City of College Park v. Atlantic Southeastern Airlines, Inc.

• Decision Date: 23 February 1990
• Docket Number: No. A89A2002,A89A2002
• Citation: 194 Ga.App. 637,391 S.E.2d 460
• Parties: CITY OF COLLEGE PARK v. ATLANTIC SOUTHEASTERN AIRLINES, INC.
• Court: Georgia Court of Appeals

Page 460

391 S.E.2d 460

194 Ga.App. 637

CITY OF COLLEGE PARK v. ATLANTIC SOUTHEASTERN AIRLINES, INC.

No. A89A2002.

Court of Appeals of Georgia.

Feb. 23, 1990.

Glaze, Fincher & Bray, George E. Glaze, Steven M. Fincher, Laurel E. Henderson, Jonesboro, for appellant.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, Timothy J. Sweeney, Atlanta, for appellee.

BIRDSONG, Judge.

Atlantic Southeastern Airlines, Inc. (ASA) sought a refund of the license taxes paid in 1984, 1985, and 1986, in the respective amounts of $19,307.75; $38,224.31; and $65,685.21, to the City of College Park. The trial court granted summary judgment to ASA for a refund of the 1985 and 1986 taxes, to the extent that the total amount of tax paid by ASA exceeds the tax which would have been due based on the number of employees of plaintiff, pursuant to Section 11-11 of the College Park City Code. The principal amount of judgment is $102,070.98.

The City of College Park appeals, on grounds that the assessments were not a tax but a proper business license fee based on gross receipts and therefore the refund claim made in 1987 was untimely, being lodged more than one year from the date of the payment of the license "fee." See OCGA § 48-5-380. Judgment was not given ASA for a refund of the 1984 tax, presumably because the May 1987 refund claim exceeded the time for claim of a "tax" within three years, pursuant to § 48-5-380. ASA does not appeal that element of judgment, but College Park appeals the refund of 1985 and 1986 license "fees." Held:

The trial court did not err in its judgment granting refunds to ASA for tax paid in 1985 and 1986.

We disagree with appellant City's argument that these assessments were a license fee for which a refund claim must be made within one year, and not a tax for which a refund claim must be made within three years of payment. See OCGA § 48-5-380.

This assessment of "a tax based on either the total gross receipts of the business or on the business' total number of employees, whichever assessment would be greater" (Code of City of College Park, § 11-11(a)), was clearly not a license fee. The immediate preceding ordinance, § 10-10, assessed a "flat fee" license fee of $50 for each person or business engaged in business, without regard to type of business. This is the precondition to do business exacted by the City securing the "right to do business" which would otherwise be illegal. See, e.g., City of Hawkinsville v. Wilson & Wilson, 231 Ga. 110, 200 S.E.2d 262; Silverman v. Mayor, etc., of Savannah, 125 Ga.App. 41, 47, 186 S.E.2d 447. No other inference can be made as to the purpose of that ordinance. The "fee" set by the next following city ordinance, § 11-11, is exacted "in addition to" the business license flat fee of $50. Unless the City intended to extract two business license fees, this second ordinance cannot be construed as a prerequisite business license fee. It is a tax, variable in amount, based upon the volume of business revenues or number of employees, whichever is greater. A penalty ordinance ( § 11-16(5)) authorizes suspension or rescission of the "license" to do business if either assessment is not paid; therefore, at least in this case, it is specious for appellant City to argue that assessments under both § 11-10 and § 11-11 are business license fees on the basis that without payment the doing of business would be illegal. Cf. Silverman, supra.

In any case, whatever it is called, the assessment in § 11-11 based upon gross receipts has been nullified by 49 U.S.C.A.App. § 1513 which provides: "No State (or...