Georgia Power Co. v. Cazier
321 Ga. App. 576
| Ga. Ct. App. | 2013Background
- Amy Cazier and others sue Georgia Power for allegedly over-collected sales taxes and fees in a putative class action.
- Georgia Power moved to dismiss for failure to state a claim; trial court denied but granted certificate of immediate review.
- This Court granted interlocutory review; we reverse on Counts 1–2 but affirm on Count 3.
- Counts 1–2 seek refunds from a dealer for allegedly over-collected sales taxes on nuclear construction cost recovery fee and municipal franchise fee.
- Count 3 asserts improper calculation of the municipal franchise fee; Counts 1–2 dismissed as to a direct action against the dealer.
- Question presented includes whether statutes authorize a direct action against a seller and whether the PSC’s rate-making authority is implicated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does OCGA § 48-2-35.1(d) create a direct action against a dealer for a tax refund? | Cazier contends statute allows dealer refunds directly. | Georgia Power argues no direct action; remedy is administrative with the department. | No direct action against dealer; remedy is administrative. |
| Does OCGA § 48-8-72 create a cause of action against sellers for over-collected taxes? | Cazier relies on §48-8-72(a) as creating a consumer action against sellers. | Power argues §48-8-72 implements seller protection, not a separate action. | Not a standalone cause of action against sellers. |
| Has OCGA § 46-2-90 been properly raised or waived on appeal? | Appellees rely on §46-2-90 as a basis for liability. | Argument not properly pleaded/raised; waived on appeal. | Waived; no ruling on merits. |
| Does having decided Counts 1–2 implicate the Public Service Commission’s rate-making authority? | Challenge to calculation/remittance may encroach on PSC. | No intrustion; PSC retains exclusive rate-making power only for overall rates. | Counts relate to calculation method, not rate validity; no PSC intrustion. |
Key Cases Cited
- Scouten v. Amerisave Mtg. Corp., 283 Ga. 72 (Ga. 2008) (motion to dismiss requires plausible claims; pleadings construed in movant's favor)
- Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120 (Ga. App. 2012) (statutory interpretation; plain language governs)
- Aimwell, Inc. v. McLendon Enterprises, 318 Ga. App. 394 (Ga. App. 2012) (in pari materia; harmonize related statutes)
- Cellular One v. Emanuel County, 227 Ga. App. 197 (Ga. App. 1997) (statutory remedies and agency interpretations)
- McCobb v. Clayton County, 309 Ga. App. 217 (Ga. App. 2011) (plain-language interpretation of statutory remedies)
- Adams v. Jewel Cos., 348 N.E.2d 161 (Ill. 1976) (rejects direct action against retailer for tax refunds despite seller’s overcollection)