FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
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October 26, 2021
In the Court of Appeals of Georgia
A21A0955. EXECUTIVE LIMOUSINE TRANSPORTATION,
INC. v. DAVID CURRY, IN HIS OFFICIAL CAPACITY AS
REVENUE COMMISSIONER OF THE GEORGIA
DEPARTMENT OF REVENUE.
RICKMAN, Chief Judge.
This appeal presents questions of first impression concerning the meaning and
application of the Georgia Limousine Carrier Act, OCGA § 40-1-150 et seq. (“the
Act”), which was adopted into law in 2012. The Commissioner of the Georgia
Department of Revenue (“the Department”) denied Executive Limousine
Transportation, Inc. (“Executive”)’s application for a refund of previously remitted
state and local-option sales taxes as well as a declaration that Executive would owe
no such taxes in the future. The Georgia Tax Tribunal granted the Department’s
motion for summary judgment on the application, and the superior court affirmed the
Tribunal’s ruling. We granted Executive’s application for discretionary review, and
Executive now repeats arguments made below that the Act prohibits local
governments from imposing the collection of state or local-option sales taxes on
limousine companies and their customers. We disagree and therefore affirm.
The relevant facts are not in dispute. Executive, a licensed limousine carrier,
contracts with its drivers and independent operators to provide “chauffeured
transportation service” to its customers. Executive’s drivers are required to be at least
25 years old; to have a clean driving record, two years of experience, and a for-hire
car license endorsement; and to pass a medical examination and a background check.
In July 2018, Executive applied to the Commissioner of the Department for (1) a
refund of approximately $518,524.62 in state sales tax and $366,767.88 in local-
option sales tax and (2) a ruling that it will not be required to collect any such taxes
in the future. The Department denied Executive’s application. In August 2018,
Executive filed a petition with the Tax Tribunal arguing that limousine carriers are
not subject to sales tax. The Department countered and moved for summary judgment.
In October 2019, the Tribunal held that Executive “has not overcome the
presumption” that the applicable regulation, Ga. Comp. R. & Regs. 560-12-2-.84
(“the Rule”), “is valid and that Executive is subject to sales tax under the Rule’s plain
2
language.” In addressing Executive’s contention that state or local sales taxes
constitute an excise tax, the Tribunal held that “notwithstanding the fact that ‘excise
tax’ is not defined anywhere in Georgia statute[s], no authority is cited by either party
that demonstrates that local sales tax is an excise tax as that term is used in Georgia
law.”1
Executive then filed a petition for review in the superior court. There,
Executive repeated its claim that limousine carriers should not be subject to state
sales tax because their services do not constitute “sales” and, even if they are sales,
Executive is exempted because it provides “professional” or “personal” services to
its customers. Executive also asserted that the Department violated Executive’s right
to equal protection by not forcing ride-share companies like Uber to collect sales tax
and that Executive is not subject to local sales tax under OCGA §§ 40-1-116 and
40-1-168. Adopting the bulk of the Tribunal’s order, the superior court upheld the
Tribunal’s decision, concluding that under Georgia law and the applicable Rule, “for-
hire car services like Executive’s are subject to sales tax.” The court thus denied
1
The Tax Tribunal declined to rule on Executive’s equal protection claim,
finding that it lacked jurisdiction to resolve the constitutional challenge that the
Department has failed to require other for-hire car companies, like Uber, to pay sales
tax.
3
Executive’s petition, granted the Department’s motion for summary judgment, and
entered judgment in favor of the Department. We granted Executive’s application for
review of the superior court’s decision.
On this appeal, Executive repeats two arguments made below: (1) local
governments may not impose sales tax on limousine carriers, and (2) the “transaction”
between Executive and its customers is not a retail sale subject to sales tax, but rather
a “professional” or “personal” service exempt from such tax.
When reviewing an appeal from the Tax Tribunal, the superior court defers to
the Tribunal’s factual findings, but may reverse or modify the judgment if substantial
rights of the petitioner have been prejudiced because the Tribunal’s findings,
inferences, conclusions, or judgments are:
(1) In violation of constitutional or statutory provisions; (2) In excess of
the statutory authority of the tribunal; (3) Made upon unlawful
procedure; (4) Affected by other error of law; (5) Clearly erroneous in
view of the reliable, probative, and substantial evidence on the whole
record; or (6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.
OCGA § 50-13A-17 (g). We conduct a de novo review of both claimed errors of law
in the superior court’s appellate review and any interpretation of a statute or agency
4
regulation. Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499,
502 (734 SE2d 242) (2012). “[T]he interpretation of a statute by an administrative
agency which has the duty of enforcing or administering it is to be given great weight
and deference.” (Citation omitted.) Ga. Dept. of Revenue v. Owens Corning, 283 Ga.
489, 490 (660 SE2d 719) (2008); see also Pruitt Corp. v. Ga. Dept. of Community
Health, 284 Ga. 158, 159 (664 SE2d 223) (2008). However,
[w]hile judicial deference is afforded an agency’s interpretation of
statutes it is charged with enforcing or administering, the agency’s
interpretation is not binding on the courts, which have the ultimate
authority to construe statutes. It is the role of the judicial branch to
interpret the statutes enacted by the legislative branch and enforced by
the executive branch, and administrative rulings will be adopted only
when they conform to the meaning which the court deems should
properly be given. The judicial branch makes an independent
determination as to whether the interpretation of the administrative
agency correctly reflects the plain language of the statute and comports
with the legislative intent.
(Citations and punctuation omitted.) Handel v. Powell, 284 Ga. 550, 553 (670 SE2d
62) (2008).
1. Executive first argues that the superior court erred in refusing to apply the
Georgia Limousine Carrier Act, OCGA § 40-1-150 et seq., and especially OCGA §
5
40-1-168, which bars local governments from imposing “excise” and other taxes on
limousine carriers, to Executive’s request for a refund of sales tax. We disagree.
Ever since the first adoption of a state sales tax in 1951, Georgia law has
defined a “retail sale” broadly – under current law, for example, as “any sale, lease,
or rental for any purpose other than for resale, sublease, or subrent[,]” including,
except as otherwise provided, “the sale of . . . transportation, . . . when made to any
purchaser for purposes other than resale[.]” (Emphasis supplied.) OCGA § 48-8-2
(31) and (31) (A);2 see also Ga. L. 1951, pp. 360, 364, § 3 (c) (1) (defining “retail
sale” as including “the sale of . . . transportation”). The relevant portion of the tax
code, concerning “sales and use taxes,” also begins with the following declaration:
It is the intention of the General Assembly in enacting this article to
exercise its full and complete power to tax the retail purchase, retail
sale, rental, storage, use, and consumption of tangible personal
property and the services described in this article except to the extent
prohibited by the Constitutions of the United States and of this state and
except to the extent of specific exemptions provided in this article.
2
In 2011, the General Assembly deleted a reference to “services taxable under
this article” and added the terms “lease, or rental.” Ga. L. 2010, Act 507, § 1.
6
(Emphasis supplied.) OCGA § 48-8-1. This expansive language in favor of taxation
is in accordance with the maxim that “[t]axation is the rule, and exemption from
taxation the exception.” Owens Corning, supra, 283 Ga. at 490. As our Supreme
Court explains:
“[E]xemptions are made, not to favor the individual owners of property,
but in the advancement of the interests of the whole people. 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.”
Id., quoting Collins v. City of Dalton, 261 Ga. 584, 585-586 (4) (a) (408 SE2d 106)
(1991). OCGA § 48-8-2 (33) (A) likewise defines “sale” broadly, as “any. . . transfer
of title or possession, transfer of title and possession, exchange, barter, lease, or
rental, conditional or otherwise, in any manner or by any means of any kind of
tangible personal property for a consideration[.]”3 (Emphasis supplied.)
3
Executive does not dispute that its vehicles are such tangible personal
property.
7
In accordance with this statutory scheme, Rule 560-12-2-.84, first adopted in
1965 and amended in 1983 and 1991,4 declares that for-hire cars are subject to sales
tax:
(1) Taxicab owners and operators. Any person owning and operating a
taxicab or taxicabs shall register as a dealer and pay the tax at the time
of purchase on tangible personal property used or consumed in the
operations. . . . [S]uch person shall collect the tax on fares for the
transportation of persons in accordance with the uniform bracket system
and shall remit same to the State Revenue Commissioner. . . .
(4) Taxicab “headquarters” operators. Any person operating a
headquarters for taxicabs and supervising or directing taxicab drivers,
or receiving and relaying calls to cab driver members, shall register as
a dealer. . . .
(6) Cars for hire. For the purpose of this regulation, cars for hire are
taxable in the same way as taxicabs.
(7) . . . (b) [H]eadquarters operators and lessees of taxicabs shall collect
the tax on fares for transportation of persons from their drivers as
required above. . . .
4
See Ga. L. 1937-38, Extra Sess., pp. 77, et seq., as amended (Ga. Code Ann.
Secs. 92-8405, 8406, 8409, 8427); Ga. L. 1951, pp. 360, 385.
8
(Emphasis supplied.) Ga. Comp. R. and Regs. 560-12-2-.84 (1991). And in Collins
v. Adam Cab, 261 Ga. 305 (404 SE2d 560) (1991), our Supreme Court noted the
Rule’s “recogni[tion of] the need [for owners and operators] to collect the tax on fares
for transportation of persons” before concluding that taxicab companies were
properly required to collect sales tax. Id. at 306 (1).
In short, the sale of transportation by hired car has been subject to sales tax
ever since that tax’s introduction into Georgia law, and all taxpayers who own,
operate, or direct such vehicles are responsible for collecting and remitting sales tax.
It is against this backdrop that the Georgia General Assembly enacted the Georgia
Limousine Carrier Act, OCGA § 40-1-150 et seq., in 2012.5 Executive’s argument
now centers on Section 40-1-168 of the Act,6 which provides in full:
5
See Ga. L. 2012, Act 632, § 1.
6
In its application to this Court, Executive also cited Section 40-1-162 of the
Act, which provides in relevant part:
The State of Georgia fully occupies and preempts the entire field of
regulation over limousine carriers as regulated by this part; provided,
however, that the governing authority of any county or municipal airport
shall be authorized to permit any limousine carrier doing business at any
such airport and may establish fees as part of such permitting process[.]
9
No subdivision of this state, including cities, townships, or counties,
shall levy any excise, license, or occupation tax of any nature, on the
right of a limousine carrier to operate equipment, or on the equipment,
or on any incidents of the business of a limousine carrier.
(Emphasis supplied.)
When we consider the meaning of a statute, we must presume that the
General Assembly meant what it said and said what it meant. To that
end, we must afford the statutory text its plain and ordinary meaning, we
must view the statutory text in the context in which it appears, and we
must read the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would. . . . [I]f the statutory
text is clear and unambiguous, we attribute to the statute its plain
meaning, and our search for statutory meaning is at an end.
(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172 (1) (751
SE2d 337) (2013).
Although Executive argues that a tax collected from its riders, the ultimate
consumers of its services, amounts to an “excise” tax, the General Assembly chose
(Emphasis supplied.) On its face, however, OCGA § 40-1-162 addresses “regulation,”
not taxation, and goes on to specify the circumstances under which limousine carriers
serving airports may be issued permits and charged “fees as part of such permitting
process.” It thus has no bearing on the question whether Executive and other
limousine carriers are subject to sales tax.
10
not to use the term “sales tax” in the Act – a choice of omission we must respect. See,
e.g., New Cingular Wireless PCS, LLC v. Ga. Dept. of Revenue, 303 Ga. 468, 472 n.
8 (813 SE2d 388) (2018) (rejecting an attempt to efface a statutory and regulatory
distinction between the terms “refund” and “determination,” which “are not identical
terms”). Further, the remaining categories of tax barred under the terms of OCGA §
40-1-168 – that is, “license” and “occupation” taxes – are generally imposed before
or in addition to any imposed at the ultimate “sale” to a consumer. See, e.g., Black’s
Law Dictionary, 9th ed. (2009), p. 646 (defining the noun “excise” as “[a] tax
imposed on the manufacture, sale, or use of goods (such as a cigarette tax), or on an
occupation or activity (such as a license tax or an attorney occupation fee”) (emphasis
supplied).
Likewise, Georgia law commonly distinguishes between “excise “ and “sales”
taxes as those imposed earlier and later in the stream of commerce – that is, at the
wholesale and retail levels. See, e.g., OCGA §§ 48-11-2 (a), (e) (imposing an “excise
tax, in addition to all other taxes of every kind imposed by law,” on tobacco and
vapor products, to be paid by “the dealer or distributor licensed pursuant to this
chapter to the commissioner for deposit and distribution as provided in this chapter
upon the first transaction within this state”) (emphasis supplied), 48-8-2 (31) (A)
11
(defining “retail sale” as including sale of “tobacco products”); OCGA §§ 48-9-3 (a)
(1) (imposing an “excise tax . . . on distributors who sell or use motor fuel . . . within
this state”), 48-8-2 (23) (imposing a prepaid local sales tax on retail motor fuel sales);
OCGA §§ 3-4-80 (imposing an “excise tax” on “the first sale, use, or final delivery”
of distilled spirits), 48-8-2 (31) (A) (imposing a local sales tax on the retail sale of
“alcoholic beverages”).
Further, our Supreme Court has recently enforced just this distinction between
“sales” and “excise” taxes. In Ga. Motor Trucking Association v. Ga. Dept. of
Revenue, 301 Ga. 354 (801 SE2d 9) (2017), the Court rejected a trucking industry
representatives’ attack on the collection of local sales taxes on motor fuels. Noting
the longstanding existence of various “excise” taxes on motor fuel dating from 1937,
id. at 358-359, citing OCGA § 48-9-3 (a) (1) (2014), as well as the relevant
constitutional provision on motor fuel, see Ga. Const. of 1983, Art. III, Sec. IX, Par.
VI (b) (adopted at Ga. L. 1960, pp. 1297, §1), the Court concluded that “‘motor fuel
taxes’ are limited to per-gallon taxes on distributors of motor fuel, and do not include
sales and use taxes imposed on retail sales of motor fuels.” (Emphasis supplied.) Id.
at 354; see also 366 (in “historical context,” the motor fuel provision has always
12
referred to “per-gallon taxes imposed on distributors” in OCGA § 48-9-3, and not
“local sales and use taxes”).
Given these statutory and appellate authorities, we conclude that the superior
court did not err when it determined that no part of the Act, including OCGA § 40-1-
168, bars the imposition and collection of state or local-option sales taxes from for-
hire car services such as Executive for the rental of its limousines or cars. Rather, the
plain language of the Act relieves Executive of the duty only to collect and remit
“excise, license and occupation” tax, but not state or local-option sales tax. Here, “the
interpretation of the administrative agency correctly reflects the plain language of the
statute and comports with the legislative intent.” Handel, 284 Ga. at 553. We
therefore affirm the trial court’s judgment on the matter.
2. Executive also contends that even if limousine services are “retail sales,” its
drivers offer “professional” and “personal” services exempted from sales tax under
OCGA § 48-8-3 (22). We do not agree.
OCGA § 48-8-3 (22) provides an exemption from sales tax for “[p]rofessional,
insurance, or personal service transactions which involve sales as inconsequential
elements for which no separate charges are made[.]” The Limousine Carrier Act itself
does not define or refer to for-hire car services as “professional” or “personal”
13
services, however, and Executive has not cited any other Georgia statute, rule, or
court decision that recognizes for-hire drivers as “professionals.” Compare OCGA §§
43-3-1 et seq., 43-10-1 et seq., 43-23-1 et seq., and 43-26-1 et seq. (establishing
standards, including professional licensing boards, for workers including accountants,
barbers and cosmetologists, landscape architects, and nurses). Specific rules also
apply to state contracts for “professional services,” including architecture, registered
interior design, engineering, and land surveying. See OCGA § 50-22-2 (4) (defining
“professional services”).
By contrast, for-hire drivers and limousine carriers are not identified as
“professionals” in any of the statutes regulating these professions or in the Limousine
Carriers Act itself. Rather, for-hire drivers are controlled under a separate, non-
professional statutory and regulatory scheme. See OCGA § 40-5-39 (a), (b), (e) (a for-
hire driver must have either a license endorsement issued by the Department of Driver
Services or a private background check and certification, including submission to
fingerprinting). Nor can we understand how the provision of a driver and vehicle to
a customer, which constitutes a retail sale, is “an inconsequential element” of the ride
“for which no separate charges are made[.]” OCGA § 48-8-3 (22). Instead, such
14
provision of transportation is at the core of what a for-hire driver and service sells to
its customers.
For all these reasons, we affirm the trial court’s grant of summary judgment to
the Department on Executive’s petition for a refund and declaration.
Judgment affirmed. Senior Appellate Judge Herbert E. Phipps concurs.
McFadden, P. J., dissents.
15
In the Court of Appeals of Georgia
A21A0955. EXECUTIVE LIMOUSINE TRANSPORTATION,
INC. v. CURRY.
MCFADDEN, Presiding Judge, dissenting.
Executive Limousine Transportation, Inc. argues that it is entitled to a refund
of local sales taxes because OCGA § 40-1-168, a provision of Title 40’s Georgia
Limousine Carrier Act, prohibits such taxes. But the Georgia Tax Tribunal lacks
jurisdiction “to hear any matter arising under . . . Title 40.” OCGA § 50-13A-9 (c).
In resolving Executive’s argument, the tribunal violated the statute defining its
16
jurisdiction and acted in excess of its statutory authority. The superior court should
have reversed the tribunal. OCGA § 50-13A-17 (g) (1), (2). Because it did not, we
must reverse the superior court. So I dissent.
“The jurisdiction of administrative agencies is statutorily given and must be
strictly construed to comport with legislative intent.” Dept. of Natural Resources v.
American Cyanamid Co., 239 Ga. 740, 743 (3) (238 SE2d 886) (1977). Here, the
legislature’s intent is explicit. When the General Assembly created the tribunal in
2012, it gave the tribunal jurisdiction over petitions “for relief as set forth in Code
Sections 48-2-18, 48-2-35, 48-2-59, 48-3-1, 48-5-519, 48-6-7, and 48-6-76 and
subparagraph (d) (2) (C) of Code Section 48-7-31;” “actions for declaratory judgment
that . . . involve a rule of the commissioner that is applicable to taxes administered by
the commissioner under Title 48;” and “refund petitions filed pursuant to Code
Section 48-5-342.” OCGA § 50-13A-9 (a), (e). But the General Assembly explicitly
provided that “[t]he tribunal shall not have jurisdiction to hear any matter arising
under Title 3 or Title 40.” OCGA § 50-13A-9 (c). The tribunal thus lacked
jurisdiction to resolve Executive’s claim for a refund under OCGA § 40-1-168, and
the superior court should not have affirmed the tribunal’s decision.
17
It does not matter that neither party raised the issue of the tribunal’s lack of
subject-matter jurisdiction. An agency “cannot exercise power beyond [its]
constitutional or statutory authority [or] adopt a power that is not conferred on it by
the governing statute. Further, state agencies cannot acquire subject matter
jurisdiction through consent, waiver, or estoppel.” 81A C.J.S. States § 235. Although
the parties “did not raise any objection to jurisdiction below, . . . subject matter
jurisdiction has a unique attribute. It can never be waived.” Bolden v. Barton, 278 Ga.
831, 832 (1) (607 SE2d 889) (2005) (emphasis in original; citation and punctuation
omitted); accord Cowart v. Ga. Power Co., 354 Ga. App. 748, 752 (841 SE2d 426)
(2020). Our Supreme Court has long held that “[j]urisdiction of the subject matter of
a suit cannot be conferred by agreement or consent, or be waived or based on an
estoppel of a party to deny that it exists.” Ga. R. R. & B. Co. v. Redwine, 208 Ga. 261,
262-263 (1) (66 SE2d 234) (1951) (citation and punctuation omitted). And when we
determine that a judgment has been rendered in the absence of subject-matter
jurisdiction, we will reverse that judgment, whether or not the issue was raised below.
Lackey v. Lackey, 216 Ga. 177, 178 (1) (115 SE2d 565) (1960).
We have applied the rule, in the context of a workers’ compensation case, that
an administrative body’s lack of subject-matter jurisdiction cannot be waived. In
18
Great American Indem. Co. v. Wimberly, 96 Ga. App. 588 (100 SE2d 593) (1957),
we held that, under provisions of the Workers’ Compensation Act, the State Board
of Workers’ Compensation, as an administrative body, lacked subject matter-
jurisdiction to reconsider a prior award without a timely application for review. Id.
at (1) (a). We then held that because the requirement was jurisdictional, it could not
be waived. Id. at (1) (b). See also Union Pacific R. Co. v. Brotherhood of Locomotive
Engineers & Trainmen Gen. Committee of Adjustment, Central Region, 558 U.S. 67,
81 (III) (A) (130 SCt 584, 175 LE2d 428) (2009) (considering jurisdiction of the
National Railroad Adjustment Board and holding that “[s]ubject-matter jurisdiction
properly comprehended . . . refers to a tribunal’s power to hear a case, a matter that
can never be forfeited or waived.”) (citation and punctuation omitted).
It is true that in Bentley v. Chastain, 242 Ga. 348 (249 SE2d 38) (1978), our
Supreme Court declined to “reach the [appellants’] contention, raised for the first time
on appeal, that the Cobb County Board of Zoning Appeals was without subject matter
jurisdiction to entertain [appellee’s] variance petition.” Id. at 352. We should not rely
on this single sentence to override the longstanding rule in Georgia that subject-
matter jurisdiction can never be waived, a rule that we have applied previously to a
decision of an administrative agency.
19
For these reasons, I would reverse the superior court’s judgment affirming the
judgment of the tax tribunal and direct the superior court to remand for the tax
tribunal to conduct further proceedings not inconsistent with this opinion, whether
that be, for example, dismissing Executive’s claim arising under Title 40 and re-
entering its order as to Executive’s other claims or transferring the entire matter to the
superior court for resolution. See Ga. Const. Art. VI, § I, Para. VIII; OCGA § 50-
13A-9 (a), (b). I would leave the decision of how to proceed to the tax tribunal in the
first instance.
20