112 Ga. App. 27 | Ga. Ct. App. | 1965
Hiram J. Undercofler, as State Revenue Commissioner, issued sales tax assessments against the defendants in these cases seeking to impose a tax under the provisions of the Georgia Retailers and Consumers Sales and Use Tax Act (Ga. L. 1951, pp. 360, 364, as amended by Ga. L. 1960, pp. 153, 158) on receipts from the operation of coin-operated gaming devices known as “slot machines” or “one-armed bandits.” He attempted to cancel or abate the assessments and to issue new assessments solely to afford the taxpayers an opportunity to file a timely appeal therefrom, and he thereafter attempted to abate or cancel the second assessments on account of an irregularity therein and to issue a third assessment in each case. The taxpayers appealed the last of these assessments to the superior court which rendered summary judgments in their favor, and the
On the previous appearance of this litigation before this court Judge Pannell rendered an opinion, which was concurred in by Judge Nichols and this writer, the substance of which is summarized in headnote 2 of that opinion which we have quoted verbatim in the headnote appended hereto. A majority of the court concurred in a special concurrence written by Judge Eberhardt holding that the portion of the opinion embodied in Division 2 and as summarized in the corresponding headnote was merely obiter because the ruling contained in Division 1 of the opinion was determinative of the issues before the court. We now, however, have the question dealt with in Division 2 of that opinion directly presented for a decision, and since it would serve no useful purpose to reiterate the language of that division of the opinion, we adopt by reference what was said by Judge Pannell there as the opinion of the court in these cases and hold, in conformity therewith, that the trial court erred in overruling the demurrers to the affidavits of illegality. Undercofler v. V.F.W. Post 4625, 110 Ga. App. 711, 713 (2), supra.
Judgment reversed.