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Judgment affirmed. Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.
Action for tax refund. Fulton Superior Court. Before Judge Jenrette.
We granted the interlocutory application of Marcus Collins, Sr., Georgia's Revenue Commissioner, for appellate review of the Superior Court of Fulton County's grant of appellee Lunda Construction Company's motion for partial summary judgment in this action for the refund of local taxes.
The record before us shows that Lunda Construction Company ("Lunda"), a Wisconsin highway construction contractor, performed construction work in Fulton County in 1984, 1985, 1986, and 1987, pursuant to construction contracts with the Georgia Department of Transportation ("GDOT"). It is undisputed that Lunda was not engaged in any other work in Fulton County and Lunda was only present in Fulton County because of its contracts with the State. On June 30, 1989, the Georgia Department of Revenue, on behalf of Fulton County, assessed Lunda with MARTA sales and use taxes and local option taxes in the amount of $25,943.69 for the taxable period of May 1, 1984, through April 30, 1987, on account of equipment Lunda utilized in Fulton County for work on the GDOT projects, and assessed penalties and interest on these unpaid taxes. In December 1989, Lunda paid the assessed taxes, expressly reserving the right to later seek a refund.
When Fulton County failed to respond to Lunda's June 8, 1990, petition for a refund, Lunda commenced the instant action against Fulton County, asserting that OCGA 50-17-29 (e) prohibited the assessment of MARTA and local taxes on the use of the equipment on the GDOT project. Pursuant to motions filed by Fulton County and Collins, the trial court dismissed Fulton County from the action and effectively substituted Collins for Fulton County as the proper party. Both parties subsequently moved for summary judgment.
Following a hearing, the trial court, relying upon this court's decision in Lunda Constr. Co. v. Clayton County, 201 Ga. App. 106 (410 SE2d 446) (1991), found that Collins had illegally assessed taxes, interest, and penalties, against Lunda for its use of equipment on the GDOT projects in violation of OCGA 50-17-29 (e), which specifically prohibits the assessment of "any" taxes on the performance of state contracts. The court concluded that Lunda was entitled to a refund as a matter of law because the phrase "any tax or assessment" contained in the statute included local sales and use taxes and MARTA taxes. We agree.
Griffin, Cochrane & Marshall, W. Henry Parkman, Craig A. Courville, for appellee.
Michael J. Bowers, Attorney General, Daniel M. Formby, David A. Runnion, Senior Assistant Attorneys General, for appellant.
Thursday May 21 06:24 EDT

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