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New Cingular Wireless PCS, LLC v. Georgia Department of Revenue

Court of Appeals of Georgia, Fifth Division

February 6, 2019

NEW CINGULAR WIRELESS PCS, LLC et al.
v.
GEORGIA DEPARTMENT OF REVENUE et al.

          DILLARD, C. J., REESE, J., and COOMER, J.

          DILLARD, CHIEF JUDGE.

         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 ("the Department") and Lynnette T. Riley in her official capacity as commissioner, following the Department's refusal to issue a refund of what the appellants contend were erroneously paid taxes. The Department filed a motion to dismiss the appellants' action, which the trial court granted. Appellants then appealed to this Court, contending that the trial court erred in concluding that (1) they must first refund the allegedly erroneously collected taxes to their customers before seeking a refund from the Department; (2) they lacked standing to seek a refund for taxes collected prior to May 5, 2009; and (3) the action for a refund was a class action barred by Georgia law.

         In New Cingular Wireless PCS, LLC v. Georgia Department of Revenue, 340 Ga.App. 316 (797 S.E.2d 190) (2017), we affirmed the grant of the motion to dismiss, holding that, under the relevant regulation, appellants needed to first refund the allegedly erroneously paid sales taxes to customers before securing a refund from the Department.[1] But the Supreme Court of Georgia reversed our decision in New Cingular Wireless PCS, LLC v. Georgia Department of Revenue, 303 Ga. 468 (813 S.E.2d 388) (2018), and remanded the case for this Court to consider appellants' two remaining enumerations of error.[2] Having done so, we vacate our earlier opinion, adopt as our own the opinion and judgment of the Supreme Court as to the appellants' first claim of error, and now consider their remaining claims of error.

         As provided in both the Supreme Court's opinion and our prior opinion, the facts of this case are as follows:

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.[3]

         With this factual and procedural backdrop in mind, we will now address the appellants' remaining claims of error.

         1. First, we address the trial court's grant of the Department's motion to dismiss on the basis that the appellants lacked standing to file refund claims for periods prior to May 9, 2009.

         The question of standing is a jurisdictional issue.[4] Indeed, as the Supreme Court of Georgia noted in its opinion, "sovereign immunity like various other rules of jurisdiction and justiciability is concerned with the extent to which a case properly may come before a court at all."[5] Additionally, our Supreme Court explained that "there is agreement that OCGA § 48-2-35 . . . waive[s] the State's sovereign immunity to allow tax refunds," but that "[t]he only question is the extent of that waiver."[6] To that end, OCGA § 48-2-35 (a) provides, in pertinent part, 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 . . . on the amount of the taxes or fees from the date of payment of the tax or fee to the commissioner at an annual rate . . . .[7]

         OCGA § 48-2-35 also provides that a "claim for refund of a tax or fee erroneously or illegally assessed and collected may be made by the taxpayer at any time within three years after[, ]" in the case of a non-income tax or fee, "[t]he date of the payment of the tax or fee to the commissioner[.]"[8] And the statute further specifies that, "[f]or purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term 'taxpayer,' as defined under [OCGA §] 48-2-35.1, shall apply."[9] In OCGA § 48-2-35.1 (d), "taxpayer" is defined as, inter alia, "a dealer as defined in [OCGA § 48-8-2 (8)] that collected and remitted erroneous or illegal sales and use taxes to the commissioner."[10]

         Prior to May 5, 2009, "dealers" lacked standing to file claims for tax refunds on behalf of customers from whom a tax had been erroneously paid or illegally collected.[11] But, effective May 5, 2009, OCGA §§ 48-2-35 and -35.1 were amended to provide standing for dealers to seek such refunds.[12]

         Here, the parties agree that appellants, as dealers, were permitted by statute to seek tax refunds on behalf of customers. But they disagree as to whether the amendments providing dealers with standing have retroactive or only prospective application. In this respect, our Supreme Court has repeatedly recognized that "[l]aws prescribe for the future."[13] Indeed, OCGA § 1-3-5 explicitly notes this and further explains that laws "ordinarily [cannot] have a retrospective obligation."[14] Thus, the settled rule for the construction of statutes is "not to give them a retrospective operation, unless the language so imperatively requires."[15] And a statute does not operate retrospectively in its legal sense "simply because it relates to antecedent facts[.]"[16] Instead, the relevant statutory text must plainly seek to "affect transactions which ...


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