books, records, and papers required by the commissioner which relate to the business of the dealer for the taxable period.
(b) Any assessment of a dealer by the commissioner pursuant to this article shall be deemed prima facie correct. History. Ga. L. 1951, p. 360, § 18; Code 1933, § 91A-4528, enacted by Ga. L. 1978, p. 309, § 2. JUDICIAL DECISIONS Power of commissioner to rely on outside sources when taxpayer’s records unavailable. — Whole thrust of this section is to authorize the commissioner to make an assessment based upon whatever outside information the commissioner can locate when the commissioner does not have the benefit of the best source, the taxpayer’s own records, because the taxpayer has refused to permit examination of the books or answer questions, first at the place of business, then after a formal notice. Anderson v. Blackmon, 123 Ga. App. 128, 179 S.E.2d 657, 1970 Ga. App. LEXIS 749 (1970). When commissioner must invoke formal procedures to gain access to tax information. — Only when a dealer refuses to allow on-site examination of records, the most expeditious and least disruptive way to conduct an audit, need the commissioner invoke the formal notice to produce records, or to subpoena employees, in order to gain information from which the dealer can make a reasonably accurate assessment. Anderson v. Blackmon, 123 Ga. App. 128, 179 S.E.2d 657, 1970 Ga. App. LEXIS 749 (1970). Hearing not required when tax records known to be insufficient. — This section sets out the procedures which must be exhausted before the commissioner can make an assessment without regard to the taxpayer’s records, but does not require a useless notice and hearing when the dealer voluntarily opened records to the field auditors, the records were found insufficient, and the commissioner, with the taxpayer’s knowledge, resorted to additional sources of information to compute the tax liability. Anderson v. Blackmon, 123 Ga. App. 128, 179 S.E.2d 657, 1970 Ga. App. LEXIS 749 (1970). Burden of going forward with evidence. — When a taxpayer attacks the legality of a tax levy by affidavit of illegality, the commissioner makes out a prima facie case by introducing the tax fi. fa., and the burden of going forward with evidence shifts to the defendant in fi. fa. Fowler v. Strickland, 243 Ga. 30, 252 S.E.2d 459, 1979 Ga. LEXIS 787, cert. denied, 444 U.S. 827, 100 S. Ct. 53, 62 L. Ed. 2d 35, 1979 U.S. LEXIS 2592 (1979). Effect of the language of Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8, 48-8-9, and 48-8-11) and Ga. L. 1951, p. 360, § 16 (see now O.C.G.A. § 48-8-49 et seq.) is to shift to the taxpayer the burden of going forward with evidence to dispute the correctness of an assessment made thereunder. Fowler v. Strickland, 243 Ga. 30, 252 S.E.2d 459, 1979 Ga. LEXIS 787, cert. denied, 444 U.S. 827, 100 S. Ct. 53, 62 L. Ed. 2d 35, 1979 U.S. LEXIS 2592 (1979). Declaratory judgment as to taxability affords no relief from audit. — Declaratory judgment as to taxability under Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8, 48-8-9, and 48-8-11) will not relieve the taxpayer from an audit of the taxpayer’s books under Ga. L. 1951, p. 360, § 16, Ga. L. 1951, p. 360, § 17, or Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. § 48-8-49 et seq.). Undercofler v. Eastern Air Lines, 221 Ga. 824, 147 S.E.2d 436, 1966 Ga. LEXIS 713 (1966). OPINIONS OF THE ATTORNEY GENERAL Purpose of notice and hearing. — Purpose of the notice and hearing is dual. First, it is primarily to afford the taxpayer or dealer an opportunity to be heard and give evidence relating to the amount of tax due and the dealer’s compliance with the law. Secondly, its purpose is to give the commissioner an opportunity to acquire such additional information relating to the violation as may be made available to the commissioner in such hearing before finally assessing additional taxes. 1954-56 Ga. Op. Att'y Gen. 833. Legislative intent as to power to assess delinquent taxpayers. — General Assembly intended that in any case where the dealer fails to file a return or to appear in response to the ten days’ notice or, having appeared, fails to produce records showing the true amount of the tax due, the commissioner is authorized after the expiration of the ten days’ notice in the case where the dealer fails to appear or immediately after the hearing, if the dealer does appear, to make an assessment of any tax found to be due based on the best information available to the commissioner. 1954-56 Ga. Op. Att'y Gen. 833. When notice and hearing available. — Wording of Ga. L. 1951, p. 360, § 18 (see now O.C.G.A. §§ 48-8-8, 48-8-9, and 48-8-11) is broad enough to require that in all cases when for any reason whatever the commissioner or the department shall determine that a dealer has failed to make or file a return, or has rendered a false or fraudulent return, or has otherwise failed to comply with Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8, A. 2), the dealer should be given ten days’ written notice to appear before the commissioner or the commissioner’s assistant and to produce such books, records, and papers relating to the amount of tax due as the commissioner may deem pertinent, and be required to give testimony relating to such failure to comply with the provisions of Ga. L. 1951, p. 360, and only after such ten days’ notice may an assessment be made. 1954-56 Ga. Op. Att'y Gen. 833. But see Anderson v. Blackmon, 123 Ga. App. 128, 179 S.E.2d 657, 1970 Ga. App. LEXIS 749 (1970) (dispensing with notice and hearing when those procedures would be useless). Protest procedures inapplicable. — It is manifest that Ga. L. 1937-38, Ex. Sess., p. 77, § 29 is applicable only to those cases when the law requires the commissioner to give the taxpayer an opportunity to protest the assessment. Ga. L. 1951, p. 360 (see now O.C.G.A. T. 48, C. 8, A. 2) does not contain any requirement that the taxpayer be given an opportunity to protest. Therefore, the General Assembly did not intend that such protest procedure should be applicable to sales taxes. 1954-56 Ga. Op. Att'y Gen. 833. RESEARCH REFERENCES Am. Jur. 2d. 67B Am. Jur. 2d, Sales and Use Taxes, § 212 et seq.