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Barnes v. City of Atlanta

The tax refund demand date for Class I attorneys, who paid an unconstitutional occupational tax, but made no pre-litigation claim for refunds as required under O.C.G.A. § 48-5-380, was February 27, 2004, the date the trial court amended the class certification to allow class counsel to request refunds on behalf of those attorneys.

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The plaintiffs in a class action suit against the City of Atlanta the “City” appeal from the orders of the trial court on their motions for attorney’s fees, partial money judgment, and amendment of class certification. The City has filed a cross appeal. We affirm for the reasons set forth below. In 1999, a group of attorneys who practiced law in the City, including plaintiff Gary Barnes, demanded the City refund their payment of the City’s occupational tax during the reporting periods 1998, 1997, and 1996. After more than a year passed from the date of their refund claim without payment by the City, Barnes and other named plaintiffs brought a class action complaint against the City on behalf of attorneys who had paid the City’s occupational tax. The plaintiffs contended, among other things, that the City’s occupational tax was an unconstitutional encroachment on the Supreme Court’s authority to regulate the practice of law.

Order on Class Certification. The trial court divided the plaintiffs into two classes: those who had not requested a tax refund from the City pursuant to OCGA § 48-5-380 Class I and those who had requested a tax refund from the City pursuant to OCGA § 48-5-380 Class II. The trial court granted class certification to Class I and Class II with respect to the plaintiffs’ constitutionality claim, and granted class certification to Class II with respect to the plaintiffs’ refund claim. However, the trial court denied class certification to Class I as to the plaintiffs’ refund claims because the members of Class I were required to make a pre-litigation demand for a refund before pursuing the claim in superior court.

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