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Class Dismissed! Georgia Court of Appeals Dismisses Sales Tax Refund Action Against Utility Company

By Jessica Kerner and Timothy Gustafson

The Georgia Court of Appeals dismissed a customer class action lawsuit seeking a sales tax ref

April 16, 2013

By Jessica Kerner and Timothy Gustafson

The Georgia Court of Appeals dismissed a customer class action lawsuit seeking a sales tax refund from a utility company, holding that the applicable statutory provisions for claiming a refund of sales taxes did not authorize the customers to bring a direct refund cause of action against the seller. The utility company had charged its customers a nuclear power recovery fee and a municipal franchise fee, and then included the amount of these charges in the sales tax base. The customers did not challenge the utility company’s authority to impose the fees, but they alleged that the fees are not subject to Georgia sales tax and brought a class action against the utility company under two statutory refund provisions. The court, however, held that neither statute created a cause of action against the seller. The court stated that the “unambiguous language” of the first statute at issue provided for a specific remedy; namely, that a person who has erroneously paid sales tax may either request a refund directly from the dealer or file a refund claim with the commissioner. If the latter course of action failed, the court explained, the person could bring an action against the department—not the dealer. The second statute at issue had been enacted to authorize Georgia’s entrance into the Streamlined Sales and Use Tax Agreement with other states. The court noted that the Agreement required member states whose laws allow consumers to seek tax refunds from sellers to adopt seller-protection provisions, including the provision that a cause of action against a seller for over-collected sales tax does not accrue until a purchaser has provided written notice to the seller. The court held that this statute was intended only to adopt such seller-protection provisions and did not create a new cause of action against a seller. Georgia Power Company v. Cazier et al. ___ S.E. 2d­­­___, 2013 WL 1277820 (Ga. Ct. App. 2013).

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