SOUTHERN TAX CONSULTANTS, INC. v. Scott

Sears, Justice,

dissenting.

I cannot agree with the majority’s conclusion that the appellee tax commissioner has the discretion to require an agent to submit proof of an agency relationship with the property owner before permitting the agent to file a property tax return. The General Assembly has specified not only that an agent may file a real property tax return, OCGA § 48-5-15, but also how the agent will file the return — in the manner set forth in § 48-5-15 and by the oath specified in OCGA § 48-5-19. If the General Assembly had intended for the agent to be required to present proof of an agency relationship, the General Assembly easily could have, and presumably would have, made that an additional requirement for an agent to file a return.

Furthermore, that the General Assembly did not intend for tax commissioners to have the discretion to require proof of agency is demonstrated by OCGA § 48-5-103 (1), which provides that tax *349receivers shall “[r]eceive all returns within the time and manner prescribed by law.” This provision expresses the General Assembly’s intent that the filing of returns will occur as prescribed by specific laws, and not as prescribed by rules created under the discretion of the various tax commissioners. As previously noted, §§ 48-5-15 and 48-5-19 prescribe the manner in which agents shall file returns, and § 48-5-103 (1) requires tax commissioners to receive returns filed according to those laws.

Decided November 25, 1996. Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, for appellant.

The majority errs in relying on OCGA § 48-5-103 (10) to hold that tax commissioners have the discretion to require proof of agency. That Code section provides that “[i]t shall be the duty of the tax receiver to . . . [p]erform all other duties the law requires and which necessarily under the law appertain to the office of tax receiver.” There are several reasons why this statute does not grant tax commissioners the discretion that the majority assigns to it. The first is that such discretion is contrary to the specific laws discussed above. Clearly, § 48-5-103 (10) cannot be read to grant tax commissioners the authority to reject returns filed according to law.

Moreover, § 48-5-103 sets forth “duties” that tax commissioners “shall” perform, and § 48-5-103 (10), in relevant part, requires tax commissioners to perform “duties” “necessarily” required “under the law.” That a tax commissioner’s decision to require proof of agency is not a “duty” “necessarily” required “under the law” is demonstrated by the majority’s concession that no statute requires agents to submit proof of agency and by the majority’s recognition that a tax commissioner’s decision to require proof of agency is merely discretionary. If it is a discretionary decision, then a tax commissioner may elect whether or not to institute the requirement. Such a decision is by definition not a “duty” “necessarily” required “under the law.” In reality, the tax commissioner in this case has decided to require proof of agency because the tax commissioner has deemed it desirable. The tax commissioner does not have such discretion under the law.

Finally, permitting tax commissioners to have such discretion will inevitably lead to inconsistent filing requirements for the public, for, if the decision to require proof of agency is discretionary, nothing would prohibit a tax commissioner from exercising his discretion to require some agents to submit proof of agency while permitting others (perhaps those with whom the tax commissioner is familiar) to file without such proof.

For the foregoing reasons, I dissent to the majority opinion.

*350Jonathan A. Weintraub, Kathleen A. Wasch, Joan F. Roach, for appellee.