Lombard Corp. v. Collins

Ruffin, Judge,

concurring specially.

I fully agree with all that is said in the majority opinion because I, too, believe that as a matter of public policy an interloper should not have the ability to deprive a party of the adjudication of his or her legitimate claims. However, payment of the intangible tax was not the trial court’s sole basis for finding appellant’s claim for declaratory relief moot. In 1996 our Legislature repealed the intangible tax which is being challenged on constitutional grounds in this case. See Ga. L. 1996, p. 117, § 6, effective March 21, 1996. The trial court held that appellant’s claim for declaratory relief was moot not only due to payment of the tax, but also because “ ‘[t]he repeal of Georgia’s intangible tax statute relieved [appellant] from any risk of an intangible tax assessment for the present or any future year. In addition, the payment of the 1994 tax also relieved [appellant] from any risk of future collection of intangible tax already assessed.’ ” Lombard Corp. v. Collins, 224 Ga. App. 282, 283 (480 SE2d 47) (1997). I write separately to address this part of the trial court’s holding.

Although I agree with the trial court that rescission of the tax relieved appellant of numerous risks associated with the present and future enforcement of the tax, the mere repeal of the tax statutes did *657not render all related interests moot.1 In a long line of cases, the United States Supreme Court has held that due process requires a clear and certain remedy for taxes collected in violation of the Constitution. See Reich v. Collins, 513 U. S._(115 SC 547, 130 LE2d 454) (1994). jn fact, the court in Reich found that “ ‘a denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of the United States by compulsion is itself a contravention of the Fourteenth Amendment[.]’ [Cit.]” Id. at 130 LE2d 454, 458. Although due process does not necessarily require a state to provide a refund of such unconstitutional taxes, it does require a state to provide taxpayers with either a predeprivation remedy in which to challenge the imposition of the tax, a postdeprivation regime such as a refund procedure, or a hybrid regime which might incorporate both. See id. at 130 LE2d 454, 459. Accordingly, though it is true that the State may no longer enforce the tax against appellant, it is also true that due process requires that the State provide appellant, and other similarly situated taxpayers, with a scheme to remedy an unconstitutionally exacted tax. Therein lies the issue which breathes life into the appellant’s constitutional challenge here.

Decided November 19, 1997 Reconsideration denied December 4, 1997

As the court found in Reich, Georgia law indeed provides for a postdeprivation remedy in the form of a refund statute. Id. This statute, codified at OCGA § 48-2-35, provides that subject to a limitation period “[a] taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from him under the laws of this state. . . .” OCGA § 48-2-35 (a). Although the Supreme Court of Georgia has held that this refund statute “does not address the situation where the law under which the taxes are assessed and collected is itself subsequently declared to be unconstitutional or otherwise invalid[,]” the decision in which that holding was presented has been vacated by the United States Supreme Court. Reich v. Collins, 262 Ga. 625, 627-628 (2) (422 SE2d 846) (1992), vacated, Reich v. Collins, 509 U. S. 918 (113 SC 3028, 125 LE2d 717) (1993). Accordingly, a viable issue exists concerning whether taxpayers have a right to a refund of intangible taxes paid if the tax is subsequently declared unconstitutional.

I am authorized to state that Judge Eldridge joins in this special concurrence.

Marvin P. Nodvin, for appellant. Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Harold D. Melton, Stefan E. Ritter, Assistant Attorneys General, Jonathan A. Weintraub, for appellees.

For a general discussion concerning the mootness effects of statutory change, see Moore’s Federal Practice, Par. 101.98 (3rd ed. 1997).