In 1999, a group of attorneys named plaintiffs who maintain offices and practice law in the City of Atlanta demanded, pursuant to OCGA § 48-5-380, a refund of occupation taxes which had been imposed by the City and paid by them during the previous three years. More than one year later, the named plaintiffs filed a class action complaint against the City, alleging that the tax was an unconstitutional regulation of the practice of law and seeking a refund of taxes paid. The trial court entered a class certification order that divided the affected attorneys into Class II, the members of which had already demanded a refund under OCGA § 48-5-380, and Class I, whose members had not. The trial court subsequently granted summary judgment in the plaintiffs’ favor on the constitutional issue. On appeal, we held that the City’s occupation tax ordinance was unconstitutional to the extent that it included lawyers, and that a class action for tax refunds pursuant to OCGA § 48-5-380 was appropriate. City of Atlanta v. Barnes , 276 Ga. 449 578 SE2d 110 2003 Barnes I . Upon remand, the trial court: held that the Class I members still had to exhaust their administrative remedies; eventually re-certified Class I so as to permit class counsel to request tax refunds on behalf of Class I members; held that Class I could only recover refunds for the three years preceding the re-certification, as the limitations period was not tolled upon the filing of the complaint; and, held that those lawyers who opted out of their class would not be responsible for the attorney’s fees of class counsel. The Court of Appeals affirmed the trial court’s judgment with respect to each of these rulings. Barnes v. City of Atlanta , 275 Ga. App. 385 620 SE2d 846 2005 Barnes II . We granted certiorari to review the Court of Appeals’ decision. 1. “A common thread running through the plaintiffs’ arguments is that the pre-litigation claim for a refund contemplated by OCGA § 48-5-380 is not applicable to the claims of the Class I taxpayers . . . .” Barnes II , supra at 387 1 a. In the Court of Appeals, the plaintiffs, relying on Barnes I , contended that the statutory requirement for an administrative demand “was inapplicable because their claim was brought as a class action.” Barnes II , supra at 388 1 a. The Court of Appeals concluded that, while a class action could supplement OCGA § 48-5-380 with respect to the claims of Class II, the plaintiffs cannot look to Barnes I as authority for employing a class action to circumvent the statutory requirements which had yet to be satisfied by members of Class I. Barnes II , supra at 389 1 a.
In our prior opinion, however, we held that OCGA § 48-5-380 does not “provide for the form of action to be utilized. By participating as a plaintiff in a class action that includes a claim for a tax refund, a taxpayer is unquestionably bringing an action for a refund, which is what the statute permits.” Barnes I , supra at 452 3. Compare Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue , 279 Ga. 22, 25 3, fn. 1 608 SE2d 611 2005 former OCGA § 48-2-35 b 5, now designated subsection c 5, superseded Barnes I only as to refund claims against the State. Thus, any taxpayer whom the named plaintiffs represent and who does not ultimately opt out of the class action is considered to have brought suit for a refund at the same time as the named plaintiffs. Although OCGA § 48-5-380 is applicable to that suit, so too are those principles which apply generally in class actions, including that which permits a representative to act on behalf of an entire class. Where, as here, “exhaustion of administrative remedies is a precondition for suit, the satisfaction of this requirement by the class plaintiff normally will avoid the necessity for each class member to satisfy this requirement individually.” 2 Newberg on Class Actions § 5:15, p. 438 4th ed. 2002. Decisions to the contrary, such as U.S. Xpress v. State of New Mexico , __P3d__ 2006 WL 1273389, are “based on genuinely unique statutory requirements.” 2 Newberg, supra at 440. OCGA § 48-5-380, unlike certain tax refund statutes, neither prohibits utilization of a class action, nor expressly requires individual exhaustion of administrative remedies. See Arizona Dept. of Revenue v. Dougherty , 29 P3d 862, 869 B Ariz. 2001. Compare OCGA § 48-2-35 c 5.
