Zach, Inc. v. Fulton County, A95A0454

• Decision Date: 11 April 1995
• Docket Number: No. A95A0454,A95A0454
• Citation: 217 Ga.App. 315,457 S.E.2d 574
• Parties: , 100 Ed. Law Rep. 778 ZACH, INC. v. FULTON COUNTY et al.
• Court: Georgia Court of Appeals

Page 574

457 S.E.2d 574

217 Ga.App. 315, 100 Ed. Law Rep. 778

ZACH, INC. v. FULTON COUNTY et al.

No. A95A0454.

Court of Appeals of Georgia.

April 11, 1995.

Reconsideration Denied April 25, 1995.

Certiorari Denied Sept. 11, 1995.

Bodker, Ramsey & Andrews, Stephen C. Andrews, David J. Maslia, Atlanta, for appellant.

Bernard R. Thomas, Sr., Joiava Thomas, Webb & Daniel, Harold T. Daniel, Jr., Holland & Knight, Joseph D. Young, Atlanta, for appellees.

POPE, Presiding Judge.

Zach, Inc. is a private non-profit corporation which owns property used as a fraternity house on the Georgia Tech campus. Zach brought this action seeking (1) a judicial determination that its fraternity house is exempt from ad valorem property taxation, and (2) a refund of property taxes paid on the fraternity house since 1989. The trial court denied Zach's motion for summary judgment, but certified its ruling for immediate review. We granted Zach's application for interlocutory review and now affirm.

Pursuant to OCGA § 48-5-41(a)(6), "[a]ll buildings erected for and used as a college" are exempt from ad valorem property taxation. In Alford v. Emory Univ., 216 Ga. 391, 395(3), 116 S.E.2d 596 (1960), the Supreme Court held that fraternity houses owned by a university were " 'buildings erected for and used as a college' " for purposes of § 48-5-41(a)(6), and thus were exempt from property taxation. The Court extended the Alford holding in Johnson v. Southern Greek Housing Corp., 251 Ga. 544, 307 S.E.2d 491 (1983), ruling that fraternity houses were exempt under this subsection even if they were not actually owned by the college, but were instead owned by a non-profit corporation created by the college as an "arm and extension" of the college. See id. at 545, 307 S.E.2d 491.

Zach argues that the use of the property as a fraternity house was the determinative factor in these cases, so that any non-profit corporation owning a fraternity house should be able to rely on OCGA § 48-5-41(a)(6) for a property tax exemption, regardless of the corporation's relationship or lack of relationship with the college or university. However, "[t]axation ... is the rule, and exemption from taxation the exception. [Cits.] ... Exemption, being the exception to the general rule, is not favored; but every exemption, to be valid, must be expressed in clear and unambiguous terms, and, when found to exist, the enactment by which it is given will not be enlarged by construction, but, on the contrary, will be strictly construed. [Cits.]" Mundy v. Van Hoose, 104 Ga. 292, 297, 30 S.E. 783 (1898). Johnson itself was a four to three decision over a vehemently persuasive dissent, and we believe it took the exemption for fraternity houses...