Blackmon v. Georgia Independent Oilmen's Ass'n
| Decision Date | 25 April 1973 |
| Docket Number | No. 2,47713,Nos. 47712,s. 47712,2 |
| Citation | 129 Ga.App. 171,198 S.E.2d 896 |
| Parties | John A. BLACKMON, Commissioner v. GEORGIA INDEPENDENT OILMEN'S ASSOCIATION, et al. GEORGIA INDEPENDENT OILMEN'S ASSOCIATION, et al. v. John A. BLACKMON, Commissioner |
| Court | Georgia Court of Appeals |
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Richard L. Chambers, Timothy J. Sweeney, Asst. Attys. Gen., Atlanta, for appellant.
Weltner, Kidd & Crumbley, Charles L. Weltner, Atlanta, for appellees.
Syllabus Opinion by the Court
These two appeals represent the aftermath of the ruling by this court in State of Ga. v. Thoni Oil Magic Benzol Gas Stations, Inc., 121 Ga.App. 454, 174 S.E.2d 224 which was affirmed in 226 Ga. 883, 178 S.E.2d 173. In the Thoni case we ruled the federal excise tax was properly includable as a part of the retail sales price on which the state sales and use tax was to be calculated but there was a prohibition against absorption of the state motor fuel tax because the retail seller was required to pass this on to the consumer.
The instant action was brought by sixteen gasoline-retailer plaintiffs seeking $155,472.29 on their own and $14,600,000 on behalf of a class for refund of amounts paid by them to the revenue commissioner as sales taxes illegally imposed as a 'tax on a tax' contrary to the Thoni decision.
Georgia Independent Oilmen's Association, Inc. pleaded it was entitled to join in this action as a voluntary association with a large membership engaged in the retail disposition of gasoline in our state and that the individual plaintiffs are members thereof.
The sixteen plaintiffs averred that they had not collected or received from their customers any sums as sales taxes on the total of 10 1/2cents per gallon federal and state taxes. With exception of the Association and Southern Stores, Inc. each of the individual plaintiffs had filed claims with the state revenue commissioner which had been denied. The two plaintiffs who had not filed claims took the position this was not necessary because the association had been advised by a letter from the commissioner that he would not approve any refund claims filed by a retailer.
Count 1 constituted a class action whereas count 2 sought repayment of the alleged invalid remitted sales taxes.
After filing his answers containing a number of defenses with denials of the complaint's allegations the Commissioner obtained certain evidentiary information through interrogatories and requests for admission. The material stated in the answers made in these discovery proceedings is relied upon as negating the allegation in paragraph 5 of the complaint which reads: 'At no time did plaintiffs ever collect or receive from their customers any sums as sales taxes on the total of 10 1/2cents per gallon federal and state taxes.' Based upon these answers the commissioner filed a motion for summary judgment including as a part thereof the affidavit of the Director of the Sales and Use Tax Unit.
Additionally, the commissioner filed a motion to dismiss the claims of the association and of Southern Stores, Inc.
The trial judge sustained the motion to dismiss count 1 as to the association and Southern Stores, Inc. which sought to proceed as a class action but entered an order denying the motion for summary judgment as to the sixteen retailers as a class action in count 1 and as to all of the plaintiffs in count 2.
Two separate appeals are now before us. That by the Association and Southern Stores, Inc. is to the dismissal of the class action count as to them. The other is by the Commissioner averring error upon the denial of his summary judgment motion.
1. The class action contention is disposed of through a ruling made by our Supreme Court which was rendered after the docketing of this appeal. On December 4, 1972, Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 4 held that a class action is not authorized under the provisions of our statute codified in Code Ann. § 92-8436(b) which provides the method by which refunds may be made for erroneous or illegal collection of state taxes. The Supreme Court ruled that 'The State has waived her sovereign immunity only to the extent provided by the express terms of (the) statute.' Since that statute did not provide for a class action such proceeding is not permissible.
2. This sovereign immunity doctrine compels us to hold that neither the Association nor Southern Stores, Inc. has standing to sue here because a suit for refund is not maintainable by a party who has not filed a claim for refund. As is stated in Code Ann. § 92-8436(b) the consent of the state to be sued extends only to '. . . any taxpayer whose claim for refund is denied by the commissioner . . ., or with respect to whose claim no decision is rendered by the commissioner . . . within one year from the date of filing said claim . . .'
In short, the state's consent to be sued is conditioned on the prior filing of a refund claim.
It is argued the parties were relieved of filing a refund claim on the basis of a letter addressed to the association from the commissioner wherein he stated his position to be that 'No refunds of the tax collected and remitted to the state can be made to retailers, except that used in their own vehicles.' The contention is made that the law does not require the doing of a vain or futile thing and that it would be the highest form of casuistry under these circumstances to require a claimant to go through the motions required by the statute since denial is inevitable. A similar argument was made in Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 4, supra, on the basis that public statements made by the State Revenue Commissioner amounted to a policy declaration that was binding. Such contention was there rejected with our Supreme Court quoting from Standard Oil Company of Kentucky v. State Revenue Commission, 179 Ga. 371, 376, 176 S.E. 1, 4 that '(T)he State is bound only by its laws, and everyone must take notice thereof and recognize that public administrative officers can not change the laws.' It should also be noted as was there quoted that Code § 89-903.
3. We turn now to the claims of the sixteen independent retailers. Observing the arguments stated in the brief submitted by the Attorney General cover correctly the legal propositions involved we adopt therefrom the following as our opinion: ...
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...829 (1978); Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295(1), 149 S.E.2d 691 (1966); Blackmon v. Ga. Ind. Oilmen's Assn., 129 Ga.App. 171(3), 198 S.E.2d 896 (1973); Blackmon v. Premium Oil Stations, Inc., 129 Ga.App. 169(2), 198 S.E.2d 900 (1973). If the remitting party di......
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