CopyCited 16 times | Published | Supreme Court of Georgia | Feb 22, 1999 | 270 Ga. 776, 99 Fulton County D. Rep. 741
...Gen., Harold David Melton, Stefan Ernst Ritter, Asst. Attys. Gen., Daniel M. Formby, Warren R. Calvert, Senior Asst. Attys. Gen., Department of Law, Atlanta, for State of Georgia et al. THOMPSON, Justice. The issues for decision in this appeal are (1) whether OCGA §
48-8-67 is unconstitutional, either as a retrospective application of law which alters appellants' vested rights, or as a breach of an implied contract between DeKalb County and the State of Georgia; and (2) whether the trial court erred in dismissing appellants' claim for an accounting....
...Because of problems resulting from the revision of its sales and use tax report form and the implementation of a new computer system, the Department of Revenue had a $150 million backlog of undistributed and unidentifiable local option sales tax proceeds which were reported and collected prior to the enactment of OCGA §
48-8-67....
...Although DeKalb County is the only jurisdiction that has adopted the HOST tax, the backlog of unidentifiable proceeds also included other local option sales taxes imposed by other jurisdictions that the Commissioner is authorized by law to collect and distribute. The provision under consideration, OCGA §
48-8-67, went into effect on April 6, 1998....
...eeded to make a distribution of those proceeds," to "allocate unidentifiable proceeds among the authorized recipients in the same proportion as" identified proceeds. DeKalb County filed suit in the Superior Court of Fulton County asserting that OCGA §
48-8-67 is unconstitutional because it applied retrospectively to DeKalb County's right to proceeds which had accrued prior to the enactment of OCGA §
48-8-67, under OCGA §
48-8-100 et seq., and breached an implied contract between the State of Georgia and DeKalb County....
...Although the statute requires that the sales and use tax returns identify the location from which the tax is collected in order to facilitate the Commissioner's proper distribution of the tax proceeds, it is silent on the Commissioner's obligations should a tax return omit the identifying information. OCGA §
48-8-67 provides direction to the Commissioner regarding the distribution of collected tax proceeds that are unidentifiable. It requires that the Commissioner first make a reasonable effort to identify the proceeds, then distribute unidentifiable proceeds to authorized recipients in the same proportion as identified proceeds. Prior to the enactment of OCGA §
48-8-67, to the extent that the Commissioner could identify tax proceeds as belonging to DeKalb County, he was required to remit them....
...An act of discretion does not give rise to a vested right; DeKalb County's right to the tax proceeds extended no further than the HOST statute granted. See Matheson v. DeKalb County,
257 Ga. 48(3)(5),
354 S.E.2d 121 (1987). After the enactment of OCGA §
48-8-67, DeKalb County was still entitled to HOST tax proceeds that could be identified as belonging to it. OCGA §
48-8-67 did not take away or impair any existing rights; it removed the Commissioner's discretion by providing a disbursement scheme to distribute unidentifiable tax proceeds....
...e entitled to relief under any state of provable facts asserted in support thereof. OCGA §
9-11-12(b)(6); Vaughan v. Vaughan,
253 Ga. 76, 77,
317 S.E.2d 201 (1984); Ford v. Whipple,
225 Ga.App. 276,
483 S.E.2d 591 (1997). Upon determining that OCGA §
48-8-67 is constitutional, the trial court summarily dismissed DeKalb County's remaining claims for injunction, mandamus, and accounting....
...Accordingly, we remand that claim to the trial court for further consideration. [1] It does not follow that DeKalb County's additional claims for relief disappeared upon a finding that the statute is constitutional. The Commissioner is required to carry out the mandates of a constitutionally enacted statute. OCGA §
48-8-67 requires the Commissioner to "make reasonable efforts to obtain the information needed to make a distribution of [the tax] proceeds." Only when the information "cannot be obtained" is the Commissioner to distribute unidentifiable proceeds on a pro rata basis....
...taxpayer education and training." The trial court acknowledged that it had seen no evidence contradicting the allegation that the Commissioner had made substantial errors. Appellees assert that even if the Commissioner made substantial errors, OCGA §
48-8-67 cures the errors by providing a method of distribution of the proceeds. A remedial statute cannot negate, however, the legal obligations imposed by the statute. OCGA §
48-8-67 is remedial in the sense that it corrects a procedural deficiency in the law....
...NOTES [1] We do not believe that the Commissioner's distribution of these tax proceeds has rendered this issue moot. If the ultimate resolution of this issue is that DeKalb County is entitled to a larger share of the proceeds, the Commissioner has authority to make appropriate adjustments. OCGA §
48-8-67(f) states that "negotiation of the first distribution shall constitute a release and full accord and satisfaction for any and all refund requests or claims with respect to any sales and use tax collected prior to April 1, 1998." We have be...
