Nature of action.

- Right given to bring an action for refund of taxes illegally assessed and collected is in the nature of an action for money had and received. Hawes v. Bigbie, 123 Ga. App. 122, 179 S.E.2d 660 (1970).

Availability of other procedures and remedies.

- Only method by which a taxpayer may present a claim for refund to the superior court is by the procedure outlined in this statute. Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 210 S.E.2d 377 (1974).

Taxpayer has at least three remedial procedures available for use in disputing the correctness of an assessment rendered against the taxpayer by the commissioner under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Ch. 8, T. 48) relating to sales and use taxes. Taxpayer may proceed: (1) by the method of appeal under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59); (2) by affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1); or (3) by paying taxes illegally exacted and suing for refund under Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35). Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 210 S.E.2d 377 (1974).

When the manufacturer remitted tax payments under the pre-1985 version of O.C.G.A. § 3-4-60, even if the manufacturer was not procedurally barred from seeking a refund under O.C.G.A. § 48-2-35, the manufacturer's failure to avail itself of the predeprivation remedies available to the manufacturer prior to payment of the disputed taxes results in denial of recovery of taxes so paid. James B. Beam Distilling Co. v. State, 263 Ga. 609, 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662, 130 L. Ed. 2d 597 (1994).

O.C.G.A. § 48-2-35, though the statute does not satisfy the criteria of the Tax Injunction Act, 28 U.S.C. § 1341, so as to bar jurisdiction of the federal court, is not the only means by which a taxpayer might challenge the constitutional validity of a state tax and win retrospective relief, as a taxpayer can bring an action in state court under 42 U.S.C. § 1983. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Predeprivation remedies.

- State could not hold out what plainly appeared to be a "clear and certain" postdeprivation remedy and then declare, only after the disputed taxes had been paid, that no such remedy existed. Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547, 130 L. Ed. 2d 454 (1994).

Jurisdiction of federal court.

- Though the holding in Reich v. Collins, 262 Ga. 625, 422 S.E.2d 846 (1992), seems to bar most refunds under O.C.G.A. § 48-2-35 when this tax is challenged on constitutional grounds, the uncertain status of this holding makes a constitutional claim under the Georgia refund statute equally uncertain, and so does not satisfy the criteria of providing a "plain, speedy and efficient" post-taxation remedy so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

O.C.G.A. § 48-2-35 does not constitute a waiver of immunity under the Eleventh Amendment to the United States Constitution and was not enough to confer jurisdiction on federal courts in Georgia to hear a plaintiff's claims against the state for damages or prospective relief regarding the automobile "title transfer fee" statute (O.C.G.A. § 40-3-21.1) [repealed]. Johnsen v. Collins, 875 F. Supp. 1571 (S.D. Ga. 1994).

Class action suit for tax refund may not be maintained in Georgia. State v. Private Truck Council of Am., Inc., 258 Ga. 531, 371 S.E.2d 378 (1988).

Direct cause of action against dealer not permitted.

- Since the plain language of O.C.G.A. § 48-2-35.1(d) provides that a person may seek a refund of erroneously paid sales tax from a dealer who collected and remitted the tax to the commissioner or directly from the commissioner, but does not mention a direct cause of action against the dealer, the customers were not authorized to bring a direct action for a refund of allegedly over-collected sales tax against the power company. Ga. Power Co. v. Cazier, 321 Ga. App. 576, 740 S.E.2d 458 (2013).

Liability of Department of Revenue for refund of fees charged by another department.

- Emission testing company, seeking a refund under O.C.G.A. § 48-2-35(a), was not entitled to recover invalid fees from the state revenue commissioner since the fee was collected by the Director of the Environmental Protection Division of the Department of Natural Resources; deletion of the first "by the Commissioner" from what was now the first sentence of the statute was not intended to allow a citizen to recover from the Revenue Commissioner any fee paid to any other department or agency of Georgia government. Ga. Emission Testing Co. v. Jackson, 259 Ga. App. 250, 576 S.E.2d 642 (2003).

Availability of defenses.

- Effect of having an express statutory right to sue for a refund was to remove the defense of voluntary payment under former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13). Hawes v. Smith, 120 Ga. App. 158, 169 S.E.2d 823 (1969).

Mandamus relief improperly denied.

- Plaintiffs' mandamus claims were improperly denied as the plaintiffs did not have an adequate legal remedy to challenge the constitutionality of Ga. L. 2015, pp. 236, 241-264, §§ 5-8 (HB 170) by pursuing a refund action because the plaintiffs did not argue that H.B. 170 illegally assessed taxes against them, but, rather, the plaintiffs argued that it violated the state constitution by allowing revenues from taxes on motor fuels to be apportioned for purposes other than on roads and bridges; thus, the relief the plaintiffs sought was broader than the relief provided by the statute, O.C.G.A. § 48-9-3, which was limited to a refund of the assessed taxes plus interest, and the trial court erred in concluding that the refund statute was an adequate legal remedy for the plaintiffs' claims. Ga. Motor Trucking Ass'n v. Georgia Dep't of Revenue, 301 Ga. 354, 801 S.E.2d 9 (2017).

Cited in Waldron v. Collins, 788 F.2d 736 (11th Cir. 1986); Barber v. Collins, 201 Ga. App. 104, 410 S.E.2d 444 (1991); C.W. Matthews Contracting Co. v. Collins, 210 Ga. App. 1, 435 S.E.2d 221 (1993).

Prerequisites to filing of claim for refund.

- Before a claim for refund is filed with the commissioner there should be a legal determination that the tax was erroneously or illegally collected by the commissioner. Parke, Davis & Co. v. Cook, 198 Ga. 457, 31 S.E.2d 728 (1944), appeal dismissed. 323 U.S. 681, 65 S. Ct. 436, 89 L. Ed. 552 (1945).

Standing to claim refund.

- Refunds provided for under this statute are to be made to taxpayers. A retailer, like a distributor of gasoline, is not a taxpayer in the retailer's capacity of collecting motor fuel taxes and turning the taxes over to the commissioner. Maynard v. Thrasher, 77 Ga. App. 316, 48 S.E.2d 471 (1948).

To come within this statute, one need only qualify as a taxpayer. Under former Code 1933, Ch. 92-14 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) the consumer was the taxpayer. Hawes v. Shepherd Constr. Co., 117 Ga. App. 842, 162 S.E.2d 231 (1968).

Only the party who actually paid the taxes is entitled to claim a refund. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169, 198 S.E.2d 900 (1973).

Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35) does not preclude the owner of the facility into which waste treatment equipment is incorporated from filing a claim for refund pursuant to a regulation of the commissioner pursuant to Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3) which regulation provides that the application for a refund be filed by the ultimate user. Eimco BSP Servs. Co. v. Chilivis, 241 Ga. 263, 244 S.E.2d 829 (1978).

When, under the pre-1985 version of O.C.G.A. § 3-4-60, the manufacturer remitted a tax payment to the revenue commissioner and subsequently, in an itemized billing statement, required the wholesaler to remit payment for "state stamps" or "state tax," it was the wholesaler which was the taxpayer for purposes of O.C.G.A. § 48-2-35 and, due to the manufacturer's lack of standing, the manufacturer was procedurally barred from pursuing an action for refund. James B. Beam Distilling Co. v. State, 263 Ga. 609, 437 S.E.2d 782 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662, 130 L. Ed. 2d 597 (1994).

When it is shown that customers and not retailers paid taxes, retailers have no legal standing to obtain a refund. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110 (2003).

Since this statute extends the state's consent to be sued only to the taxpayer who has overpaid the taxpayer's tax liability, a seller may not bring an action for a refund of sales and use taxes under this statute unless the seller establishes the seller's standing to assert that as a taxpayer the seller has overpaid the seller's tax liability. If a seller has merely remitted taxes which the seller has shifted to the seller's customers, the seller lacks standing to assert that as to those payments the seller as a taxpayer has overpaid the seller's liability. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110 (2003).

Electrical membership corporation lacked direct standing to pursue a claim for a refund of sales tax on behalf of the corporation's members/patrons, pursuant to O.C.G.A. § 48-2-35(b)(1), as it was not a "taxpayer" within O.C.G.A. § 48-2-35(b)(4) for purposes of bringing an action for a tax refund as the corporation did not bear the burden of the tax because the tax was passed on to the corporation's members/patrons; one purpose of the EMC was to furnish electrical energy and service to the corporation's members, pursuant to O.C.G.A. § 46-3-200(1), and the sale of electricity required a retail sales tax paid to the EMC, which was passed onto the Georgia Commissioner of Revenue, pursuant to O.C.G.A. § 48-8-30(a). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22, 608 S.E.2d 611 (2005).

No standing to claim refund.

- Trial court did not err in dismissing a bank's complaint alleging that the bank was entitled to a refund for sales tax paid under the General Refund Statute, O.C.G.A. § 48-2-35, because the bank was not a taxpayer entitled to a refund under § 48-2-35 since the bank was simply a third-party lender that contracted to advance the money for the consumer, and ultimately the merchant, to meet their obligations to pay the sales tax; the bank's recourse was against the consumer who defaulted on the debt or possibly through any provisions in the credit card program contracts assigning responsibility for bad debts among the various parties. Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120, 726 S.E.2d 617 (2012), cert. denied, No. S12C1281, 2012 Ga. LEXIS 1017 (Ga. 2012).

Statute as providing standing to attack constitutionality of other provisions.

- Authority under this statute to bring an action for a refund does not provide standing to attack constitutionality of another statute when facts alleged show no injury from enforcement of such statute. Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295, 149 S.E.2d 691 (1966).

State as real party at interest.

- Action under this statute against the predecessor of the present commissioner in an official capacity as commissioner is an action against the state. Forrester v. Continental Gin Co., 67 Ga. App. 119, 19 S.E.2d 807 (1942).

State, by this statute, has consented to be sued. Thompson v. Continental Gin Co., 73 Ga. App. 694, 37 S.E.2d 819 (1946).

Consent to be strictly construed.

- State may not be sued without the state's consent. If consent to be sued is extended by the state, the scope of consent may not be extended by implication. Therefore, this statute is to be strictly construed. Schaffer v. Oxford, 102 Ga. App. 710, 117 S.E.2d 637 (1960).

Electrical membership corporation lacked associational standing to seek a sales tax refund on behalf of the corporation's members/patrons as the corporation was a nontaxpayer acting in a representative capacity and there was a very limited waiver of sovereign immunity provided by O.C.G.A. § 48-2-35, which did not extend to nontaxpayers; further, the waiver of sovereign immunity by Ga. Const. 1983, Art. I, Sec. II, Para. IX(e) was to be strictly construed, and even a taxpayer was prohibited from bringing a refund action on behalf of other taxpayers similarly situated, pursuant to O.C.G.A. § 48-2-35(b)(5). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22, 608 S.E.2d 611 (2005).

Consent is conditioned on prior filing of refund claim. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110 (2003).

To whom consent granted.

- Statute extends state's consent to be sued only with respect to overpayments by the taxpayer from whom such tax was collected. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110 (2003).

Applicability of statute.

- Statute is meant to apply in cases of taxes erroneously or illegally assessed or collected. Hawes v. Bigbie, 123 Ga. App. 122, 179 S.E.2d 660 (1970).

What payments refundable.

- Revenue derived through enforcement of executive order of commissioner providing for warehousing and other services with respect to distilled spirits passing through or stored in a state-operated warehouse and handled by state employees is not revenue obtained through tax or license within the purview of this statute. Schaffer v. Oxford, 102 Ga. App. 710, 117 S.E.2d 637 (1960).

Compensation granted a dealer is not allowable for one's own tax liability. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169, 198 S.E.2d 900 (1973).

Trial court properly dismissed the testing company's lawsuit brought pursuant to O.C.G.A. § 48-2-35 and seeking a refund of fees improperly assessed under the Motor Vehicle Emission Inspection and Maintenance Act, O.C.G.A. § 12-9-40 et seq., as the state revenue commissioner did not collect or administer the fee at issue and O.C.G.A. § 48-2-35 only applied to the illegal collection of a tax or license made by the state revenue commissioner. Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 602 S.E.2d 153 (2004).

Dealer not required to prepay potentially refundable taxes prior to seeking approval of refund from Department of Revenue.

- With regard to the period beginning by May 5, 2009 and ending on September 7, 2010, the court of appeals erred by affirming the dismissal of the dealer's case requesting a tax refund from the Georgia Department of Revenue because the statutes did not require a dealer to prepay potentially refundable taxes to consumers prior to seeking approval for a refund from the Department; and, although the Department's regulations required a dealer to pay any refund amount to the dealer's customers prior to the point that the dealer could acquire repayment of those funds from the Department, the statutes did not require a dealer to repay funds to the dealer's customers prior to filing a request for a refund or prior to the Department's decision of whether or not a refund was due. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 303 Ga. 468, 813 S.E.2d 388 (2018).

Elements of proof of claim for refund.

- In any case when tax was illegally collected, the plaintiff may file the plaintiff's claim for a refund, but in order to prevail upon the trial of the action the plaintiff must show that the taxing authority is not in equity and good conscience entitled to the money. Hawes v. Bigbie, 123 Ga. App. 122, 179 S.E.2d 660 (1970).

As a prerequisite to maintenance of an action, the plaintiff must prove at trial the plaintiff's averment that the basis on which the plaintiff computed and paid taxes is that taxes were not first collected by the plaintiff from the plaintiff's customers and that the plaintiff bore the burden of taxes claimed to have been overpaid, not the plaintiff's customers. Otherwise, the plaintiff has not established a basis for asserting that the plaintiff as a retailer has overpaid the plaintiff's liability as a taxpayer. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896 (1973), overruled on other grounds, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110 (2003).

Refund of sales tax for failure to comply with regulations.

- Grant of the Georgia Department of Revenue's motion to dismiss the appellants' complaint seeking a refund under O.C.G.A. § 48-2-35 of state sales tax paid was affirmed because the appellants failed to comply with a regulation that, before seeking a refund on behalf of their customers under § 48-2-35, the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded to their customers, which the appellants admittedly had not done. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 340 Ga. App. 316, 797 S.E.2d 190 (2017).

Effect of denial of claim by commissioner.

- When claim for tax refund is denied by the commissioner, the taxpayer has action against the state for refund. The money, having been paid into the state treasury, is no longer within the power or control of the commissioner. Wright v. Forrester, 192 Ga. 864, 16 S.E.2d 873 (1941).

State is the real party at interest on question of tax refund, and the statute imposes no further duty on the commissioner if the commissioner denies the claim. Wright v. Forrester, 192 Ga. 864, 16 S.E.2d 873 (1941).

Limitation of action.

- Letter from Department of Revenue denying a claim for refund of sales and use taxes commenced the running of the two-year limitations period even though the denial was for "lack of documentation" and there was subsequent communication between the taxpayer and the Department. Collins v. Columbus Foundries, Inc., 262 Ga. 710, 425 S.E.2d 281 (1993).

What payments refundable.

- Payment of retail liquor license by the owner of a store, which the owner shortly thereafter sold to another, is not recoverable if voluntarily made. 1948-49 Op. Att'y Gen. p. 593.

Language of this statute clearly limits refunds made to such taxes which may be determined to have been erroneously or illegally assessed and collected. Therefore, license fees voluntarily paid for motor vehicle license plates cannot be recovered when the owner of such vehicle later decides not to operate the vehicle within the state. 1950-51 Op. Att'y Gen. p. 190.

Statute applies only to taxes paid to the state and has no application to the recording tax imposed on long-term real estate notes. 1960-61 Op. Att'y Gen. p. 521.

Overpayment of income taxes resulting from excess withholdings may not be recovered under normal circumstances by filing a claim for refund or by obtaining credit against liability of different years, when the taxpayer does not file an income tax return until more than three years after the date of payment. 1976 Op. Att'y Gen. No. 76-54.

Election by husband and wife to change from joint return to separate returns.

- Husband and wife may amend a previously filed return or returns so as to change from joint return basis to separate return basis, or vice versa, but beyond the due date of the return they no longer have such right of election. The tax resulting from such election is not erroneously or illegally assessed or collected and no refund shall be issued, even if the tax is higher than if they had not so elected. 1963-65 Op. Att'y Gen. p. 589.

Am. Jur. 2d.

- 72 Am. Jur. 2d, State and Local Taxation, § 965 et seq.

ALR.

- Right to interest on tax refunds, 57 A.L.R. 357.

When may payment of tax or assessment be regarded as involuntary or made under duress, 64 A.L.R. 9; 84 A.L.R. 294.

Corporation which pays tax wrongfully exacted upon shares of its stock as proper party to maintain action for its recovery, 84 A.L.R. 107.

Action to recover back tax illegally exacted as one upon contract as regards applicability of limitation statutes, 92 A.L.R. 1360.

Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284.

Excessive assessments as within contemplation of statute providing for refunding of taxes erroneously or illegally charged, 110 A.L.R. 670.

Right to amend claim for refund of taxes after time for filing has expired, 113 A.L.R. 1291.

Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542.

Statute repealing or modifying previous statute providing for refunding of taxes illegally or erroneously assessed, collected, or paid, as applicable retroactively, 124 A.L.R. 1480.

Assignability of claim for tax refund, and rights of assignee in respect thereof, 134 A.L.R. 1202.

Right of payer, as against taxing authority, to refund of, or credit for, amount paid on another's income tax, 154 A.L.R. 159.

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 154 A.L.R. 1052; 12 A.L.R.2d 815.

Power or duty, in absence of statute, to allow tax or license fee illegally exacted or erroneously paid as credit on valid tax or license fee, 160 A.L.R. 1423.

Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778.

Right to refund or recovery of back taxes paid on property not owned by taxpayer, 165 A.L.R. 879.

When does special limitation period for filing applications for tax refund begin to run, 175 A.L.R. 1100.

Retrospective application and effect of statutory provision for interest or changed rate of interest, 4 A.L.R.2d 932.

Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 12 A.L.R.2d 815.

Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425.

When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350.

What constitutes laches barring right to relief in taxpayer's action, 71 A.L.R.2d 529.

Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823.

Refund of state inheritance or estate tax where claims are proven against estate after tax was paid, 63 A.L.R.3d 924.

Propriety of class action in state courts to recover taxes, 10 A.L.R.4th 655.

Recovery of tax paid on exempt property, 25 A.L.R.4th 186.

Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147.

Retrospective application and effect of state statute or rule allowing interest or changing rate of interest on judgments or verdicts, 41 A.L.R.4th 694.

Validity and applicability of statutory time limit concerning taxpayer's claim for state tax refund, 1 A.L.R.6th 1.

Voluntary payment doctrine as bar to recovery of payment of generally unlawful tax, 1 A.L.R.6th 229.

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.

What constitutes payment for purposes of commencing limitations period under Internal Revenue Code (26 U.S.C.A. § 6511(a)) for refund of tax overpayments, 160 A.L.R. Fed. 137.

What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.