Sears, Roebuck and Co. v. Parsons

• Decision Date: 21 February 1991
• Docket Number: No. S90A1678,S90A1678
• Citation: 260 Ga. 824,401 S.E.2d 4
• Parties: SEARS, ROEBUCK AND CO. v. PARSONS et al.
• Court: Georgia Supreme Court

Page 4

401 S.E.2d 4

260 Ga. 824

SEARS, ROEBUCK AND CO. v. PARSONS et al.

No. S90A1678.

Supreme Court of Georgia.

Feb. 21, 1991.

John A. Blackmon, Smith, Gambrell & Russell, E. Kendrick Smith, Smith, Gambrell & Russell, Atlanta, for Sears, Roebuck and Co.

Emily Garrard, Chatham County Attorney's Office, David H. Johnson, Edward T. Brennan, Brennan, Harris & Rominger, Savannah, for Parsons et al.

HUNT, Justice.

This case presents a constitutional challenge to a contingency fee contract between the Chatham County Board of Tax Assessors and Atlantic Resources, Inc., a private auditing corporation. Sears appeals from the denial of the major portion of its motion for summary judgment, and the grant of the major portion of the Board and Atlantic's motion for summary judgment.

The agreement between the Board and Atlantic provides that Atlantic will audit tangible personal property returns provided by the county's chief assessor and, if the audit results in an increased valuation, Atlantic will receive thirty-five percent of any additional amount collected, plus one hundred percent of all first-year penalties collected. Sears, a "designated tax payer" chosen by the Board for audit, brought this declaratory action, arguing the agreement is illegal and should be declared void. Sears argued the agreement allows Atlantic to act as a tax "bounty hunter," operating with the Board's full power and authority.

We agree with the trial court that OCGA § 48-5-298(a)(3) ¹ expressly allows the Board, subject to the approval of the county governing authority, to contract with entities, such as Atlantic, to "[s]earch out and appraise unreturned properties in the county...." Nevertheless, we hold the contract void as against public policy, not because of the services performed, but because of the contingency scheme of compensation for those services.

The power to tax rests exclusively with the government. See Camden Tel. & Co. v. City of St. Marys, 247 Ga. 687, 688(2), 279 S.E.2d 200 (1981). In the exercise of that power, the government by necessity acts through its agents. However, this necessity does not require nor authorize the creation of a contractual relationship by which the agent contingently shares in a percentage of the tax collected, and we hold that such an agreement offends public policy. The people's entitlement to fair and impartial tax assessments lies at the heart of our system, and, indeed, was a basic principle upon which this country was founded. Fairness and impartiality are threatened where a private organization has a financial stake in the amount of tax collected as a result of the assessment it recommends. See ...