concurring specially.
I agree that the taxpayers are not entitled to dismissal of the assessments and return of the seized property, but for a different reason.
The jeopardy assessments and demands for immediate payment of the marijuana and controlled substance excise taxes imposed under OCGA § 48-15-3 and the state and local sales/use taxes were under the authority of OCGA § 48-2-51, as expressly stated in the notices. The notices advised at the bottom of each that if the taxpayers desired to appeal, they should refer to the reverse side of the notices. The reverse sides are not in the record and were not filed in the court below, so we do not know what instructions, if any, were given to the taxpayers by the Department of Revenue.
In any event, taxpayer Birchfield filed a letter, within 30 days of the assessments and demands, “to appeal” the taxes on various grounds. The letter referred to “this appeal” but cited no statute as authority for it. However, in the motion of Birchfield and the corporation to dismiss the tax executions and assessments, they refer to OCGA § 48-2-45 for the procedure they had invoked. That section acknowledged the opportunity for a “written protest” within 30 days; it has since been amended to substitute the word “appeal” for “protest.” Ga. L. 1993, p. 961.
When a taxpayer contests the assessment by a protest or appeal, the authority for which is actually OCGA § 48-2-46, the procedure is governed by that Code section and OCGA § 48-2-47. OCGA § 48-2-46 provides that “In the event the taxpayer desires a conference or hearing, the fact of such desire must be set out in the protest.” The letter of taxpayer Birchfield’s attorney alludes to such only indirectly by stating that “[w]e will show by testimonial evidence, the facts *148upon which our position is based.” The department apparently took that as sufficient, as it set a hearing. According to the statute, the conference or hearing is to be “at a time [the commissioner] shall specify,” and shall be conducted under reasonable rules. The commissioner’s discretion in this procedure “shall be reasonably exercised on all occasions,” concludes this Code section. By his deputy, he notified the taxpayers’ attorney that the APA would be followed for the purpose of the hearing, thus choosing it instead of a separate set of rules for the conduct of the hearing. OCGA § 50-13-13 sets out the rules for hearing contested cases.
Decided May 19, 1994 Reconsideration denied July 27, 1994. Michael J. Bowers, Attorney General, Daniel M. Formby, Senior Assistant Attorney General, Harold D. Melton, Assistant Attorney General, for appellant.OCGA § 48-2-46 is the procedure which the taxpayer invoked and which was followed in this case. Although the motion to dismiss, and the appeal as it has wended its way here, claim a violation of OCGA § 50-13-12, that procedure was never properly invoked. OCGA § 50-13-12 (a) requires the Department to hold a hearing in accordance with the scheme set out therein “upon written demand” for a hearing by the taxpayer. Subsection (b) sets this mechanism into motion, which mechanism was adopted as part of the Administrative Procedure Act especially and exclusively for the Department of Revenue, when the taxpayer files a timely “demand for a hearing.” The taxpayers did not do that in this case, by their own admission. They (to the extent the letter of protest represented both the taxpayers involved here) chose the route provided by OCGA §§ 48-2-45; 48-2-46; and 48-2-47, rather than by OCGA § 50-13-12.
It is noted that subsection (d) of OCGA § 50-13-12 acknowledges that there are other avenues for pursuing taxpayer remedies. Also, it provides for judicial review under OCGA § 50-13-19 after the administrative procedure provided in OCGA § 50-13-12 is exhausted, just as the same judicial review is available to the aggrieved taxpayer after the final assessment is determined under OCGA § 48-2-47. Subsection (a) of OCGA § 50-13-19 embraces “all administrative remedies.”
Appellees did not show that the time of the hearing provided by the department in accordance with OCGA § 48-2-46 violated their rights under it, and since timeliness of the hearing was the sole basis for the court’s ruling below, I agree that it must be reversed.
I do not reach the question of whether the time period for a hearing which is set out in OCGA § 50-13-12 (b) is directory or mandatory.
*149David S. Lipscomb, for appellees.