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CERTIORARI TO THE SUPREME COURT OF GEORGIA No. 93-908. Argued October 11, 1994-Decided December 6,1994

Georgia taxed retirement benefits paid by the Federal Government, but exempted those paid by the State, until this Court held, in 1989, that such a scheme violates the Federal Constitution. Georgia then repealed its state retiree tax exemption, but did not offer federal retirees refunds for the unconstitutional taxes they had paid before the Court's 1989 decision. Petitioner Reich, a federal retiree, sought redress under a Georgia statute requiring refunds of "illegally assessed" taxes. In affirming the state trial court's denial of such relief, the State Supreme Court held that the refund statute does not apply where the law under which the taxes were assessed and collected was itself subsequently declared to be invalid. It then denied Reich's petition seeking reconsideration under McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, and similar cases, which establish that due process requires a "clear and certain" remedy for taxes collected in violation of federal law, and that a State may provide that remedy before the disputed taxes are paid (predeprivation), after they are paid (postdeprivation), or both. Reich petitioned for certiorari, and this Court remanded for further consideration in light of Harper v. Virginia Dept. of Taxation, 509 U. S. 86, which had relied on McKesson in circumstances similar to this case. In again denying Reich's refund claim, the State Supreme Court reviewed Georgia's predeprivation remedies and found those remedies to be "ample."

Held: The Georgia Supreme Court erred in relying on Georgia's predeprivation remedies to deny relief. Although due process, under McKesson, allows a State to maintain a remedial scheme that is exclusively pre deprivation, exclusively postdeprivation, or a hybrid, and to reconfigure its scheme over time to fit changing needs, it may not do what Georgia did here: "bait and switch" by reconfiguring, unfairly, in midcourse. Specifically, Georgia held out what plainly appeared to be a "clear and certain" postdeprivation remedy, its tax refund statute, and then declared, only after Reich and others had paid the disputed taxes, that no such remedy exists. In this regard, the State Supreme Court's reliance on predeprivation procedures was entirely beside the point (and thus error), because even assuming the constitutional adequacy of those procedures-an issue not here addressed-no reasonable taxpayer


would have thought that they represented, in light of the apparent applicability of the refund statute, the exclusive remedy for unlawful taxes. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449. The case is remanded for the provision of meaningful backward-looking relief consistent with due process and the McKesson line of cases. Pp. 110-114.

263 Ga. 602, 437 S. E. 2d 320, reversed and remanded.

O'CONNOR, J., delivered the opinion for a unanimous Court.

Carlton M. Henson argued the cause and filed briefs for petitioner.

Warren R. Calvert, Senior Assistant Attorney General of Georgia, argued the cause for respondents. With him on the briefs were Michael J. Bowers, Attorney General, and Daniel M. Formby, Senior Assistant Attorney General. *

*Briefs of amici curiae urging reversal were filed for the Committee on State Taxation by Kendall L. Houghton and William D. Peltz; for James B. Beam Distilling Co. by Morton Siegel and John L. Taylor, Jr.; for the National Association of Retired Federal Employees et al. by Michael J. Kator; and for the Tax Executives Institute, Inc., by Timothy

Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by James S. Gilmore III, Attorney General of Virginia, David E. Anderson, Chief Deputy Attorney General, Catherine C. Hammond, Deputy Attorney General, Roger L. Chaffe and Gregory E. Lucyk, Senior Assistant Attorneys General, and Cynthia W Comer and Barbara H. Vann, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Grant Woods of Arizona, Robert Butterworth of Florida, Robert A. Marks of Hawaii, Roland W Burris of Illinois, Pamela Carter of Indiana, Bonnie J. Campbell of Iowa, Robert T. Stephan of Kansas, Richard P. Ieyoub of Louisiana, Hubert H. Humphrey III of Minnesota, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Charles W Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Christine O. Gregoire of Washington, and James E. Doyle of Wisconsin; and for the National Governors' Association et al. by Richard Ruda and Charles Rothfeld.

Michael F. Easley, Attorney General, Edwin M. Speas, Jr., Senior Deputy Attorney General, Thomas F. Moffitt and Norma S. Harrell, Special

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