NEW CINGULAR WIRELESS PCS, LLC et al.
GEORGIA DEPARTMENT OF REVENUE et al.
MELTON, Presiding Justice.
case revolves around a decision by the Georgia Department of
Revenue to deny a request for a tax refund filed by New
Cingular Wireless PCS, LLC; Chattanooga MSA LP; Georgia RSA
No. 3, LP; and Northeastern Georgia RSA Limited Partnership
(collectively "AT&T"). In New Cingular Wireless
PCS, LLC v. Georgia Dept. of Revenue, 340 Ga.App. 316
(797 S.E.2d 190) (2017), the Court of Appeals affirmed the
trial court's dismissal of a suit brought by AT&T to
challenge the Department of Revenue's denial of the
refund request. Thereafter, we granted certiorari and posed
the following question: Whether the Ga. Comp. R. & Regs.
R. 560-12-1-.25 (2) properly requires that a dealer seeking a
sales tax refund must reimburse its customer before applying
for a refund from the Department of Revenue? For the reasons
set forth below, we find that the answer to this question is
"no, " and we find that the Court of Appeals
opinion must be vacated in part and reversed in part, and
that the case must be remanded with direction.
forth in the Court of Appeals opinion, the facts of this case
are as follows:
New Cingular Wireless PCS, LLC; Chattanooga MSA LP; Georgia
RSA No. 3, LP; and Northeastern Georgia RSA Limited
Partnership ("appellants") filed suit against the
Georgia Department of Revenue and Lynnette T. Riley in her
official capacity as commissioner (the
"Department") following the Department's
refusal to issue a refund of what the appellants contend were
erroneously paid taxes [under OCGA § 48-8-2 (39) (F)].
The Department moved to dismiss the appellants' action,
and [the trial court granted] that motion. . . .
The appellants allege that from [November 1, ] 2005 until
[September 7, ] 2010, they sold wireless Internet access
services to Georgia customers, which were exempt from state
sales tax under OCGA § 48-8-2. In November 2010, the
appellants filed refund claims with the Department for sales
tax that they claimed was, until September 2010, erroneously
charged to Georgia customers on the purchase of wireless
Internet access service. The Department officially refused to
pay the requested refund claims on March 19, 2015.
Accordingly, on April 17, 2015, the appellants filed their
complaint to challenge this denial.
The Department answered and moved to dismiss for a lack of
subject-matter jurisdiction and the failure to state a claim
upon which relief could be granted. Thereafter, the
Department amended its answer and attached as an exhibit a
copy of a global settlement agreement entered into between
the appellants and their customers. The Department argued
that the complaint should be dismissed because (1) the
appellants did not reimburse the alleged illegally collected
sales tax to customers before seeking a refund from the
Department, in violation of Department Regulation
560-12-1-.25; (2) the appellants lacked standing to file
sales-tax-refund claims on behalf of customers for periods
prior to May 5, 2009; and (3) the action was barred by
Georgia class-action law. Following a hearing on the motion
to dismiss, the trial court granted it on all three grounds.
[The Court of Appeals] then granted the appellants'
application to file a discretionary appeal.
(Footnote omitted.) New Cingular Wireless PCS,
supra, 340 Ga.App. at 316.
In its ensuing decision, the Court of Appeals held:
The trial court's order contemplates the question of
dismissal under both sovereign immunity/subject-matter
jurisdiction and the failure to state a claim upon which
relief can be granted, but it appears to ultimately conclude
that dismissal is proper on the grounds of sovereign
immunity. Nevertheless, we may affirm the grant of a motion
to dismiss if it is right for any reason. And setting aside
the question of whether appellants' action is also barred
on the grounds of sovereign immunity, it is undoubtedly
barred by a failure to state a claim upon which relief can be
granted because (1) "the allegations of the complaint
disclose with certainty that the [appellants] would not be
entitled to relief under any state of provable facts asserted
in support thereof" and (2) the Department has
established that the appellants "could not possibly
introduce evidence within the framework of the complaint
sufficient to warrant a grant of the relief sought."
(Footnotes omitted.) Id. at 317 (1). We now review
the reasoning of this opinion.
an initial matter, the Court of Appeals erred by failing to
consider the issue of standing. The Department contended
below that AT&T lacked standing to seek a refund on
behalf of its customers prior to May 5, 2009, when an
amendment to OCGA § 48-2-35.1 expressly allowing dealers
to do so became effective. This should have been addressed by
the Court of Appeals prior to considering the merits, as the
question of standing is a jurisdictional issue. See
Parker v. Leeuwenburg, 300 Ga. 789 (797 S.E.2d 908)
(2017). For this reason, we must vacate that portion of the
Court of Appeals opinion as it relates to the period from
November 1, 2005 until May 5, 2009, and remand the case to
the Court of Appeals for consideration of this threshold
next consider the period of time beginning by May 5, 2009 and
ending on September 7, 2010. By that point in time, OCGA
§ 48-2-35 mandated that taxpayers be refunded taxes or
fees that were erroneously or illegally collected, and OCGA
§ 48-2-35.1 (d) explicitly allowed dealers like AT&T to
seek such a refund on behalf of its customers. In this case,
it is undisputed that AT&T qualifies as such a dealer.
The main disagreement revolves around the timing of a
dealer's payment of improperly collected tax to its
customers in relation to the procedure for seeking a refund
from the Department.
begin our analysis with the wording of the statute and
regulation at issue in this case. First, OCGA § 48-2-35
(a) generally provides that a "taxpayer shall be
refunded any and all taxes or fees which are determined to
have been erroneously or illegally assessed and collected
from such taxpayer under the laws of this state, whether paid
voluntarily or involuntarily . . . and shall be refunded
interest . . . from the date of the payment of the tax."
OCGA § 48-2-35.1 (d) allows dealers like AT&T to
seek this refund on behalf of its customers. With regard to
dealer requested refunds, Ga. Comp. R. & Regs. R.
560-12-1-.25 (2) further provides:
In the case of taxes illegally or erroneously collected, the
dealer may secure a refund as provided in OCGA Section
48-2-35, provided, however, the dealer must affirmatively
show that the tax so illegally or erroneously collected was
paid by him and not paid by the consumer, or that such
tax was ...