Blackmon v. Premium Oil Stations, Inc.
198 S.E.2d 900
Ga. Ct. App.
1973
Check Treatment

BLACKMON v. PREMIUM OIL STATIONS, INC.

47932

Court of Appeals of Georgia

April 25, 1973

Rehearing Denied June 6, 1973

129 Ga. App. 169 | 198 S.E.2d 900

Argued February 6, 1973

сlaim upon which relief can be granted, but the pleadings must affirmatively show that no claim in fact existed.” Such аffirmative requisite does not exist here where the statement attached to the summons shows that plaintiff clаims defendant owes plaintiff a balance on an account. Additionally, our Supreme Court in

quoted with aрproval the following from 2A Moore, Federal Practice, 1706, § 8.13: “A motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complаint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” This view wаs reiterated in
.

5. Plaintiff was entitled to a default judgment. Code Ann. § 81A-155 (a).

Judgment affirmed. Hall, P. J., and Evans, J., concur.

ARGUED MAY 8, 1973 — DECIDED JUNE 1, 1973.

L. C. Chritzberg, for appellant.

47932. BLACKMON v. PREMIUM OIL STATIONS, INC.

BELL, Chief Judge. Plaintiff sought a refund of sales tax paid on gasoline it sold between April, 1967 and September, 1970. The theory of recovery was based on the holding in

. The complaint alleged that the claim for refund for these taxes was timely filed. The State Revenue Commissioner, as a part of his answer, pleaded thаt the recovery of any refund for the taxable periods of April, 1967 through July, 1968, was barred by the statute of limitation. ‍‌‌‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​​‌​​​​​‌‌‌​‌​‌​‌‍Plaintiff‘s motion for summary judgment was granted. The court‘s judgment, in addition to granting the amount claimed in the complaint, alsо stated “That the defendant . . . is estopped to assert any statute of limitation relative to any portiоn of the amount sued for.” Held:

1. (a) The defendant revenue commissioner was not estopped from relying upon the three year limitation period for tax refund claims prescribed by Code Ann. § 92-8436 (b);

. There is no merit in the argument that the рlaintiff was precluded from filing a timely claim within the statutory period because the commissioner had not supplied a refund form in reply to the company‘s request. Even if the state could be estopped, which it сannot be under
and numerous other cases, the commissioner‘s failure to supply the refund forms under the facts here would not constitute an estoppel. It was shown that these forms were available to the public ‍‌‌‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​​‌​​​​​‌‌‌​‌​‌​‌‍at the defendant‘s office in Columbus, plaintiff‘s residence, as well as Atlanta. The plaintiff cannot assert that the delay in obtaining a refund form was the commissioner‘s fault.

The trial court erred in holding that the defendant was еstopped from asserting the statutory bar as to part of the claim.

(b) Neither is there merit in the assertion thаt the revenue commissioner has been guilty of a fraudulent statement of facts and that the period of limitation should accordingly run only from the time of the discovery of the fraud. This claim of fraud is based upon an interрretation of law pronounced by the commissioner prior to the Thoni decision. Misrepresentations аs to a question of law cannot constitute remediable fraud.

.

2. (a) Only the party who actually paid the ‍‌‌‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​​‌​​​​​‌‌‌​‌​‌​‌‍taxes is entitled to claim a refund.

. While plaintiff supported its motion by evidence that it was a taxpayer and not a collector, there is other evidence in the record which would authorize a jury to find to the сontrary. Thus, a disputed issue of material fact is presented. Plaintiff argues that the cases of
and
supports thе proposition that it was a taxpayer as a matter of law. These cases were decided under the original Georgia Retailers and Consumers Use Tax Act (Ga. L. 1951, p. 360; Code Ann. § 92-3401a et seq.). Thus Bear‘s Den and Jewell no longer represent the law as they were decided prior to the 1960 amendment which imposed the sales tax primarily on the purchaser. Ga. L. 1960, pp. 153, 154 (Code Ann. § 92-3402a (a));
.

(b) The evidence shows that through this entire period every sales tax filed by the claimant also contained a claim fоr the ‍‌‌‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​​‌​​​​​‌‌‌​‌​‌​‌‍dealer‘s compensation for collecting the tax. Compensation granted a dealer is not allowable for one‘s own tax liability.

, supra. Certainly, this would support a finding by the jury that this was an admission of the claimant that he was merely a collector and not a taxpayer.

(c) A jury issue is presented as to whether plaintiff was a taxpayer by the appearance in evidence of the fact that the claimant‘s gas pumps clearly displayed a statement that the price “includes 10-1/2 cents on each gallon plus 3% sales tax” or that “all taxes are included.”

(d) Still another jury question is presented by the complicated formulа under which both sides admit the taxes were computed. This formula is subject to the construction urged by the state thаt the claimant, through this formula, did in fact collect the sales taxes from customers. The jury would be so authorizеd to find. The trial judge erred in granting summary judgment.

Judgment reversed. Hall, P. J., Eberhardt, P. J., Pannell, Quillian, ‍‌‌‌‌​​‌‌​​‌​‌‌​‌​‌​​​‌‌​‌‌​​‌‌​​​‌​​​​​‌‌‌​‌​‌​‌‍Evans, Clark and Stolz, JJ., concur. Deen, J., dissents.

ARGUED FEBRUARY 6, 1973 — DECIDED APRIL 25, 1973 — REHEARING DENIED JUNE 6, 1973.

Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Richard L. Chambers, Timothy J. Sweeney, Assistant Attornеys General, for appellant.

Willis & Murrah, W. Stanford Willis, for appellee.

DEEN, Judge, dissenting. In my opinion the evidence demands a finding that appellee is entitled to a refund of the tax paid in error in compliance with the directive of the State Revenue Commissioner, as the stаte was not entitled thereto under the decision in

. I further am convinced by the evidence that there was no price change after the commissioner demanded and received the excess tax, and that sаles tax was not added to retail sale price, that the taxpayer did not “collect” the excess tax from customers, but advanced this sum out of what would otherwise have been its profits. I therefore disagree with the second division of the opinion.