Opinion
50309.
ARGUED FEBRUARY 25, 1975.
DECIDED MARCH 19, 1975. REHEARING DENIED APRIL 2, 1975.
Business license violation. Fulton Superior Court. Before Judge Shaw.
Arnall, Golden Gregory, Cleburne E. Gregory, Jr., William H. Kitchens, for appellants.
Henry L. Bowden, John E. Dougherty, for appellee.
Where a firm is a partnership among certified public accountants, each of whom has paid a professional occupation tax to the City of Atlanta, neither one of the partners nor an employee in charge of the management consulting division of the firm is guilty of an offense of failing to register such partnership and obtaining an additional business license, where management consulting is, under rules and regulations promulgated under the state licensing laws, one of the services rendered by public accountants.
ARGUED FEBRUARY 25, 1975 — DECIDED MARCH 19, 1975 — REHEARING DENIED APRIL 2, 1975.
Touche Ross Co. is a firm composed of some 400 certified public accountants ("professionals engaged in the practice of public accounting, management consulting and tax advisory services"). Because of its size and diversification its professional accounting services are divided among audit services, management advisory services, tax services, etc. These "departments" are not autonomous, but subject to guidance and review of actions by the partners. The defendant Wanthal is a certified public accountant and firm partner; the defendant Seitz is an employee ("principal"); both are assigned to the management consulting area of the firm. Each was charged, tried, and convicted in the Municipal Court of Atlanta for violation of the Business and Occupation License Ordinance of the City of Atlanta, and particularly Chapter 17, Appendix I, Sec. 6 (1) of the Atlanta Code of Ordinances. This specifies that the "owner, proprietor, manager, executive officer or legal representative of every business" on which a business license fee is levied must register such business and apply for a license. Section 13 lists enumerated exceptions. Exception (K) enumerates "Professionals, defined and classified as accountant, certified or public; architect; attorney; chiropractor; dentist etc," who while exempted from a business license, are required to pay a fee described as a professional occupation tax. Wanthal and all other partners of Touche Ross Co. paid their individual professional occupation taxes.
Upon the trial the question arose as to whether Touche Ross Co., whose management consulting service is contended by the city to be a business subject to a business tax, was a party to the proceedings. The judge's ruling that it was not a party, and that the defendants (whose trials were consolidated by consent) were the sole defendants is not excepted to. Under the penal provisions attaching upon failure to obtain a business license, each defendant was fined $105. Certiorari was applied for in the Superior Court of Fulton County, and the following order, from which this appeal is taken, was entered: "It is ordered and adjudged that the petition in certiorari is overruled. It is further ordered that Touche Ross Co. is only liable for one business license in the City of Atlanta. It is further ordered that the plaintiff in certiorari is not liable individually for the city business license."
The parties to this appeal are of course bound by the rulings of the superior court judge on certiorari from which no appeal is taken. It is therefore obvious that, under the law of this case, the defendants are not required individually to take out a business license. Wanthal, a certified public accountant, has paid his professional occupation tax and could not under any circumstances be further required to pay a business license fee for activities included in the practice of his profession. This would be double taxation. Neither assessment could be justified as being a license rather than a tax. Silverman v. Mayor c. of Savannah, 125 Ga. App. 41, 47 ( 186 S.E.2d 447). It is pointed out to us that the State Board of Accountancy, which has rule-making power, includes these activities in defining the profession, and that Sec. 20-10-01(4) of its Rules and Regulations provides: "A certified public accountant who has any interest in an organization performing statistical tabulating services, management advisory services, or similar activity, is directly or indirectly rendering `services of a type performed by public accountants' and is subject to these standards of professional conduct." This accords with the testimony of all accountants examined as experts in the field upon the trial.
As stated in Publix-Lucas Theatres, Inc. v. City of Brunswick, 206 Ga. 206, 210 ( 56 S.E.2d 254), quoting from Mystyle Hosiery Shops, Inc. v. Harrison, 171 Ga. 430, 431 ( 155 S.E. 765): "[R]evenue laws are neither remedial statutes nor laws founded upon any permanent public policy, and are not, therefore, to be liberally construed; and hence, whenever there is a just doubt, that doubt should absolve the taxpayer from his burden."
Management advisory services are, under the state licensing authority, services "of a type performed by public accountants." The defendant Wanthal and all other partners in the firm have presumably paid the annual registration fee to the state under Code Ann. § 84-215. In addition, each has paid his professional occupation tax to the City of Atlanta. A third tax, although nominally levied against Touche Ross Co., is in reality a second imposition of occupational tax by the municipality as to which each partner would be liable for a pro rata share in addition to the tax already paid. Therefore, Wanthal as a partner could not also be compelled as an "owner" to pay an additional tax or part thereof, or be fined for failure to register "Touche Ross Co." and apply for a license, absent clear proof that the partnership was engaged in a "business" which was not in fact a part of the accounting business of the partnership. This applies even more strongly to Seitz, who appears to have been an employee under Wanthal in the management services division of the company.
For this reason only the trial court erred in denying the petition for certiorari. The remaining portions of the order holding that only one business license could be charged in any event and further that the defendants are not individually liable for a business license is affirmed.
Judgment reversed. Evans and Stolz, JJ., concur.