COTTON PICKIN' FAIRS, INC. et al.
TOWN OF GAY.
MILLER, P. J., ANDREWS and BROWN, JJ.
Miller, Presiding Judge.
appeal, we consider whether OCGA § 48-13-6 (b)
authorized the Town of Gay ("The Town") to levy an
occupation tax on the exhibitors participating in the Cotton
Pickin' Fair ("The Fair"), which is held in the
Town. Cotton Pickin' Fairs, Inc. and The 1911 Society,
Ltd. appeal from the trial court's order, which
determined that their challenge to the occupation tax failed.
We conclude that the Town was not authorized to levy an
occupation tax on the exhibitors under OCGA § 48-13-6
(b) because the exhibitors do not have a "location or
office" in the Town for purposes of the Fair, and were
thus exempted from taxation. See OCGA §§ 48-13-5
(3), 48-13-6 (b). We therefore reverse.
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. We
review a trial court's summary judgment ruling de novo,
construing the evidence and all reasonable inferences
favorably to the nonmovant.
(Citations and footnotes omitted.) Barclay v.
Stephenson, 337 Ga.App. 365 (787 S.E.2d 322)
viewed, the record shows that the Town is an incorporated
municipality. Cotton Pickin' Fairs, Inc. is a for-profit
corporation that sponsors the Fair, which is a two-day event
held in May and October of each year. The property on which
the Fair is held belongs to Ellen Gay McEwen
("Ellen"), who leases the land to Cotton
Pickin' Fairs annually. In preparation for each Fair,
Ellen selects approximately 350 exhibitors from hundreds of
applicants from around the country.
August 2006, the Town enacted a new occupation tax ordinance,
(a) An occupation tax is hereby levied annually upon all
businesses and practitioners of professions and occupations
with one or more locations or offices within the
corporate limits of the town . . . in the amount of $30.00
for each business location or office with the town.
(Emphasis supplied.) The ordinance contained exemptions for
several types of entities, including nonprofit organizations.
after the enactment of this ordinance, John McEwen -
Ellen's husband and the secretary-treasurer of Cotton
Pickin' Fairs - formed The 1911 Society, Ltd., a domestic
nonprofit corporation. The 1911 Society was organized in an
attempt to meet the requirements of an agricultural fair
sponsor under OCGA § 2-2-8. After the exhibitors for
each Fair are selected, Cotton Pickin' Fairs assigns all
exhibitor contracts to The 1911 Society.
to the Town's enactment of its 2006 ordinance, each
exhibitor paid the Town a $30 occupation tax and a $5
application fee. After the enactment of the ordinance, The
1911 Society, through its attorney, informed the exhibitors
that they were "operating under a contract with a
tax-exempt agricultural fair, " and the Town was therefore
not authorized to levy an occupation tax against the
exhibitors for their participation in the Fair. It is
undisputed that Cotton Pickin' Fairs has consistently
paid its occupation taxes since 2006.
2015, the Town filed a complaint against Cotton Pickin'
Fairs and The 1911 Society, seeking a declaratory judgment
regarding The 1911 Society's purported status as a
tax-exempt agricultural fair sponsor; an injunction barring
the Fair from being held in the Town until all Fair-related
taxes and fees are paid; and monetary damages for the
appellants' alleged interference with the Town's
collection of occupation taxes from the
exhibitors. Cotton Pickin' Fairs and The 1911
Society moved to dismiss the complaint, arguing, inter alia,
that under OCGA § 48-13-6 (b), the Town's authority
to impose an occupation tax did not extend to the exhibitors
because the exhibitors did not have a "location or
office" in the Town for purposes of the Fair. Cotton
Pickin' Fairs also counterclaimed for a declaratory
judgment and sought an injunction barring the Town from
attempting to collect taxes from the exhibitors on the same
trial court converted the motions to dismiss into motions for
summary judgment, having deemed it necessary to consider
evidence beyond the pleadings. See OCGA § 9-11-12 (b).
Based on a review of the evidence, the trial court found,
inter alia, that the appellants lacked standing to argue that
the exhibitors did not have a location or office in the Town.
Nevertheless, the trial court also addressed the issue on the
merits, rejecting the appellants' contention that a
"temporary work site" exception under OCGA §
48-13-5 (3) barred the Town from collecting a business
license fee or occupation tax from the exhibitors. This
interrelated enumerations of error, the appellants contend
that the trial court erred in ruling that the "temporary
work site" exception in OCGA § 48-13-5 (3) did ...