Eckerd Corp. v. Fayette County Bd. of Tax Assessors, A95A2598
| Decision Date | 08 February 1996 |
| Docket Number | No. A95A2598,A95A2598 |
| Citation | 220 Ga.App. 454,469 S.E.2d 285 |
| Parties | ECKERD CORPORATION v. FAYETTE COUNTY BOARD OF TAX ASSESSORS. |
| Court | Georgia Court of Appeals |
Alston & Bird, G. Conley Ingram, Timothy J. Peaden, Atlanta, for appellant.
McNally, Fox & Cameron, Dennis A. Davenport, Fayetteville, for appellee.
The Eckerd Corporation appeals the order of the trial court finding it in contempt of court, and, as punishment, directing it to pay the sum of $750 to the Fayette County Board of Tax Assessors (Board) for failure to produce certain tax records in accordance with a Board subpoena issued pursuant to OCGA § 48-5-300(a).
The record reflects that the Board subpoenaed Eckerd's 1992 through 1994 personal property tax returns. Eckerd refused to release such records in the absence of the Board's assurances that they would not be made available to Mendola & Associates, a company under contract to the Board to audit such taxpayers as designated by the Board and also under contract to provide similar services to other county tax assessors. Upon Eckerd's refusal to comply with the subpoena unconditionally, the Board voted unanimously to require Eckerd to appear before the trial court to show cause why it should not be punished for contempt.
1. Eckerd contends that the Board's subpoena is improper as an audit for the purpose of assessing additional personal property taxes against it. We disagree.
It is well-settled that tax assessors may assess unreturned tangible property for ad valorem tax purposes during the applicable seven-year period of limitation. Ga. R., etc., Co. v. Wright, 124 Ga. 596, 599, 53 S.E. 251 (1906); Suttles v. Dickey, 192 Ga. 382, 383, 15 S.E.2d 445 (1941); Garr v. E.W. Banks Co., 206 Ga. 831, 832, 59 S.E.2d 400 (1950); and see generally Op.Atty.Gen. U87-13. In this regard, OCGA § 48-5-299(a) pertinently provides that it is "the duty of the county board of tax assessors to ... ascertain[ ] what real and personal property is subject to taxation in the county and to require the proper return of the property for taxation." It further provides that "[i]n all cases where the full amount of taxes due the state or county has not been paid, the board shall assess against the owner, if known, and against the property, if the owner is not known, the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations." OCGA § 48-5-305(a), in turn, authorizes county boards of tax assessors to determine the manner of ascertaining the assessment of any real or personal property not appearing in the digest for any time within the period of limitation. As the proposed audit is directed not at reassessing property already valued, and upon which taxes have already been paid, but rather is directed at the discovery of property, if any, which has not been returned and upon which taxes have not been paid, it is a proper means of determining unreturned property tax liability at any time within the applicable seven-year period of limitation. Accordingly, we deem this enumeration of error to be without merit.
2. Eckerd further enumerates that the trial court erred by finding that the Board properly contracted Mendola to provide it audit services. In this regard, Eckerd argues that having Mendola audit its personal property was an impermissible delegation of the Board's assessment duty found in OCGA § 48-5-298(a) and improper as violative of its right to confidentiality under OCGA § 48-5-314 in that Mendola was under contract to provide similar services to other county boards of tax assessors.
The Supreme Court of Georgia has held that OCGA § 48-5-298(a)(3) "expressly allows the Board ... to contract with entities, such as [Mendola], to '(s)earch out and appraise unreturned properties in the county.' " Sears, Roebuck & Co. v. Parsons, 260 Ga. 824, 825, 401 S.E.2d 4 (1991). The Board properly contracted for Mendola's services in order to aid it in discovering unreturned and untaxed property, not to aid it in further taxing property already assessed. Division 1, supra. No delegation of the Board's duty to require the proper return of personal property for taxation is indicated in the record. There being no delegation of the Board's authority and audit services having been properly contracted, the claim that the Board impermissibly delegated its authority cannot stand.
Eckerd's confidentiality argument is flawed as well. OCGA § 48-5-314(a)(1) allows personnel authorized by appropriate tax administrators to access materials otherwise protected as confidential thereunder. It is settled that boards of tax assessors have authority to contract for audit services. OCGA § 48-5-298(a)(3); Sears, Roebuck, supra. It necessarily follows that to enter into such a contract "authorizes" the contractor access to confidential materials essential to the performance of the contract. Significant as well, the Board's authority to contract for services in OCGA § 48-5-298(a) is not restricted to persons or entities not otherwise under contract to provide such services. In this regard, OCGA § 48-5-298(b) permits county boards of tax assessors to enter into contracts "with any municipality or political subdivision of the state to provide any information for which the board could contract pursuant to subsection (a)" thereof. Further, while OCGA § 48-5-314(a)(1) allows authorized personnel access to confidential materials subsection (b) makes the disclosure of confidential materials to unauthorized persons subject to a civil penalty not to exceed $1,000. Thus, in the absence of Mendola's disclosure of confidential materials to unauthorized persons, no breach of the duty of confidentiality arises. Such a claim is not before us. Accordingly, we deem this enumeration of error to be without merit.
3. Eckerd last contends that the trial court erred by awarding the Board attorney fees in that such fees are impermissible as punishment for contempt.
It is uncontroverted in the record that the trial court found Eckerd in contempt of court for failure to comply with the Board's subpoena and punished the contempt by its order directing Eckerd to pay the Board its attorney fees of $750. Attorney fees are not authorized by law for contempt. OCGA § 15-6-8; Ragsdale v. Bryan, 235 Ga. 58, 59, 218 S.E.2d 809 (1975); Carter v. Carter, 241 Ga. 335, 336, 245 S.E.2d 292 (1978). We conclude that the trial court...
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...property in the county; and to search out and appraise unreturned properties in the county. See OCGA § 48-5-298. In Eckerd Corp. v. Fayette County Bd. of Tax Assessors,2 this court, relying upon our Supreme Court's holding in Sears, Roebuck & Co. v. Parsons,3 affirmed the right of the board......
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Wal-Mart Stores v. Bd. of Tax Assessors, A00A1183.
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