Opinion
23483.
ARGUED MAY 11, 1966.
DECIDED JUNE 23, 1966.
Mandamus. Fulton Superior Court. Before Judge Pharr.
Alex McLennan, pro se. Arthur K. Bolton, Attorney General, William L. Harper, Assistant Attorney General, H. Perry Michael, Deputy Assistant Attorney General, Hansell, Post, Brandon Dorsey, Hugh Dorsey, Allen Post, Troutman, Sams, Schroder Lockerman, Milton A. Carlton, Jr., Allen E. Lockerman, Robert S. Sams, Kilpatrick, Cody, Rogers, McClatchey Regenstein, Harry S. Baxter, Thomas C. Shelton, King Spalding, Pope B. McIntire, Dan M. Byrd, Jr., Bouhan, Lawrence, Williams Levy, George W. Williams, for appellees.
The duty to assess property at fair market value for tax purposes must yield to the duty to avoid discrimination, and under the facts shown by the present record the trial judge correctly refused to require the State Revenue Commissioner to assess the properties of public utilities at 100% of their fair market value.
ARGUED MAY 11, 1966 — DECIDED JUNE 23, 1966.
Alex McLennan, as a taxpayer of Fulton County and the State of Georgia, brought a petition for mandamus against Hiram Undercofler, in his official capacity as State Revenue Commissioner, seeking to compel him to assess the properties of public utilities at fair market value, as defined by law. It was asserted that: Public utilities are required by law to file their ad valorem tax returns with the State Revenue Commissioner. Notwithstanding the provisions of Code § 92-5701, requiring that all property be returned for taxation at its fair market value, no public utility within the State returns its property at fair market value, and all public utilities in Georgia follow a regular custom of long standing of returning their properties subject to taxation at gross undervaluations of the fair market value. Code § 92-6001 requires the State Revenue Commissioner to carefully scrutinize the returns made to him, and to correct any return if in his judgment the property embraced therein is returned below its value. Nevertheless, the State Revenue Commissioner has systematically and regularly accepted the returns of all public utilities within the State at 35% of the fair market value of their properties. During the year 1966 the State Revenue Commissioner will not comply with the law requiring the properties of public utilities to be returned to his office at their true market value, and will assess the properties of the public utilities at 35% of their true market value, unless mandamus is issued to require the return and assessment of the properties of public utilities at true market value.
The State Revenue Commissioner in his answer, as amended, asserted that: As State Revenue Commissioner he intends to assess the properties of public utilities at 40% of their fair market value for the calendar year 1966. The assessing officials in the various counties will not, during the calendar year 1966, require that properties of taxpayers be returned or assessed at 100% of their fair market value, but the majority of the officials, if not all, will assess such properties at values not in excess of approximately 40% of fair market value. He denies that he has any duty to assess the properties of public utilities at 100% of their fair market value by reason of stated provisions of the Constitution of the State of Georgia, and of the United States, requiring uniformity of taxation, and equal protection of the laws.
The parties entered into a stipulation agreeing that: The State Revenue Commissioner has not in the past, and will not during the year 1966, require that properties of public utilities be assessed at 100% of their fair market value, but will assess such properties during the calendar year 1966 at 40% of their fair market value. The assessing officials for the counties have not assessed properties at 100% of fair market value in the past, but have generally assessed properties at amounts not in excess of 50% of fair market value. The assessments by the counties during the periods immediately preceding the year 1966 have been made at less than 100%, and approximately in accordance with percentages shown on an exhibit attached to the stipulation.
Atlanta Gas Light Company and several other public utility corporations filed a petition to intervene in the action, which was allowed subject to objection. They alleged that: The county officials of the counties where the property of each intervenor is located will not assess the tangible property of other taxpayers at 100% of fair market value during the year 1966, but will intentionally and systematically assess such tangible property at amounts not in excess of 50% of fair market value. If the State Revenue Commissioner should be required to assess the properties of the intervenors at 100% of fair market value, the tangible property of the intervenors within the various Georgia counties where the property is located will be assessed on a different basis of value than the same class of tangible property of other taxpayers within the territorial limits of each such county, and the intervenors will be required to bear a disproportionate share of the 1966 ad valorem tax burden of the State of Georgia and of each county where the property is located. This discrimination would violate stated constitutional provisions.
The taxpayer and the State Revenue Commissioner both filed motions for summary judgment. Affidavits were filed supporting the motion of the State Revenue Commissioner. The affidavit of Thomas I. Sangster, Director of the Property Tax Unit of the Revenue Department, averred that seventy counties have entered into financial assistance agreements with the State Revenue Commissioner, to secure financial aid in conducting equalization programs in the county. These contracts provide that the counties agree to use a county tax equalization rate of not less than 30% nor more than 40% until such tax equalization rate level is further adjusted by the State Revenue Commissioner. The State Revenue Commissioner has not changed the tax equalization rate level, since the agreements were entered into, but did propose that all property be assessed at 40% of fair market value during 1966. This proposal was rescinded when Chapter 92-70 of the Code was repealed by the General Assembly in 1966, and a similar law was passed which does not give the commissioner authority to equalize assessments among the counties until 1967. Ga. L. 1966, pp. 45-47. The 48 counties which have executed the agreements since 1963 will assess properties in accordance with the agreements at an average of approximately 30% to 40% of fair market value. It is his opinion, after reviewing assessment histories, assessment plans, and conferring with local tax assessing officials, that none of the counties in Georgia will assess property at 100% of fair market value during the year 1966 in the absence of a court order directing them to do so.
There were a number of affidavits by county tax assessors stating that it was not proposed to assess property for 1966 ad valorem taxes in their respective counties at full fair market value.
The trial judge entered a judgment denying the prayers for mandamus absolute, and the appeal is from this judgment.
The premise on which the taxpayer bases his action for mandamus is the provision of the law requiring that all property be returned for taxation at its fair market value. Code §§ 92-5701, 92-5702. This is, undeniably, a statutory mandate. It is conceded by the State Revenue Commissioner that public utilities returning taxes to his office have not valued their properties at 100% of fair market value. It is also conclusively shown that the same class of property of most taxpayers throughout the State who return their taxes to the county authorities is not valued at 100% of fair market value.
The State Revenue Commissioner has the duty of receiving returns for ad valorem taxes from public utilities ( Code Ch. 92-59, as amended by Ga. L. 1937-38, Ex. Sess., pp. 77, 80; Code Ann. § 92-8405), and the duty of reviewing and correcting such returns ( Code Ch. 92-60). For the year 1966 he has no authority to adjust or equalize the taxable values of the properties of taxpayers returning their properties for ad valorem taxes in the various counties of the State. Ga. L. 1966, Sec. 3, pp. 45, 47. Should he raise the valuations of the properties of the public utilities to 100% of their fair market value, he would have no authority to proportionally increase the valuations of the properties of other taxpayers in the State making their returns in the various counties, and rank discrimination against the public utilities would result from such assessments of their properties.
It is provided in the Constitution, Art. VII, Sec. II, Par. IV ( Code Ann. § 2-5504) that: "The General Assembly may provide for a different method and time of returns, assessments, payment and collection of ad valorem taxes, of public utilities, but not at a greater basis of value or at a higher rate of taxation than other properties." The Constitution, Art. VII, Sec. I, Par. III ( Code Ann. § 2-5403) provides: "All taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax."
In Hutchins v. Howard, 211 Ga. 830 (2) ( 89 S.E.2d 183), it was held: "The plaintiff's amended petition alleges that the assessment for 1955 taxes against his property, as well as that of other taxpayers similarly situated, is violative of the uniform-taxation clause of our Constitution and the equal-protection clauses of the State and Federal Constitutions. Code § 1-815; Code Ann. §§ 2-102, 2-5403. The law requires that all real and tangible personal property be assessed at its fair market value. Code §§ 92-5701, 92-5702. It establishes a scheme of administrative machinery to bring this about. § 92-6901 et seq. The record in the instant case shows that no property was so assessed. It also shows indisputably that it was not assessed uniformly. And we might well say, as did the Supreme Court of the United States in Greene v. L. I. R. Co., 244 U.S. 499, 501 ( 37 Sup. Ct. 673, 61 L. ed. 1280, Ann. Cas. 1917E, 88), that `the duty to assess at full value is not supreme but yields to the duty to avoid discrimination.' For want of uniformity in taxable values, the assessments made against the property of the plaintiff, the intervenors, and other similarly situated taxpayers are null and void; they are clearly violative of the uniform-taxation clause of our Constitution and the equal-protection clauses of our present Constitution and the Federal Constitution." See also: Brown v. Southern R. Co., 125 Ga. 772 ( 54 S.E. 729); Montgomery v. Suttles, 191 Ga. 781 ( 13 S.E.2d 781); Suttles v. Montgomery, 193 Ga. 128 ( 17 S.E.2d 734); Lott Investment Corp. v. City of Waycross, 218 Ga. 805 ( 129 S.E.2d 741); Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 ( 43 S.C. 190, 67 Le 340); Hillsborough v. Cromwell, 326 U.S. 620 ( 66 S.C. 445, 90 LE 358).
Under the factual situation shown by the present record, the duty of the State Revenue Commissioner to assess the properties of public utilities at fair market value must yield to the higher duty imposed by the Constitution of this State and of the United States to assess property uniformly for taxation, and not to deny taxpayers equal protection of law. The trial judge did not err in denying the mandamus absolute.
Judgment affirmed. All the Justices concur.