The Georgia Court of Appeals held that a group of telecommunications dealers that were AT&T subsidiaries (collectively “AT&T”) had standing to challenge the Georgia Department of Revenue’s (“DOR”) denial of sales tax refund claims.  Effective May 5, 2009, O.C.G.A. §§ 48-2-35 and 48-2-35.1 were amended to provide standing for “dealers” to file refund claims on behalf of customers from whom tax had been erroneously collected.

Here, AT&T filed refund claims for taxes it erroneously collected from customers purchasing wireless Internet access during the period of November 1, 2005 until September 7, 2010.  After the DOR denied the refund claims in 2015, AT&T filed suit.

Initially, the trial court granted a motion to dismiss AT&T’s action. The court of appeals affirmed, holding that AT&T needed to refund the allegedly erroneously paid sales taxes to customers before receiving a refund from the DOR.  The supreme court reversed and remanded the case to the court of appeals to consider AT&T’s remaining issues.  On remand, the court of appeals upheld the trial court’s ruling that AT&T lacked standing to seek refunds for the period prior to May 5, 2009 – the effective date for amendments to  O.C.G.A. §§ 48-2-35 and 48-2-35.1.  On petition for certiorari, the supreme court again reversed and remanded the case, holding that the statutory amendments could be applied retroactively to give AT&T “representational” standing to recover refunds on behalf of its customers.  The supreme court reasoned that because the 2009 amendments merely amended the procedure to facilitate the recovery of sales taxes and did not alter or create any rights or obligations, the amendments applied retrospectively.  On the latest remand, the court of appeals reversed its prior opinion and determined that AT&T had standing to bring the suit for a refund claim on behalf of its customers.

New Cingular Wireless PCS, LLC v. Dep’t of Revenue, No. A16A2003, 2020 Ga. App. LEXIS 527 (Ga. Ct. App. Sept. 28, 2020)