FULTON COUNTY TAX COM'R v. General Motors

• Decision Date: 18 September 1998
• Docket Number: No. A98A1694, No. A98A1695.
• Citation: 234 Ga. App. 459,507 S.E.2d 772
• Parties: FULTON COUNTY TAX COMMISSIONER v. GENERAL MOTORS CORPORATION. GENERAL MOTORS CORPORATION v. FULTON COUNTY TAX COMMISSIONER.
• Court: Georgia Court of Appeals

507 S.E.2d 772

234 Ga. App. 459

FULTON COUNTY TAX COMMISSIONER v. GENERAL MOTORS CORPORATION.

GENERAL MOTORS CORPORATION v. FULTON COUNTY TAX COMMISSIONER.

Nos. A98A1694, A98A1695.

Court of Appeals of Georgia.

September 18, 1998.

Vernitia A. Shannon, Jacqueline S. Groover, William R. Turner, Atlanta, for appellant.

King & Spalding, Nolan C. Leake, Claria D. Horn, Atlanta, for appellee. ELDRIDGE, Judge.

General Motors Corporation, plaintiff, ("GM") leased motor vehicles manufactured by it which were subsequently reacquired by GM and held such vehicles at the Atlanta Auto Auction in Fulton County in tax years 1993 and 1994, pending sale and shipment out-of-state. GM contended that it was entitled to freeport exemption as to such property from ad valorem taxation. However, the Fulton County Tax Commissioner ("Tax Commissioner") demanded that GM pay $510,379.99 in 1993 ad valorem tax on such returned property. GM paid the ad valorem taxes on such property. Subsequently, GM sought a refund for 1993 and 1994 and sued the Tax Commissioner under OCGA § 48-5-450. In the suit, GM also sought a declaratory judgment that it was entitled to freeport exemption in the future for such personal property.

The Tax Commissioner answered, but did not raise an OCGA § 9-11-19 defense of indispensable parties or the wrong defendant, in the Fulton County Board of Tax Assessors, either in the answer or in an OCGA § 9-11-12(b)(6) or (7) motion.

GM moved for partial summary judgment with supporting affidavits that the Tax Commissioner wrongfully denied GM freeport exemption from ad valorem taxes on the motor vehicles held at Atlanta Auto Auction for sale out-of-state. The Tax Commissioner presented no evidence in opposition and consented to the entry of partial summary judgment determining that GM was entitled to such freeport exemption.

The case came on for trial on the issue of a refund for 1993 and 1994, and the parties announced in open court on February 7, 1995, that the case was settled. By trial court order, the case was removed from the trial calendar to effect settlement within 30 days. On March 23, 1995, the trial court entered a consent judgment refunding/granting a credit against future taxes based on certain ad valorem taxes for 1993 and 1994, and the Tax Commissioner was ordered to grant to GM freeport exemption from ad valorem taxation upon proper application for all motor vehicles at the Atlanta Auto Auction sold out-of-state in the future.

On March 23, 1996, GM filed its freeport exemption application with the Fulton County Board of Tax Assessors pursuant to OCGA § 48-5-48.1(a). However, on October 29, 1996, the Fulton County Board of Tax Assessors gave notice of an ad valorem tax assessment on such property that GM contended was exempt under the consent judgment. Notwithstanding either the consent summary judgment or the consent judgment, the Tax Commissioner billed the ad valorem taxes upon such property, and GM paid the tax bill under protest.

On April 11, 1997, GM brought an ancillary motion under the original complaint to enforce the consent judgment and for the award of attorney fees, with supporting affidavits. Subsequently, the Tax Commissioner raised by motion to set aside the judgments the issue that Fulton County could not be bound by the settlement, because the attorneys for the Tax Commissioner had no authority to enter into a settlement binding Fulton County. The Tax Commissioner, for the first time, raised the issue that he was the wrong party and that the Fulton County Board of Tax Assessors was the correct party.

On October 13, 1997, the trial court entered an order of enforcement as to the binding effect and enforceability of the consent judgment as to the Tax Commissioner and denied the award of attorney fees to GM.

The Tax Commissioner filed his application for discretionary appeal; the notice of appeal was filed on November 7, 1997, in A98A1694 when leave was granted. On November 12, 1997, GM filed its cross-appeal in Case No. A98A1695.

Case No. A98A1694

The Tax Commissioner enumerates as error that the trial court granted GM's motion to enforce the consent judgment. We do not agree.

1. After 1992, the Fulton County Board of Tax Assessors were made the officials with whom the application for freeport exemption was required to be filed. See OCGA § 48-5-48.1; Ga. L.1992, p. 2482, § 1. For purpose of motor vehicles, their role in receiving the application is only ministerial as agents for the Tax Commissioner, who is the only official authorized to collect ad valorem taxes and to determine which property is exempt for the tax digest. See OCGA § 48-5-103(9); see generally Levetan v. Lanier Worldwide, 265 Ga. 323, 324(1), 454 S.E.2d 504 (1995).

In Fulton County, the Tax Commissioner has the combined duties of the office of tax receiver, OCGA § 48-5-103, and of tax collector, OCGA § 48-5-127. In pertinent part, the Tax Commissioner has the ultimate discretion and authority to determine what property goes on the tax digest that he must prepare and submit to the State Revenue Commissioner for approval, and in doing so, he must ultimately decide what property shall receive ad valorem tax exemption on the tax digests. See OCGA § 48-5-103(9). The Fulton County Board of Tax Assessors acts as the agents for the Tax Commissioner in processing the freeport exemption.

In appealing the wrongful assessment of motor vehicles, GM used the proper procedure against the Tax Commissioner to contest the assessment. See East West Express v. Collins, 264 Ga. 774, 775, 449 S.E.2d 599 (1994); Blackmon v. Scoven, 231 Ga. 307, 309-310(2), 201 S.E.2d 474 (1973). The Tax Commissioner stands in the shoes of the State Revenue Commissioner regarding assessment and valuation of motor vehicles. See Ga. L.1967, pp. 91, 94, § 2A; Ga. L.1978, pp. 309, 491-492, § 2; OCGA §§ 48-5-450; 48-5-475.

Fulton County Board of Tax Assessors' ministerial duties in processing the freeport application as to motor vehicles are: (1) to determine if the application for freeport exemption was timely filed; and (2) to determine if the applicant falls into one or more categories for exemption. See Ga. Const. of 1983, Art. VII, Sec. II, Par. III(a); OCGA §§ 48-5-48.1; 48-5-48.2; Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, 230 Ga.App. 790, 792(4), 498 S.E.2d 297 (1998); Committee for Better Govt. v. Black, 216 Ga.App. 173, 174-176(2), 453 S.E.2d 772 (1995). OCGA § 48-5-450 provides that appeals from assessments as to motor vehicles are from the Tax Commissioner. See Apollo Travel Svcs. v. Gwinnett County Bd. of Tax Assessors, supra. Further, where the Fulton County Board of Tax Assessors denied freeport exemption as to motor vehicles held for shipment out-of-state, this resulted in an assessment, and GM had the right of appeal directly to the superior court under OCGA § 48-5-450, which it did in the form of a motion to enforce the consent judgment. "`Any owner who contests the value assessment of a motor vehicle ... may appeal such assessed value as provided for in Code Section 48-5-311....' OCGA § 48-5-450. In subsection (e) of § 48-5-311, provision is made for the county board of tax assessors to review the valuation of personal property and, in the event the challenge to the valuation is rejected, ... [s]ubsection (f) of that section provides for an appeal to the superior court by the taxpayer[.] ... Once that showing [of freeport exemption] is made, the taxing authority must make an appropriate [grant of exemption if the conditions of timeliness of the application and eligibility exist].... [I]t is initially the county board of tax assessors and, in the event of continued disagreement, the [superior court] who must consider the taxpayer's showing and make appropriate [grant of freeport exemption if all conditions are satisfied]." East West Express, Inc. v. Collins, supra at 775-776, 449 S.E.2d 599. "[I]t is the local taxing authority to whom motor vehicle owners must demonstrate [freeport exemption]." Id. at 777, 449 S.E.2d 599.

The State Revenue Commissioner by law determines fair market value of all motor vehicles state-wide for "uniformity evaluation of all motor vehicles" and sets the assessment; the State Revenue Commissioner in turn sends such prepared lists to the respective county tax collectors for collection, i.e., the Tax Commissioner. OCGA §§ 48-5-442; 48-5-442.1. "The statutory scheme for ad valorem taxation of motor vehicles provides that every vehicle owned in this state on January 1 is subject to ad valorem taxation (OCGA § 48-5-471); that the State Revenue Commissioner shall prepare a uniform evaluation of vehicles for use as the taxable value of the vehicles (OCGA § 48-5-442); and that the tax shall be at the assessment level and mill rate levied by the taxing authority for the previous calendar year. OCGA § 48-5-443." East West Express v. Collins, supra at 775(1), 449 S.E.2d 599. Therefore, a county board of tax assessors has no function or duty in assessing motor vehicles under OCGA § 48-5-299, because this is done by the Revenue Commissioner state-wide. The only duty a county board of tax assessors has under OCGA § 48-5-299 is to investigate and to determine if motor vehicles are returned, returned in the correct county, returned in the correct state, or to apportion the ad valorem tax between states where the vehicle is used in interstate commerce. See East West Express v. Collins, supra; OCGA §§ 48-5-299; 48-5-444(a)(2); 48-5-451. None of such duties were applicable under the facts of this case. See OCGA §§ 48-5-299; 48-5-444(a)(2); 48-5-451. Therefore, the Fulton County Board of Tax Assessors had no duties in this case under OCGA § 48-5-299 in the original action in superior court.

An assessment of personal property made in the manner prescribed by statute is indispensable to any proceedings to enforce the collection of ad valorem taxes. See Colvard v. Ridley, ...