This is a suit on an account. After a trial before the court without a jury, the trial court entered judgment in favor of plaintiff Derby Cycle Corporation and against defendant Allera Corporation. Defendant appeals and enumerates as error the denial of its motion to dismiss and the entry of judgment in favor of plaintiff based upon insufficient evidence. Held:
2. Defendant's remaining enumeration of error questions whether there was sufficient evidence to authorize the judgment in favor of plaintiff. Defendant alleged an affirmative defense predicated on OCGA 48-6-32
which provides that: "Willful failure to return any [intangible] property to the commissioner for taxation as required by this article shall be a bar to any action upon the property in any court and may be pleaded as a complete defense to the action, but the holder of the property may at any time pay all taxes, accrued interest, and penalties. Payment in full shall relieve the holder from the penalty provided in this Code section." The accounts receivables upon which plaintiff is suing are intangible personal property pursuant to OCGA 48-6-21
Defendant presented uncontroverted evidence that plaintiff had not paid any intangible property taxes to the State of Georgia for the relevant period and that plaintiff operated a warehouse in Georgia from which a large portion of the goods associated with the accounts receivables had been shipped to defendant in Georgia. Thus, defendant established a prima facie case showing plaintiff's obligation to pay intangible personal property taxes to Georgia on at least some portion of the accounts receivables at issue. See OCGA 48-6-25
Plaintiff asserted that the exemption provided under OCGA 48-6-22
(4) is applicable so that no intangible taxes are due in Georgia upon any of the accounts receivables being sued upon. However, plaintiff failed to prove this contention since its sole witness had no first-hand knowledge as to whether intangible taxes on the accounts receivables being sued upon had been paid in a state other than Georgia. We note in this connection that as the party relying upon the exemption provided under OCGA 48-6-22
(4), the burden of proof upon this matter rested upon plaintiff. OCGA 24-4-1
; Clemons v. Allstate Ins. Co., 193 Ga. App. 489 (1) (388 SE2d 357)
. Plaintiff having failed to show that the claimed exemption from taxation was applicable, defendant was under no obligation to present evidence negating this assertion. Under these circumstances the judgment entered by the trial court was not authorized by the evidence.
Scott F. Randolph, for appellee.