Lead Opinion
At issue in this case is the constitutionality of an ordinance adopted by the City of Dunwoody imposing an occupational tax on attorneys who maintain an office and practice law in the city.
Appellants Robert A. Moss and Jeffrey R Rothenberg, individually and d/b/a Moss & Rothenberg, are lawyers who maintain an office for the practice of law in the City of Dunwoody. In April 2010, appellants filed a complaint for injunctive and declaratory relief in
In an order entered May 16, 2012, the trial court found the ordinance constitutional as applied to appellants and set a hearing date to address the City’s claims for money judgment and attorney fees.
1. Local governments have long been permitted to impose and enforce occupational taxes on lawyers so long as the tax is merely a means to generate revenue and does not act as a precondition or license for engaging in the practice of law, rendering it a regulatory fee.
The question of whether an ordinance allowing for an occupation tax on attorneys impermissibly acts as a precondition or license for
In the instant case, the challenged ordinance requires attorneys with offices in the City of Dunwoody to annually register their business location with the City, obtain an occupation tax certificate,
Appellants argue that the ordinance’s registration requirement is itself a precondition to their ability to practice law which improperly results in the issuance of a business license which can be suspended or revoked. We disagree. Registration assists the City with the assessment and collection of taxes due. While the ordinance provides for the issuance of a tax certificate upon registration, it does not authorize the City to withhold a certificate from any attorney who
For the same reason, we find unpersuasive appellants’ argument that the ordinance threatens (and thus impedes) their ability to practice law simply by empowering the City to notify the State Bar should they fail to comply with its provisions. As previously noted, nothing in the ordinance gives the City the power to suspend or revoke appellants’ ability to practice law — a power left up to the State Bar and regulating authorities. See Ga. Const. of 1983, Art. III, Sec. VI, Par. IV; OCGA § 15-19-30 et seq. Thus, we conclude that any “impediments” resulting from action taken by the State Bar in response to such notice would be attributable to the proper regulating authorities and not the ordinance.
Finally, appellants contend that the ordinance is invalid because efforts by the City to ascertain the correct amount of tax due and/or to recover unpaid taxes could impede their ability to practice law. We have previously held, however, that “an attorney may be required to pay a municipal revenue tax, where such tax is enforced by civil penalties only, without such tax regulating the practice of law.” Gleason,
2. Appellants also assert that the ordinance is arbitrary and capricious and violates the equal protection clauses of the state and federal constitutions. See Ga. Const. of 1983, Art. I, Sec. I, Par. II. Specifically, appellants argue that the ordinance violates the equal protection clauses both by not applying uniformly to all attorneys practicing law in Georgia and by charging those attorneys to whom it applies the highest percentage rate of their gross revenues. Because the right to practice law is not a fundamental right and attorneys are not a suspect class, a rational basis test is the appropriate standard of review for appellants’ claims. See Pawnmart, Inc. v. Gwinnett County,
As noted by the trial court, the City’s occupation tax pays for a variety of city services that benefit all citizens within the city, including attorneys. We find it reasonable for the City to require attorneys with offices inside city limits to help pay for city services from which they benefit. Further, as all attorneys subject to the ordinance are taxed uniformly under its provisions, this Court finds that the rate charged is valid. See Coolidge v. Mayor & Alderman of Savannah,
Judgment affirmed.
Notes
The City of Dunwoody was incorporated and commenced operations on December 1, 2008, adopting its code of ordinances that same date, including the occupational tax ordinance at issue in this case. The ordinance subsequently was amended in September 2010.
Before the hearing to determine sums due, appellants sought to appeal the May 16 order to this Court. However, this Court dismissed the appeal for failure to follow interlocutory procedures, and the case was returned to the trial court.
Appellants objected to the timeliness of this amendment but withdrew their objection at the hearing.
“[A] license confers a privilege and makes the doing of something legal, which, if done without it, would be illegal.” Silverman v. Mayor &c. of Savannah,
Although the original ordinance required that the certificate be displayed, it contained no mechanism for punishment for noncompliance, and the amended ordinance omits this requirement entirely.
At the attorney’s election, the tax due is either a function of the gross receipts for the calendar year just concluded or $400. These alternative methods for calculating the tax due are authorized by State law. See OCGA § 48-13-10 (a), (g).
We find no merit to appellants’ argument that the mere possibility an attorney might ultimately be held in contempt of court for ignoring a court order enforcing a valid occupation tax ordinance such as this one serves to either precondition or regulate the practice of law. Compare Barnes, supra at 450.
We likewise disagree that language in the amended ordinance specifying that “the continued practice of law” would not be penalized by “fining, imprisoning or criminalizing noncompliance” eliminates the City’s ability to impose the delinquency penalty and interest on late payments made by attorneys.
Concurrence Opinion
concurring specially.
Although I concur in the j udgment of the maj ority opinion, I write separately to stress that the factors it espouses for determining whether an ordinance inappropriately regulates the practice of law are neither exhaustive nor conclusive. These factors — the timing of tax payments, the requirement of a tax certificate, and the possibility
The inquiry must be whether the [challenged] ordinance operates, in regard to attorneys at law, as merely a means to generate revenue by taxing the practice of the profession or whether it acts effectively as a precondition or license for engaging in the practice of law, rendering it a regulatory fee.
Id. at 572. In this case, because Dunwoody’s ordinance does act merely as a means to generate revenue, treats attorneys like every other taxpayer, and benefits all citizens within Dunwoody in a similar manner, the ordinance cannot be considered an unconstitutional attempt to regulate the practice of law.
I believe that the inquiry in cases such as this could end there. The other factors set forth in Sexton merely support this finding, but they are not prerequisites to this conclusion. In fact, an undue emphasis on the factors in Sexton could lead to absurd results. For example, one might potentially view the Department of Revenue’s enforcement of income taxes as the improper regulation of the practice of law if it resulted in the arrest of an attorney. Similarly, one could also posit that the requirement that all businesses have a business license in order to operate might also be considered an undue regulation solely with respect to attorneys, thereby singling out attorneys for special treatment based on their status. The bottom line is that attorneys must be treated fairly and equally with other businesses and professionals in a community when it comes to revenue generating policies. They need not be treated with singular care and privilege generated by a complicated list of hoops through which few ordinances, no matter how general and balanced, could navigate successfully.