Shadix v. Carroll County

521 S.E.2d 99, 239 Ga. App. 191

Opinions

Pope, Presiding Judge.

On August 11, 1998, Lawrence Shadix and the Carroll County Association of Taxpayers brought an action for declaratory judgment and injunctive relief to stop Carroll County and the State Revenue Commissioner, Jerry Jackson, from collecting a special purpose local option sales tax (“SPLOST”). The court denied the injunctive relief, found in favor of the defendants, and Shadix and the plaintiffs appealed. For the following reasons, we conclude that the court erred, and we reverse.

On July 13, 1993, the Carroll County Board of Commissioners passed a resolution calling for submission to the voters for approval of a referendum for the imposition of a special purpose county sales and use tax. See Ga. L. 1992, pp. 2998, 3005; OCGA § 48-8-111. The specified purposes for which the proceeds were to be used included funding road, street, and bridge projects, as well as funding fire protection, recreation, water, sewer, and jail projects.¹

Under the authority of the resolution, the Chairman placed the referendum as to whether to impose a one percent SPLOST on the November 2, 1993 ballot. The language on the referendum ballot strictly conformed with the statutorily prescribed form. See Ga. L. 1992, p. 3003, § 1 (d) (3). The ballot read:

SPECIAL ELECTION 1 PERCENT SALES AND USE TAX REFERENDUM!.] A YES vote means you favor a 1 percent sales and use tax[.] A NO vote means you oppose a 1 percent sales and use tax[.] Shall a special 1 percent sales and use tax be imposed in Carroll County for the raising of not more than $34,000,000 for a period of time not to exceed four (4) years, for paving, resurfacing, traffic control and improvement to the system of Roads, Streets and Bridges within the county; and for a period of time not to exceed five (5) years for the purpose of funding capital improvements relating to fire protection services, recreational facilities, public buildings and water and sewerage projects within the county and its respective municipalities? () YES () NO

On November 2, 1993, the referendum was held and more than one-half of the votes cast were in favor of imposing the SPLOST. The State Revenue Department confirmed receipt of the referendum results to impose the SPLOST and notified the Carroll County Board of Commissioners that the tax would be effective on April 1, 1994.

As of May 21, 1998, $34,009,170.16 had been collected by the State Revenue Commissioner pursuant to the SPLOST. Through the June 1998 distribution, the Commissioner distributed revenues pursuant to the SPLOST to Carroll County in the amount of $34,285,209.62. In August 1998, Shadix, a resident of Carroll County, and a taxpayers group from Carroll County filed the complaint for declaratory judgment and injunctive relief, asserting that the SPLOST terminated when $34 million was raised. The State Revenue Commissioner, the Carroll County Tax Commissioner, Jean Matthews, and Carroll County filed answers and then briefs, claiming that the five-year period specified in the ballot was controlling for collection of the tax and that the tax collection should continue for five years, regardless of the amount of money raised.

The parties and the trial court agreed to resolve the case on an expedited basis with stipulated facts and affidavits and to hold an accelerated final hearing on the merits on September 1, 1998. Before the hearing, the trial court held a conference during which plaintiffs’ counsel announced that he was filing an amendment to the complaint to add Counts 4, 5, and 6; plaintiffs’ counsel told the court that the amendment did not change plaintiffs’ theory of the case. Plaintiffs also sought additional discovery from the defendants. The court directed the defendants to provide the key factual information needed by the plaintiffs in lieu of formal discovery. The trial court heard the merits of the case from all parties. At the conclusion of the hearing, the parties completed and filed their stipulations.

On September 4, 1998, the court rendered final judgment, finding that the SPLOST terminated at the end of the day on March 31, 1999, and that the other issues in the amended Counts 4, 5, and 6 were either moot, without merit as a matter of law, or did not otherwise warrant judicial relief. Plaintiffs filed their notice of appeal to the Supreme Court; the Supreme Court denied an emergency motion for escrow of such taxes pending appeal. After docketing, the Supreme Court transferred the appeal to this Court.

1. Plaintiffs contend that the trial court erred in denying injunc- tive relief to stop the continued collection of the SPLOST and in deciding the declaratory judgment adversely to them. We agree.

We first examine the issue of mootness with respect to the questions raised regarding the termination of the tax. It is established that

[a] petition for declaratory judgment will not lie where all rights of the parties have already accrued and where no facts or circumstances are alleged showing a necessity for adjudication in order to relieve the plaintiff from the risk of taking future undirected action, which, without such action, would jeopardize the plaintiff’s interest.

(Citations and punctuation omitted.) Kelly v. City of Atlanta, 217 Ga. App. 365, 367 (2) (457 SE2d 675) (1995), overruled on other grounds, Atlanta Independent School System v. Lane, 266 Ga. 657 (1) (469 SE2d 22) (1996). Moreover, “as a general rule, a suit for injunctive relief regarding the collection of allegedly illegal taxes should not be entertained by the courts if the taxes at issue have been substantially collected and disbursed.” 217 Ga. App. at 367 (2). Nevertheless, due process requires that redress be available when taxes have been collected unlawfully. See, e.g., Reich v. Collins, 513 U. S. 106 (115 SC 547, 130 LE2d 454) (1994); OCGA § 48-2-35.

In this case, it is not clear whether the substantive issues regarding the injunctive and declaratory relief which plaintiffs sought in the original complaint have become moot. The trial court’s order stated that the tax would end on March 31, 1999. Although a consent order in the case was entered during the pendency of the case which stated that Carroll County “until further order of the Court” would not “spend any amount in excess of $34 million from the money raised by the special 1 percent sales and use tax,” no such staying order was entered after the Court’s final judgment. Moreover, as stated above, the parties filed an emergency motion for escrow of such taxes pending appeal, which the Supreme Court denied. In their stipulated facts, the parties agreed that “as of September 1, 1998, $36,183,787.99 had been collected by the State Revenue Commissioner pursuant to the Tax.” The stipulation further provided that as of that date “Carroll County had received $35,821,950.11 from the money collected by the State Revenue Commissioner pursuant to the Tax.” It is not clear from the record whether the additional money raised by the tax has been disbursed to the county, nor is it clear whether the county has spent the additional revenue. Moreover, there are issues to be resolved in this appeal which are dependent on our resolution of the merits of the underlying action. As discussed below, the trial court’s determination regarding the termination of the tax was improper. Upon remand, the court should make a factual finding as to whether the collected taxes have been spent and, if so, should direct the parties accordingly.

The General Assembly has enacted a detailed Code Article authorizing counties to impose a special one percent sales and use tax. See OCGA § 48-8-110 et seq. Subject to the requirement of referendum approval and other requirements, the governing authority of any county may impose such a tax, for limited periods of time, for one or more statutorily authorized purposes. See OCGA §§ 48-8-110; 48-8-111.

The dispute in this case arose because of ambiguity in the applicable statute. The statutory scheme left a “gap” with respect to the termination date for a mixed use SPLOST. Under the version of OCGA § 48-8-112 (b) in effect before April 14, 1997, a SPLOST that was solely for purposes other than roads, streets, and bridges (a “non-road” tax) and that did not require a debt validation terminated: (i) at the end of the calendar quarter in which it was determined the specified maximum amount of the revenue was raised; or (ii) on the final day of the five-year maximum period of time, whichever came earlier.

Nevertheless, the statute was unclear with respect to a mixed purpose SPLOST — in other words, a tax to be used for both “non-road” and road purposes like the tax involved here. OCGA § 48-8-112 (b) (3), which terminated the tax when the specified maximum amount of revenue was received, purported to apply only to a non-road, tax. Subsection (b) (2), which was not limited to non-road taxes, set the limitation solely on the basis of the specified period of time.

Despite the lack of specific statutory guidance, various of the article’s provisions show that the legislature intended that a mixed use SPLOST terminate when the maximum amount specified in the ballot was raised. OCGA § 48-8-111 (a) (3), which sets out general procedures for the imposition of a tax, provides that when a county votes to impose a tax, the county election superintendent shall be notified and that the resolution or ordinance shall specify “[t]he maximum cost of the project or projects which will be funded from the proceeds of the tax, which maximum cost shall also be the maximum amount of net proceeds to be raised by the tax.” OCGA § 48-8-111 (d) (3) specifically required a ballot for a mixed purpose tax to designate the maximum amount to be raised. Clearly, this section would be incongruous if, regardless of the inclusion in the ballot of the maximum amount to be collected, the tax could be collected in excess of this amount.²

Moreover, OCGA § 48-8-121 (a) (3) provided that proceeds of a mixed purpose tax could be collected and used for both road and non-road purposes for the entire five years, so long as the total expenditures were consistent with that provided in the original resolution. Again, this section implied that the tax would terminate when the specified maximum amount was collected.

In 1997 the General Assembly amended OCGA § 48-8-112 (b) (3) specifically to apply to all SPLOST taxes, including mixed purpose taxes. Under the revised statute all SPLOST taxes clearly terminate when the maximum amount is raised. Ga. L. 1997, p. 519, § 1. This change pertained only to resolutions adopted on or after April 14, 1997, and does not resolve the question raised in this case.

The maximum amount of proceeds to be raised from the tax was a fundamental part of the tax referendum on which the Carroll County taxpayers voted. The language of the tax referendum provided that the tax would raise no more than $34 million over a period of no more than four years for purposes related to roads, streets and bridges, and for a period of no more than five years for the purpose of funding certain capital improvements. Stated differently, the voters approved a tax which would end within four and five years, or upon the collection of $34 million dollars. In so voting, the taxpayers approved only a limited collection of money.

Our conclusion that the county was bound to terminate the tax when the maximum amount stated in the ballot was raised is bolstered by the general principle that when a revenue statute lacks clarity, it must be construed against the taxing authority. “[I]f a statute levying taxes is not clear and positive as to its terms, or if it is open to various interpretations through indefiniteness of its provisions, it is to be construed most strongly against the government and in favor of the citizen.” Thompson v. Ga. Power Co., 73 Ga. App. 587, 597 (37 SE2d 622) (1946); see also Fulton Metal Bed Mfg. Co. v. State Revenue Comm., 52 Ga. App. 159, 161 (2) (182 SE 803) (1935). The meaning of a revenue statute cannot be extended by implication. Novak v. Redwine, 89 Ga. App. 755, 757 (81 SE2d 222) (1954).

Through the mechanism of the SPLOST, the General Assembly allowed its sovereign power to tax and collect to be employed by a county so that it. could collect a special, consented-to tax for constitutionally permitted purposes. See generally City Council of Augusta v. Mangelly, 243 Ga. 358, 362 (254 SE2d 315) (1979). The Carroll County voters consented to the collection of no more than $34 million for the designated purposes. The voters did not consent to the collec tion of additional money, and accordingly, the court erred in denying injunctive relief because the county was obligated to cease its taxation when this limitation was reached. See generally Dickey v. Storey, 262 Ga. 452, 456 (3) (423 SE2d 650) (1992) (Board of Commissioners was not authorized to use proceeds from the SPLOST tax for a purpose entirely different from that contained in original resolution). Based on our conclusion, we will not address plaintiffs’ constitutional arguments in this regard.

2. Plaintiffs contend that the court’s grant of summary judgment on Counts 4, 5, and 6 of their amended complaint was improper. They also argue that the court erroneously disallowed discovery on these counts.³

In Count 4, plaintiffs sought injunctive relief to halt the expenditure of money raised after April 1, 1998, on roads. Count 5 sought injunctive relief for the ongoing improper spending of the excess proceeds of the tax in violation of OCGA § 48-8-121 (g) (2). Count 6 sought relief for the county’s breach of statutory record-keeping requirements. In its order, the trial court concluded that because of its conclusion that the time period was controlling as to the limitation of the tax, the counts of plaintiffs’ amended complaint were moot or without merit.

As stated above, we cannot determine whether the county has spent the money raised by the tax or not. If the money has not been disbursed, then Count 4 can be properly dealt with by the court, given our conclusion in Division 1. Similarly, in light of our conclusion in Division 1, the court should have allowed Count 5 of the amended complaint.

The trial court should also have allowed plaintiffs to amend by adding Count 6, regarding the maintenance of records. OCGA § 48-8-121 (a) (1) provides in pertinent part:

The proceeds received from the tax authorized by this article shall be used by the county exclusively for the purpose or purposes specified in the resolution or ordinance calling for imposition of the tax. Such proceeds shall be kept in a separate account from other funds of the county and shall not in any manner be commingled with other funds of the county prior to the expenditure.

Similarly, OCGA § 48-8-121 (a) (2) imposes strict record keeping, scheduling, and auditing practices to account for all expenditures.

The County unlawfully collected the tax revenue that exceeded the $34 million cap and could not lawfully expend those funds. The court erred in not allowing plaintiffs to raise Count 6 regarding the County’s maintenance of proper records. Although the County claims that it kept the requisite records, the court made no factual determination as to the correctness or adequacy of these records. Accordingly, on remand, the court should allow discovery so that a factual determination can be made as to whether the Comity kept the proper records, whether it properly disbursed the proceeds, and whether any excess proceeds were improperly expended. See Dickey v. Storey, 262 Ga. at 456 (3) (county must maintain financial records for each project for which tax proceeds are used).

Judgment reversed and case remanded.

Johnson, C. J., Blackburn, P. J., Smith, Barnes and Ellington, JJ., concur. Eldridge, J., dissents.

Footnotes

1

The Commission Chairman was authorized by the resolution to enter into an intergovernmental agreement with various Carroll County municipalities to complete the specified capital improvement projects according to priorities set by the parties. On September 22, 1993, the intergovernmental agreement regarding the capital outlay projects to be funded by the proposed tax became finalized. See Ga. L. 1992, pp. 2998, 2999-3000, § 1 (a) (1) (D); OCGA § 48-8-111 (a) (1) (D). In addition to Carroll County, eight municipalities were parties to the agreement. The intergovernmental agreement described in detail all of the capital outlay projects and their respective costs.

2

Carroll County, but not the voters, was aware of the “gap” in the statute and sought legal advice from the State Law Department before the referendum. An attorney in the department opined that the County could continue the tax because OCGA § 48-8-lli did not specify a termination date when the tax was collected for mixed purposes.

3

We reject plaintiffs’ constitutional arguments since these arguments were neither presented properly here nor preserved below.