GEORGIA POWER COMPANY v. MONROE COUNTY et al.
A06A1951
Court of Appeals of Georgia
March 30, 2007
644 SE2d 882
This case had its genesis when Georgia Power Company (“Georgia Power“) filed a 2003 ad valorem tax return, including its estimate of its operating property‘s fair market value, with the Commissioner of the State Board of Equalization. The State Commissioner reviewed and approved this valuation, apportioned it among the various counties in which Georgia Power owns such property, and proposed an assessment ratio. Pursuant to its power to make a “final assessment” under
On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).
The relevant facts are not in dispute. In compliance with its duty under
On the basis of its consultant‘s report, however, the Monroe Board raised the fair market value of Georgia Power‘s Monroe County property from $229 million to $701 million, and also raised the assessment ratio to 40 percent.1 As a result, Monroe County assessed the value of Georgia Power‘s property at $280 million, more than three times that assessed by the State Commissioner. The
Georgia Power objected on the ground that even if counties had the power to raise assessment ratios, county boards are not empowered to change the State Commissioner‘s determination of fair market value, which would undermine the widely accepted practice of assessing utility properties as a whole at the state level. Georgia Power then brought this action seeking to bar the Monroe Board from substituting its own fair market value for the State Commissioner‘s in the course of making its “final assessment.” Both parties moved for summary judgment, which the trial court granted to the Monroe Board.
The Monroe Board asserts that it has the authority to reset not only the assessment ratio imposed on Georgia Power‘s Monroe County property, but also the fair market value of that property as appraised by the State Commissioner. In support of this assertion, the Monroe Board cites
As we have already noted, the process of taxation of a public utility begins when the utility files a sworn statement of its property‘s value with the State Board. Under
shall carefully examine the proposed assessments of each class of taxpayers or property and the digest of proposed assessments as a whole to determine that they are reasonably apportioned among the several tax jurisdictions and reasonably uniform with the values set on other classes of property throughout the state.
In the course of construing the procedural provisions of
We begin our analysis with the “golden rule” of statutory construction, which requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else. When literal reading of the statute produces such an absurdity, the appellate court must then seek to make sense out of the statute, while being faithful to the legislative intent. To define the legislative intent, the court considers the purpose of the statute and its impact on the body of law as a whole. The court also considers the law as it existed before the statute was passed and identifies the mischief sought to be corrected. Finally, when a taxing statute has doubtful meaning, it must be construed liberally in favor of the taxpayer and against the State.
(Citations and punctuation omitted.) Telecom*USA, supra at 363-364 (1).
Monroe County argues that if the General Assembly had desired to grant to county boards only the power to adjust assessment ratios, it could have done so, as when it defined the term in 1988 amendments concerning the examination of county tax digests. See
In the ordinary course, county boards will have the power both to appraise value and to assess tax. See
It does not follow, however, that a county board‘s power to make a “final assessment” includes that of reassessing “fair market value” as to taxpayers who must file returns with the State Commissioner. The very statute on which the Monroe Board relies,
Each member of the county property appraisal staff shall: (1) [m]ake appraisals of the fair market value of all taxable property in the county other than property returned directly to the commissioner; ... (3) [p]repare annual assessments on all taxable property appraised in the county and submit the assessments for approval to the county board of tax assessors; ... [and] (6) [a]ttend hearings of the county board of equalization and provide information to the board regarding the valuation and assessments approved by the county board of tax assessors....
(Emphasis supplied.) Finally, and most important, that part of the Revenue Code concerning the powers of county boards specifies that “[n]othing contained in this part shall apply to those persons who are required to make their returns to the [C]ommissioner.” (Emphasis supplied.)
We conclude that because a county board‘s “final assessment” under
Judgment reversed and case remanded with direction. Johnson, P. J., Miller, Ellington and Mikell, JJ., concur. Adams, J., concurs specially. Barnes, C. J., dissents.
ADAMS, Judge, concurring specially.
I concur in the majority decision. According to the Supreme Court of Georgia,
This ambiguity inherent in
BARNES, Chief Judge, dissenting.
Because I cannot agree that this court is authorized to interpret
(a) There is established a board composed of the commissioner, the state auditor, and the executive director of the State Properties Commission.
(b) The board created by this Code section shall be designated the State Board of Equalization. The chairman and administrative officer of the board shall be the commissioner. Each year, when the digest of assessments proposed by the commissioner is complete, the commissioner shall submit the digest to the State Board of Equalization which shall carefully examine the proposed assessments of each class of taxpayers or property and the digest of proposed assessments as a whole to determine that they are reasonably apportioned among the several tax jurisdictions and reasonably uniform with the values set on other classes of property throughout the state. If the board determines that the proposed assessed values of any one or more of the classes of taxpayers or property or the digest as a whole does not reasonably conform to the values set for other property throughout the state, it shall inquire as to the reason for the lack of conformity and shall adjust and equalize the same by either adding or subtracting a fixed percentage to the class of taxpayer, to the class of property, or to the digest as a whole, as the case may be.
(c) As chairman and chief administrative officer of the board, the commissioner shall furnish to the board all necessary records and files and in this capacity may compel the attendance of witnesses and the production of books and records or other documents as he is empowered to do in the administration of the tax laws. After final approval by the State Board of Equalization of the digest of proposed assessments made by the commissioner and after any adjustments by the board as authorized by this Code section are made, the commissioner shall notify within 30 days each taxpayer in writing of the proposed assessment of its property. At the same time, the commissioner shall notify in writing the board of tax assessors of such county, as outlined in Code Section 48-5-511, of the total proposed assessment of the property located within the county of taxpayers who are required to return their property to the commission. If any such taxpayer notifies the commissioner and the board of tax assessors in any such county of its intent to dispute a portion of the proposed assessment within 20 days after receipt of the notice, the county board of tax assessors shall include in the county digest only the undisputed amount of the assessment, and the taxpayer may challenge the commissioner‘s
proposed assessment in an appeal filed in the Superior Court of Fulton County within 30 days of receipt of the notice. In any such appeal the taxpayer shall have the right of discovery as provided in Chapter 11 of Title 9, the “Georgia Civil Practice Act.” Upon conclusion of the appeal, the taxpayer shall remit to the appropriate counties any additional taxes owed, with interest at the rate provided by law for judgments. Such interest shall accrue from the date the taxes would have been due absent the appeal to the date the additional taxes are remitted. (d) Within 30 days after receipt of the proposed digest of assessments, the county board of tax assessors shall make the final assessment of the property in question and provide notice to the taxpayer. Such notice and any appeal therefrom shall be accomplished as is provided by Code Sections 48-5-306 and 48-5-311. In the event of an appeal, the department shall, upon request of the local board of tax assessors and without any charge or cost therefor, provide the local board of tax assessors with any and all technical assistance available from the resources of the department, including without limitation expert testimony by the employees of the department.
(e) Assessments made in accordance with subsection (d) of this Code section shall be added to the regular county digest at the time the digest is transmitted to the commissioner or at such time as the digest is otherwise required to be compiled.
(f) The notice and appeal procedures provided for in this Code section shall not apply to any decision of the board relating to the assessed value of motor vehicle property.
(g) The provisions of this Code section shall not apply with respect to appeals which are within the jurisdiction of the Ad Valorem Assessment Review Commission.
(Emphasis supplied.)
Even though interpretation is not authorized because the words of the Code section “are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results,” Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999), the majority has interpreted this Code section to eliminate from the text of the Code section each use of the word “proposed” and replaced it with the word “final.” Additionally, the majority‘s interpretation would make meaningless that part of
Further, the majority‘s reading of the Code section was rejected by our Supreme Court in Telecom*USA v. Collins, 260 Ga. 362, 364 (1) (393 SE2d 235) (1990), in which the “utilities argue that ‘proposed assessment’ and the ‘final assessment’ are the same. Thus, they say, the appeals from each of these assessments would necessarily involve the same issues.” Id. The Supreme Court went on to say that,
The stated purpose of the 1988 amendment to
OCGA § 48-2-18 was to extensively revise provisions relating to ad valorem taxation of public utilities; to provide for local assessment; to provide for state assistance in the event of appeals; to change the method of assessment of public utilities; to revise the duties and responsibilities of the State Board of Equalization.(Emphasis supplied.) Ga. L. 1988, p. 1568. The changes in the statute can best be understood as they stand in contrast to the former version of the statute. The 1988 amendments to Title 48 left intact the old provisions relating to the “unit tax” method for public utilities. See
OCGA § 48-5-511 . The amendments did not relieve the Commissioner and the Board of their responsibility to make an assessment of all the utility‘s taxable assets in the State as a unit and apportion it among the counties. CompareOCGA § 48-2-18 (b) and (c) as enacted by Ga. L. 1978, p. 309, § 2, andOCGA § 48-2-18 (b) and (c) as enacted by Ga. L. 1988, p. 1568, § 1. The real “change in the method of assessment” is found inOCGA § 48-2-18 (d) , in which the counties are given thirty days after the receipt of the proposed digest to make a “final assessment” and provide notice to the taxpayer. We find no statutory mention of the county‘s right to make a “final assessment” before the 1988 amendments. We note also that the legislature described assessment issued by the Commissioner as a “proposed assessment” and the assessment by the county board of tax assessors as the “final assessment.” Thus, the plain language of the statute, its caption, and its history, all indicate that the legislature intended for the counties to play a new role in the taxation of utilities. The essence of the counties’ new role is the right to make an assessment that is different from the Commissioner‘s “proposed assessment” and to deal with appeals from its final assessment.
The Supreme Court further held that
[t]he legislative history of the statute also supports this construction. The House Bill which became the existing statute was reported out of the House Ways and Means Committee by substitute without any provision for an appeal from the Board‘s “proposed assessment.” H.B. 337, Ga. House Journal, 1988 Reg. Sess., p. 1330. It made provision, however, for appeals of the county boards in the counties in which the “final assessments” were made. Id. at 1332. The portion of the statute dealing with an appeal from the Board‘s action was inserted as a floor amendment. Id. at 1338. Without that amendment, all appeals would have been from the assessment of the county boards. Additional evidence of the intent of the legislature is contained in the fiscal note provided to the House Ways and Means Committee by the State auditor and the Office of Planning and Budget which describes the bill as one providing for the property of utilities to be “assessed by local taxing jurisdictions (cities, counties and school districts) instead of the Department of Revenue.” Ga. Senate Journal, 1988 Reg. Sess., p. 2099. The fiscal note also recites, “the Department would still be involved in developing proposed assessments; however, the final assessment and collection of the tax would be the responsibility of the local tax jurisdiction. The Bill would also eliminate provisions requiring the State Board of Equalization to hear appeals involving certain tax assessment disputes.”
Telecom*USA v. Collins, supra, 260 Ga. at 365.
Thus, the court concluded that “the county boards of tax assessors may either adopt or modify the Commissioner‘s ‘proposed assessment’ before issuing a ‘final assessment.‘” Telecom*USA v. Collins, supra, 260 Ga. at 365-366. As the majority states, the Supreme Court did not decide specifically whether a county may appropriately modify only the assessment ratio before issuing a final assessment, id. at 366, but given its discussion of the legislative history, the answer to that question is clear.
The majority‘s decision that a county may only modify the assessment ratio is contrary to the plain language of
Additionally, the authorities relied upon by the majority do not lead to the result reached. Although the duties of the appraisers set forth in
In any event, the majority‘s interpretation is contrary to the holding reached in Telecom*USA v. Collins, supra, 260 Ga. at 365:
Thus, the plain language of the statute, its caption, and its history, all indicate that the legislature intended for the counties to play a new role in the taxation of utilities. The essence of the counties’ new role is the right to make an assessment that is different from the Commissioner‘s “proposed assessment” and to deal with appeals from its “final assessment.”
Accordingly, as I would affirm the judgment of the trial court, I must respectfully dissent.
DECIDED MARCH 30, 2007
Haygood, Lynch, Harris, Melton & Watson, Charles B. Haygood, Jr., McNatt & Greene, Hugh B. McNatt, Troutman Sanders, Norman L. Underwood, T. Jerry Jackson, Kevin G. Meeks, Roger S. Reigner, Jr., for appellant.
Bullard, Garcia & Wangerin, Kevin A. Wangerin, for appellees.
Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy Attorney General, Warren R. Calvert, Senior Assistant Attorney General, King & Spalding, Nolan C. Leake, Ranse M. Partin, Alston & Byrd, Mary T. Benton, Timothy J. Peaden, Baker, Donelson, Bearman,
ANDREWS
Presiding Judge