Levetan v. Lanier Worldwide, Inc.
| Decision Date | 13 March 1995 |
| Docket Number | No. S94A1949,S94A1949 |
| Citation | 265 Ga. 323,454 S.E.2d 504 |
| Parties | LEVETAN et al. v. LANIER WORLDWIDE, INC. et al. |
| Court | Georgia Supreme Court |
Jonathan A. Weintraub, County Atty., Joan F. Roach, Lisa F. Stuckey, Asst. County Attys., Decatur, for Levetan et al.
Thomas A. Cook, Hilton Head Isl, SC, Teddy Ray Price, Decatur, for Lanier Worldwide, Inc. et al.
J.M. Raffauf, Decatur, Nolan C. Leake, Steven J. Estep, King & Spalding, Atlanta.
In 1976, the Georgia legislature enacted the freeport exemption (OCGA § 48-5-48.2), a constitutional provision that authorizes counties and municipalities to exempt certain business inventories from ad valorem taxation. Following a referendum, the DeKalb County Board of Commissioners adopted a resolution granting freeport exemption for certain business inventories; however, DeKalb County does not apply the freeport exemption to its ad valorem fire tax.
In 1993, Thomas Cook brought suit against DeKalb County officials, including the DeKalb County Board of Commissioners and Tax Commissioner Tom Scott, seeking to require the county to apply the freeport tax exemption against the county fire tax, and to require the county tax commissioner to collect the county sanitation assessment, an assessment which has been collected by the county's finance department since 1968. Lanier Worldwide, Inc. (Lanier), a business equipment company headquartered in DeKalb County, intervened as a plaintiff on the freeport exemption issue.
In December 1993, the trial court ordered DeKalb County to return sanitation assessments to the tax commissioner's office and found that Thomas Cook did not have standing to raise the freeport exemption issue. In July 1994, the trial court granted Lanier's motion for summary judgment and issued a writ of mandamus ordering the county to apply the freeport exemption to the ad valorem fire tax. Liane Levetan, as Chief Executive Officer of DeKalb County, and the DeKalb County Board of Commissioners appeal the decisions of the trial court regarding both the freeport exemption and collection of the sanitation assessments; Tax Commissioner Tom Scott, though originally a defendant, has filed a brief in support of the trial court's holding that his office has sole authority to collect the sanitation fees. 1 Thomas Cook appeals the trial court's ruling as to his standing on the freeport exemption issue, and Lanier is an appellee with respect to the freeport exemption issue.
1. DeKalb County argues that the language of OCGA § 48-5-48.2, the freeport exemption statute, invests it with discretion to decide from which particular ad valorem taxes business inventories shall be exempted. We disagree.
Under OCGA § 48-5-48.2(b), DeKalb County "may ... exempt from ad valorem taxation, including all such taxes levied for educational purposes and for state purposes, all or any combination of" 2 certain types of tangible personal property, provided that the exemption has been approved by the voters of the county. Further, once the voters have approved the exemption, the county has the authority to establish the percentage of the value of the property which will be exempt from taxation. OCGA § 48-5-48.2(d). In sum, the statute gives the county discretion as to 1) whether to submit the exemption issue to a voter referendum; 2) what types of inventory will be submitted to the voters for exemption; and 3) the percentage of the value of the goods to be exempted. No other discretionary powers are given the county, including the discretion to decide from which ad valorem taxes the goods or materials will be exempt.
In a 1977 referendum, the citizens of DeKalb County voted to require the county to exempt certain types of finished goods and raw materials from ad valorem taxation. The fire tax is an ad valorem tax. Accordingly, such inventory must be exempted from the fire tax. The phrase "including all such taxes levied for educational purposes and for state purposes," contrary to the contentions of the county, enlarges rather than restricts the application of the exemption, American Surety Co. v. Marotta, 287 U.S. 513, 517, 53 S.Ct. 260, 261, 77 L.Ed. 466 (1933), and makes clear that the exemption applies even to those taxes not imposed for county purposes.
2. The trial court ordered that the sanitation assessments be collected through the office of the tax commissioner because it found that the tax commissioner was the only official authorized by law to collect taxes. The Board of Commissioners argues, inter alia, that the sanitation assessments are not taxes but service charges, and thus collection of those charges is not prohibited. We agree.
This court has held that counties that choose to provide services for garbage collection and disposal may fix reasonable charges and fees for the service. City of Covington v. Newton County, 243 Ga. 476, 254 S.E.2d 855 (1979). These sanitation assessments are not taxes within the meaning of our Constitution but rather charges for services rendered by the county. See Crestlawn Memorial Park, Inc. v. City of Atlanta, 235 Ga. 194, 219 S.E.2d 122 (1975) (); Mayor etc. of Milledgeville v. Green, 221 Ga. 498, 145 S.E.2d 507 (1965) (). Our decisions in this regard are supported by scholarly authority and...
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