New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue

356 Ga.App. 789

849 S.E.2d 228 (Mem)

NEW CINGULAR WIRELESS PCS, LLC et al.

v.GEORGIA DEPARTMENT OF REVENUE et al.

A16A2003

Court of Appeals of Georgia.

September 28, 2020

Bryan Anthony Vroon, Atlanta, Margaret C. Wilson, for Appellant.

Nancy M. Gallagher, Marietta, Christopher Michael Carr, Samuel S. Olens, Alex Fredrick Sponseller, Atlanta, for Appellee.

Dillard, Presiding Judge.

In New Cingular Wireless PCS, LLC v. Georgia Department of Revenue , 340 Ga. App. 316, 797 S.E.2d 190 (2017) (" New Cingular I "), we affirmed the grant of a motion to dismiss, holding that, under the relevant regulation, New Cingular Wireless PCS, LLC and three other AT&T Mobility subsidiaries (collectively, "AT&T") needed to first refund allegedly erroneously paid sales taxes to customers before securing a refund from the Georgia Department of Revenue.¹ But in New Cingular Wireless PCS, LLC v. Georgia Department of Revenue , 303 Ga. 468, 813 S.E.2d 388 (2018) (" New Cingular II "), the Supreme Court of Georgia reversed our decision and remanded the case for this Court to consider AT&T's remaining enumerations of error.²

We did so in New Cingular Wireless PCS, LLC v. Georgia Department of Revenue , 348 Ga. App. 516, 823 S.E.2d 833 (2019) (" New Cingular III "), in which we upheld the trial court's ruling that AT&T lacked standing to seek refunds for periods prior to the effective date of amendments to the relevant statutes in 2009.³ But in New Cingular Wireless PCS, LLC v. Georgia Department of Revenue , 308 Ga. 729, 843 S.E.2d 431 (2020) (" New Cingular IV "), the Supreme Court again reversed our decision, holding that to the extent we concluded "AT&T lacked standing to file a claim on behalf of its customers for any taxes for periods before May 5, 2009," we did so in error.⁴ Accordingly, we now vacate our opinion in New Cingular III to the extent it addressed the question of AT&T's standing and adopt as our own the opinion and judgment of the Supreme Court in New Cingular IV on this issue.⁵

Judgment reversed.

Reese, P. J., and Coomer, J., concur.

1 See 340 Ga. App. at 323-24 (1), 797 S.E.2d 190.

2 See 303 Ga. at 474 (2), 813 S.E.2d 388.

3 See 348 Ga. App. at 520 (1), 823 S.E.2d 833.

4 308 Ga. at ––––, 843 S.E.2d at 436.

5 In New Cingular III , we also reversed the trial court's ruling that AT&T's claims were barred as a class action, see 348 Ga. App. at 521-22 (2), 823 S.E.2d 833, but that portion of our ruling was not appealed to the Supreme Court of Georgia and, therefore, was not an issue in New Cingular IV, see 308 Ga. at –––– n.1, 843 S.E.2d at 433 n.1 ("The Court of Appeals also reversed the trial court's ruling that AT&T's claims were barred as a class action. The Department did not file a petition for certiorari seeking review of that holding, which is not at issue here." (citation omitted)). As a result, our prior ruling reversing the trial court's judgment on that question stands because it is not an issue in this appeal.