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Unofficial Opinion 93-12

Unofficial Opinion 93-12

November 18, 1993
To: 

Attorney

Re: 

The "Hotel-Motel Tax" authorized by O.C.G.A. §§ 48-13-50, et seq., may not be imposed by both a county and a city within the boundaries of the city

This is in reply to your recent question as to whether, under O.C.G.A. §§ 48-13-50, et seq., a county and a city may both impose an excise tax on rooms, lodgings and accommodations (commonly called the "Hotel-Motel Tax") within the confines of the city.

As I understand the facts, in 1991 Elbert County imposed a 5% Hotel-Motel Tax in the special district within its boundaries, including within the boundaries of the cities of Elberton and Bowman because, at that time, those cities had not imposed such a tax.  Elbert County has continued to collect this tax until the present time.  Effective October 1, 1993, the City of Elberton has now imposed its own 5% Hotel-Motel Tax within its city limits.

The question of whether a county and a city located within the county may both impose a Hotel-Motel Tax within the boundaries of the city has, to my knowledge,  [*2]  not been the subject of any judicial decision.  Thus, I base my conclusion herein upon the statute, the legislative history, and what appear to be the legislative intent and the controlling rule of construction.

The statutory authority for either a county or a municipality to levy the instant excise tax on rooms, lodgings, and accommodations is contained in Article 3 of Chapter 13 of Title 48 of the Official Code of Georgia Annotated.  When originally enacted, that general law contained no special district feature.  See Ga. Laws 1975, p. 1002.  It merely authorized the governing authority of each county and of each municipality to levy such a tax, with the express prohibition that:

No tax may be levied or collected by a county in any portion of the county in which the tax is being levied and collected by a municipality.

O.C.G.A. § 48-13-51(b) (1982 ed.) [Ga. Laws 1975, pp. 1002, 1004].

Subsequently, in conjunction with the plan to construct the domed stadium in Atlanta, the Legislature amended this statute, changing the tax to a special district tax when a county, rather than a city, was the imposing governmental entity.  Thus, the current version of this law provides,  [*3]  inter alia, that:

Pursuant to the authority granted by Article IX, Section II, Paragraph VI of the Constitution of this state, there are created within this state 159 special districts.  One such district shall exist within the geographical boundaries of each county, and the territory of each such district shall include all of the territory within the county except territory located within the boundaries of any municipality which imposes an excise tax on charges to the public for rooms, lodgings, and accommodations under this article.

O.C.G.A. § 48-13-50.1 (Supp. 1993).  In another section of the current statute, the Legislature has provided that the "governing authority of each municipality in this state may levy and collect [such a] tax" and that "[w]ithin the territorial limits of the special district located within the county, each county in this state may levy and collect [such a] tax." O.C.G.A. § 48-13-51(a)(1), (3), (3.1), etc.  In the current statute, the Legislature has also provided that:

No tax under this article may be levied or collected by a county outside the territorial limits of the special district located within the county.

O.C.G.A. § 48-13-51(b).

  [*4]

The apparent general purpose for the legislative change to a special district tax was to avoid a uniformity problem under Georgia's Constitution, since the newer version of the statute authorizes varying tax rates within a county.  See CONST. OF GEORGIA OF 1983, Art. VII, Sec. I, Par. III(a); Youngblood v. State, 259 Ga. 864, 865, 388 S.E.2d 671, 673 (1990) (upholding the Hotel-Motel Tax as against a uniformity attack, based upon the special district feature).

In addition to seeking and attempting to give effect to the legislative intent, see O.C.G.A. § 1-3-1(a), the rule of construction applicable to the imposition of county taxes is that the grant of authority by the State is to be strictly construed, and if there is any doubt as to the power of the county to tax in a particular instance, it must be resolved in the negative.  See, e.g., Cotton States Mutual Ins. Co. v. Dekalb County, 251 Ga. 309, 310, 304 S.E.2d 386, 388 (1983).

After considering the foregoing, it appears to me that when the Legislature injected the special district feature into the authorizing statute, the Legislature did not intend to authorize both a county and a city to impose such a tax [*5]  in the same geographic area.  As originally enacted, the statute expressly prohibited such a "duplication" of Hotel-Motel Taxes.  O.C.G.A. § 48-13-51(b) (1982 ed.) [Ga. Laws 1975, pp. 1002, 1004].  The language in the current version which prohibits a county from levying such a tax outside the territorial limits of the special district located within the county, O.C.G.A. § 48-13-51(b) (Supp. 1993), seems to be an effort by the General Assembly to continue, but now in the special district context, the pre-existing prohibition against one hotel or motel being subject to paying both a county/special district Hotel-Motel Tax and a city Hotel-Motel Tax.

In your letter you express the view, with regard to the special district feature of the current statute, that the boundaries of the special district should be determined at the time the county imposes a Hotel-Motel Tax, and that the subsequent levying of a similar tax for the first time by a city within the special district should not alter the special district nor invalidate the county tax.  Your view has some equitable appeal from the county's perspective.  Nevertheless, in the absence of judicial or further legislative guidance,  [*6]  I perceive the legislative intent to be to preclude the "duplicate" Hotel-Motel Taxes about which you have inquired.  Thus, I believe that under the current law the boundaries of the special district at any given time are determined by the actual fact of imposition, or lack of imposition, of the tax at that time within the municipalities in the county in question.  My conclusion in this regard is furthered by the lack of any express language or indication in O.C.G.A. § 48-13-50.1 to support the permanent freezing in time of the boundaries of the special district, or for creating a condition or limitation based upon time.  The dispositive condition seems simply to be the fact of imposition or non-imposition of a Hotel-Motel Tax by a particular municipality within the county which is coterminous with the maximum territorial limits of the special district. The opposite conclusion could promote a race between the local governments to levy the tax, and I do not believe that was what the Legislature intended.  More importantly, it is possible that such a duplication of taxes could create a uniformity problem of the type which the Legislature acted to prevent.

The views contained herein [*7]  represently solely those of the undersigned, and do not constitute an opinion of the Attorney General.

Issued this 18th day of November, 1993.

Prepared by:

DAVID A. RUNNION

Senior Assistant Attorney General