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Moosa Company, LLC v. Commissioner of Georgia Department of Revenue

Court of Appeals of Georgia, Third Division

January 16, 2020


          DILLARD, P. J., GOBEIL and HODGES, JJ.

          HODGES, JUDGE.

         This case addresses the proper forum for a tobacco taxpayer to appeal a tobacco tax assessment by the Commissioner of the Georgia Department of Revenue (the "Commissioner"). After receiving an executive order from the Commissioner stating that it owed unpaid taxes, tobacco retailer Moosa Company, LLC appealed its case to the Georgia Tax Tribunal. See OCGA § 50-13A-1 et. seq. The Tribunal dismissed Moosa's appeal, finding that it did not have subject matter jurisdiction. Moosa petitioned for judicial review, and the Superior Court of Fulton County affirmed the Tribunal's dismissal. This Court granted Moosa's application for discretionary review, and, because a specific statute dictates the appellate procedure available to a tobacco taxpayer, we affirm the trial court's order.

         At the outset, we note that the interpretation of a statute is a question of law, "which is reviewed de novo on appeal." Brantley Land & Timber v. W & D Investments, 316 Ga.App. 277, 279 (729 S.E.2d 458) (2012). "Indeed, when only a question of law is at issue, as here, we owe no deference to the trial court's ruling and apply the 'plain legal error' standard of review." (Citation and punctuation omitted.) Kemp v. Kemp, 337 Ga.App. 627, 632 (788 S.E.2d 517) (2016).

         So viewed, the record here shows that on February 1, 2017, Moosa received an Official Assessment and Demand for Payment from the Georgia Department of Revenue ("DOR") stating that it owed $159, 298.39 as a result of unpaid tobacco excise taxes, including penalties and interest. Moosa appealed this assessment, and, pursuant to OCGA § 48-11-18 (a), [1] it received a hearing before an administrative hearing officer of the DOR on July 19, 2017. On June 25, 2018, the hearing officer, on behalf of the Commissioner, upheld the assessment in its entirety in an Executive Order.

         Moosa then filed a petition with the Tax Tribunal, [2] contesting the Executive Order. The DOR moved to dismiss the petition on the ground that the Tribunal lacked subject matter jurisdiction over tobacco excise tax appeals. The Tribunal granted the motion to dismiss, and Moosa petitioned the Superior Court of Fulton County for judicial review of the Tribunal's order. The superior court affirmed the Tribunal's order finding that the Tribunal lacked subject matter jurisdiction, and Moosa now appeals.

         In three related enumerations of error, Moosa contends that the trial court's finding that the Tribunal lacks subject matter jurisdiction over its appeal results from the trial court's exercise of flawed statutory construction.[3] We disagree.

         When this Court interprets any statute, "we necessarily begin our analysis with familiar and binding canons of construction." (Citation and punctuation omitted.) Kemp, 337 Ga.App. at 632.

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 S.E.2d 337) (2013); accord Holcomb v. Long, 329 Ga.App. 515, 517 (1) (765 S.E.2d 687) (2014). We must also "seek to avoid a construction that makes some language mere surplusage." (Citations and punctuation omitted.) Holcomb, 329 Ga.App. at 517-518 (1). Further, when the language of a statute is "plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly." (Citation and punctuation omitted.) Id. at 518 (1); see also Deal, 294 Ga. at 173 (1) (a) ("[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.") (punctuation omitted).

         With this framework in mind, we first turn to Chapter 11 of Title 48 of the Code, which governs taxes on tobacco products. Here, the General Assembly provided tobacco taxpayers with a statute which specifically controls their rights to appeal actions by the Commissioner - OCGA § 48-11-18 (b). That statute provides:

Any person aggrieved because of any final action or decision of the commissioner, after hearing, may appeal from the decision to the superior court of the county in which the appellant resides. The appeal shall be returnable at the same time and shall be served and returned in the same manner as required in the case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond of recognizance to the state, with surety, conditioned to prosecute the appeal and to effect and comply with the orders and decrees of the court. The action of the commissioner shall be sustained unless the court finds that the commissioner misinterpreted this chapter or that there is no evidence to support the commissioner's action. If the commissioner's action is not sustained, the court may grant equitable relief to the appellant. Upon all appeals which are denied, costs may be taxed against the appellant at the discretion of the court. No costs of any appeal shall be taxed against the state.

(Emphasis supplied.) Id.

         The language of this statute is clear and unambiguous in its identification of the forum available to tobacco tax payers for appeal - the superior court of the county in which the taxpayer resides. We therefore need not, and in fact may not, engage in any further statutory construction. That said, it is worth noting that the statute contains no reference to the Tribunal as an available forum, and "[t]his court cannot add language to a statute by judicial decree." U.S. Life Credit Corp. v. Johnson, 161 Ga.App. 864, 865 (1) (290 S.E.2d 280) (1982). ...

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