SECOND DIVISION BARNES, P. J., MCFADDEN and MCMILLIAN , JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
March 29, 2013
In the Court of Appeals of Georgia A12A2440. GEORGIA POWER COMPANY v. CAZIER et al.
MCFADDEN, Judge.
Amy Cazier and other individuals filed a putative class action lawsuit against
Georgia Power Company, alleging that it had improperly collected certain sales taxes
and fees. Georgia Power filed a motion to dismiss for failure to state a claim. The trial
court, which has not yet certified the putative class, denied the motion, but issued a
certificate of immediate review. This court granted Georgia Power’s application for
interlocutory review, and Georgia Power filed a timely notice of appeal. Because the
trial court erred in ruling that the appellees may bring a direct cause of action for a
refund of allegedly overpaid sales taxes against a dealer such as Georgia Power, as
set forth in the first two counts of the complaint, we reverse that portion of the trial court’s ruling. But as to the third count of the complaint which alleges improper
calculation of municipal franchise fees, we affirm.
It is well established that a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.
(Citations and punctuation omitted.) Scouten v. Amerisave Mortg. Corp., 283 Ga. 72,
73 (1) (656 SE2d 820) (2008). See also OCGA § 9-11-12 (b) (6).
So construed, the pleadings show that the appellees are customers who
purchase electrical service from Georgia Power. Georgia Power, as a dealer of such
service, is authorized to collect and remit sales and use taxes to the Georgia
Department of Revenue. See Sawnee Elec. &c. v. Georgia Dept. of Revenue, 279 Ga.
22, 23 (2) (608 SE2d 611) (2005) (sale of electricity to a purchaser for purposes other
than for resale is a retail sale on which the purchaser must pay a sales tax to the
retailer, which must remit the tax to the Georgia Commissioner of Revenue). The
appellees’ monthly bills from Georgia Power include a nuclear construction cost
2 recovery fee, which finances the cost of building a new nuclear generating facility,
and a municipal franchise fee, which covers payments made to municipalities for
access to roads and rights of way. The bills also show that Georgia Power has
assessed sales taxes on both of these fees. While the appellees do not challenge
Georgia Power’s authority to charge the nuclear construction and municipal franchise
fees, they allege in counts one and two of the complaint that such fees are not subject
to sales taxes and that Georgia Power has therefore improperly collected sales taxes
on both of these fees. In count three, the appellees also claim that Georgia Power has
improperly calculated the municipal franchise fee. The appellees seek refunds from
Georgia Power for the allegedly improper collection of sales taxes and improper
calculation of municipal franchise fees.
Georgia Power moved to dismiss the complaint on various grounds, including
the ground that it cannot be sued directly in a sales tax refund action. The trial court
denied the motion, finding, in pertinent part, that the appellees were authorized to
seek such a refund from a dealer under OCGA § 48-2-35.1 (d).
1. OCGA § 48-2-35.1 (d) sets out a procedure for claiming refunds from the
Georgia Department of Revenue; it does not create a cause of action against dealers.
3 Georgia Power claims that the trial court erred in ruling that OCGA § 48-2-
35.1 (d) creates a cause of action allowing purchasers to sue sellers for a refund of
allegedly overpaid sales tax. We agree.
OCGA § 48-2-35 sets forth procedures for a taxpayer to claim a refund of
erroneously collected taxes from the Georgia Department of Revenue. If a taxpayer’s
claim for a refund is denied by the department’s commissioner, the taxpayer then has
the right to bring an action for a refund in the state tax tribunal or in superior court.
OCGA § 48-2-35 (c) (4). A taxpayer, in filing either the claim for a refund from the
department or the subsequent court action, may not do so “on behalf of a class
consisting of other taxpayers who are alleged to be similarly situated.” OCGA §§ 48-
2-35 (c) (1) (D) & (5).
OCGA § 48-2-35.1 pertains to sales taxes, and subsection (d) establishes
specific procedures for a person to seek a refund of erroneously paid sales taxes. It
provides that
[a] person that has erroneously or illegally paid sales taxes to a dealer that collected and remitted such taxes to the commissioner may elect to seek a refund from such dealer. Alternatively, such person may file a claim for refund either initially with the commissioner or with the commissioner after being unable to obtain a refund from such dealer and shall also be considered a taxpayer for purposes of filing a claim for refund under Code Section 48-2-35[.]
4 (Emphasis supplied.) OCGA § 48-2-35.1 (d).
The code section then goes on to detail the methods for filing such a refund
claim with the department, either initially or after having been unable to obtain a
refund from the dealer. If the person files a refund claim initially with the
commissioner, the person must provide the department with a notarized form
executed by the dealer which affirms, among other things, that the dealer remitted the
taxes to the state and will not claim a refund of the same tax included in the person’s
refund request. OCGA § 48-2-35.1 (d) (1). But if the person files a refund claim with
the commissioner after having been unable to obtain a refund directly from the dealer,
the person must provide a letter or other information to the commissioner showing
either that the dealer refused or was unable to refund the erroneously collected sales
taxes, or that the dealer did not act upon the person’s written refund request within
90 days. OCGA § 48-2-35.1 (d) (2).
[T]he fundamental principle of statutory construction . . . requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else. . . .When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant, so when a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.
5 (Citations and punctuation omitted.) Citibank (South Dakota), N.A. v. Graham, 315
Ga. App. 120, 121-122 (1) (726 SE2d 617) (2012). “Furthermore, a statute must be
construed in relation to other statutes of which it is a part, and all statutes relating to
the same subject-matter, briefly called statutes in pari materia, are construed together,
and harmonized wherever possible, so as to ascertain the legislative intendment and
give effect thereto.” (Citation omitted.) Aimwell, Inc. v. McLendon Enterprises, 318
Ga. App. 394, 397 (1) (734 SE2d 84) (2012).
The plain language of OCGA § 48-2-35.1 (d) provides that a person may “seek
a refund” of erroneously paid sales tax from a dealer who collected the tax and
remitted it to the commissioner. But, this language obviously makes no mention of
a cause of action. “[I]f the General Assembly intended to [create a cause of action]
it could have simply said so.” McCobb v. Clayton County, 309 Ga. App. 217, 221 (1)
(c) (710 SE2d 207) (2011).
Further, when OCGA § 48-2-35.1 (d) is read in conjunction with the rest of the
statute and with OCGA § 48-2-35, which together provide specific remedies for
claiming a refund of erroneously paid sales taxes, it becomes clear that the legislature
did not intend to create a new cause of action. “It is an elemental canon of statutory
construction that where a statute expressly provides a particular remedy or remedies,
6 a court must be chary of reading others into it.” (Citations omitted.) Cellular One v.
Emanuel County, 227 Ga. App. 197, 200 (489 SE2d 50) (1997) (holding that
legislature did not intend for counties to have independent cause of action against
dealers for improper remittance of local sales taxes to commissioner).
The remedy created by the unambiguous language of OCGA § 48-2-35.1 (d)
allows a person who has erroneously paid sales taxes to choose between the
alternatives of initially seeking a refund from the dealer or filing a claim with the
commissioner. If the person first opts to seek a refund from the dealer and is
unsuccessful, the code section provides a specific administrative remedy allowing the
person to then file a claim for a refund with the commissioner. OCGA § 48-2-35.1
(d). Moreover, the code section specifies that a person filing such a refund claim must
provide to the commissioner certain information regarding the failed effort to obtain
a refund from the dealer, and that a person filing such a claim is considered a taxpayer
for purposes of filing such a claim as provided by OCGA § 48-2-35. OCGA § 48-2-
35.1 (d) (2) (A).
In harmonizing this code section with OCGA § 48-2-35, it is apparent that the
legislative intent was to provide a person who has erroneously paid sales tax the
opportunity to bypass the filing of a formal refund claim with the department by first
7 simply requesting a refund from the dealer, while still preserving the person’s right
to later pursue an administrative remedy with the department in the event the request
for a dealer refund fails. And as the statutory scheme expressly provides, if that
administrative claim for a refund from the commissioner fails, then the taxpayer may
bring an action against the department in superior court. OCGA § 48-2-35 (c) (4). But
nowhere in this statutory scheme is there any similar express provision for a taxpayer
to bring an action against a dealer in superior court. See OCGA §§ 48-2-35, 48-2-
35.1. Accordingly, contrary to the trial court’s ruling and the arguments of appellees,
OCGA § 48-2-35.1 (d) does not authorize a cause of action for a refund of allegedly
over-collected sales taxes against a dealer.
Moreover, we note that our holding is consistent with those of courts in other
states that have construed similar statutory language. For example, the Texas Court
of Appeals ruled that a purchaser could not sue a retailer for a sales tax refund even
though an administrative code section provided that “[a] person who remits tax to a
permitted seller may request from the seller or the comptroller a refund of [the] tax
paid in error.” Burgess v. Gallery Model Homes, 101 SW3d 550, 556 (Tex. App.
2003). While acknowledging that under this code section a purchaser may seek a tax
refund from the seller, the court noted that the code section lacks “a procedure for
8 compelling the seller to refund the collected tax.” (Emphasis in original.) Id. at 556,
557. Likewise, in our case, although OCGA § 48-2-35.1 (d) provides clear procedures
for compelling the department of revenue to refund erroneously collected sales tax,
it lacks any such procedure for compelling a seller to do so.
Similarly, the Illinois Supreme Court considered a statute providing that if a
seller over-collects certain use tax then “the purchaser shall have a legal right to claim
a refund of such amount from the seller.” Adams v. Jewel Companies, 348 NE2d 161,
165 (Ill. 1976). The court expressly rejected the plaintiffs argument, which echoes the
same argument made in the instant case, that the plain language of the statute permits
them a direct cause of action against a retailer for excessive tax collections. Id.
For the foregoing reasons, we conclude that the trial court erred in finding that
OCGA § 48-2-35.1 (d) authorized the appellees to bring a direct action for a refund
of purportedly over-collected sales taxes against Georgia Power.
2. While OCGA § 48-8-72, which was enacted pursuant to a uniform act,
contemplates a possible cause of action against dealers, it does not create a cause
of action.
As an alternative basis for their action, the appellees rely, in addition to OCGA
§ 48-2-35.1 (d), on OCGA § 48-8-72. But OCGA § 48-8-72 (a) contemplates a cause
9 of action against dealers, it does not create a cause of action. OCGA § 48-8-72 (a)
provides that a cause of action against a seller for over-collected sales or use taxes
does not accrue until a purchaser has provided written notice to the seller and the
seller has had 60 days to respond, and ity provides that the notice to the seller must
contain the information necessary to determine the validity of the request.
Section 48-8-72 was enacted pursuant to the Uniform Sales and Use Tax
Administration Act, OCGA § 48-8-160, et seq. First enacted in 2004, the Act
authorized the revenue department to enter into the Streamlined Sales and Use Tax
Agreement with other states. OCGA § 48-8-162. The purpose of the Agreement is to
provide a simplified system for the administration of sales and use taxes under the
law of each member state. OCGA § 48-8-164. Consistent with the Agreement, in
2010 the General Assembly enacted various amendments to the state’s sales and use
tax provisions “for streamlined sales tax purposes.” 2010 Ga. Laws 662. One of the
statutes then enacted was OCGA § 48-8-72, see 2010 Ga. Laws 662, 713 § 18, which
provides in subsection (a) that “[a] cause of action against a seller for over-collected
sales or use taxes does not accrue until a purchaser has provided written notice to the
seller and the seller has had 60 days to respond. Such notice to the seller must contain
the information necessary to determine the validity of the request.”
10 The language used in this code section incorporates provisions of the
Agreement which, as two leading commentators have explained, does not require
member states to have refund procedures, but does impose certain requirements on
states that elect to have such procedures.
[The Agreement] is generally silent on tax refund procedures, but it does require member states whose laws allow consumers to seek tax refunds from sellers to adopt two seller-protection provisions. First, a purchaser’s cause of action shall not accrue until a purchaser has provided written notice to a seller and the seller has had sixty days in which to respond. Second, . . . sellers are presumed to have a reasonable tax collection business practice, provided that they have remitted all taxes collected. . . . Walter Hellerstein and John A. Swain, Streamlined Sales and Use Tax, P7.09 (2007/2008 ed.).
(Emphasis and punctuation omitted.) Kawa v. Wakefern Food Corp. Shoprite
Supermarkets, 24 N. J. Tax 39, 57 (IV) (N.J. Tax, 2008), affirmed 24 N. J. Tax 444
(N. J. Super., 2009).
Thus, it appears that since Georgia allows consumers to initially seek a refund
of overpaid sales taxes from sellers, the Agreement required the state to adopt the
seller-protection provisions set forth in OCGA § 48-8-72 (a). The question then
becomes whether, in complying with the requirement that those provisions be
adopted, the legislative intent of enacting OCGA § 48-8-72 was to create a new cause
of action against sellers. We conclude that it was not.
11 First, OCGA § 48-8-165 (b), which is part of the initial enactment whereby the
state entered into the Agreement, provides that “no person shall have any cause of
action . . . by virtue of this state’s approval of the agreement.” (Emphasis supplied.)
Moreover, the plain language of the statute does not, in and of itself, expressly create
a cause of action. Rather, the first sentence of the statute, written in the negative,
contemplates that there may be some other independent basis for a cause of action
against sellers for over-collected sales taxes, which then accrues only upon the
occurrence of the two seller-protection provisions. But, we are unaware of, and the
appellees have not cited, any affirmative basis for a direct cause of action against a
seller for refund of allegedly over-collected sales taxes. On the contrary, as discussed
above, OCGA §§ 48-2-35 and 48-2-35.1 set forth an administrative remedy by
authorizing taxpayers to file a claim for a refund from the department of revenue.
Under these circumstances, we conclude that OCGA § 48-8-72 was intended only to
adopt the seller-protection provisions required by the Agreement and did not create
a new cause of action against sellers.
This conclusion is consistent with the judgments reached by tax and appellate
courts in New Jersey considering statutory language taken from the Agreement and
virtually identical to that contained in OCGA § 48-8-72 (a). See Kawa, supra at 55
12 (IV), affirmed 24 N. J. Tax 444 (N. J. Super., 2009). The courts there concluded that
the language did not create a common law or statutory cause of action and instead
was intended only to add a notice provision. Id. at 58 (IV).
3. Any claim on appeal under OCGA § 46-2-90 has been waived.
Lastly, we note that the appellees, in their appellate brief, have also claimed
that OCGA § 46-2-90, which addresses the liability of companies subject to the
jurisdiction of the public service commission, allows their action against Georgia
Power. However, they did not set forth that statute or make any such claim in their
complaint, and at the hearing on the motion to dismiss, counsel for appellees
expressly told the trial court that “[w]e’re not really proceeding under [OCGA §] 46-
2-90.” Accordingly, that issue has been waived for purposes of this appeal. We
express no opinion as to whether the appellees’ complaint may be amended to assert
a claim founded on OCGA § 46-2-90 or as to the merits of such a claim.
Given our rulings above, because the appellees do not have a direct cause of
action against Georgia Power for a refund of allegedly erroneous collection of sales
taxes, the trial court erred in denying the motion to dismiss as to counts one and two
of the complaint seeking such refunds.
4. Rate-making authority of the public service commission.
13 Contrary to Georgia Power’s arguments, the appellees’ complaint does not
impermissibly intrude upon the public service commission’s exclusive rate-making
authority. See Carr v. Southern Co., 263 Ga. 771 (438 SE2d 357) (1994)
(commission has exclusive power to determine utility rates and establishment of such
a rate is legislative in character and binds all parties). Given our rulings above, only
count three of the complaint, alleging improper calculation of the municipal franchise
fee, remains pending. Thus, there is no challenge to the validity or reasonableness of
any utility rate set by the commission, and instead there is simply a challenge to the
method of calculating and collecting the said fee. As the trial court correctly found,
the parties agree that the commission has exclusive authority to set just and
reasonable rates and the complaint “rais[es] a wholly different issue.”
5. Remaining issues.
Because of our rulings above, we need not address the appellants’ remaining
arguments.
Judgment affirmed in part and reversed in part. Barnes, P. J., concurs.
McMillian, J., concurs fully in Divisions 1, 2, and 5, and concurs in the judgment
only as to Divisions 3 and 4.