Fulton County v. T-mobile

• Citation: 305 Ga.App. 466,699 S.E.2d 802
• Decision Date: 30 July 2010
• Docket Number: No. A10A0913.,A10A0913.
• Parties: FULTON COUNTYv.T-MOBILE, SOUTH, LLC.
• Court: Georgia Court of Appeals

305 Ga.App. 466

699 S.E.2d 802

FULTON COUNTYv.T-MOBILE, SOUTH, LLC.

No. A10A0913.

Court of Appeals of Georgia.

July 30, 2010.

COPYRIGHT MATERIAL OMITTED

Jerolyn W. Ferrari, Robert D. Ware, Atlanta, for appellant.

Alston & Bird, Timothy J. Peaden, Kristine M. Brown, Clark R. Calhoun, Atlanta, for appellee.

MIKELL, Judge.

In this case of first impression, we hold that a “9-1-1 charge” imposed by Fulton County (the “County”) on wireless telephone service providers pursuant to the Georgia Emergency Telephone Number 9-1-1 Service Act of 1977 ¹ (the “Act”) is a “tax.” Furthermore, because appellee T-Mobile South, LLC's predecessor in interest, PowerTel Atlanta, Inc., erroneously paid $101,618.66 to the County in connection with its prepaid wireless customers from June 2003 through May 2005 (the “Refund Period”), we hold that T-Mobile may obtain a refund of that sum pursuant to OCGA § 48-5-380. Accordingly, we affirm the trial court's grant of summary judgment to T-Mobile in its action against the County ² for a refund of taxes.

Certain relevant facts are undisputed. During the Refund Period, the Act authorized local governments “to adopt a resolution to impose a monthly wireless enhanced ‘[9-1-1]’ charge upon each wireless telecommunications connection subscribed to by telephone subscribers whose billing address is within the geographic area that is served by the local government.” ³ In accordance therewith, the County adopted a resolution authorizing it to impose a wireless enhanced 9-1-1 charge beginning February 1, 1999, upon wireless telecommunications providers, such as T-Mobile. The resolution allowed the County to collect $1 per month per wireless connection provided to each “telephone subscriber.” ⁴

The Act defines “telephone subscriber” as “a person or entity to whom local exchange telephone service or wireless service ... is provided and in return for which the person or entity is billed on a monthly basis.” ⁵ The “service supplier,” ⁶ such as T-Mobile, is required to collect the 9-1-1 charge from its “telephone subscriber” and remit the money to the local government.⁷ T-Mobile, however, does not send monthly bills to those who purchase “prepaid” wireless service, because those customers pay in full for all of their minutes at the point of sale. Therefore, T-Mobile was not required to remit 9-1-1 charges for those customers.

On October 16, 2006, T-Mobile filed a claim for a refund with the County, asserting that the 9-1-1 charges were “taxes” under Georgia law; that it had paid a total of $947,433.92 in such charges during the Refund Period for its County customers; that $101,618.66 of that amount was paid on behalf of the prepaid customers; and that it was entitled to a refund of $101,618.66. Fulton County denied the claim, and T-Mobile brought the underlying action for a refund pursuant to OCGA § 48-5-380.⁸ In the complaint, T-Mobile asserted that it did not collect any of the $101,618.66 from prepaid customers but paid that sum out of its own funds instead.

The County filed a motion to dismiss the action. The trial court denied the motion, ruling that the 9-1-1 charge was a tax and that the court had jurisdiction pursuant to OCGA § 48-5-380.⁹ The parties filed cross-motions for summary judgment. The trial court granted T-Mobile's motion and denied Fulton County's motion, ruling that the Act did not impose 9-1-1 charges with respect to T-Mobile's prepaid customers during the Refund Period; that such charges were “taxes” for the purpose of OCGA § 48-5-380; and that T-Mobile was entitled to a refund of the amount paid on behalf of prepaid customers, or $101,618.66, plus prejudgment interest.

The County appeals. It concedes that the Act did not require T-Mobile to pay 9-1-1 charges on behalf of prepaid customers during the Refund Period. However, the County argues that the trial court erred in denying its motion for summary judgment and in granting T-Mobile's motion because (1) the charges are not taxes; (2) the refund claim is barred by the voluntary payment doctrine; and (3) T-Mobile did not adequately prove the amount that it claimed it paid on behalf of the prepaid customers. We disagree with these contentions and affirm.

1. Initially, we address T-Mobile's motion to dismiss this direct appeal. T-Mobile argues that we do not have jurisdiction because the County was required to follow the discretionary appeal procedure pursuant to OCGA § 5-6-35, which provides, in relevant part, that “[a]ppeals from decisions of the superior courts reviewing decisions of ... state and local administrative agencies” shall be taken by application.¹⁰ T-Mobile contends that, in denying its refund request, the County performed “the function of an administrative agency,” so that it was required to file an application for appeal from the superior court's “review” of the County's decision. OCGA § 5-6-35, however, does not encompass the County's decision under the facts of this case. “The clear intent of OCGA § 5-6-35 was to give the appellate courts the discretion not to entertain an appeal where the superior court had reviewed a decision of certain specified lower tribunals (i.e., two tribunals had already adjudicated the case).” ¹¹ Although the statute “applies to appeals of local governmental department decisions,” ¹² in this case, no department rendered a decision that was “reviewed” by the superior court. When T-Mobile requested a refund of the 9-1-1 charges, the County attorney simply responded by letter that the claim was not cognizable under OCGA § 48-5-380. The matter was never submitted to any administrative agency.¹³ The superior court's order makes no reference to any “decision” issued by the County and did not “review” any such decision. Accordingly, this appeal does not fall within the ambit of OCGA § 5-6-35, and the County was not required to file an application for discretionary appeal. The County properly filed a direct appeal from the court's final order granting summary judgment to T-Mobile.¹⁴ The motion to dismiss is denied.

2. The dispositive issue in this case is whether the “9-1-1 charge” authorized by the Act is properly classified as a “tax” under Georgia law. This is a question of first impression in this state, and our Supreme Court precedents guide our analysis.

In Gunby v. Yates,¹⁵ the Court defined a “tax” as “an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered.” ¹⁶ The Court distinguished a tax from a “fee,” which it defined as “a charge fixed by law as compensation” for services rendered.¹⁷ The Court held that the collection of one dollar for each marriage license sold in the state, in addition to the regular license fee, to be allocated to the probate judges' retirement fund, “was not for the purpose of compensating the ordinary for a service rendered, but was for the purpose of raising revenue for the expenses of operating the retirement board and paying benefits to retired ordinaries,” and was thus an unconstitutional tax.¹⁸

In Luke v. Dept. of Natural Resources,¹⁹ the Court relied on Gunby in ruling that fees paid by the owner and operator of an underground storage tank (UST) used in the retail gasoline business for participation in a UST Trust Fund did not constitute a tax because they were not “ exacted”; rather, the owner's participation in the Fund was voluntary. ²⁰

In Levetan v. Lanier Worldwide,²¹ the Court held that sanitation assessments for garbage collection and disposal are not taxes but are services for which a fee is charged.²² The Court rejected the trial court's ruling that the county was required to collect the fee through the tax commissioner's office, holding that the county was free, pursuant to its constitutional home rule powers, to require its finance department to collect the assessments.²³

Finally, in McLeod v. Columbia County,²⁴ the Court determined that a monthly stormwater utility charge assessed against owners of developed property within a designated area based on the amount of impervious surface area located on their property was a fee and not a tax.²⁵ The Court cited Gunby's definition of a tax and emphasized the following factors in reaching its conclusion: the charge was voluntary; the properties charged received a special benefit not received by others; and, unlike a tax, the charge was not imposed upon undeveloped property owners, “who neither significantly contributed to nor caused” the stormwater drainage problems underlying the charge.²⁶

Supreme Court of Georgia, precedents, as well as opinions from other jurisdictions that have considered this issue, lead us to conclude that the 9-1-1 charge is a tax. As noted above, the first part of the definition of a tax is “an enforced contribution exacted pursuant to legislative authority.” ²⁷ The County concedes that the charge is not voluntary,²⁸ as it is “exacted” pursuant to the Act and the County resolution. Accordingly, the first part of the test is satisfied.

The remainder of the test requires that we consider the function of the 9-1-1 charge; whether it is imposed “for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered.” ²⁹ An examination of the Act reveals that the purpose of the 9-1-1 charge is to raise revenue “for public or governmental purposes.” In passing the Act, the General Assembly declared its intent

to establish and implement a cohesive state-wide emergency telephone number 9-1-1 system which will provide citizens with rapid, direct access to public safety agencies by dialing telephone number 9-1-1 with the objective of reducing the response time to situations requiring law enforcement, fire, medical, rescue, and other emergency services.³⁰

The General Assembly also declared that, “in the public interest that users of wireless...