July 16, 2014
GEORGIA DEPARTMENT OF REVENUE
Joinder. Fulton Superior Court. Before Judge Wright.
Samuel S. Olens, Attorney General, Warren R. Calvert, Senior Assistant Attorney General, Frances C. Mulderig, Assistant Attorney General, for appellant.
Cohen, Cooper, Estep & Allen, Jeffrey L. Cohen, Jefferson M. Allen, for appellee.
PHIPPS, Chief Judge. Ellington, P. J., and Dillard, J., concur.
Phipps, Chief Judge.
This is the second appearance of this business sales and use tax case before this court. In the first appearance, Ga. Dept. of Revenue v. Moore, this court affirmed the judgment of the superior court, which had reversed the final administrative decision of the [328 Ga.App. 351] Georgia Department of Revenue (the Department) regarding the tax liability of Richard Moore, a corporate officer. We found that, by voluntarily refunding to the corporation's majority owner, Thomas Turrentine, a portion of the taxes owed, the Department forfeited any right it had to recoup from Moore the payment it made to Turrentine.
The Department appealed and, in Ga. Dept. of Revenue v. Moore, the Supreme Court of Georgia reversed our decision, holding that " [t]he voluntary payment doctrine set forth in OCGA § 13-1-13 is a concept applicable to contracts, not tax indebtedness."  Citing OCGA § 9-11-19 (a) (2), the Court remanded the case for us " to consider the issue of whether Moore was a necessary party to Turrentine's refund action, and, if so, what consequences would follow in relation to this appeal." 
" Upon our review of the superior court's actions, the evidence is construed in favor of the agency's decision. Both the superior court and this [c]ourt review conclusions of law de novo."  For the reasons that follow, we reverse the judgment of the superior court.
OCGA § 9-11-19 (a) pertinently provides:
A person who is subject to service of process shall be joined as a party in the action if: ... (2) [h]e claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (A) [a]s a practical matter impair or impede his ability to protect that interest; or (B) [l]eave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. ...
[328 Ga.App. 352] It is undisputed that Moore and Turrentine were " responsible persons" of the corporation within the meaning of OCGA § 48-2-52, and that they were jointly obligated
to pay the corporation's sales and use taxes. The parties have not cited, nor have we found, any cases specifically addressing whether a responsible person is a necessary party (within the meaning of OCGA § 9-11-19) to a refund action brought by another responsible person. Inasmuch as both OCGA § § 48-2-52 and 9-11-19 are patterned after federal statutes, we will look to federal cases for guidance on the issue.
Under federal law, the liability of corporate officers for their company's unpaid sales taxes is in the nature of joint and several liability. Under Georgia law, " [w]here the complainant has the right of election as to which defendants he will proceed against, [OCGA § 9-11-19 (a)] has no application."  Further, under Georgia law, a [328 Ga.App. 353] jointly and severally liable person is not a necessary party to a lawsuit involving another such person.
This principle is recognized under Rule 19 of the Federal Rules of Civil Procedure. In Gray v. United States, where the plaintiff sued the government for a refund of taxes he had paid pursuant to 26 U.S.C. § 6672, and the government counterclaimed for the balance due, the district court denied the plaintiff's motion for joinder of another person alleged also to be liable for the corporation's taxes. The court held that
liability under section 6672 is joint and several among responsible persons, and each responsible person can be held for the
total amount ... not paid... . The fact that there may be other fiscally-responsible persons does not relieve [the plaintiff] of his duty to pay these taxes as a responsible person. Accordingly, joinder ... is not necessary to accord the parties complete relief in the instant action.
Because Moore was not a necessary party to the refund action, the superior court erred in finding that the Department's failure to add him as a necessary party to that prior action precluded the Department from pursuing Moore for the amount it refunded to Turrentine. Inasmuch as the superior court's final ruling was based on errors of law (namely, that the Department was precluded from [328 Ga.App. 354] collecting the assessments from Moore based on the voluntary payment and joinder of necessary party statutes), the judgment is reversed.
Ellington, P. J., and Dillard, J., concur.