Blackmon v. Premium Oil Stations, Inc., 47932
| Decision Date | 25 April 1973 |
| Docket Number | Nos. 1,2,No. 47932,3,47932,s. 1 |
| Citation | 129 Ga.App. 169,198 S.E.2d 900 |
| Parties | John A. BLACKMON, Commr. v. PREMIUM OIL STATIONS, INC |
| 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.
Willis & Murrah, W. Stanford Willis, Columbus, for appellee.
Syllabus Opinion by the Court
Plaintiff sought a refund of sales tax paid on gasoline it sold between April, 1967 and September, 1970. The theory of recovery was based on the holding in State of Ga. v. Thoni Oil &c. Stations, 121 Ga.App. 454, 174 S.E.2d 224. The complaint alleged that the claim for refund for these taxes was timely filed. The State Revenue Commissioner, as a part of his answer, pleaded that the recovery of any refund for the taxable periods of April, 1967 through July, 1968 was barred by the statute of limitations. Plaintiff's motion for summary judgment was granted. The court's judgment, in addition to granting the amount claimed in the complaint, also stated 'That the defendant . . . is estopped to assert any statute of limitations relative to any portion of the amount sued for.' Held:
1(a). The defendant revenue commissioner was not estopped from relying upon the three year limitation period for tax refund claims prescribed by Code Ann. § 92-8436(b); Henderson v. Carter, 229 Ga. 876, 195 S.E.2d 49 There is no merit in the argument that the plaintiff was precluded from filing a timely claim within the statutory period because the commissioner had not supplied a refund form in reply to the company's request. Even if the state could be estopped, which it cannot be under Henderson and numerous other cases, the commissioner's failure to supply the refund forms under the facts here would not constitute an estoppel. It was shown that these forms were available to the public at the defendant's office in Columbus, plaintiff's residence, as well as Atlanta. The plaintiff cannot assert that the delay in obtaining a refund form was the commissioner's fault.
The trial court erred in holding that the defendant was estopped from asserting the statutory bar as to part of the claim.
(b) Neither is there merit in the assertion that the revenue commissioner has been guilty of a fraudulent statement of facts and that the period of limitation should accordingly run only from the time of the discovery of the fraud. This claim of fraud is based upon an interpretation of law pronounced by the commissioner prior to the Thoni decision. Misrepresentations as to a question of law cannot constitute remediable fraud. Brown v. Mack Trucks, Inc., 111 Ga.App. 164, 166, 141 S.E.2d 208.
2(a) Only the party who actually paid the taxes is entitled to claim a refund. Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295(1), 149 S.E.2d 691. While plaintiff supported its motion by evidence that it was a taxpayer and not a collector, there is other evidence in the record which would authorize a jury to find to the contrary. Thus, a disputed issue of material fact is presented. Plaintiff argues that the cases of Williams v. Bear's Den, Inc., 214 Ga. 240, 104 S.E.2d 230 and Oxford v. J. D. Jewell, Inc., 215 Ga. 616, 112 S.E.2d 601, supports the proposition that it was a taxpayer as a matter of law. These cases were decided under the original Georgia Retailers' and Consumers' Use Tax Act (Ga.L.1951, p. 360; Code Ann. § 92-3401a et seq.). Thus Bear's Den and Jewell no longer represent the law as they were decided prior to the 1960 amendment which imposed the sales tax primarily on the purchaser. Ga.L.1960, pp. 153, 154 (Code Ann. § 92-3402a(a)); Hawes v. Phillips, 122 Ga.App. 714, 178 S.E.2d 759.
(b) The evidence shows that through this entire period every sales tax filed by the claimant also contained a claim for the dealer's compensation for collecting the tax. Compensation granted a dealer is not allowable for one's own tax liability. Atlanta Americana Motor Hotel Corp. v....
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James B. Beam Distilling Co. v. State
...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 did not bear the burden of the tax, it is not entitled to bring a suit to recover ......
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