Asked in Military Law, Real Estate Law and Tax Law for Georgia

Q: Military member selling house in GA but not a resident. Is there a way not to pay the 3% withholding tax 48-7-128.

We moved years ago due to military deployment and stationed to another Post. We do not pay GA state tax due to Texas resident.

2 Lawyer Answers
Andrew M Steiger
Andrew M Steiger
  • Tax Law Lawyer
  • St. Clair Shores, MI

A: That’s a good question. It sounds like the tax is an unconstitutional burden on interstate commerce because it unfairly discriminates against out of state taxpayers. It would seem fair if every owner of real GA property paid the tax because that’s where the property is. But to soak out of state investors seems unconstitutionally unfair to me. Expensive to challenge though unless an interest group would want to challenge it.

A: If the State of Georgia withholds 3% of the proceeds coming from the sale of all residential property in Georgia-- regardless of where the owner lives--then the tax on residential property sales is not unconstitutional nor unlawful.

Why? Because Georgia is treating all residential property owners equally.

However, I seriously doubt Georgia is really taxing all sales of all residential property. Why? Because unhappy Georgia residents/voters would have voted against all politicians who imposed a stupid tax like that.

Therefore, IMPO it is much more likely that Georgia only taxes the sale of residential property that the owner does not live in personally. Why? Because taxing RENTAL property is not the same as taxing people's homes.

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