FIFTH DIVISION

DILLARD, P. J.,

REESE and BETHEL, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

February 21, 2017

In the Court of Appeals of Georgia

A16A2003. NEW CINGULAR WIRELESS PCS, LLC et al. v.

GEORGIA DEPARTMENT OF REVENUE et al.

DILLARD, Presiding Judge.

New Cingular Wireless PCS, LLC; Chattanooga MSA LP; Georgia RSA No.

3, LP; and Northeastern Georgia RSA Limited Partnership (“appellants”) filed suit

against the Georgia Department of Revenue and Lynnette T. Riley in her official

capacity as commissioner (“the Department”) following the Department’s refusal to

issue a refund of what the appellants contend were erroneously paid taxes. The

Department moved to dismiss the appellants’ action, and this appeal follows the trial

court’s grant of that motion. For the reasons set forth infra, we affirm. 

The appellants allege that from 2005 until 2010, they sold wireless Internet

access services to Georgia customers, which were exempt from state sales tax under
OCGA § 48-8-2.

1

In November 2010, the appellants filed refund claims with the

Department for sales tax that they claimed was, until September 2010, erroneously

charged to Georgia customers on the purchase of wirelessInternet accessservice. The

Department officially refused to pay the requested refund claims on March 19, 2015.

Accordingly, on April 17, 2015, the appellants filed their complaint to challenge this

denial. 

The Department answered and moved to dismiss for a lack of subject-matter

jurisdiction and the failure to state a claim upon which relief could be granted.

Thereafter, the Department amended its answer and attached as an exhibit a copy of

a global settlement agreement entered into between the appellants and their

customers. The Department argued that the complaint should be dismissed because

(1) the appellants did not reimburse the alleged illegally collected sales tax to

customers before seeking a refund from the Department, in violation of Department

Regulation 560-12-1-.25; (2) the appellants lacked standing to file sales-tax-refund

claims on behalf of customersfor periods prior to May 5, 2009; and (3) the action was

barred by Georgia class-action law. Following a hearing on the motion to dismiss, the

1

See OCGA § 48-8-2 (39) (F) (specifying that, for purposes of state sales and

use tax, “telecommunications service” shall not include, inter alia, “Internet access

service”).

2
trial court granted it on all three grounds. We then granted the appellants’ application

to file a discretionary appeal. This appeal follows.

1. The appellants argue that the trial court erred in granting the motion to

dismiss after concluding that they must first refund the alleged erroneously collected

tax to their customers before seeking a refund from the Department. We disagree.

The trial court’s order contemplates the question of dismissal under both

sovereign immunity/subject-matter jurisdiction and the failure to state a claim upon

which relief can be granted, but it appears to ultimately conclude that dismissal is

proper on the grounds of sovereign immunity. Nevertheless, we may affirm the grant

of a motion to dismiss if it is right for any reason.

2 And setting aside the question of

whether appellants’ action is also barred on the grounds of sovereign immunity, it is

undoubtedly barred by a failure to state a claim upon which relief can be granted

because (1) “the allegations of the complaint disclose with certainty that the

[appellants] would not be entitled to relief under any state of provable facts asserted

2

See, e.g., Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 869-70 (4) (b) (743

SE2d 518) (2013) (affirming dismissal under “right for any reason” doctrine); C.C.

Leasing Corp. v. Bd. of Tax Assessors of Hall Cnty., 143 Ga. App. 520, 521 (239

SE2d 204) (1977) (same).

3
in support thereof”3

and (2) the Department has established that the appellants “could

not possibly introduce evidence within the framework of the complaint sufficient to

warrant a grant of the relief sought.”4 This is so even though in deciding a motion to

dismiss, “all pleadings are to be construed most favorably to the partywho filed them,

and all doubtsregarding such pleadings must be resolved in the filing party’sfavor.”5

Indeed, even under this forgiving analytical framework, the appellants’ action must

be dismissed.

OCGA § 48-2-35 of the Public Revenue Code—under which the appellants

filed suit against the Department—provides in relevant part that

[a] taxpayer shall be refunded any and all taxes or fees which are

determined to have been erroneously or illegally assessed and collected

from such taxpayer under the laws of thisstate, whether paid voluntarily

or involuntarily, and shall be refunded interest[.] . . . Refunds shall be

drawn from the treasury on warrants of the Governor issued upon

itemized requisitions showing in each instance the person to whom the

3 Webb v. Bank of Am., N.A., 328 Ga. App. 62, 63 (761 SE2d 485) (2014)

(punctuation omitted); accord Austin v. Clark, 294 Ga. 773, 774-75 (755 SE2d 796)

(2014).

4 Webb, 328 Ga. App. at 63 (punctuation omitted); accord Austin, 294 Ga. at

775.

5 Austin, 294 Ga. at 775 (punctuation omitted).

4
refund is to be made, the amount of the refund, and the reason for the

refund.

6

According to our Supreme Court, this statutory authorization to bring an action for

a tax refund in superior court against a governmental body is “an express waiver of

sovereign immunity, and the State’s consent to be sued must be strictly construed.”

7

In seeking to dismiss the appellants’ action regarding the denial of their taxrefund requests, the Department argued that, because “[t]he doctrine of sovereign

immunity requires that the conditions and limitations of the statute that waives

6

 OCGA § 48-2-35 (a).

7

Sawnee Elec. Membership Corp. v. Ga. Dep’t of Rev., 279 Ga. 22, 23 (2) (608

SE2d 611) (2005) (citation omitted); see also City of Atlanta v. Barnes, 276 Ga. 449,

451 (3) (578 SE2d 110) (2003) (“When a statute provides the right to bring an action

for a tax refund against a governmental body, that statute provides an express waiver

of immunity and establishes the extent of the waiver (the amount of the refund) . . .

.”), superseded by statute, OCGA § 48-2-35 (b) (5), as recognized in Sawnee Elec.

Membership Corp., 279 Ga. at 25 (3) n.1; Ga. Emission Testing Co. v. Jackson, 259

Ga. App. 250, 252 (576 SE2d 642) (2003) (“OCGA § 48-2-35 is a partial waiver of

sovereign immunity by the State.”). See generally GA.CONST. Art. I, Sec. II, Par. IX

(e) (“Except as specifically provided in this Paragraph, sovereign immunity extends

to the state and all of its departments and agencies. The sovereign immunity of the

state and its departments and agencies can only be waived by an Act of the General

Assemblywhich specifically providesthatsovereign immunity istherebywaived and

the extent of such waiver.”).

5
immunity be strictly followed,”8

the appellants’ failure to comply with a Department

regulation applicable to dealersseeking tax refunds on behalf of customers barred the

action on grounds of sovereign immunity and/or the failure to state a claim upon

which relief can be granted. And as we have previously recognized, the Revenue

Commissioner has “explicit authority to promulgate regulations for the enforcement

of the Public Revenue Code and the collection ofrevenuesthereunder.”9 Furthermore,

we are mindful that with regard to statutes an administrative agency has the duty to

enforce or administer, as well asrules and regulations an agency has enacted to fulfill

its function, the agency’s interpretations of these rules and regulations are to be given

considerable weight and deference.10

8 Ga. Dep’t of Labor v. RTT Assocs., Inc., 299 Ga. 78, 83 (2) (786 SE2d 840)

(2016); accord Dep’t of Human Res. v. Hutchinson, 217 Ga. App. 70, 71 (1) (456

SE2d 642) (1995); Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 165 (210

SE2d 377) (1974).

9 Ga. Dep’t of Rev. v. Ga. Chemistry Council, Inc., 270 Ga. App. 615, 616 (607

SE2d 207) (2004) (punctuation omitted); see also OCGA § 48-2-12 (a) (“The

commissioner shall have the power to make and publish in print or electronically

reasonable rules and regulations not inconsistent with this title or other laws or with

the Constitution of this state or of the United States for the enforcement of this title

and the collection of revenues under this title.”).

10

See Ga. Dep’t of Rev. v. Owens Corning, 283 Ga. 489, 490 (660 SE2d 719)

(2008) (“[T]he interpretation of a statute by an administrative agency which has the

duty of enforcing or administering it is to be given great weight and deference.”);

6
Here, the relevant regulation provides, in pertinent part, that

[i]n the case of taxes illegally or erroneously collected, the dealer may

secure a refund as provided in OCGA Section 48-2-35, provided,

however, the dealer must affirmatively show that the tax so illegally or

erroneously collected was paid by him and not paid by the consumer, or

thatsuch tax was collected from the consumer astax and hassince been

refunded to the consumer.

11

The Department asserts that, per this regulation, before seeking a refund on

behalf of their customers under OCGA § 48-2-35, the appellants were required to

Pruitt Corp. v. Ga. Dep’t of Comm. Health, 284 Ga. 158, 159 (2) (664 SE2d 223)

(2008) (“When an administrative agency decision is the subject of judicial review,

judicial deference isto be afforded the agency’sinterpretation of statutesit is charged

with enforcing or administering and the agency’s interpretation of rules and

regulations it has enacted to fulfill the function given it by the legislative branch.”);

Kelly v. Lloyd’s of London, 255 Ga. 291, 293 (336 SE2d 772) (1985) (“It is a

well-settled principle of law that even though an interpretation of a statute by an

agency charged with the duty of enforcing it is not conclusive, it is entitled to great

weight.” (punctuation omitted)). See generally David E. Shipley, The Chevron TwoStep in Georgia’s Administrative Law, 46 Ga. L. Rev. 871, 877 (I) (Summer 2012)

(noting that recent decisions of the Supreme Court of Georgia “confirm that Georgia

is a strong deference state where the courts will defer to the agency interpretation as

long as it is not contrary to the statute” (punctuation omitted)). But see Jeffrey A.

Pojanowski, Without Deference, 81 Missouri L. Rev. ___ (Forthcoming 2017)

(exploring what judicial review of agency interpretations would look like if the

Supreme Court of the United States abandonedChevron deference in favor of de novo

review), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2806435.

11

 Ga. Comp. R. & Regs. 560-12-1-.25 (2) (emphasis supplied).

7
affirmatively show that the alleged erroneously or illegally collected tax had been

refunded by them to their customers. But it is wholly undisputed in this case that,

even now, the appellants have not refunded to their customers, the consumers, the tax

that they allege was illegally or erroneously collected and for which the appellants,

as dealers, sought a refund from the Department.

Nevertheless, the appellants argue that the Department’s interpretation of the

regulation is notsupported by its plain language and is, in essence, unreasonable. The

appellants are correct that OCGA § 48-2-35, which expressly authorizes refunds of

allegedly erroneously or illegally paid sales taxes, “does not require that a dealer

advance its own funds to customers before knowing if the Department will grant the

claimed refund of salestax.” But as previously noted, the Revenue Commissioner has

explicit statutory authority to “promulgate regulations for the enforcement of the

Public Revenue Code and the collection of revenues thereunder”12 with judicial

deference afforded to “the agency’s interpretation of rules and regulations it has

12 Ga. Chemistry Council, Inc., 270 Ga. App. at 616 (punctuation omitted)

(emphasis supplied); see also OCGA § 48-2-12 (a) (“The commissioner shall have

the power to make and publish in print or electronically reasonable rules and

regulations not inconsistent with this title or other laws or with the Constitution of

this state or of the United States for the enforcement of this title and the collection of

revenues under this title.”).

8
enacted to fulfill the function given it by the legislative branch.”

13 To that end, under

its power to promulgate regulations for the enforcement of the Public Revenue Code

(of which OCGA § 48-2-35 is a part), the Department has enacted a regulation

governing the procedure for dealers who seek to obtain refunds on behalf of their

customers under OCGA § 48-2-35. And the Department interprets thatregulation, Ga.

Comp. R. & Regs. 560-12-1-.25 (2), as requiring dealers to refund the tax to

customers/consumers prior to requesting a refund from the Department.

In considering the Department’sinterpretation ofthis regulation,we turn to The

Oxford English Dictionary,

14 which defines “secure,” the word with which appellants

take issue, as meaning, inter alia, “[t]o ensure (a person’s) obtaining (something)”

and “[t]o get hold or possession of (something desirable) as the result of effort or

13 Pruitt Corp., 284 Ga. at 159 (2);see also Atlanta Journal v. Babush, 257 Ga.

790, 792 (2) (364 SE2d 560) (1988) (“[I]n construing administrative rules, ‘the

ultimate criterion is the administrative interpretation, which becomes of controlling

weight unless it is plainly erroneous or inconsistent with the rule.’” (punctuation

omitted)), relying upon United States v. Larionoff, 431 U.S. 864, 872 (II) (A) (97 SCt

2150, 53 LE2d 48) (1977) (“In construing administrative regulations, the ultimate

criterion is the administrative interpretation, which becomes of controlling weight

unless it is plainly erroneous or inconsistent with the regulation.” (punctuation

omitted)).

14

See Couch v. Red Roof Inns, Inc., 291 Ga. 359, 361 (1) (729 SE2d 378)

(2012) (looking to dictionary for plain and ordinary meaning of word); A.A.

Professional Bail v. State, 265 Ga. App. 42, 43 (592 SE2d 866) (2004) (same).

9
contrivance.”15 Thus, to the extent that the effort required for a dealer to “secure” a

refund under Ga. Comp. R. & Regs. 560-12-1-.25 (2) is in any way ambiguous, we

defer to the Department’s interpretation of this regulation, which it enacted in order

to fulfill the function delegated to it by our General Assembly.

16

Given the foregoing, we are unpersuaded by the appellants’ argument that the

Department’sinterpretation is erroneous or unreasonable due to the language used in

a portion of the regulation that concerns refunds for the “overpayment of sales tax

paid to the State as a result of tangible personal property returned by the purchaser,”

and which provides two methods by which a dealer may be refunded for such

overpayment.17 One such method specifiesthat when “the property has been returned

to the dealer after ninety (90) days following the originalsale, the dealer may request

15

 THE COMPACT OXFORD ENGLISH DICTIONARY 1696 (2d ed. 1991).

16

See supra notes 9-10 & 13; see also Bentley v. Chastain, 242 Ga. 348, 350-

51 (1) (249 SE2d 38) (1978) (“Whether operating in the federal, state, or localsphere,

agencies provide a high level of expertise and an opportunity for specialization

unavailable in the judicial or legislative branches. They are able to use these skills,

along with the policy mandate and discretion entrusted to them by the legislature, to

make rules and enforce them in fashioning solutions to very complex problems.”).

17

 Ga. Comp. R. & Regs. 560-12-1-.25 (1).

10
a creditmemorandumfor use againstsubsequent taxes.”18 And upon approval of such

“request,” the dealer “will be furnished with a credit memorandum authorizing a

deduction on the appropriate line of the Sales and Use Tax Report.”19 But the use of

“request” in this portion of the regulation, which deals with an entirely different set

of circumstances, does not render unreasonable an interpretation that the process by

which a dealer may “secure” a refund on behalf of its customers for “taxes illegally

or erroneously collected” requires repayment to customers prior to making a request

18

 Ga. Comp. R. & Regs. 560-12-1-.25 (1) (b) (emphasis supplied).

19

Id.

11
for such a refund,

20

especially in light of the broad definition of “secure,” discussed

supra.

21

Furthermore, and as an aside, we note that the appellants’ own settlement

agreement with their customers undercuts their assertion that an interpretation

requiring repayment to consumers prior to seeking a refund is unreasonable or

20

See Ga. Oilmen’s Ass’n v. Dept’ of Rev., 261 Ga. App. 393, 398-99 (2) (582

SE2d 549) (2003) (“Because of agencies’ presumed expertise in dealing with

complex issues, we defer to the [the Department] on the issue of reasonableness

unless there is evidence the regulation is arbitrary and capricious.”), cited with

approval by Hill v. Owens, 292 Ga. 380, 385 (2) (b) (738 SE2d 56) (2013); cf. New

Cingular Wireless PCS, LLC v. Director, Div. of Taxation, 28 N.J. Tax 1, 16 (III) (A)

(2014) (interpreting N.J.S.A. 54:32B-20 (a) as “contain[ing] a repayment provision

that must be fulfilled before an ‘actual’refund—the payment of money from the State

treasury—can be made to a person required to collect the tax and not before the

validity of the refund claimcan be considered” (emphasissupplied)); id. at 16-17 (III)

(A) (further noting that “[t]he Director has not promulgated regulations under the

statute” and, as a result, “taxpayers and the courts have no written guidance, adopted

through the Administrative Procedure Act, detailing the criteria that the Director will

use to determine whether the repayment obligation in N.J.S.A. 54:32B-20 (a) has

been satisfied”); N.J.S.A. 54:32B-20 (a) (“In the manner provided in this section the

director shall refund or credit any tax, penalty or interest erroneously, illegally or

unconstitutionally collected or paid if application to the director for such refund shall

be made within four years from the payment thereof. . . . Such application may also

be made by a person required to collect the tax, who has collected and paid over such

tax to the director, . . . but no actual refund of moneys shall be made to such person

until the person shall first establish to the satisfaction of the director, under such

regulations as the director may prescribe, that the person has repaid to the customer

the amount for which the application for refund is made. . . .”).

21

See supra note 15 & accompanying text.

12
erroneous. Appellants argue that if repayment to customers was required before

seeking a refund from the Department, should the Department refuse to pay,

appellants “would have lost millionsin its own funds – and the customers would have

received refunds that the Department determined were not due.” The very terms of

the settlement agreement, however, undermine this argument:

To the extent that any [t]axing [j]urisdiction requiresthat, prior to

the [t]axing [j]urisdiction’s grant and/or payment of a claimed refund of

Internet Taxes, [Appellants] refund those amounts to the affected

customers in the Settlement Class, the Settling Parties agree that such

payment shall be made by [appellants] in escrow to a fund (the “PreRefund Escrow Fund”) . . . . 

The agreement goes on to provide that “[s]uch payments shall be made

contemporaneously with the filing of the refund claim, if such requirement is known

at such time, or within 15 days after receiving notice of such requirement by the

[t]axing [j]urisdiction.”22 Further, under this section of the agreement, all settling

class members agree that

for purposes of satisfying the requirement of any [t]axing [j]urisdiction,

that [appellants] refund taxesto the affected customers prior to granting

or paying a refund claim, the payment by [appellants] of an amount

22

 (Emphasis supplied).

13
representing Internet Taxes paid by that [class member] into the PreRefund Escrow Fund will be considered the payment by [appellants] of

such taxes to such [class member]. 

Finally, the agreementspecifiesthat “[a]mounts paid to the Pre-Refund Escrow Fund

shall be held in a mutually agreeable account maintained by a party unrelated to the

Settling Parties, until the occurrence of” one of two so-called “Pre-Refund Escrow

Release Events.” 

The first “Pre-Refund Escrow Release Event” deals with scenarios in which

refund payments are made by the taxing jurisdiction. The agreement provides that if

the taxing jurisdiction “pays monies to [appellants] or provides tax credits in full or

partial satisfaction of the refund claims with the [t]axing [j]urisdiction,” appellants

become subject to additional provisions of the settlement agreement. One of those

additional provisions specifies that if a taxing jurisdiction grants a refund to the

appellants, the appellants “shall assign all of [their] rights, title and interest in the

refund related to the members of the Settlement Class, subject to any claims or

conditionsthat may be imposed on such refund by the [t]axing [j]urisdiction,” and the

refunded monies will be paid directly to escrow accounts established elsewhere in the

settlement agreement. The other provision specifiesthat if the appellantsreceive a tax

14
credit from a taxing jurisdiction, they must “remit monies in the amount of the credit

as they relate to members” of the settlement class to the escrow accounts established

elsewhere in the agreement. 

The second “Pre-Refund Escrow Release Event” deals with scenariosin which

the taxing jurisdiction denies a refund. This portion of the agreement applies when

a final determination has been issued, for which further appeal is either

not available or not pursued, by either the [t]axing [j]urisdiction in

question denying all or any portion of the refund claims for Internet

Taxes filed with that [t]axing [j]urisdiction or by a court of competent

jurisdiction in an action initiated to compel the [t]axing [j]urisdiction to

act on the refund claim, which action resultsin no refund or credit being

received by [appellants]. 

The paragraph that follows the description of these two “Pre-Refund Escrow

Release Events” provides, in relevant part, that upon occurrence of such an event, “all

amounts previously paid by [appellants] to the Pre-Refund Escrow Fund, and any

interest earned thereon, that are attributable to the refund claims filed with the

particular [t]axing [j]urisdiction at issue shall be paid to [appellants].”

23 Thus, if a

refund is given by the taxing jurisdiction in some form, money is then paid directly

23

 (Emphasis supplied).

15
to class members via separate escrow accounts, and appellants receive back from the

Pre-Refund Escrow Account what was pre-paid into it to satisfy the “pre-pay”

requirements of the taxing jurisdiction. And if no refund is given by the taxing

jurisdiction, the appellants still receive back from the Pre-Refund Escrow Account

the amount that theypre-paid. Accordingly, the appellants’ own settlement agreement

contemplates a scenario in which pre-payment to the customer is required but an

ultimate refund from the Department is never obtained; and in such a situation, there

is no “windfall” to the customer because the amount pre-paid into escrow is returned

to the appellants.

In sum, because the appellants admit that they have not repaid the alleged

erroneously collected tax to their customers, as even their own settlement agreement

contemplates, the trial court properly dismissed the action when such a prepayment

was required by the Department regulations prior to requesting a refund.

24

24

See Austin, 294 Ga. at 774-75 (“A motion to dismiss for failure to state a

claim upon which relief may be granted should not be sustained unless (1) the

allegations of the complaint disclose with certainty that the claimant would not be

entitled to relief under any state of provable facts asserted in support thereof; and (2)

the movant establishesthat the claimant could not possibly introduce evidence within

the framework of the complaint sufficient to warrant a grant of the relief sought[.]”

(punctuation omitted)); Webb, 328 Ga. App. at 63 (same).

16
2. The appellants also argue that the trial court erred in granting the motion to

dismiss after concluding that (1) they lacked standing to seek a refund for taxes

collected prior to May 5, 2009, and (2) the appellants’ action for a refund is a class

action barred by Georgia law. But because the motion was properly dismissed for a

failure to state a claim upon which relief could be granted due to the appellants’

admitted failure to refund the tax to customers prior to seeking a refund from the

Department, we need not address these additional enumerations of error.25

Accordingly, for all of the foregoing reasons, we affirm the trial court’s grant

of the Department’s motion to dismiss.

Judgment affirmed. Reese and Bethel, JJ., concur.

25

See, e.g., Bobick, 321 Ga. App. at 869-70 (4) (b) (affirming dismissal under

“right for any reason” doctrine).

17