*1 144 appellee’s present filing Upon action, action that Oklahoma party advisory opinion seeking as to into one “an converted Royal Lepage prevail litigation. ...” the merits such would on Svcs, App. Spalding Partners, Ltd., 192 Ga. Estate Atlanta v.
Real (1) declaratory proce judgment 284, 285 The situation, grant inappropriate such a and trial court’s dure is appellee nuga summary judgment must be vacated thus tory. 405) (1993). Ltd., Sites, v. Home 645 Cf. Revelle Judgment Birdsong, Blackburn, J., J., P. concur. vacated. and July 12, 1994 Decided July 27, Reconsideration Rhyne, Rhyne, appellants. Jr., & John W. Womack Douglas Mabry, Aholt, Brooks, & F. Beth Chambers, McClelland Singletary, appellee. L. al.
A94A0429.COLLINS BIRCHFIELD et Judge. Andrews, discretionary application of the State Revenue following Septem- arising Commissioner, Collins, out of the facts. illegal 1990, Birchfield, & Inc. were involved ber manufacture of Birchfield methamphetamine. Birchfield was arrested and found manufacturing, guilty possessing, knowingly and federal court of methamphetamine. conspiring knowingly manufacture imposed subsequently three revenue commissioner pursuant jeopardy § to OCGA assessments Birchfield. company. marijuana $2,833,000 his Those were a assessments imposed 10, 1990; tax, on controlled substances excise October imposed marijuana $100,000 tax on controlled substances excise Sep- imposed September 1990; $54,000 tax, 26, and a use sales and (the 28, Tax on tember 1990. See also OCGA 48-15-1 Excise Mari- Substances) (Sales juana and Use and Controlled Taxes). appealed the assess- Pursuant to OCGA Birchfield days. receipt A ments within in the record shows return contained depart- that Birchfield’s demand was received the revenue 24, ment on 1990. October receipt appeal,
Following 1990, on December a revenue pre-hearing officer advised Birchfield that a conference would officer’s letter stated that be scheduled you to have the scheduled imme- “should diately, wish possible.”
please let me know as Birchfield soon did not request. January 18, 1991, such a On he a motion make filed to dis- assessments, miss the since no had administrative been held his demand. April 14, 1991, On June held. administrative On *2 hearing 10, 1992, the revenue officer the and affirmed May appealed superior 8, 1992, the assessments. On Birchfield the pursuant § OCGA court 50-13-19. August superior 6, 1993,
On court held that failure to days 30 administrative within of Birchfield’s demand required department’s that the tax be assessments dismissed that property by department be seized returned. discretionary application respect with to this commissioner’s decision. argues superior dismissing Collins that the court erred in the as- agency upheld clearly finding sessments, since the must be unless er- (h) may provides § OCGA roneous. modify 50-13-19 that a court reverse or agency rights appellant an if decision substantial of the have prejudiced upon been unlawful the administrative was because decision made
procedure.
Substantively,
argues
provisions
§
Collins
of
OCGA 50-
(b)
(b)
directory
pro-
are
13-12
taxpayer
aggrieved
vides that an
within 30
poned by
file his
for
demand
days
injury,
causing
post-
the act
after
and that “unless
days
consent,
mutual
shall be held
30
receipt by
after
Collins
Revenue
of
of the demand therefor.”
646)
(1948),
Spencer,
cites
v.
Ga.
O’Neal
203
588
SE2d
for
proposition
doing
thing
‘[w]here
of
a statute directs the
any
restraining
negative
doing
time,
in a certain
without
words
of
provision
directory,
generally
afterwards,
as to
it
time is
and not a
authority;
injury appears
limitation
have
and in
such
where no
performed
resulted,
fact that
the time lim-
the act was
”
County
Hopping
will
it
v. Cobb
ited
not render
invalid.’ See also
(2) (152
356) (1966);
Assn.,
v.
Fair
222
706
SE2d
McLendon
Ga.
(2) (55
119) (1949); compare
Everett, 205
Hancock
Ga. 713
SE2d
(1) (431
County
App.
Dickens,
Bd.
Tax Assessors v.
208
742
Ga.
735) SE2d
proper
argues
Birchfield
that the trial
reversal was
since
agency
upon
procedure.
support
the
his
was based
unlawful
decision
position,
App.
State,
Henderson v.
542
he cites
Ga.
666) (1992),
209) (1993);
aff’d
same treatment. by protest commissioner is filed no written within 30 days assessment, the tax shall the notice of the date of position. support final, for his as further become necessary distinguish here the tax statute at issue to first It is drug levied as here were statute. The assessments from the part forfeiture (OCGA seq.). Georgia § 48-15-1 et Revenue Code of the Public drug provides excise that the administration § 48-15-9 OCGA general governing governed the administra- laws tax should tion of taxes. These ture provisions from the criminal forfei- are provisions these The distinction between OCGA 16-13-49. (a) illustrated statutes is information others, may drug revealed to tax returns not be contained person may used such information be
nor hearing procedures proceeding. in Henderson Al- criminal required property specifically and re- forfeitures are those ford quire within 60 unless continued must be held good cause. Regardless drug here is the issue forfeiture required to hold the whether the revenue Birchfield’s App. Fayssoux, request Ga. Hardison v. within 30 *3 397) (1983) inquiry. In Har is instructive to our provides dison, the statute at issue was suspended person is to be that his driver’s license a who is notified days receiving may request hearing written a and within 30 pro request hearing, shall hold a for a the Georgia Chapter Proce Title the Administrative vided in 13 of and fell in Hardison rescheduled dure Act. The outside had been Fayssoux 30-day period. the contended that because of the timing section, of the “shall” was used the the word 30-day mandatory within the and that the failure to hold the period charges. dismissal of the warranted “ ‘ordinary significa- recognized in its Hardison court The very ought command, to be and the context tion “shall” is a word of permis- strongly persuasive mere is softened into before that word ” (2) Ring e.g., Williams, 400; see, v. sion.’ Id. at (1989); Nonetheless, the court OCGA 1-3-3 injury ab- the in the of to defendant noted that absence comply penalty ‘shall’ de- sence of a for failure to simple futurity The Hardison at 400. rather than a command.” *4 “appeal” “pro- it has since been amended to for substitute word p. 1993, test.” Ga. L. 961. taxpayer by protest appeal,
When a contests a or the assessment authority actually procedure § 48-2-46, for the governed by which is OCGA is § § that Code section OCGA 48-2-47. taxpayer OCGA 48-2- 46 hearing, “In event that desires a conference or protest.” in The fact such desire must be set out only indirectly taxpayer attorney letter of to such Birchfield’s alludes by stating by evidence, “[w]e will show testimonial facts apparently department upon position is took our based.” According hearing. sufficient, it a as as set [the commissioner] a time or is to “at conference specify,” commis- be conducted under reasonable rules. The
and shall reasonably procedure “shall be exercised on sioner’s discretion this By deputy, occasions,” his he notified concludes this Code section. all pur- attorney taxpayers’ the APA would be followed for hearing, choosing pose of a set of rules thus it instead hearing. § sets out the rules for for conduct contested cases. procedure taxpayer § invoked dismiss, 48-2-46 is the OCGA Although the motion to and which was followed this case. way here, it its claim a violation of and the OCGA has wended properly procedure 50-13-12, § was never invoked. OCGA (a) Department requires § a accor- 50-13-12 “upon out therein written demand” a dance with scheme set (b) by taxpayer. this mechanism into Subsection sets mo- adopted part tion, of the Administrative which mechanism was exclusively especially Act of Reve- Procedure nue, timely hearing.” taxpayer for a when the files “demand They taxpayers did their own admission. not do that (to protest represented taxpayers in- letter both the extent the here) provided by 48-2-45; 48-2-46; §§ volved chose the route OCGA § than OCGA 50-13-12. rather (d) acknowledges § It of OCGA 50-13-12 is noted that subsection pursuing Also, remedies. it that there are provides avenues for other judicial § for procedure provided review under OCGA 50-13-19 after the admin- just exhausted, in OCGA 50-13-12 is istrative judicial aggrieved taxpayer as the is available to the same review under the final assessment is determined OCGA 48-2-47. Subsec- (a) administrative remedies.” tion 50-13-19 embraces “all provided by
Appellees not that the time of the did show the rights accordance with OCGA violated their it, since timeliness of the was the sole basis
under agree ruling below, I that it must be reversed. question period I of whether the time for hear- do reach (b) directory ing which is out in OCGA 50-13-12 or set May Decided July 27, 1994. Reconsideration Attorney Formby, Bowers, General, J. Daniel M. Senior Michael Attorney Attorney Melton, General, D. Assistant Harold Assistant appellant. General, for *5 Lipscomb, appellees.
David S. ASSOCIATES, v. WESTSIDE INC. A94A0577.McCUMBERS 331) Judge Harold R. Banke. brought by appeal action
This arises from a breach contract appellee brokerage firm, Associates, Inc., a real estate Westside developer building McCumbers, Kenneth a real estate contractor. purchased April appellant with the 31-acre tract developing appellee it into a residential subdivision. The
intention served as broker for the sale. The
parties executed an addendum to appellee appellant agreed give in the sales contract which the the exclusive to proposed development right to sell all homes built appellee’s exchange equal commission on the for an amount undisputed appellee paid ap- sale. It is this sum to the tract pellant. appellant eventually property lots, divided the into but property. Instead,
never built houses on the because of extensive delays posed development, anticipated pro- significantly higher than costs appellant property sold the to another devel- oper appellee this action to recover lost 1992. The then commenced appellant’s alleged resulting from the breach of the ex- commissions clusive partial summary listing agreement. granted trial court appellee liability, judgment as to the issue of and denied the appellant’s summary judgment. This followed. motion for question
“The of a contract is a of law for the construction Banking Kennedy Co., 13-2-1; court.” see also v. Brand (4) (262 App. 47, Ga. ‘The cardinal rule of applied interpretation as- construction to be certain the intention of the of contracts
parties.’ [Cit.]” Id.
listing
only
case,
In the instant
reasonable construction of the
given
opportu
agreement
appellee
the exclusive
is that the
would
property
nity
appellant
subject
to sell all houses
on the
built
thereby
opportunity
However, before such an
earn commissions.
prop
appellant actually
arise,
on the
could
erty.
had to build houses
appellee
having
That condition not
occurred
any commissions,
court should
never'became entitled to
have
and the trial
summary
appellant.
judgment
McKissick v.
Cf.
(1) (417
&c.,
Roth Communications
listing agreement
assuming
Moreover,
even
that a breach
prove
damages.
appellee
occurred,
Al-
its
would be unable
notes
(c)
Hardison court then cited
statutory
especially
any
requirement,
compliance
on
“substantial
with
public
part
sufficient,
officers,
held
and no
unless
shall be deemed and
of
compliance,
proceeding
expressly
of such
declared void for want
Accordingly,
provided
court held that the
so
law.”
reversing
Department
superior
Safety’s
erred in
of
court
Public
suspend appellee’s
Compare
decision to
license.
Sanchez Walker
County Dept.
Family
Svcs.,
&c.