If commissioner-elect Allen McCarty will come forward with paperwork proving he has paid off a past due state sales tax bill dating back to 2003, current Commissioner Eric Maxwell said he would dismiss his lawsuit seeking to disqualify McCarty from taking office.
Maxwell — who was defeated by McCarty in the July Republican Primary — filed the suit last week, claiming that McCarty owed $3,398.75 in sales taxes from 2003 that resulted in the state of Georgia filing a tax execution in 2009 because the debt went unpaid, piling on interest that sent the figure soaring to $8,950 as of February 2009.
McCarty claims he has cancelled checks to prove that he has paid the tax in full, explaining that the debt stemmed from his purchase of a motor home in Nevada a number of years ago. McCarty has not yet provided copies of those checks to The Citizen although he said last week that he would do so.
McCarty also said he was unaware at the time he bought the motor home that he would owe the sales tax, and although he protested the tax he ultimately paid it.
“Oh, that was taken care of months and months ago,” McCarty said last week. “… They removed the liens from the property, which means it was paid, and they should have been smart enough to check that,” McCarty said.
McCarty bested Maxwell with 7,544 votes to Maxwell’s 6,346 in the Republican primary.
The timing of McCarty’s payment is key to the lawsuit, because Maxwell contends if McCarty owed the state any money when he filed paperwork declaring his candidacy, he should be disqualified from taking office.
Maxwell’s suit contends that the unpaid tax debt rendered McCarty “the illegal holder of public funds payable to the state of Georgia” which in turn would make him unqualified to hold public office. Maxwell also alleges that McCarty committed a felony violation of false swearing on two occasions: when he qualified for office and when he declared his candidacy with an affidavit under oath or affirmation, both in May.
A hearing on the matter has been scheduled for 10 a.m. Tuesday, Nov. 23 before senior Superior Court Judge Byron Smith.
Maxwell said if the judge rules in his favor, the most likely outcome will be a new election. At this time, Maxwell said he does not plan on running again for the seat.
“I understand the voters voted me out of office,” Maxwell said.
So why even file the suit? Maxwell replied that as commissioner, McCarty will have a hand in the county’s annual $75 million budget, “so somebody has to ask the question, … if he doesn’t mind the store and was asleep at the wheel in his own personal life, is he going to do that with the county?”
McCarty is chalking the lawsuit up as retribution for his support of an initiative to halt construction of the West Fayetteville Bypass.
“Not to mention that I beat him in the election, which I’m sure didn’t sit well,” McCarty said.
Maxwell is asking the Fayette County Superior Court to rule McCarty an unqualified candidate, which could result in Maxwell reclaiming his seat, as he was the only other qualified candidate on the ballot in the July primary for the Post 5 seat.
In the alternative Maxwell is asking the court to declare the victor of the election the person who got the most write-in votes in the November election.
There were 549 write-in votes submitted via electronic polling machines in that race, and elections officials will have to comb through another 2,002 paper ballots to determine who got the most write-in votes, said Fayette County Elections Supervisor Tom Sawyer.
