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

• Court: Court of Appeals of Georgia
• Decided: October 1, 2020
• Docket: A16A2003
• Status: Published

Opinion

FIFTH DIVISION DILLARD, P. J., REESE, P. J. and COOMER, J.

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. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

September 28, 2020

In the Court of Appeals of Georgia A16A2003. NEW CINGULAR WIRELESS PCS, LLC et al. v. GEORGIA DEPARTMENT OF REVENUE et al.

DILLARD, Presiding Judge.

In New Cingular Wireless PCS, LLC v. Georgia Department of Revenue, 340

Ga. App. 316 (797 SE2d 190) (2017) (“New Cingular I”), we affirmed the grant of

a motion to dismiss, holding that, under the relevant regulation, New Cingular

Wireless PCS, LLC and three other AT&T Mobility subsidiaries (collectively,

“AT&T”) needed to first refund allegedly erroneously paid sales taxes to customers

before securing a refund from the Georgia Department of Revenue.1 But in New

Cingular Wireless PCS, LLC v. Georgia Department of Revenue, 303 Ga. 468 (813

SE2d 388) (2018) (“New Cingular II”), the Supreme Court of Georgia reversed our

1 See 340 Ga. App. at 323-24 (1). decision and remanded the case for this Court to consider AT&T’s remaining

enumerations of error.2

We did so in New Cingular Wireless PCS, LLC v. Georgia Department of

Revenue, 348 Ga. App. 516 (823 SE2d 833) (2019) (“New Cingular III”), in which

we upheld the trial court’s ruling that AT&T lacked standing to seek refunds for

periods prior to the effective date of amendments to the relevant statutes in 2009.3 But

in New Cingular Wireless PCS, LLC v. Georgia Department of Revenue, 308 Ga. 729

(843 SE2d 431) (2020) (“New Cingular IV”), the Supreme Court again reversed our

decision, holding that to the extent we concluded “AT&T lacked standing to file a

claim on behalf of its customers for any taxes for periods before May 5, 2009,” we

did so in error.4 Accordingly, we now vacate our opinion in New Cingular III to the

extent it addressed the question of AT&T’s standing and adopt as our own the

opinion and judgment of the Supreme Court in New Cingular IV on this issue.5

2 See 303 Ga. at 474 (2). 3 See 348 Ga. App. at 520 (1). 4 308 Ga. at __ (843 SE2d at 436). 5 In New Cingular III, we also reversed the trial court’s ruling that AT&T’s claims were barred as a class action, see 348 Ga. App. at 521-22 (2), but that portion of our ruling was not appealed to the Supreme Court of Georgia and, therefore, was

2 Judgment reversed. Reese, P. J., and Coomer, J., concur.

not an issue in New Cingular IV, see 308 Ga. at __ n.1 (843 SE2d at 433 n.1) (“The Court of Appeals also reversed the trial court’s ruling that AT&T’s claims were barred as a class action. The Department did not file a petition for certiorari seeking review of that holding, which is not at issue here.” (citation omitted)). As a result, our prior ruling reversing the trial court’s judgment on that question stands because it is not an issue in this appeal.