Refunds.

(b) No interest shall be paid if the taxes or fees were erroneously or illegally assessed and collected due to the taxpayer failing to claim any credits listed in Article 2 of Chapter 7 of this title on or before the due date for filing the applicable income tax return, including any extensions which have been granted.

(c) (1) (A) A claim for refund of a tax or fee erroneously or illegally assessed and collected may be made by the taxpayer at any time within three years after:

(i) The date of the payment of the tax or fee to the commissioner; or

(ii) In the case of income taxes, the later of the date of the payment of the tax or fee to the commissioner or the due date for filing the applicable income tax return, including any extensions which have been granted.

(B) Each claim shall be filed in writing in the form and containing such information as the commissioner may reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies and an identification of the transactions being contested.

(C) Should any person be prevented from filing such a claim because of service of such person or such person’s counsel in the armed forces during such period, the period of limitation shall date from the discharge of such person or such person’s counsel from such service.

(D) A claim for refund may not be submitted by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.

(2) In the event the taxpayer desires a conference or hearing before the commissioner or the commissioner’s delegate in connection with any claim for refund, he or she shall specify such desire in writing in the claim and, if the claim conforms with the requirements of this Code section, the commissioner shall grant a conference at a time he or she shall reasonably specify. A taxpayer may contest any claim for refund that is denied in whole or in part by filing with the commissioner a written protest at any time within 30 days from the date of notice of refund denial or partial payment. Such 30 day period shall be extended for such additional period as may be agreed upon in writing between the taxpayer and the commissioner during the initial 30 day period or any extension thereof. In the event the taxpayer wishes to request a conference, that request shall be included in the written protest. All protests shall be prepared in the form and contain such information as the commissioner shall reasonably require and shall include a summary statement of the grounds upon which the taxpayer relies, an identification of the transactions being contested, and the reasons for disputing the findings of the commissioner. The commissioner shall grant a conference before the commissioner’s designated officer or agent at a time specified and shall make reasonable rules governing the conduct of conferences. The discretion given in this Code section to the commissioner shall be reasonably exercised on all occasions.

(3) The commissioner or the commissioner’s delegate shall consider information contained in the taxpayer’s claim for refund, together with such other information as may be available, and shall approve or deny the taxpayer’s claim and notify the taxpayer of the action.

(4) Any taxpayer whose claim for refund is denied by the commissioner or the commissioner’s delegate or whose claim is not decided by the commissioner or the commissioner’s delegate within one year from the date of filing the claim shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the superior court of the county of the residence of the taxpayer, except that:

(A) If the taxpayer is a public utility or a nonresident, the taxpayer shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the superior court of the county in which is located the taxpayer’s principal place of doing business in this state or in which the taxpayer’s chief or highest corporate officer or employee resident in this state maintains an office; or

(B) If the taxpayer is a nonresident individual or foreign corporation having no place of doing business and no officer or employee resident and maintaining an office in this state, the taxpayer shall have the right to bring an action for a refund in the Georgia Tax Tribunal in accordance with Chapter 13A of Title 50 or in the Superior Court of Fulton County or in the superior court of the county in which the commissioner in office at the time the action is filed resides.

(5) An action for a refund pursuant to paragraph (4) of this subsection shall not be brought by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.

(6) (A) No action or proceeding for the recovery of a refund under this Code section shall be commenced before the expiration of one year from the date of filing the claim for refund unless the commissioner or the commissioner’s delegate renders a decision on the claim within that time, nor shall any action or proceeding be commenced after the later of:

(i) The expiration of two years from the date the claim is denied; or

(ii) If a valid protest is filed under paragraph (2) of this subsection, 30 days after the date of the department’s notice of decision on such protest.

(B) The period prescribed in this paragraph for filing an action for refund shall be extended for such period as may be agreed upon in writing between the taxpayer and the commissioner prior to the expiration of such period or any extension thereof.

(7) In an action for a refund pursuant to paragraph (4) of this subsection, all questions of law decided by a court or the Georgia Tax Tribunal, including interpretations of constitutional, statutory, and regulatory provisions, shall be made without any deference to any determination or interpretation, whether written or unwritten, that may have been made on the matter by the department, except such requirement shall have no effect on the judicial standard of deference accorded to rules promulgated pursuant to Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”

(d) In the event any taxpayer’s claim for refund is approved by the commissioner or the commissioner’s delegate and the taxpayer has not paid other state taxes which have become due, the commissioner or department may offset any existing liabilities against the refund. Once the offset authorized by this subsection occurs, the refund shall be deemed granted and the amount of the offset shall be considered for all purposes as a payment toward the particular tax liabilities at issue. Any excess refund amount after any offsets have been applied shall be refunded to the taxpayer at the same time the offset is taken.

(e) This Code section shall not apply to taxes paid for alcoholic beverages pursuant to Title 3.

(f) For purposes of all claims for refund of sales and use taxes erroneously or illegally assessed and collected, the term “taxpayer,” as defined under Code Section 48-2-35.1, shall apply. Such claim for refund shall contain the total refund claimed and the allocation of the local sales and use tax by the political subdivision.

(g) Any taxpayer required to pay taxes electronically in accordance with paragraph (2.1) of subsection (f) of Code Section 48-2-32 shall also file any claims for refund electronically. The department shall make claim for refund forms consistent with this subsection electronically available.

(h) (1) As used in this subsection, the term:

(A) “Political subdivision designee” means the chief officer or officers designated by the political subdivision to receive information about a refund claim of local significance pursuant to this subsection. Each political subdivision shall certify to the commissioner that any such designee is so authorized on a form and in a manner prescribed by the department.

(B) “Refund claim of local significance” means a taxpayer’s claim for refund of sales and use taxes erroneously or illegally assessed and collected or the department’s discovery of any overpayment of such taxes, if such claim for refund or overpayment is for an amount equal to or greater than 10 percent of the total yearly average of aggregate sales and use tax distributions to any single political subdivision based on the average of the three most recent calendar years.

(2) (A) Within 30 business days following the department’s receipt of a refund claim of local significance, the department shall notify each affected political subdivision’s political subdivision designee that a refund claim of local significance to the political subdivision has been received and shall furnish the taxpayer with a copy of such notification. Such notification shall include the date the refund claim of local significance was filed, the amount in the claim for refund for which the political subdivision itself would be responsible if the request is granted, and a copy of the confidentiality provisions in Code Section 48-2-15 and this Code section.

(B) After the department has completed an audit of the claim for refund and determined a final refund amount, the department shall supplement the above notice by transmitting to the political subdivision designee the final refund amount for which the political subdivision is responsible.

(C) (i) With respect to a final refund amount due to a taxpayer that made an overpayment of taxes pursuant to a direct pay permit issued in accordance with Code Section 48-8-49.1, in lieu of a single payment of the final refund amount to the taxpayer, an affected political subdivision may elect for the final refund amount, including applicable interest, to be repaid by the department to the taxpayer over a time period less than or equal to the total duration of the periods subject to the claim for refund. Any such election must be made by the political subdivision, in a manner prescribed by the department, within 30 days of the date the department notifies the political subdivision of the final refund amount for which the political subdivision is responsible.

(ii) When an election is made pursuant to division (i) of this subparagraph, the department shall make payment of the total final refund amount, which shall include amounts for local sales and use taxes, to the taxpayer in monthly installments due on or before the fifteenth day of each calendar month during the repayment period. Interest shall accrue on the unpaid balance during such repayment period pursuant to subsection (a) of this Code section.

(iii) The provisions of this subparagraph shall only apply to refund claims of local significance and resulting final refund amounts due to a taxpayer that made an overpayment of local sales and use taxes pursuant to a direct pay permit issued in accordance with Code Section 48-8-49.1.

(3) Any information supplied to a political subdivision designee pursuant to this subsection shall retain, in the hands of the local official, its privileged and confidential nature to the same extent and under the same conditions as such information is privileged and confidential in the hands of the commissioner, pursuant to Code Section 48-2-15. It shall be the responsibility of the political subdivision designee, and not the department, to protect privileged and confidential information received under this subsection. Any person who divulges any tax information obtained under this subsection shall be subject to the same civil and criminal penalties as provided for divulgence of tax information by employees of the department. Though privileged and confidential information shall not be disclosed, the political subdivision designee may make reasonable budgetary recommendations to elected officials, city managers, and tax officials in political subdivisions based on the confidential information furnished. The department shall not be subject to any criminal or civil liability for the unauthorized divulgence of privileged and confidential information by a political subdivision designee. Notwithstanding the foregoing, in the event all or any portion of the refund claim of local significance is for a tax levied under Part 1 of Article 3 of Chapter 8 of this title, the affected county shall not be in violation of this confidential provision if it notifies all municipal political subdivision designees in the county that such notification has been received from the department.

(4) The commissioner, by rule or regulation, shall establish guidelines for identifying and producing documents to the Department of Audits and Accounts for review relating to the handling of refund claims of local significance. In the event of such review, the Department of Audits and Accounts shall assess whether the department followed proper procedures and used appropriate methodology to reach its final determination on a refund claim of local significance.

(5) Any refund claims of local significance pending with the department for two years after the claim for refund was filed shall be automatically transferred to the Georgia Tax Tribunal as a declaratory judgment of the commissioner requesting a show cause proceeding pursuant to Code Section 50-13A-19.1. History. Ga. L. 1937-38, Ex. Sess., p. 77, § 34; Ga. L. 1945, p. 272, § 1; Ga. L. 1955, p. 455, § 1; Ga. L. 1971, p. 378, § 1; Ga. L. 1973, p. 507, § 1; Ga. L. 1975, p. 156, §§ 7, 8; Code 1933, § 91A-245, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1979, p. 5, § 11; Ga. L. 1979, p. 1078, §§ 1, 2; Ga. L. 1992, p. 1458, § 4; Ga. L. 2000, p. 777, § 1; Ga. L. 2003, p. 355, §§ 1, 2; Ga. L. 2003, p. 429, § 1; Ga. L. 2005, p. 159, § 5/HB 488; Ga. L. 2006, p. 72, § 48/SB 465; Ga. L. 2009, p. 816, § 3/HB 485; Ga. L. 2012, p. 318, § 2/HB 100; Ga. L. 2016, p. 574, § 2/HB 960; Ga. L. 2020, p. 184, § 1-2/HB 846; Ga. L. 2021, p. 120, § 2/SB 185. The 2016 amendment, effective July 1, 2016, in subsection (a), in the first sentence, deleted “at the rate of 1 percent per month” following “taxes or fees” near the middle and added “at an annual rate equal to the bank prime loan rate as posted by the Board of Governors of the Federal Reserve System in statistical release H. 15 or any publication that may supersede it, plus 3 percent, to accrue monthly” at the end, and added the second sentence; added the second sentence in subsection (f); and added subsections (g) and (h). See Editor’s notes for applicability. The 2020 amendment, effective September 1, 2020, designated the existing provisions of paragraph (h)(2) as subparagraphs (h)(2)(A) and (h)(2)(B); and added subparagraph (h)(2)(C). See Editor’s notes for applicability. The 2021 amendment, effective April 29, 2021, added paragraph (c)(7). See Editor’s notes for applicability. Editor’s notes. Ga. L. 2003, p. 355, § 8(b), not codified by the General Assembly, provides that the first 2003 amendment shall apply to all claims for refunds filed or actions for refunds brought pursuant to this Code section before, on, or after May 29, 2003. Ga. L. 2003, p. 429, § 2, not codified by the General Assembly, provides that the second 2003 amendment shall be applicable to all taxable years beginning on or after January 1, 2003. Ga. L. 2005, p. 159, § 1/HB 488, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘State and Local Tax Revision Act of 2005.’ ” Ga. L. 2009, p. 816, § 1/HB 485, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Improved Taxpayer Customer Service Act of 2009.’ ” Ga. L. 2012, p. 318, § 16(b)/HB 100, not codified by the General Assembly, provides that: “Sections 1 through 14 of this Act shall become effective on January 1, 2013, provided that cases pending on January 1, 2013, shall continue to be governed by the law in effect on December 31, 2012, until the conclusion of the case.” Ga. L. 2016, p. 574, § 6(b)/HB 960, not codified by the General Assembly, provides: “The new penalty and interest rates provided in Sections 2, 3, and 4 of this Act shall apply to penalties and interest accrued on or after the effective date of this Act.” This Act became effective July 1, 2016. Ga. L. 2016, p. 574, § 6(c)/HB 960, not codified by the General Assembly, provides: “The new notification requirement and the automatic transfer to the Georgia Tax Tribunal requirement contained in Section 2 of this Act regarding a refund claim of local significance shall apply to claims for refund received by the department on or after the effective date of this Act.” This Act became effective July 1, 2016. Ga. L. 2020, p. 184, § 4-1(b)/HB 846, not codified by the General Assembly, provides, in part, that: “The revisions to paragraph (2) of subsection (h) of Code Section 48-2-35 in Section 1-2 of this Act shall apply to notices for final refund amounts received by a political subdivision on or after September 1, 2020, and the interest rate provided in Section 1-3 of this Act (Code Section 48-2-35.1) shall apply to interest accruing on or after September 1, 2020.” Ga. L. 2021, p. 120, § 5/SB 185, not codified by the General Assembly, provides: “This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval, and shall be applicable to all proceedings commenced before the Georgia Tax Tribunal or a superior court of this state on or after such date.” The Governor approved this Act on April 29, 2021. Law reviews. For article discussing remedies for tax illegally assessed under the former Georgia Retailers’ and Consumers’ Sales and Use Tax Act (former Code 1933, Ch. 92-34 (see Ch. 8 of this title), see 9 Ga. St. B. J. 45 (1972). For article discussing and comparing the principal means by which the Georgia taxpayer may obtain judicial review of his state tax liability, with emphasis on income and sales taxes, see 27 Mercer L. Rev. 309 (1975). For note as to the voluntary payment doctrine in Georgia, see 16 Ga. L. Rev. 893 (1982). For survey article on real property law, see 60 Mercer L. Rev. 345 (2008). For article on the 2012 amendment of this Code section, see 29 Ga. St. U. L. Rev. 70 (2012). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017). For annual survey on administrative law, see 70 Mercer L. Rev. 1 (2018). For article with annual survey on state and local taxation, see 73 Mercer L. Rev. 231 (2021). JUDICIAL DECISIONS General Consideration Standing and Consent to Bring Action Against State Refundable Payments Elements of Proof Denial of Claim General Consideration Nature of action. — Right given to bring an action for refund of taxes illegally assessed and collected is in the nature of an action for money had and received. Hawes v. Bigbie, 123 Ga. App. 122, 179 S.E.2d 660, 1970 Ga. App. LEXIS 748 (1970). Availability of other procedures and remedies. — Only method by which a taxpayer may present a claim for refund to the superior court is by the procedure outlined in this statute. Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 210 S.E.2d 377, 1974 Ga. App. LEXIS 1001 (1974). Taxpayer has at least three remedial procedures available for use in disputing the correctness of an assessment rendered against the taxpayer by the commissioner under Ga. L. 1951, p. 360, § 1 et seq. (see now O.C.G.A. Ch. 8, T. 48) relating to sales and use taxes. Taxpayer may proceed: (1) by the method of appeal under Ga. L. 1937-38, Ex. Sess., p. 77, § 45 (see now O.C.G.A. § 48-2-59); (2) by affidavit of illegality under former Code 1933, § 92-7301 (see now O.C.G.A. § 48-3-1); or (3) by paying taxes illegally exacted and suing for refund under Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35). Ingalls Iron Works Co. v. Blackmon, 133 Ga. App. 164, 210 S.E.2d 377, 1974 Ga. App. LEXIS 1001 (1974). When the manufacturer remitted tax payments under the pre-1985 version of O.C.G.A. § 3-4-60, even if the manufacturer was not procedurally barred from seeking a refund under O.C.G.A. § 48-2-35, the manufacturer’s failure to avail itself of the predeprivation remedies available to the manufacturer prior to payment of the disputed taxes results in denial of recovery of taxes so paid. James B. Beam Distilling Co. v. State, 263 Ga. 609, 437 S.E.2d 782, 1993 Ga. LEXIS 823 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662, 130 L. Ed. 2d 597, 1994 U.S. LEXIS 8837 (1994). O.C.G.A. § 48-2-35, though the statute does not satisfy the criteria of the Tax Injunction Act, 28 U.S.C. § 1341, so as to bar jurisdiction of the federal court, is not the only means by which a taxpayer might challenge the constitutional validity of a state tax and win retrospective relief, as a taxpayer can bring an action in state court under 42 U.S.C. § 1983. Johnsen v. Collins, 875 F. Supp. 1571, 1994 U.S. Dist. LEXIS 20214 (S.D. Ga. 1994). Predeprivation remedies. — State could not hold out what plainly appeared to be a “clear and certain” postdeprivation remedy and then declare, only after the disputed taxes had been paid, that no such remedy existed. Reich v. Collins, 513 U.S. 106, 115 S. Ct. 547, 130 L. Ed. 2d 454, 1994 U.S. LEXIS 8789 (1994). Jurisdiction of federal court. — Though the holding in Reich v. Collins, 262 Ga. 625, 422 S.E.2d 846 (1992), seems to bar most refunds under O.C.G.A. § 48-2-35 when this tax is challenged on constitutional grounds, the uncertain status of this holding makes a constitutional claim under the Georgia refund statute equally uncertain, and so does not satisfy the criteria of providing a “plain, speedy and efficient” post-taxation remedy so as to bar jurisdiction of the federal court. Johnsen v. Collins, 875 F. Supp. 1571, 1994 U.S. Dist. LEXIS 20214 (S.D. Ga. 1994). O.C.G.A. § 48-2-35 does not constitute a waiver of immunity under the Eleventh Amendment to the United States Constitution and was not enough to confer jurisdiction on federal courts in Georgia to hear a plaintiff’s claims against the state for damages or prospective relief regarding the automobile “title transfer fee” statute (O.C.G.A. § 40-3-21.1) [repealed]. Johnsen v. Collins, 875 F. Supp. 1571, 1994 U.S. Dist. LEXIS 20214 (S.D. Ga. 1994). Class action suit for tax refund may not be maintained in Georgia. State v. Private Truck Council of Am., Inc., 258 Ga. 531, 371 S.E.2d 378, 1988 Ga. LEXIS 358 (1988). Direct cause of action against dealer not permitted. — Since the plain language of O.C.G.A. § 48-2-35.1(d) provides that a person may seek a refund of erroneously paid sales tax from a dealer who collected and remitted the tax to the commissioner or directly from the commissioner, but does not mention a direct cause of action against the dealer, the customers were not authorized to bring a direct action for a refund of allegedly over-collected sales tax against the power company. Ga. Power Co. v. Cazier, 321 Ga. App. 576, 740 S.E.2d 458, 2013 Ga. App. LEXIS 352 (2013), cert. denied, No. S13C1275, 2013 Ga. LEXIS 813 (Ga. Oct. 7, 2013). Liability of Department of Revenue for refund of fees charged by another department. — Emission testing company, seeking a refund under O.C.G.A. § 48-2-35(a), was not entitled to recover invalid fees from the state revenue commissioner since the fee was collected by the Director of the Environmental Protection Division of the Department of Natural Resources; deletion of the first “by the Commissioner” from what was now the first sentence of the statute was not intended to allow a citizen to recover from the Revenue Commissioner any fee paid to any other department or agency of Georgia government. Ga. Emission Testing Co. v. Jackson, 259 Ga. App. 250, 576 S.E.2d 642, 2003 Ga. App. LEXIS 68 (2003). Availability of defenses. — Effect of having an express statutory right to sue for a refund was to remove the defense of voluntary payment under former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13). Hawes v. Smith, 120 Ga. App. 158, 169 S.E.2d 823, 1969 Ga. App. LEXIS 702 (1969). Mandamus relief improperly denied. — Plaintiffs’ mandamus claims were improperly denied as the plaintiffs did not have an adequate legal remedy to challenge the constitutionality of Ga. L. 2015, pp. 236, 241-264, §§ 5-8 (HB 170) by pursuing a refund action because the plaintiffs did not argue that H.B. 170 illegally assessed taxes against them, but, rather, the plaintiffs argued that it violated the state constitution by allowing revenues from taxes on motor fuels to be apportioned for purposes other than on roads and bridges; thus, the relief the plaintiffs sought was broader than the relief provided by the statute, O.C.G.A. § 48-9-3, which was limited to a refund of the assessed taxes plus interest, and the trial court erred in concluding that the refund statute was an adequate legal remedy for the plaintiffs’ claims. Ga. Motor Trucking Ass'n v. Georgia Dep't of Revenue, 301 Ga. 354, 801 S.E.2d 9, 2017 Ga. LEXIS 457 (2017). Standing and Consent to Bring Action Against State Prerequisites to filing of claim for refund. — Before a claim for refund is filed with the commissioner there should be a legal determination that the tax was erroneously or illegally collected by the commissioner. Parke, Davis & Co. v. Cook, 198 Ga. 457, 31 S.E.2d 728, 1944 Ga. LEXIS 417 (1944). Standing to claim refund. — Refunds provided for under this statute are to be made to taxpayers. A retailer, like a distributor of gasoline, is not a taxpayer in the retailer’s capacity of collecting motor fuel taxes and turning the taxes over to the commissioner. Maynard v. Thrasher, 77 Ga. App. 316, 48 S.E.2d 471, 1948 Ga. App. LEXIS 543 (1948). To come within this statute, one need only qualify as a taxpayer. Under former Code 1933, Ch. 92-14 (see now O.C.G.A. Art. 1, Ch. 9, T. 48) the consumer was the taxpayer. Hawes v. Shepherd Constr. Co., 117 Ga. App. 842, 162 S.E.2d 231, 1968 Ga. App. LEXIS 1259 (1968). Only the party who actually paid the taxes is entitled to claim a refund. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169, 198 S.E.2d 900, 1973 Ga. App. LEXIS 925 (1973). Ga. L. 1937-38, Ex. Sess., p. 77, § 34 (see now O.C.G.A. § 48-2-35) does not preclude the owner of the facility into which waste treatment equipment is incorporated from filing a claim for refund pursuant to a regulation of the commissioner pursuant to Ga. L. 1951, p. 360, § 3 (see now O.C.G.A. § 48-8-3) which regulation provides that the application for a refund be filed by the ultimate user. Eimco BSP Servs. Co. v. Chilivis, 241 Ga. 263, 244 S.E.2d 829, 1978 Ga. LEXIS 985 (1978). When, under the pre-1985 version of O.C.G.A. § 3-4-60, the manufacturer remitted a tax payment to the revenue commissioner and subsequently, in an itemized billing statement, required the wholesaler to remit payment for “state stamps” or “state tax,” it was the wholesaler which was the taxpayer for purposes of O.C.G.A. § 48-2-35 and, due to the manufacturer’s lack of standing, the manufacturer was procedurally barred from pursuing an action for refund. James B. Beam Distilling Co. v. State, 263 Ga. 609, 437 S.E.2d 782, 1993 Ga. LEXIS 823 (1993), cert. denied, 513 U.S. 1056, 115 S. Ct. 662, 130 L. Ed. 2d 597, 1994 U.S. LEXIS 8837 (1994). When it is shown that customers and not retailers paid taxes, retailers have no legal standing to obtain a refund. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896, 1973 Ga. App. LEXIS 926 (1973), overruled, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110, 2003 Ga. LEXIS 258 (2003). Since this statute extends the state’s consent to be sued only to the taxpayer who has overpaid the taxpayer’s tax liability, a seller may not bring an action for a refund of sales and use taxes under this statute unless the seller establishes the seller’s standing to assert that as a taxpayer the seller has overpaid the seller’s tax liability. If a seller has merely remitted taxes which the seller has shifted to the seller’s customers, the seller lacks standing to assert that as to those payments the seller as a taxpayer has overpaid the seller’s liability. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896, 1973 Ga. App. LEXIS 926 (1973), overruled, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110, 2003 Ga. LEXIS 258 (2003). Electrical membership corporation lacked direct standing to pursue a claim for a refund of sales tax on behalf of the corporation’s members/patrons, pursuant to O.C.G.A. § 48-2-35(b)(1), as it was not a “taxpayer” within O.C.G.A. § 48-2-35(b)(4) for purposes of bringing an action for a tax refund as the corporation did not bear the burden of the tax because the tax was passed on to the corporation’s members/patrons; one purpose of the EMC was to furnish electrical energy and service to the corporation’s members, pursuant to O.C.G.A. § 46-3-200(1), and the sale of electricity required a retail sales tax paid to the EMC, which was passed onto the Georgia Commissioner of Revenue, pursuant to O.C.G.A. § 48-8-30(a). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22, 608 S.E.2d 611, 2005 Ga. LEXIS 117 (2005). No standing to claim refund. — Trial court did not err in dismissing a bank’s complaint alleging that the bank was entitled to a refund for sales tax paid under the General Refund Statute, O.C.G.A. § 48-2-35, because the bank was not a taxpayer entitled to a refund under § 48-2-35 since the bank was simply a third-party lender that contracted to advance the money for the consumer, and ultimately the merchant, to meet their obligations to pay the sales tax; the bank’s recourse was against the consumer who defaulted on the debt or possibly through any provisions in the credit card program contracts assigning responsibility for bad debts among the various parties. Citibank (South Dakota), N.A. v. Graham, 315 Ga. App. 120, 726 S.E.2d 617, 2012 Ga. App. LEXIS 330 (2012), cert. denied, No. S12C1281, 2012 Ga. LEXIS 1017 (Ga. Oct. 1, 2012). Statute as providing standing to attack constitutionality of other provisions. — Authority under this statute to bring an action for a refund does not provide standing to attack constitutionality of another statute when facts alleged show no injury from enforcement of such statute. Atlanta Americana Motor Hotel Corp. v. Undercofler, 222 Ga. 295, 149 S.E.2d 691, 1966 Ga. LEXIS 461 (1966). State as real party at interest. — Action under this statute against the predecessor of the present commissioner in an official capacity as commissioner is an action against the state. Forrester v. Continental Gin Co., 67 Ga. App. 119, 19 S.E.2d 807, 1942 Ga. App. LEXIS 344 (1942). State, by this statute, has consented to be sued. Thompson v. Continental Gin Co., 73 Ga. App. 694, 37 S.E.2d 819, 1946 Ga. App. LEXIS 390 (1946). Consent to be strictly construed. — State may not be sued without the state’s consent. If consent to be sued is extended by the state, the scope of consent may not be extended by implication. Therefore, this statute is to be strictly construed. Schaffer v. Oxford, 102 Ga. App. 710, 117 S.E.2d 637, 1960 Ga. App. LEXIS 730 (1960). Electrical membership corporation lacked associational standing to seek a sales tax refund on behalf of the corporation’s members/patrons as the corporation was a nontaxpayer acting in a representative capacity and there was a very limited waiver of sovereign immunity provided by O.C.G.A. § 48-2-35, which did not extend to nontaxpayers; further, the waiver of sovereign immunity by Ga. Const. 1983, Art. I, Sec. II, Para. IX(e) was to be strictly construed, and even a taxpayer was prohibited from bringing a refund action on behalf of other taxpayers similarly situated, pursuant to O.C.G.A. § 48-2-35(b)(5). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22, 608 S.E.2d 611, 2005 Ga. LEXIS 117 (2005). Consent is conditioned on prior filing of refund claim. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896, 1973 Ga. App. LEXIS 926 (1973), overruled, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110, 2003 Ga. LEXIS 258 (2003). To whom consent granted. — Statute extends state’s consent to be sued only with respect to overpayments by the taxpayer from whom such tax was collected. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896, 1973 Ga. App. LEXIS 926 (1973), overruled, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110, 2003 Ga. LEXIS 258 (2003). Refundable Payments Applicability of statute. — Statute is meant to apply in cases of taxes erroneously or illegally assessed or collected. Hawes v. Bigbie, 123 Ga. App. 122, 179 S.E.2d 660, 1970 Ga. App. LEXIS 748 (1970). What payments refundable. — Revenue derived through enforcement of executive order of commissioner providing for warehousing and other services with respect to distilled spirits passing through or stored in a state-operated warehouse and handled by state employees is not revenue obtained through tax or license within the purview of this statute. Schaffer v. Oxford, 102 Ga. App. 710, 117 S.E.2d 637, 1960 Ga. App. LEXIS 730 (1960). Compensation granted a dealer is not allowable for one’s own tax liability. Blackmon v. Premium Oil Stations, Inc., 129 Ga. App. 169, 198 S.E.2d 900, 1973 Ga. App. LEXIS 925 (1973). Trial court properly dismissed the testing company’s lawsuit brought pursuant to O.C.G.A. § 48-2-35 and seeking a refund of fees improperly assessed under the Motor Vehicle Emission Inspection and Maintenance Act, O.C.G.A. § 12-9-40 et seq., as the state revenue commissioner did not collect or administer the fee at issue and O.C.G.A. § 48-2-35 only applied to the illegal collection of a tax or license made by the state revenue commissioner. Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 602 S.E.2d 153, 2004 Ga. App. LEXIS 879 (2004), cert. denied, No. S04C1952, 2004 Ga. LEXIS 894 (Ga. Oct. 12, 2004). Dealer not required to prepay potentially refundable taxes prior to seeking approval of refund from Department of Revenue. — With regard to the period beginning by May 5, 2009 and ending on September 7, 2010, the court of appeals erred by affirming the dismissal of the dealer’s case requesting a tax refund from the Georgia Department of Revenue because the statutes did not require a dealer to prepay potentially refundable taxes to consumers prior to seeking approval for a refund from the Department; and, although the Department’s regulations required a dealer to pay any refund amount to the dealer’s customers prior to the point that the dealer could acquire repayment of those funds from the Department, the statutes did not require a dealer to repay funds to the dealer’s customers prior to filing a request for a refund or prior to the Department’s decision of whether or not a refund was due. New Cingular Wireless PCS, LLC v. Ga. Dep't of Revenue, 303 Ga. 468, 813 S.E.2d 388, 2018 Ga. LEXIS 209 (2018). Elements of Proof Elements of proof of claim for refund. — In any case when tax was illegally collected, the plaintiff may file the plaintiff’s claim for a refund, but in order to prevail upon the trial of the action the plaintiff must show that the taxing authority is not in equity and good conscience entitled to the money. Hawes v. Bigbie, 123 Ga. App. 122, 179 S.E.2d 660, 1970 Ga. App. LEXIS 748 (1970). As a prerequisite to maintenance of an action, the plaintiff must prove at trial the plaintiff’s averment that the basis on which the plaintiff computed and paid taxes is that taxes were not first collected by the plaintiff from the plaintiff’s customers and that the plaintiff bore the burden of taxes claimed to have been overpaid, not the plaintiff’s customers. Otherwise, the plaintiff has not established a basis for asserting that the plaintiff as a retailer has overpaid the plaintiff’s liability as a taxpayer. Blackmon v. Georgia Indep. Oilmen's Ass'n, 129 Ga. App. 171, 198 S.E.2d 896, 1973 Ga. App. LEXIS 926 (1973), overruled, City of Atlanta v. Barnes, 276 Ga. 449, 578 S.E.2d 110, 2003 Ga. LEXIS 258 (2003). Substantial evidence supported determinations of Public Service Commission. — Trial court did not err granting summary judgment to the power company upon determining that the Georgia Public Service Commission’s determinations were supported by substantial evidence and were neither arbitrary nor capricious in its exclusive ratemaking authority. Cazier v. Ga. Power Co., 362 Ga. App. 112, 866 S.E.2d 827, 2021 Ga. App. LEXIS 570 (2021). Denial of Claim Refund of sales tax for failure to comply with regulations. — Grant of the Georgia Department of Revenue’s motion to dismiss the appellants’ complaint seeking a refund under O.C.G.A. § 48-2-35 of state sales tax paid was affirmed because the appellants failed to comply with a regulation that, before seeking a refund on behalf of their customers under § 48-2-35, the appellants were required to affirmatively show that the alleged erroneously or illegally collected tax had been refunded to their customers, which the appellants admittedly had not done. Effect of denial of claim by commissioner. — When claim for tax refund is denied by the commissioner, the taxpayer has action against the state for refund. The money, having been paid into the state treasury, is no longer within the power or control of the commissioner. Wright v. Forrester, 192 Ga. 864, 16 S.E.2d 873, 1941 Ga. LEXIS 563 (1941). State is the real party at interest on question of tax refund, and the statute imposes no further duty on the commissioner if the commissioner denies the claim. Wright v. Forrester, 192 Ga. 864, 16 S.E.2d 873, 1941 Ga. LEXIS 563 (1941). Limitation of action. — Letter from Department of Revenue denying a claim for refund of sales and use taxes commenced the running of the two-year limitations period even though the denial was for “lack of documentation” and there was subsequent communication between the taxpayer and the Department. Collins v. Columbus Foundries, Inc., 262 Ga. 710, 425 S.E.2d 281, 1993 Ga. LEXIS 187 (1993). OPINIONS OF THE ATTORNEY GENERAL What payments refundable. — Payment of retail liquor license by the owner of a store, which the owner shortly thereafter sold to another, is not recoverable if voluntarily made. 1948-49 Ga. Op. Att'y Gen. 593. Language of this statute clearly limits refunds made to such taxes which may be determined to have been erroneously or illegally assessed and collected. Therefore, license fees voluntarily paid for motor vehicle license plates cannot be recovered when the owner of such vehicle later decides not to operate the vehicle within the state. 1950-51 Ga. Op. Att'y Gen. 190. Statute applies only to taxes paid to the state and has no application to the recording tax imposed on long-term real estate notes. 1960-61 Ga. Op. Att'y Gen. 521. Overpayment of income taxes resulting from excess withholdings may not be recovered under normal circumstances by filing a claim for refund or by obtaining credit against liability of different years, when the taxpayer does not file an income tax return until more than three years after the date of payment. 1976 Op. Att'y Gen. No. 76-54. Election by husband and wife to change from joint return to separate returns. — Husband and wife may amend a previously filed return or returns so as to change from joint return basis to separate return basis, or vice versa, but beyond the due date of the return they no longer have such right of election. The tax resulting from such election is not erroneously or illegally assessed or collected and no refund shall be issued, even if the tax is higher than if they had not so elected. 1963-65 Ga. Op. Att'y Gen. 589. RESEARCH REFERENCES Am. Jur. 2d. 72 Am. Jur. 2d, State and Local Taxation, § 965 et seq. ALR. Right to interest on tax refunds, 57 A.L.R. 357. When may payment of tax or assessment be regarded as involuntary or made under duress, 64 A.L.R. 9; 84 A.L.R. 294. Corporation which pays tax wrongfully exacted upon shares of its stock as proper party to maintain action for its recovery, 84 A.L.R. 107. Action to recover back tax illegally exacted as one upon contract as regards applicability of limitation statutes, 92 A.L.R. 1360. Constitutionality of statutes providing for refund of taxes illegally or erroneously exacted, 98 A.L.R. 284. Excessive assessments as within contemplation of statute providing for refunding of taxes erroneously or illegally charged, 110 A.L.R. 670. Right to amend claim for refund of taxes after time for filing has expired, 113 A.L.R. 1291. Right as between dealer or manufacturer and taxing authorities in respect of taxes and license fees illegally received or collected, 119 A.L.R. 542. Statute repealing or modifying previous statute providing for refunding of taxes illegally or erroneously assessed, collected, or paid, as applicable retroactively, 124 A.L.R. 1480. Assignability of claim for tax refund, and rights of assignee in respect thereof, 134 A.L.R. 1202. Right of payer, as against taxing authority, to refund of, or credit for, amount paid on another’s income tax, 154 A.L.R. 159. Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 154 A.L.R. 1052; 12 A.L.R.2d 815. Power or duty, in absence of statute, to allow tax or license fee illegally exacted or erroneously paid as credit on valid tax or license fee, 160 A.L.R. 1423. Retrospective operation of statute enlarging or shortening period for claim of tax refund, 163 A.L.R. 778. Right to refund or recovery of back taxes paid on property not owned by taxpayer, 165 A.L.R. 879. When does special limitation period for filing applications for tax refund begin to run, 175 A.L.R. 1100. Retrospective application and effect of statutory provision for interest or changed rate of interest, 4 A.L.R.2d 932. Claim of government against taxpayer (or one in privity with him) which is barred by lapse of time as available to defeat or diminish claim of taxpayer against government, or vice versa, 12 A.L.R.2d 815. Power to remit, release, or compromise tax claim, 28 A.L.R.2d 1425. When right to refund of state or local taxes accrues, within statute limiting time for applying for refund, 46 A.L.R.2d 1350. What constitutes laches barring right to relief in taxpayer’s action, 71 A.L.R.2d 529. Right to interest on tax refund or credit in absence of specific controlling statute, 88 A.L.R.2d 823. Refund of state inheritance or estate tax where claims are proven against estate after tax was paid, 63 A.L.R.3d 924. Propriety of class action in state courts to recover taxes, 10 A.L.R.4th 655. Recovery of tax paid on exempt property, 25 A.L.R.4th 186. Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147. Retrospective application and effect of state statute or rule allowing interest or changing rate of interest on judgments or verdicts, 41 A.L.R.4th 694. Validity and applicability of statutory time limit concerning taxpayer’s claim for state tax refund, 1 A.L.R.6th 1. Voluntary payment doctrine as bar to recovery of payment of generally unlawful tax, 1 A.L.R.6th 229. Construction and operation of statutory time limit for filing claim for state tax refund, 14 A.L.R.6th 119. Effect of delay in receipt or negotiation of refund check in determining right to interest under § 6611 of the Internal Revenue Code (26 USCA § 6611), 145 A.L.R. Fed. 437. What constitutes payment for purposes of commencing limitations period under Internal Revenue Code (26 U.S.C.A. § 6511(a)) for refund of tax overpayments, 160 A.L.R. Fed. 137. What constitutes plain, speedy, and efficient state remedy under Tax Injunction Act (28 USCS § 1341), prohibiting federal district courts from interfering with assessment, levy, or collection of state business taxes, 31 A.L.R. Fed. 2d 237.