Mar 17

The Court of Appeals’ Anti-TABOR Decision

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The Court of Appeals’ Anti-TABOR Decision

March 17, 2014 by Rob Natelson

041410 Rob Natelson-2The U. S. Court of Appeals for the Tenth Circuitrecently refused to dismiss the suit by various public sector interests to invalidate Colorado’s Taxpayer Bill of Rights (TABOR). The plaintiffs claim that TABOR violates Article IV, Section 4 of the U.S. Constitution. That provision is called the Guarantee Clause because it guarantees that the states will have republican forms of government.

However, the Court of Appeals addressed only standing and justiciability issues, and allowed further hearings on the Guarantee Clause issue.

The Guarantee Clause was designed to prevent states from becoming monarchies, dictatorships, or anarchies. It is totally inapplicable to TABOR,which simply requires that certain conditions—such as popular votes or legislative supermajorities—be met before the legislature can make designated increases in taxes, spending and debt. Although it is common in Colorado to claim TABOR is “unique,”  in fact, it is only one of the stronger fiscal-restraint provisions that appear in the constitutions of 49 states. (The exception is Vermont.)

Restraints of this kind are called “TELs”—tax and expenditure limitations. Even the U.S. Constitution imposes such restraints on Congress. For example, it requires direct taxes, other than the income tax, to be apportioned among states by population, and it imposes a flat ban against taxes on exports. Continue reading →

Mar 15

Their Power

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Paul Jacobs pictureTheir Power

Boo hoo.

Thirty-three hifalutin members of Colorado’s political elite — state legislators, former legislators, board of education officials, city and county politicians, and assorted insiders — are whining as plaintiffs in what’s called a federal case.

Why? They lost an election … in 1992! Now, as the federal 10th Circuit Court of Appeals put it, “Plaintiffs claim that they have been deprived of their power over taxation and revenue.”

Over 22 years ago, Coloradans petitioned the Taxpayer Bill of Rights onto the ballot and voters passed it. Known as TABOR, the constitutional amendment limits the growth of government spending, unless voters approve higher spending levels. It also requires voter approval for tax increases, except in an emergency. The politicians objected at the time, but have since lacked both the courage and the democratic sensibility to take the issue back to the people.All this by routine.

Instead, they’re suing to overturn the result. Continue reading →

Mar 15

Colorado residents may get a refund for pot tax

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Why this pot business deodorizes its cash 

Why this pot business deodorizes its cash
NEW YORK (CNNMoney)

Colorado residents could see some green in their pockets thanks to the new recreational marijuana taxes.

Budget advisers to the state legislature crunched the numbers and revealed the state could be forced to refund as much as $100 million to taxpayers.

The state’s Taxpayer Bill of Rights, known as TABOR, sets limits on taxes and government spending. If the government collects more than expected, it generally owes taxpayers a refund.

But Colorado taxpayers shouldn’t expect a refund check in the mail. The state has several other procedures to handle a refund.

The state could provide taxpayers a credit on the next year’s tax bill, for example, or reduce the sales tax. Continue reading →

Mar 14

The Tenth Circuit’s Punt in Kerr v. Hickenlooper Opens the Door for a Torrent of Litigation

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In 1992 the people of Colorado voted to amend their Constitution with adoption of a Taxpayer Bill of Rights (TABOR). This was a historic initiative that put the power in the hands of the people to decide for themselves whether to approve new taxes or tax-hikes. While many states have constitutional protections to prevent new or increased taxes—such as California’s requirement of a supermajority vote in the legislature—Colorado’s TABOR was unique in that it made the citizens of the state the final word on new taxes or increased taxes. TABOR therein served as a model that has been implemented through constitutional amendments in other states, and which NFIB has supported as a means of protecting small business owners from new and ingenious taxing schemes. But TABOR is under attack—and this may have profound implications, not only in Colorado but throughout the country.

TABOR’s Legal Challenges

TABOR was upheld as constitutional in the Colorado Supreme Court last year in the face of a lawsuit advanced by educators and the parents of school-aged children who complained that TABOR makes it harder for schools to get necessary funding. NFIB Small Business Legal Center filed in that case to defend the law, and we were pleased to see the Court ultimately affirm the constitutionality of TABOR. But TABOR faces yet another challenge—this time in federal court. Continue reading →

Mar 13

Colorado legislators grapple with pot-tax refund issue

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Colorado lawmakers on the Joint Budget Committee expressed frustration Wednesday that even though the state’s voters approved taxes on retail marijuana sales as required under the Taxpayer’s Bill of rights, some of that revenue might have to be refunded under TABOR if more taxes are collected than officials estimated.

JBC staff delivered a 100-page report to legislators outlining most of the scenarios that could occur of if the state collects more than the official $67 million estimate for the first full fiscal year of recreational pot sales, from July 1, 2014, through June 30, 2015.

That estimate was given to voters in the official voters pamphlet — known as the Blue Book — last fall, which explained Proposition AA, the new taxes established for retail marijuana sales. That booklet estimated likely revenue from new pot taxes at $67 million in the first full year. (The ballot language itself pegged predicted tax revenue at $70 million.)

Most current estimates, however, show the state will likely collect far more than $67 million.

The report outlines three courses of action:

– Wait to see how much tax is collected, then ask voters to let the state keep any excesses;

– Send a refund of any taxes collected above the estimate; or,

– Attempt to reduce the 15 percent excise tax on wholesale sales and 10 percent special sales tax in order to keep the amounts collected under $67 million.

“This is a bizarre result that we’d have to refund all that tax money just because what we asked for [was an estimate] in a year when this is going to be a growing industry,” said JBC Vice Chairman Sen. Pat Steadman, D-Denver, at a meeting of the budget panel Wednesday.

“It’s been the will of the people who passed TABOR,” said JBC Chairwoman Rep. Crisanta Duran, D-Denver. Continue reading →

Mar 13

House Minority Leader Statement on TABOR Ruling

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FOR IMMEDIATE RELEASE Contact: Joel Malecka

March 11, 2014 (o) 303-866-5679 (c) 970-581-3302

House Minority Leader Statement on TABOR Ruling

Denver –Today, following the 10th Circuit Court of Appeals’ ruling on a lawsuit challenging the constitutionality of the Colorado Taxpayer Bill of Rights (TABOR), House Minority Leader Brian DelGrosso (R-Loveland) issued the following statement:

“The Taxpayer Bill of Rights, particularly the requirement that voters’ approve all tax increases, provides vital protection to Coloradans from the tax-and-spend Democrats’ dream of unlimited
spending,” said DelGrosso. “It’s unfortunate that the lawsuit will continue, but I am not surprised these Democrats, which include House Democrat leadership, want to overturn TABOR. They believe they know what’s better for you than you do and without TABOR’s protection will be able to raise your taxes without your consent.”

House Republicans statement on TABOR ruling

Mar 13

Can the U.S. Government Declare a State Constitution ‘Un-Republican’?

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A lawsuit challenging Colorado’s Taxpayer Bill of Rights raises uncomfortable questions about federalism and the Constitution’s Guaranty Clause.

The Colorado Capitol in Denver (Wikimedia Commons)

The Constitution is full of inconvenient provisions. Gun-control advocates struggle to explain the Second Amendment; those favoring federal power must wrestle with the Tenth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Here’s a puzzle for the “states’ rights” and “state sovereignty” crowd: the “Guaranty Clause,” Article 4 § 4, which binds the federal government to “guarantee to every state … a republican form of government.”

That clause, like a dormant volcano, rumbled last week in a courtroom in Denver. The sound should worry those who think state prerogatives trump those of the nation.

Since the earliest days of the republic, this clause has been interpreted to mean that when Congress recognizes a state government and admits its members to Congress, it is implicitly finding the state’s government properly “republican.” In fact, when admitting new states to the union, Congress has for more than a century placed in the statute wording finding that the people have adopted a “republican form of government.” Continue reading →

TABOR may force Colorado to refund excess marijuana money to taxpayers

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DENVER — Tax revenues from Colorado’s new recreational marijuana industry are pouring into state coffers — and that’s actually a bit of a problem for lawmakers.

Taxpayers, however, may stand to benefit if lawmakers decide to refund the tax revenue that comes in above last year’s $67 million first-year estimate.

According to a legal analysis conducted by the state and obtained by FOX31 Denver, the marijuana revenues are subject to the state’s Taxpayer Bill of Rights (TABOR), which will require lawmakers to take action if tax revenues from the new legal marijuana industry exceed the estimated $67 million in annual revenue that was anticipated in the 2013 Blue Book analysis of Proposition AA, the new sales and excise tax rates voters approved in November.

The legal memorandum from the Office of Legislative Legal Services was sent to members of the Joint Budget Committee Monday night.

The report, obtained by FOX31 Denver, is the result of more than a week of legal analysis aimed at providing some certainty to the unanswered question of what happens if revenues come in above that $67 million estimate.

The most current Dept. of Revenue estimate forecasts that the state will take in $107 million, exceeding the Blue Book estimate by some $40 million.

The conclusion: the state must lower the tax rate and either refund the excess amount of revenues above the $67 million estimate or refer a measure to the November 2014 or 2015 ballot seeking permission from voters to let the state keep and spend all of the tax revenue from recreational marijuana.

“It’s very difficult to figure out what the actual amount of marijuana tax revenue is going to be,” said JBC Chairwoman Crisanta Duran, D-Denver, who notes that the state will update its revenue forecast,including marijuana tax revenue projections, on March 18.

“Ultimately, one way or another, the people of this state are going to have a great say about how this extra money is spent. We have to follow TABOR and either take the decision back to the people of Colorado and ask them to keep these dollars or we have to make a refund.”

Rep. Cheri Gerou, R-Evergreen, also sits on the JBC but, unlike Duran, doesn’t see a referred measure to the November ballot as a real option.

“I think probably what’s going to happen is that, internally, the state will try and take care of it,” Gerou said. “I think it’s going to be a bit of a black eye if we have to go back to the voters with another amendment. Continue reading →

Mar 12

High court may review TABOR law

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Justice Kennedy would be seen as swing vote in case

Gov. John Hickenlooper has to decide whether to go to the Supreme Court to defend the Taxpayer’s Bill of Rights, a law that many of his fellow Democrats would like to overturn.

Hickenlooper

Hickenlooper

The Denver-based 10th Circuit Court of Appeals ruled Friday that a lawsuit against TABOR can proceed. Attorney General John Suthers had argued that the lawsuit is a political question that the courts have no business deciding.

The state has the option to appeal to the U.S. Supreme Court or to the full 10th Circuit Court of Appeals. A three-judge appeals court panel handed down Friday’s ruling.

“We are currently reviewing the ruling and will then discuss the matter with our client before taking any next steps,” said Suthers’ spokeswoman, Carolyn Tyler.

Colorado voters adopted TABOR in 1992, stripping the power to raise taxes away from the Legislature. The lawsuit claims that TABOR violates the U.S. Constitution’s guarantee to every state of a “republican form of government,” where an elected body of representatives makes the laws.

Legal arguments in the case harkened back to the earliest days of the United States government, with arguments about what the framers of the Constitution would make of Colorado’s law.

No other state has an anti-tax law as strong as Colorado, and the case has attracted national attention. TABOR has been on the ballot in five other states, and 20 state legislatures have considered it, but it has always been rejected, said Nicholas Johnson, vice president of tax policy for the Center on Budget and Policy Priorities in Washington, D.C. The group was happy with Friday’s ruling.

“It’s important because legislatures need this authority. TABOR seeks to emasculate the Legislature,” Johnson said.

Richard Westfall, a leading Republican lawyer in Denver, filed a brief in defense of TABOR and argued that overturning it would open a “Pandora’s box” that could lead to similar challenges around the country.

But Mike Feeley, who argued the case for the plaintiffs, thinks Westfall is overstating the case. Continue reading →