(a.1)If property owners have been billed and have remitted property tax payments to either a county or a municipality based on the fair market value of the land and subsequently the fair market value of such land is reduced on an appeal, then the county or the municipality shall reimburse the property owner the difference between tax remitted and the final tax owed for each year in which the incorrect fair market value of the land was used in the calculations.
(Code 1933, §§ 92-3901a, 92-3902a, 92-3903a, 92-3904a, 92-3905a, enacted by Ga. L. 1975, p. 774, § 1; Ga. L. 1978, p. 928, § 1; Code 1933, § 91A-1601, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 46; Ga. L. 1980, p. 463, § 2; Ga. L. 2010, p. 1104, § 7-1/SB 346; Ga. L. 2014, p. 672, § 5/HB 755.)
Law reviews.- For annual survey of state and local taxation, see 38 Mercer L. Rev. 337 (1986). For survey article on real property law, see 67 Mercer L. Rev. 193 (2015). For annual survey on local government law, see 70 Mercer L. Rev. 177 (2018). For annual survey on real property law, see 70 Mercer L. Rev. 209 (2018). For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982).
JUDICIAL DECISIONS
City tax against airlines illegal.
- City tax assessments against an airline, based on either the total gross receipts of the business or on the total number of employees, are illegal under 49 U.S.C. § 1513, and the airline is entitled to a refund under O.C.G.A. § 48-5-380 for the payments the airline timely claimed. City of College Park v. Atlantic S.E. Airlines, 194 Ga. App. 637, 391 S.E.2d 460 (1990).
Appeal process under
§ 48-5-311 distinguished. - While the appeal process of O.C.G.A. § 48-5-311 is available to address any asserted error in an ad valorem real property tax assessment, the refund process established by O.C.G.A. § 48-5-380 is intended only to correct errors of fact or law which have resulted in erroneous or illegal taxation. Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645, 458 S.E.2d 632 (1995).
Standing.
- Because the taxpayer's assignee lacked standing to claim a refund of ad valorem taxes allegedly overpaid by its assignor, the trial court erred in finding that the assignee was entitled to the refund; as a result, the court also erred in denying the respective counties summary judgment on the issue. Clayton County v. HealthSouth Holdings, Inc., 288 Ga. App. 406, 654 S.E.2d 143 (2007).
Amount of assessment not proper matter for basis of refund claim.
- Claim for refund of taxes that was not based on any inaccuracy in the factual record or in any illegality in the procedure used to reach the assessment, but on a disagreement with the amount thereof was not one cognizable as a refund action under O.C.G.A. § 48-5-380. Gwinnett County v. Gwinnett I Ltd. Partnership, 265 Ga. 645, 458 S.E.2d 632 (1995); Parian Lodge, Inc. v. DeKalb County, 225 Ga. App. 853, 485 S.E.2d 545 (1997); National Health Network, Inc. v. Fulton County, 228 Ga. App. 584, 492 S.E.2d 333 (1997).
City's occupation tax did not violate commerce clause.
- City's occupation tax did not violate the commerce clause because both interstate sellers and businesses selling exclusively within Georgia were charged the tax based on the number of employees within the city and the gross receipts from sales in Georgia. GMC v. City of Doraville, 284 Ga. 689, 670 S.E.2d 787 (2008).
Taxpayer need not comply with the appeal procedure provided in O.C.G.A. § 48-5-311(e) prior to proceeding under O.C.G.A. § 48-5-380. Marconi Avionics, Inc. v. DeKalb County, 165 Ga. App. 628, 302 S.E.2d 384 (1983).
Failure to comply with O.C.G.A. § 48-5-311. - Corporate taxpayers were barred from seeking refunds, pursuant to O.C.G.A. § 48-5-380, of ad valorem taxes paid on vehicles with tax situses in other states because the taxpayers failed to follow the appeal procedures provided by O.C.G.A. § 48-5-311. DeKalb County v. Genuine Parts Co., 225 Ga. App. 376, 484 S.E.2d 57 (1997).
County and the county tax commission were entitled to summary judgment as a matter of law in an action filed by a trucking company seeking a refund for ad valorem taxes the company paid as it was undisputed at trial that the company failed to timely file for either an apportionment in two subject years, as required by Ga. Comp. R. & Regs. r. 560-11-7-.02, and that the company did not appeal the company's ad valorem assessment within 45 days of the assessment in either year, pursuant to O.C.G.A. § 48-5-311; furthermore, O.C.G.A. § 48-5-380, which allowed a taxpayer to seek a refund up to three years after paying an erroneous or illegal tax, did not apply. Trans Link Motor Express, Inc. v. Dougherty County, 265 Ga. App. 10, 592 S.E.2d 859 (2003).
When a taxpayer challenged an assessment, but paid the taxes, the taxpayer could not bring an action in the courts for a declaratory judgment to determine the validity of the assessment until the taxpayer exhausted the taxpayer's statutory administrative options under either O.C.G.A. § 48-5-311 or O.C.G.A. § 48-5-380. Wilmington Trust Co. v. Glynn County, 265 Ga. App. 704, 595 S.E.2d 562 (2004).
Exhaustion of administrative remedies.
- In a tax refund class action under O.C.G.A. § 48-5-380, the named attorneys satisfied the administrative exhaustion requirement for an entire class of attorneys; the named attorneys acted for the entire class pursuant to former O.C.G.A. § 9-11-23 by giving the City of Atlanta notice of the tax constitutionality claim by filing administrative and civil actions, and permitting recovery only to those attorneys with the foresight to have demanded a refund was untenable in a case such as the instant one that involved a matter of constitutional import and an unconstitutional ordinance that had been relied upon to improperly collect taxes. Barnes v. City of Atlanta, 281 Ga. 256, 637 S.E.2d 4 (2006).
Mandamus appropriate.
- O.C.G.A. § 48-5-380 does not provide a legally adequate remedy to a taxpayer who has been denied the long-term preferential assessment that may be accorded rehabilitated historic property under O.C.G.A. § 48-5-7.2, and thus mandamus is an appropriate remedy. Chatham County Bd. of Tax Assessors v. Emmoth, 278 Ga. 144, 598 S.E.2d 495 (2004).
Property owners filed a class action alleging that a county had improperly recalculated property taxes without affording taxpayers the required statutory notice and the opportunity to appeal under O.C.G.A. § 48-5-311. Given the differences between the appeal remedy and the refund remedy provided by O.C.G.A. § 48-5-380 - as well as the possibility that a refund action might not be available to all class members - the trial court properly determined that a refund action was not an adequate remedy and that equitable relief was necessary to protect the class members' right to pursue the legal remedy provided in § 48-5-311. Fulton County Bd. of Tax Assessors v. Marani, 299 Ga. App. 580, 683 S.E.2d 136 (2009), cert. denied, No. S09C2072, 2010 Ga. LEXIS 18 (Ga. 2010).
Justification for asserting claim.
- General Assembly did not intend to make a taxpayer's right to assert a claim for a tax refund contingent on a prior decision by the taxing authority or some unspecified appeals tribunal approving a nonexistent claim. Rather, subsection (b) of O.C.G.A. § 48-5-380 clearly authorizes the taxpayer to assert a claim for a refund based on the taxpayer's own determination that such a refund is warranted. Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 360 S.E.2d 425, cert. denied, 183 Ga. App. 906, 360 S.E.2d 425 (1987).
County's inability to produce a property tax card in response to discovery requests did not in itself show a factual inaccuracy in the assessment procedure. National Health Network, Inc. v. Fulton County, 228 Ga. App. 584, 492 S.E.2d 333 (1997).
Zoning issues.
- Taxpayer's contention that the assessors failure to consider zoning conditions in making an assessment raised an error of law for purposes of O.C.G.A. § 48-5-380, even though such conditions were not recorded with the superior court at the time of the assessment. Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209, 493 S.E.2d 595 (1997).
Nontaxability of property proper grounds for seeking refund based on improper assessment.
- There is nothing in the statutory scheme, or in the procedure for appeals from property tax assessments, that precludes consideration of the taxability or nontaxability of property if that forms the basis of the allegation that the property was erroneously or illegally assessed or that there was an overpayment. Marconi Avionics, Inc. v. DeKalb County, 165 Ga. App. 628, 302 S.E.2d 384 (1983).
Valuation, uniformity, and equalization proper matters for basis of refund claim.
- Landowner's right to recover taxes illegally collected over a 13-year period was limited to three years prior to the filing of the landowner's claim, even though the county did not admit that the county was not entitled to the taxes collected until just before the claim was filed, since the landowner had suspected error and could have instituted a claim for refund earlier but failed to do so. Webb v. Coweta County, 178 Ga. App. 170, 342 S.E.2d 345 (1986).
Tax refund statute did not waive school district immunity.
- Taxpayer's suit against a school district seeking a refund was barred by immunity under Ga. Const. 1983, Art. I, Sec, II, Para. IX(e) and Ga. Const. 1983, Art. IX, Sec. II, Para. IX; O.C.G.A. § 48-5-380 provided for tax refunds by counties and municipalities but not school districts and, therefore, did not constitute a waiver of the school district's immunity. City of Dublin Sch. Dist. v. MMT Holdings, LLC, 346 Ga. App. 546, 816 S.E.2d 494 (2018).
Failure to consider factors relevant to fair market value not "erroneous."
- County's alleged failure to consider factors listed in O.C.G.A. § 48-5-2 that are relevant to fair market value does not make the assessed value factually inaccurate and, therefore, erroneous. National Health Network, Inc. v. Fulton County, 270 Ga. 724, 514 S.E.2d 422 (1999).
Neither taxpayer brought a claim for an erroneous or illegal tax assessment under the refund statute since the taxpayers did not allege that the counties did not have authority to impose the tax, committed a clerical error, or collected a wrongly assessed tax; instead, both claims constituted assertions that the assessors, although using correct procedures, did not take into account matters which the taxpayer believed should have been considered in determining the assessed value. National Health Network, Inc. v. Fulton County, 270 Ga. 724, 514 S.E.2d 422 (1999).
Failure to indicate fair market value on return.
- When a taxpayer sold improvements on the taxpayer's property, then filed a return in which the taxpayer left blank the area for "market value," the taxpayer was not entitled to a refund under O.C.G.A. § 48-5-380, as under O.C.G.A. § 48-5-6, returns had to state fair market value; a county was not required to interpret the taxpayer's silence on market value as a declaration that there was no value, and under O.C.G.A. § 48-5-20(a)(1), a taxpayer who failed to return taxable property in a given year was deemed to have returned the property at the same valuation as applied the preceding year. Int'l Auto Processing, Inc. v. Glynn County, 287 Ga. App. 431, 651 S.E.2d 535 (2007).
Recovery of overpaid taxes due to miscalculation of homestead exemption.
- Under local legislation, the term "base year" was defined as the taxable year immediately preceding the taxable year in which the homestead exemption was first granted by a county; therefore, the county erred in using the next year to calculate the taxpayers' exemption and the taxpayers could recover under O.C.G.A. § 48-5-380. Coleman v. Glynn County, 344 Ga. App. 545, 809 S.E.2d 383 (2018), cert. denied, No. S18C0869, 2018 Ga. LEXIS 566; cert. denied, No. S18C0881, 2018 Ga. LEXIS 572 (Ga. 2018).
Failure to provide notice of damages issue.
- While the trial court did not err in entering an order granting partial summary judgment to a city on the city's breach of contract claim against a county and the county's tax commissioner, ruling that the latter breached their contract to bill, collect, and remit ad valorem taxes on the city's behalf because the county was not given adequate notice that the trial court would address the amount of damages incurred by the city as a result of the county's breach, the grant of summary judgment as to the damages issue was reversed on due process grounds. Ferdinand v. City of East Point, 288 Ga. App. 152, 653 S.E.2d 529 (2007), cert. denied, 2008 Ga. LEXIS 213 (Ga. 2008).
Failure to pay taxes while pursuing appeal and awaiting refund.
- When the plaintiff argued that the defendants improperly demanded interest and fees based on the higher assessment amount as the plaintiff entered into a consent agreement with the county tax commissioner to lower the value of the property prior to levy on the 2012 executions, the plaintiff's substantive claims were prohibited as a matter of law because the tax executions were validly issued by the commissioner; the plaintiff failed to pay the taxes while pursuing the plaintiff's appeal of the assessment and awaiting a refund; and the defendants were authorized to levy the executions and demand payment as the plaintiff failed to plead that the executions were void as a matter of law or were cancelled by the commissioner in the consent judgment. B.C. Grand, LLC v. FIG, LLC, 352 Ga. App. 646, 835 S.E.2d 676 (2019).
Form for claiming refund.
- Subsection (b) of O.C.G.A. § 48-5-380 quite clearly does not require that a tax refund claim be made "on" a particular form supplied by the taxing authority but merely that the claim be made "in writing" and "in the form and [containing] the information required by" the authority. Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 360 S.E.2d 425, cert. denied, 183 Ga. App. 906, 360 S.E.2d 425 (1987).
Substantial compliance.
- Notice of refund claim filed pursuant to O.C.G.A. § 48-5-380 was not deficient when the notice clearly stated a summary of grounds upon which the taxpayer relied. There is no requirement that the summary of grounds must be the exact grounds upon which a refund was ultimately authorized; a notice in substantial compliance with § 48-5-380 is sufficient. City of College Park v. Atlantic S.E. Airlines, 194 Ga. App. 637, 391 S.E.2d 460 (1990).
Assignment of interest in refund action.
- Taxpayer's assignment of an interest in a refund action to a consulting firm was not improper because the agreement provided that the firm was to retain a percentage of the amount of the refund the firm obtained for the taxpayer. Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209, 493 S.E.2d 595 (1997).
City's occupation tax used same combination of criteria for all taxpayers.
- Taxpayer claimed a city's occupation tax did not classify different companies by the same "combination of criteria" as required by O.C.G.A. § 48-13-10(a) as some businesses paid taxes based on their gross receipts, while others paid based on the number of their employees. This claim failed as § 48-13-10(a)(1) and (a)(3) provided that an occupation tax could be calculated using both the number of employees and gross receipts, and the occupation tax was calculated in the same manner for every company. GMC v. City of Doraville, 284 Ga. 689, 670 S.E.2d 787 (2008).
No takings claim.
- Taxpayers did not a have a takings claim under 42 U.S.C. § 1983 because the procedures of O.C.G.A. § 48-5-311 or O.C.G.A. § 48-5-380 provide adequate remedies. Brian Realty Corp. v. DeKalb County, 229 Ga. App. 209, 493 S.E.2d 595 (1997).
Action under 42 U.S.C.
§ 1983 barred. - Statute provides an adequate remedy at law to contest a tax assessment or deficiency notice; therefore, the plaintiff owners of restaurants and bars holding liquor licenses could not maintain an action against the defendant city under 42 U.S.C. § 1983 for declaratory and injunctive relief. Atlanta Hospitality Workers, Inc. v. City of Atlanta, 247 Ga. App. 650, 545 S.E.2d 49 (2001).
Defenses unavailable in federal government action.- Neither voluntary payment nor the failure to exhaust state administrative remedies is available as a defense to a federal government action sounded in quasi-contract for the recovery of treasury funds paid by mistake which result in the unjust enrichment of a county. United States v. DeKalb County, 729 F.2d 738 (11th Cir. 1984).
Recovery of prejudgment interest.
- Taxpayer may recover prejudgment interest in an action for a refund of wrongfully collected taxes from the date of the demand for refund, not from the date the taxes were collected. Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 360 S.E.2d 425, cert. denied, 183 Ga. App. 906, 360 S.E.2d 425 (1987).
Taxpayers could only recover overpayments for three years preceding their claim.
- Because O.C.G.A. § 48-5-380(b) limited taxpayer recovery to overpayments made within three years of a written claim for refund, the county's sovereign immunity was waived only for the improper payments made within that three-year window. In a class action, the class members' three-year window was determined as of the date of filing the action. Mandamus and equity were unavailable to circumvent this limitation. Coleman v. Glynn County, 344 Ga. App. 545, 809 S.E.2d 383 (2018), cert. denied, No. S18C0869, 2018 Ga. LEXIS 566; cert. denied, No. S18C0881, 2018 Ga. LEXIS 572 (Ga. 2018).
Suit properly brought within five years of payment of taxes.
- Dismissal of the plaintiff's suit seeking a refund of property taxes paid on the basis that the suit was barred by sovereign immunity was reversed because O.C.G.A. § 48-5-380 allowed for the filing of a suit against a county or municipality for a tax refund within five years of the date the disputed taxes were paid; thus, the Georgia General Assembly expressly waived the application of sovereign immunity for that duration of time. Hojeij Branded Foods, LLC v. Clayton County, 355 Ga. App. 222, 843 S.E.2d 902 (2020).
Cited in Gwinnett Fed. Sav. & Loan Ass'n v. City of Buford, 185 Ga. App. 200, 363 S.E.2d 597 (1987).
OPINIONS OF THE ATTORNEY GENERAL
Construction with § 33-8-8.6. - With respect to certain tax refunds, the requirements of O.C.G.A. § 48-5-380 should be read in conjunction with O.C.G.A. § 33-8-8.6. 1984 Op. Att'y Gen. No. 84-24.
RESEARCH REFERENCES
Am. Jur. 2d.
- 72 Am. Jur. 2d, State and Local Taxation, § 965 et seq.
C.J.S.- 64A C.J.S., Municipal Corporations, § 2393 et seq. 85 C.J.S., Taxation, § 1049 et seq.
ALR.- When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.
Recovery of tax paid on exempt property, 25 A.L.R.4th 186.
Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.
Construction and operation of statutory time limit for filing claim for state tax refund, 14 A.L.R.6th 119.
Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437.