City of Atlanta v. Hotels.com, L.P.

MELTON, Justice,

dissenting.

We granted certiorari in this case specifically to determine whether the City of Atlanta’s attempt to collect hotel occupancy taxes from Hotels.com was improper because the City failed to exhaust its administrative remedies prior to filing its collection action in superior court. Under the clear law applicable to this case, the City was required to exhaust its administrative remedies, and, as a result, its current collection action is no longer viable. No remand of this case to the trial court can alter this result, and any such remand will simply defer justice by postponing this inevitable ruling. For this reason, I must respectfully dissent.

In 2006, the City filed a lawsuit against Hotels.com seeking a permanent injunction that would require Hotels.com to remit hotel occupancy taxes allegedly owed to the City. At its foundation, this part of the City’s complaint comprised a collection action against Hotels.com for back taxes based bn the rental of hotel rooms.5 In addition to its collection claim, the City also raised a separate count in its complaint asking for a declaratory judgment that Hotels.com was subject to taxation. The City based its lawsuit on its Hotel or Motel Occupancy Tax Ordinance, City of Atlanta Code of Ordinances § 146-76 et seq., which it enacted pursuant to the Enabling Statutes established by the Legislature. See OCGA § 48-13-50 et seq. The City’s ordinance provides that, in order to collect the tax, the City must first estimate the amount of gross receipts or rentals subject to the tax, compute the amount of tax based on this estimate, and give the taxpayer notice of this amount. Then, if the taxpayer fails to make a return and pay the tax, the City must make an estimate of taxable charges for the taxable period and must collect the taxes and penalties based on this assessment.

It is undisputed that, despite the fact that the City chose to initiate a collection action for taxes against Hotels.com under an *238ordinance that it created, the City did not follow any part of the mandatory procedures required by that ordinance prior to filing suit for collection of occupancy taxes. Based on these facts, the trial court dismissed the City’s complaint in its entirety, finding that because the City failed to exhaust its administrative remedies, the trial court had no jurisdiction over the case. The Court of Appeals affirmed this decision, and we granted certiorari specifically to determine whether the City’s ordinance requires the exhaustion of administrative remedies prior to filing suit.

To properly answer this question and review the judgments below, one must consider the two main issues raised in the City’s complaint separately: (1) the collection issue encompassed in claims such as conversion and unjust enrichment and (2) the taxability claims raised in the City’s request for a declaratory judgment that Hotels.com is subject to the hotel occupancy tax.

With regard to the former, the trial court properly dismissed the portion of the City’s complaint seeking to collect the tax. In general, “[a]s long as there is an effective and available administrative remedy, a party is required to pursue that remedy before seeking equitable relief in superior court.” (Footnote omitted.) Cerulean Cos. v. Tiller, 271 Ga. 65, 66 (1) (516 SE2d 522) (1999). In this case, the effective, available, and mandatory administrative remedy is set forth in both the Enabling Statutes and the City’s ordinance. The Enabling Statute states that the City “shall make an estimate [of the taxes due and] shall assess and collect the taxes, interest, and penalties, as accrued, on the basis of the assessments.” OCGA § 48-13-53.3 (b). The ordinance mandates that, to collect the tax, the City shall estimate the gross receipts or total room rentals subject to the tax, shall compute the tax based on this estimate, and shall give notice of this tax to the taxpayer. City Code § 146-87. It is undisputed that the City took none of these mandatory steps.6 As a result, the City’s collection action was properly dismissed.7

On the other hand, the City also included in its complaint a request for a declaratory judgment that Hotels.com was subject to the occupancy tax. This claim may not be subject to the requirement for exhaustion of administrative remedies. Even if it is not, however, it would only mean that the trial court erred in dismissing the City’s case in its entirety instead of dismissing only the claims involving *239collection. In any event, all of the City’s current collection claims are no longer tenable and should stand properly dismissed.

The majority, however, remands the entirety of this case and gives continued viability to the City’s collection claims by avoiding a pivotal question: whether the collection claims can survive on the coattails of the declaratory judgment count of the complaint even though the collection action was the sole basis for the trial court’s ruling and the sole focus of the questions certified for appeal by this Court. This Court does a disservice to the parties by remanding and prolonging this case without informing the parties that the City will not be able to pursue its pending collection claims under any set of circumstances, regardless of the ultimate outcome of the declaratory action.8 The parties should be informed that any effort to collect the tax in this pending action is terminally flawed for the reasons set forth above. At best, the City would be able to utilize a favorable ruling in its declaratory judgment action as a legal basis to begin anew a collection case pursuant to the procedures set forth in the law. The current collection case, however, is legally defunct, and it serves no purpose to sidestep this conclusion.

Without any citation to authority, the majority states: “In our view, the City cannot be required to exhaust an administrative process as a prerequisite to obtaining a determination that the ordinance prescribing the process even applies in the first place.” In other words, the majority assumes that the question of taxability is a threshold issue which must be decided prior to a determination of whether a collection action has been properly pursued. This assumption is wrong. Just as it is unnecessary to determine whether a legal action is tenable prior to dismissing it when it has been filed in the wrong court, it is unnecessary in this case to determine that Hotels.com is taxable prior to dismissing the City’s improperly pursued collection action.

Respectfully, I believe that the majority’s analysis fundamentally mischaracterizes the nature of administrative actions to collect a tax. The majority’s reasoning is based on the belief that taxability cannot be considered in the context of an administrative action. This is not true. Taxability can be addressed in the context of these required administrative procedures, since issues regarding taxability and the amount of taxes due are the hallmark of tax collection cases in general. In fact, this Court has considered taxability questions in *240just such a context. See Ga. Dept, of Revenue v. Owens Corning, 283 Ga. 489 (660 SE2d 719) (2008) (considering scope of exemption in OCGA § 48-8-3 (34) (A)). See also Ethicon, Inc. v. Ga. Dept, of Revenue, 295 Ga. App. 513 (672 SE2d 492) (2009).

Decided March 23, 2009 — Reconsideration denied April 9, 2009. Pope, McGlamry, Kilpatrick & Morrison, Charles N. Pope, Neal K. Pope, Michael L. McGlamry, R. Timothy Morrison, Wade H. Tomlinson III, William U. Norwood III, Bryan, Cave, Powell & Goldstein, Robert M. Travis, L. Lin Wood, Jr., John R. Bielma, Jr., for appellant. Bondurant, Mixson & Elmore, Emmet J. Bondurant, Jones Day, Edward K. Smith, Robin A. Schmahl, James P. Karen, Deborah S. Sloan, Morrison & Foerster, David F. McDoweel, Skadden, Arps, Slate, Meagher & Flom, Karen L. Valihura, Darrel J. Hieber, McDer-mott, Will & Emery, Elizabeth B. Herrington, Katten, Muchin & Rosenman, David J. Stagman, Carol L. Morris, for appellees. Lamar, Archer & Cofrin, Robert C. Lamar, David W. Davenport, Vroon & Crongeyer, John W. Crongeyer, Walter J. Gordon, Sr., Archer & Lovell, David G. Archer, Kevin A. Ross, Brinson, Askew, Berry, Seigler & Richardson, Robert M. Brinson, Norman S. Fletcher, J. Anderson Davis, Samuel L. Lucas, Ansel F. Beacham III, Susan J. Moore, Ted C. Baggett, James F. Grubiak, Michele L. NeSmith, Holland & Knight, Charles S. Johnson III, Raymond P. Carpenter, amici curiae.

Therefore, without supporting authority, without any compelling reason, and contrary to prior precedent, the majority wrongly refuses to determine that the City’s collection claims are procedurally and fatally flawed.

I am authorized to state that Justice Hines joins in this dissent.

In its efforts to collect the tax, the City goes so far as to contend that Hotels.com converted the money owed or was unjustly enriched by retaining it.

The fact that the ordinance indicates that a tax collection action may be filed within three years of the date on which the hotel tax becomes due or delinquent does not change this result, as the remainder of the ordinance clearly implies that the estimate, assessment, and notice requirements must first be satisfied.

I would also find that the City’s collection action is not one of those “rare instances” in which the requirement of exhaustion of administrative remedies should be relaxed. See Moss v. Central State Hosp., 255 Ga. 403, 404 (339 SE2d 226) (1986).

Contrary to the majority, this remains true even if the trial court stayed the City’s action. The only purpose for any such stay would be to allow the City to restart a collection action following the appropriate procedures because its current collection action is fatally flawed for failure to exhaust administrative remedies. Therefore, whether the collection action is stayed or dismissed is simply a distinction without a difference in this case.