CopyCited 48 times | Published | Supreme Court of Georgia | Mar 1, 2004 | 277 Ga. 743, 2004 Fulton County D. Rep. 763
...When the County proposed to expend the additional SPLOST funds on the unfinished projects, James L. Haugen, who is a resident and taxpayer of the County, instituted an action seeking mandamus and injunctive relief. He alleged that, pursuant to OCGA §
48-8-121(g)(1)(B) and *326 (g)(2), any "excess proceeds" must be used to reduce ad valorem taxes....
...The County moved to dismiss and the trial court granted the motion on procedural and on substantive grounds. It found that Haugen had failed to comply with OCGA §
9-6-27(a), because no mandamus nisi was granted and served on the County. It also concluded that there were no "excess proceeds" as defined by OCGA §
48-8-121(g)(1)(B) and (g)(2)....
...631, 632(1),
533 S.E.2d 706 (2000) (construing former OCGA §
48-8-112, which is controlling here as well). However, Shadix did not concern and, thus, is not dispositive of, the substantive issue of statutory construction that is presented here. Under OCGA §
48-8-121(g)(1)(B), the taxing authority receives excess net SPLOST proceeds to the extent that the revenue obtained is "in excess of the maximum cost of the project or projects stated in the resolution... or in excess of the actual cost of such project or projects...." OCGA §
48-8-121(g)(2) provides, in relevant part, that the County can use such excess proceeds only to reduce its ad valorem taxes....
...proceeds. "The natural meaning of `or,' where used as a connective, is ` "to mark an alternative and present choice, implying an election to do one of two things...."' [Cit.]" Gearinger v. Lee,
266 Ga. 167, 169(2),
465 S.E.2d 440 (1996). Thus, OCGA §
48-8-121(g)(1)(B) provides that SPLOST proceeds are considered to be "excess" either when they are greater than the cost of the project specified in the resolution or when they are greater than the actual cost of the project....
...Clarke County School Dist.,
270 Ga. 633, 634(1),
514 S.E.2d 11 (1999). Moreover, "[l]anguage in one part of the statute must be construed in light of the legislature's intent as found in the whole statute. [Cit]" Echols v. Thomas,
265 Ga. 474, 475,
458 S.E.2d 100 (1995). OCGA §
48-8-121(g)(1)(B) does not exist in isolation. OCGA §
48-8-121(a)(1) expressly provides that "[t]he proceeds received from the tax authorized by this article shall be used by the county exclusively for the purpose or purposes specified in the resolution or ordinance calling for imposition of the tax." "Shall," "exclusively" and "purpose or purposes specified" are all clear and unambiguous terms. Thus, to satisfy the mandatory requirement imposed by OCGA §
48-8-121(a)(1), the taxing authority must necessarily use all SPLOST proceeds to complete the projects for which the tax was imposed, before any revenue derived from the tax can be deemed to be "excess" and available for use in connection with another purpose....
...452, 456(3),
423 S.E.2d 650 (1992). Therefore, as a matter of law, there can be no "excess" SPLOST proceeds so long as revenue is available and the projects specified in the resolution imposing the tax have not been completed. Accordingly, the only construction of OCGA §
48-8-121(g)(1)(B) which comports with sound reasoning and the entirety of the statute of which it is a part is that the actual cost, rather than estimated cost, establishes the maximum amount of SPLOST revenue that can be expended....
...ve standard. Thus, even though the tax proceeds received by the taxing authority may exceed the estimated cost of any given unfinished project, no "excess" proceeds exist so long as the project remains incomplete. To hold otherwise would render OCGA §
48-8-121(a)(1) meaningless and sanction the unnecessary abandonment of projects based upon a good-faith, but incorrect estimate as to the effect of inflation or other variables on the actual cost to complete them....
...a means of service in a mandamus action. However, I respectfully *328 dissent to the holding in Division 2 that the superior court properly dismissed the taxpayer's petition on substantive grounds. The superior court erred in its application of OCGA §
48-8-121(g)(1)(B) to find that taxpayer Haugen's claims failed as a matter of law....
...The pivotal question in this case is whether the $11.8 million in net tax revenues, collected over and above the $60 million amount specified in both the authorizing resolution and the referendum voted on by the taxpayers of Henry County, qualifies as "excess proceeds" under OCGA §
48-8-121(g)(1)(B), and therefore, is required to be used to reduce ad valorem taxes. See OCGA §
48-8-121(g)(2). [1] The strained analysis of the majority completely nullifies the statutory provision and deprives the taxpayers of the rightful reduction of their tax burden. OCGA §
48-8-121(g)(1)(B) plainly defines "excess proceeds" as net tax proceeds "in excess of the maximum cost of the project or projects stated in the resolution or ordinance calling for the imposition of the tax or in excess of the actual cost of such project or projects." (Emphasis supplied.) The statute is not ambiguous....
...Yet it is the estimated cost, in this case $60 million, that is proposed and presented to the taxpayers for their approval. And it is this estimated cost that the General Assembly has clearly determined to be one of two yardsticks by which to measure "excess proceeds" under OCGA §
48-8-121(g)(1)(B)....
...1668, applicable to the SPLOST in this case is "to change certain provisions regarding the expenditure of excess proceeds." Id. at 1669,
496 S.E.2d 712. This demonstrates the clear legislative intent that "excess proceeds" can exist in the two instances specified in OCGA §
48-8-121(g)(1)(B)....
...In the final analysis, it is simply that the taxing authority should say what it means and mean what it says. The taxpayers deserve no less. I am authorized to state that Presiding Justice SEARS and Justice THOMPSON join in this dissent. NOTES [1] OCGA §
48-8-121(g)(2) provides: Excess proceeds subject to this subsection shall be used solely for the purpose of reducing any indebtedness of the county other than indebtedness incurred pursuant to this article....
CopyCited 8 times | Published | Supreme Court of Georgia | Jun 12, 2006 | 280 Ga. 611, 6 Fulton County D. Rep. 1833, 6 FCDR 1833
...[2] By this language, Art. VIII, Sec. VI, Par. IV(a) requires reference to all of the provisions of OCGA §
48-8-110 et seq., "except as otherwise provided" by the constitutional provision. [3] The statutory provision pertinent to this appeal is OCGA §
48-8-121(a)(1), which requires that a SPLOST "shall be used ......
...Included among the initiatives was "refresh obsolete workstations," which the notebook estimated required replacing 30,563 units [5] that would affect "students and staff in all academic areas." Appellants argue that the Power to Learn initiative comports with the directive in OCGA §
48-8-121(a)(1) that SPLOST proceeds be spent exclusively for the purposes specified in its resolution because the phrases "technology systems" and "technology improvements" used, respectively, in the resolution and ballot language were general enough to include the Power to Learn initiative....
...s Power to Learn initiative. In addition, a holding that the Cobb County School Board may be bound by its statements of intent contained in informational pamphlets and documents contradicts our constitution, the statutory authority contained in OCGA §
48-8-121, and our prior holding in Thornton v....
...softball complex (the "recreational facilities") and for a civic center (the "multi-purpose governmental facilities"), and afterwards the Floyd County Board listed its projects and created a budget for them to track expenditures as required by OCGA §
48-8-121(a)(2)....
...In other words, because the Floyd County Board had only considered abandonment and no actual abandonment of the project had occurred, the Floyd County Board had not abused its discretion. Then, in a more general sense, we considered the interaction of OCGA §
48-8-121(a)(1), which provides that SPLOST tax proceeds shall be used "exclusively for the purpose or purposes specified in the resolution or ordinance calling for imposition of the tax," and OCGA §
48-8-121(a)(2), which requires the governmental authority receiving SPLOST tax proceeds to "maintain a record of each and every project for which the proceeds of the tax are used." [1] We then expounded: Construing these Code sections, we hold tha...
...(Emphasis supplied.) Dickey, supra at 456,
423 S.E.2d 650. Thus, Dickey stands for the proposition that a governmental entity may not simply choose to wholly abandon projects set forth in the required SPLOST budget and account reports required under OCGA §
48-8-121(a)(2)....
...In turn, this legal determination may be resolved based on three major underlying factual determinations. First, it must be determined whether the governmental entity is using SPLOST funds "exclusively for the purpose or purposes specified in the resolution or ordinance calling for the imposition of the tax." OCGA §
48-8-121(a)(1)....
...If not, an abuse of discretion has occurred, and the consideration need go no further. Second, it must be determined whether the governmental entity has decided to use SPLOST proceeds for one of the purposes or projects set forth in the SPLOST budget and accounts required under OCGA §
48-8-121(a)(2) or if it is disbursing funds for a purpose "entirely different" from the budgeted purposes....
...sed its discretion on this basis. In addition, the use of SPLOST funds for the Power to Learn pilot program also comports with the purposes and projects set forth in the budget and accounting prepared by the Cobb County Board in accordance with OCGA §
48-8-121(a)(2)....
...Giving credence to such an argument would be tantamount to judicially rewriting the constitutional provisions authorizing SPLOST taxes to require adherence to statements of intention. This overreaching would at once contravene the state constitution, the statutory requirements of OCGA §
48-8-121, and our previous discussion of this issue in Thornton. Accordingly, the Cobb County Board cannot be determined to have abused its discretion for failing to follow the purposes and projects set forth in its OCGA §
48-8-121(a)(2) budget and accounting....
...[4] We find no merit in appellants' argument that OCGA §
48-8-111(a)(1) provides "otherwise" than Art. VIII, Sec. VI, Par. IV(c), when it requires the SPLOST resolution to "specify" the purposes (including capital outlay projects) for which the SPLOST proceeds are to be used, see also OCGA §
48-8-121(f), whereas the constitutional provision requires the resolution to "describe" those purposes....
...[1] In addition, "[a] schedule shall be included in each annual audit which shows for each such project the original estimated cost, the current estimated cost if it is not the original estimated cost, amounts expended in prior years, and amounts expended in the current year." OCGA §
48-8-121(a)(2)....
