08 HB
1274/AP
House
Bill 1274 (AS PASSED HOUSE AND SENATE)
By:
Representative Knight of the
126th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 2 of Chapter 7 of Title 48 of the Official Code of Georgia
Annotated, relating to income tax imposition, rate, computation, and exemptions,
so as to change certain provisions relating to income tax credits for donations
of real property for conservation purposes and carryover of credits; to provide
for limitations, exceptions, and penalties; to provide an effective date; to
provide for applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
2 of Chapter 7 of Title 48 of the Official Code of Georgia Annotated, relating
to income tax imposition, rate, computation, and exemptions, is amended by
revising Code Section 48-7-29.12, relating to income tax credits for donations
of real property for conservation purposes and carryover of credits, as
follows:
"48-7-29.12.
(a)
As used in this Code section, the term:
(1)
'Conservation purposes' means real property which is qualified as conservation
land pursuant to Chapter 22 of Title 36.
(1)
'Fair market value' means the value of the donated property established by a
property appraisal or appraisals meeting the requirements of Section 170 of
Title 26 of the United States Code, to be submitted in such manner as the
commissioner may by regulation require.
(2)
'Qualified donation' means the fee simple conveyance to the state; a county, a
municipality, or a consolidated government of this state;
to the federal
government; or a bona fide charitable
nonprofit organization qualified under the Internal Revenue Code of 100 percent
of all right, title, and interest in the entire parcel of donated real property,
which donation is accepted by such state, county, municipality, consolidated
government,
federal
government, or bona fide charitable
nonprofit organization. Such term shall also include the donation to and
acceptance by the state; a county, a municipality, or a consolidated government
of this state;
to the federal
government; or a bona fide charitable
nonprofit organization qualified under the Internal Revenue Code of an interest
in real property which qualifies as a conservation easement under paragraph (4)
of Code Section 36-22-2. Any real property which is otherwise required to
be dedicated pursuant to local government regulations or ordinances or to
increase building density levels shall not be eligible as a qualified donation
under this Code section. Any real property which is used for or associated with
the playing of
golf,
or is planned to be so used or associated shall not be eligible as a qualified
donation under this Code section.
(3)
'Eligible donor' means any person who owns an interest in a qualified
donation.
(4)
'Related person' has the meaning provided by Code Section
48-7-28.3.
(5)
'Substantial valuation misstatement' means a valuation such that the value of
any property claimed on any return of tax imposed under this chapter, or on any
claim for refund of such tax, is 150 percent or more of the amount determined to
be the correct amount of such valuation.
(b)(1)
A taxpayer shall be allowed a state income tax credit against the tax imposed by
Code Section 48-7-20 or Code Section 48-7-21 for each qualified donation of real
property for conservation purposes.
(2)
Except as otherwise provided
in paragraph
(3) of this subsection and in subsection
(d) of this Code section, such credit shall be limited to an amount not to
exceed the lesser of
$500,000.00,
or
25 percent of the fair market value of the donated real property as fair
market value is established
pursuant to
paragraph (3) of Code Section 48-5-2 for
the year in which the donation
occurred, or
25 percent of the difference between the fair market value and the amount paid
to the donor if the donation is effected by a sale of property for less than
fair market value as established for the year in which the donation
occurred.
(3)
Except as otherwise provided in subsection (d) of this Code section, in the case
of a taxpayer whose net income is determined under Code Section 48-7-23, the
aggregate total credit allowed to all partners in a partnership shall be
limited to an amount not to exceed the lesser of $1 million, 25 percent of the
fair market value of the donated real property as fair market value is
established for the year in which the donation occurred, or 25 percent of the
difference between the fair market value and the amount paid to the donor if the
donation is effected by a sale of property for less than fair market value as
established for the year in which the donation
occurred.
(c)
No tax credit shall be allowed under this Code section unless the taxpayer files
with the taxpayer´s income tax return a copy of a certification by the
Department of Natural Resources that the donated property is suitable for
conservation purposes. The Board of Natural Resources shall promulgate any
rules and regulations necessary to implement and administer this subsection,
including, but not limited to, policies to guide the determination of whether or
not donated property is suitable for conservation purposes. A final
determination by the Department of Natural Resources with respect to the
suitability of donated property for conservation purposes shall be subject to
review and appeal under Chapter 13 of Title 50, the 'Georgia Administrative
Procedure Act.'
(d)(1)
In no event shall the total amount of any tax credit under this Code section for
a taxable year exceed the taxpayer´s income tax liability. In no event
shall the total amount of the tax credit allowed to a taxpayer under subsection
(b) of this Code section exceed $250,000.00 with respect to tax liability
determined under Code Section 48-7-20 or $500,000.00 with respect to tax
liability determined under Code Section 48-7-21. Any unused tax credit shall be
allowed to be carried forward to apply to the taxpayer´s succeeding
five
ten
years´ tax liability. However, the amount in excess of such annual dollar
limits shall not be eligible for carryover to the taxpayer´s succeeding
years´ tax liability
nor shall such
excess amount be claimed by or reallocated to any other
taxpayer. No such tax credit shall be
allowed the taxpayer against prior years´ tax liability.
(2)
Only one qualified donation may be made with respect to any real property that
was, in the year prior to donation, within the same tax parcel of record, except
that a subsequent donation may be made by a person who is not a related person
with respect to any prior eligible donors of any portion of such tax
parcel.
(e)(1)
Whenever:
(A)
Any person prepares an appraisal of the value of property and knows, or
reasonably should have known, that the appraisal would be used in connection
with a return or a claim for refund claiming a tax credit under this Code
section; and
(B)
The claimed value of the property on a return or claim for refund which is based
on such appraisal results in a substantial valuation misstatement with respect
to such property for purposes of claiming a tax credit under this Code
section,
then
such person shall pay a penalty in the amount determined under paragraph (2) of
this subsection.
(2)
The amount of the penalty imposed under paragraph (1) of this subsection on any
person with respect to an appraisal shall be equal to the lesser
of:
(A)
The greater of:
(i)
Twenty-five percent of the difference between the amount of the tax credit
claimed on the taxpayer´s return or claim for refund and the amount of the
tax credit to which the taxpayer is actually entitled, to the extent the
difference is attributable to the misstatement described in subparagraph
(e)(1)(B) of this Code section; or
(ii)
One thousand dollars; or
(B)
One hundred twenty-five percent of the gross income received by the person
described in subparagraph (e)(1)(A) of this Code section for the
preparation of the appraisal.
(3)
No penalty shall be imposed under paragraph (1) of this subsection if the person
establishes to the satisfaction of the commissioner that the value established
in the appraisal was more likely than not the proper value.
(4)
Except as otherwise provided, the penalty provided by this subsection shall be
in addition to any other penalties provided by law. The amount of any penalty
under this subsection shall be assessed within three years after the return or
claim for refund with respect to which the penalty is assessed was filed, and no
proceeding in court without assessment for the collection of such penalty shall
be begun after the expiration of such period. Any claim for refund of an
overpayment of the penalty assessed under this subsection shall be filed within
three years from the time the penalty was paid.
(e)(f)
The commissioner shall promulgate any rules and regulations necessary to
implement and administer this Code section."
SECTION
2.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval, and shall be applicable to all taxable years
beginning on or after January 1, 2008.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.