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This page contains a single entry from the blog posted on August 23, 2012 11:44 AM. The previous post in this blog was Guess what -- Portlanders hate Sam Rand garbage ordeal. The next post in this blog is From Matt Wuerker. Many more can be found on the main index page or by looking through the archives.

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Thursday, August 23, 2012

It's an "income tax," but it's not measured by income

We're still trying to wrap our alleged mind around last week's ruling by a Multnomah County judge that the $35-a-head annual arts tax being proposed by the Portland City Council is an "income tax," as the city purports it to be. The judge's ruling is here; the money quote is short:

Both Petitioners assert that the description of the proposed tax in the Question as an "income tax" is insufficient and unfair because in fact the proposed tax is a head tax or a poll tax [prohibited by the Oregon Constitution -- JB].

The proposed tax at issue here is not a head tax or a poll tax because it is not assessed per capita -- it is assessed only upon income-earning individuals age 18 or older in households above the federal poverty guidelines.

As noted above, the City's proposed Question includes the phrase "tax capped at 35 dollars per year." Both Petitioners challenge the use of the word "capped," because no one paying the tax will pay anything less than $35.00 per year. The City responds that the use of "capped" simply means $35.00 is the "high point" of the tax.

The Court finds that as used in the Question proposed by the City the word "capped" is both insufficient and unfair, in that in common understanding to have a "cap" implies the possibility the tax may be something less than the "cap."

We're catching a strong whiff of inconsistency here. If the judge is right that the tax will be either $35 or zero, how is it not a head tax? It's a flat-dollar-amount tax on every resident over 18, just for living in Portland, with an exemption for low-income people. Does the judge mean that a head tax with any exemption at all is not a head tax?

And how can it be an "income tax" if the amount of the tax is not measured by income? If the state passed an exemption to property taxes for individuals below the poverty line, would that convert the property tax into an "income tax"?

Apparently circuit court judges' rulings on ballot titles can't be appealed, and so the measure will go up for a vote in November under the dubious label of an "income tax." But if it passes, taxpayers can still have their day in court on the question whether the tax is legal under state law. We wouldn't be paying ours until that question was definitively answered by the state supreme court. Let's hope it fails and we can laugh the question off as just another example of the absurdity of the Adams "administration."

Comments (30)

Take a look at the language of the measure. Whether you agree with the policy or not, looking at the text reveals all kinds of unanswered questions.

I wasn't surprised by the policy choice that the Portland City Council is trying to make here - that's just par for the course for them. But what really surprises me is the poor lawyering done by the city attorney's office in drafting the measure.

Something's awfully rotten in Denmarkia. Go by handbasket!

I'll defer to someone with a better understanding of tax law, but from an attorney who doesn't practice tax law, I can see how it can be construed as an "income" tax because of the poverty exception. It is not a progressive income tax with increasing marginal rates that we are used to, but it is only triggered if you meet the threshold level of income. So, in a sense, it is based on income, but its then a flat amount once the income level is reached.

Is there a statutory or accepted definition of what constitutes an "income" tax?

Yeah, I'll be voting a big "No" on this one.

Tired of the nickel and diming. Once Adams loses his well-paid job (with no dependents), he'll remember how most of us feel about these relentless tax and fee increases.

Does the judge have bank accounts in the Caribbean?

WHO exactly IS a Portland resident subject to this tax? Filed 1040 with Portland address? If you're registered to vote? Licensed to drive? Property owner? Basketball player playing an away game? Home game? Candidate for Mayor? In a local jail? College student? Former resident serving in the military?

Is Charlie Hales NOW a Portland resident?

Anyone checked HIS driving record?

What it sounds like is, "if you're alive and have a job, you have an income, therefore you pay the fee".

It's Alice in Wonderland logic, or straight out of some movie or play about a mock trial. The Progs have got this place stacked up to the sky.

Time to hold a wake for Democracy and Reason.

It is not a progressive income tax with increasing marginal rates that we are used to, but it is only triggered if you meet the threshold level of income.

No, come on, think about it. It's not that there are no progressive rates -- there are no rates at all! The amount you pay is not determined based on your income. As I wrote, if you put a poverty exception into the property tax, would that turn it into an income tax? Of course not.

Day, Oh, Day! Day, which I know we will someday see!

Waiting for the day when the words, "...it's for the children," appear in a tax law finding.

In my mind it is an income tax because it is assessed against income. If you do not have income or of your income does not pass poverty threshold then this tax cannot be assessed against you.

I am hesitant to disagree with Bojack, and I sense I have some schooling from him coming, but I have to say I disagree when he writes that the amount of tax is not measured by income. ( If no income then tax = 0, income below poverty tax = 0, income above poverty tax= 35). Regressive and flat to be sure, but hard for me to see how income is not a factor in calc of amount of tax due.

Regarding what happens if there is an income exemption on property taxes. Still property tax because can only be assessed against property owners. It would not be assessed against income earners above exemption threshold who do not own property. Therefore still a property tax.

I personally wrote and thanked Dr. Fruits for taking the time and putting in the effort to challenge this tax. It was the right thing to do. I strongly believe though that this measure needs to be defeated at the ballot box. I lack confidence that the Supremes will save us.

Anyone remember how they collected the Multnomah Co. additional income tax for schools? Did it get withdrawn with state income tax? Did we settle up at tax time? I can't remember.

In other words, I'm curious about how they would collect this thing.

It's a 3500% tax on the first dollar earned in excess of the low-income threshold. What's not to get?

I was one of the petitioners challenging the ballot title.

Several people have asked about some details of the tax. Here is my understanding based on reading the city's materials over and over.

Every voting age resident MUST fill out a city tax form.

Even if you don't have to file a federal 1040 or file state taxes, every single person age 18 and older must file a city tax return.

You don't have to have a job to trigger the tax's income condition.

The city counts any income from any source. That includes Social Security benefits, unemployment benefits, disability benefits ... even money from recycling cans at Fred Meyer.

This example from the city show that earning interest in a joint banking account is enough to trigger the income condition.

A head tax is a (a) flat tax (b) levied on individuals. This tax is a head tax.

It is a flat amount of $35 levied on voting age person who receives even a penny of income from any source and does not live in a poverty household.

Before the state head tax was outlawed in 1907 and made unconstitutional in 1910, it was levied on only 30 percent of the population (men aged 21 to 50).

The city expects almost 70 percent of the city's population (and 85 percent of the voting age population) to be subject to the tax.

The tax is retroactive and permanent

Anyone who was a resident of Portland during 2012 will be required to fill out a tax return.

The tax has no sunset and no expiration. It is permanent.

The amount of the tax can be increased without a popular vote.

City Council can increase the tax at any time. This year it's $35 for "art." What's next? That $35 can turn into $350 or $3,500 pretty quick.

It would seem, according to this judge, the original poll taxes weren't poll taxes because they were first assessed only against property owners (there was a time when property ownership was a qualification to vote) and then were assessed only against males (prior to women's suffrage). It's the nature of the underlying tax that drives its characterization, not the fashioning of limitations.

I'm still not getting how if they put a low-income income threshold in the property tax, it wouldn't, by the city's logic, be an "income tax."

Still property tax because can only be assessed against property owners. It would not be assessed against income earners above exemption threshold who do not own property. Therefore still a property tax.

Here, the proposed city tax is imposed only on residents, and only on those over 18. Therefore not an "income tax"? By your reasoning, it's an age tax, or a resident tax. In other words, a head tax.

This is a head tax with a low-income exemption. It is not an income tax.

How big is the bureau that will be reviewing and colleting this %$^#)(@ tax ?
I'm sensing it will take at least a $160,000 bureau chief, an executive assistant making $90k and a whole flock of minions.
Say $1 million a year to start up ?

It will be paid for by cost savings from the Sellwood Bridge.

The resolution mandates that the city cannot spend more that 5% of tax revenues on collections.

By the city's estimates of collections, that would be about $600,000 a year. Back of the envelope estimate says that's about five FTEs.

(By way of reference, MultCo budgeted 10 times that amount to collect the ITAX and they got a compliance rate of only 87%.)

Anyone remember how they collected the Multnomah Co. additional income tax for schools?

Separate form filled out at tax-time, check payable by April 15.

LTJD & Snards:

These are two of the major issues with the measure which the city fails to address in the text.

The way the measure is written, it appears that a person who resides outside of Oregon but who maintains a "place of abode" in Oregon and who spends all or part of at least 200 days (which by their terms means a "fraction of a day") is a resident for purposes of the tax. In other words, people who live in Vancouver, rent or own a home somewhere in Oregon, and who work full time in Portland, or drive through Portland on their way to work, are considered "residents" subject to the tax.

So the guy with the home in Vancouver and the cabin on the Oregon coast who works in Portland is a "resident" of Portland for purposes of this tax, but the guy who lives in Lake Oswego, works in Portland, and owns a cabin on the coast isn't a "resident". You just can't make this crap up.

How do you collect from these people? I don't know, but I'm guessing that if the City is serious about collecting, they'll have to shake down every city business for a list of the home addresses of each one of their full time employees, and ask the employees if they own or rent property in Oregon. Good luck with that.

IMHO it is unlikely this will stand up. It may take a while, but in the end the City is going to lose money on this particular excursion.

Mojo wrote: Go by handbasket!

That's less fanciful than you thought. Oregonian report: "Portland will lower speeds to 20 mph on 70 miles of residential 'greenway' streets"

http://blog.oregonlive.com/commuting/2012/08/portland_will_lower_speeds_to.html

...so you may be going to hell, but at least you won't get there anytime soon. At least the potholes won't damage your vehicle quite as badly.

(Insert joke about extraordinary effort expended to ensure the trendy and politically correct provenance of the handbasket here)

"Portland will lower speeds to 20 mph on 70 miles of residential 'greenway' streets"

That's a joke. They've already done it on Fremont Street in the 40's and 50's. No enforcement, no compliance.

Jack wrote: No enforcement, no compliance.

True, this may be a toothless, symbolic decision.

Most of the prospective City taxpayers will hope for and anticipate this same reaction when they crumple up the new City tax form into an artistically unaesthetic shape.

This is part of the measure being discussed:
5.73.020 Tax Imposed
A tax of $35 is imposed on the income of each income-earning resident of the City of Portland, Oregon who is at least eighteen years old. No tax will be imposed on filer(s) within any household that is at or below the federal poverty guidelines established by the federal Department of Health and Human Services for that tax year.

Two questions:
How is income defined (gross, net, federal taxable income, Oregon taxable income)?

Will a person with little earnings, living with his/her parents in a household over the federal poverty line be taxed?

John:

Income isn't defined. That's another one of the drafting problems. And because income isn't defined, it's not easy to answer your second question. If I were to guess, I'd answer yes to your second question, as long as the person is over 18, which is why it's misleading for the city to claim that there's an exemption for people of modest means - that's not really what the measure says.

Shoot, since income isn't defined I guess I won't owe anything..

I got phone polled about this tax tonight, fwiw.

It will be paid for by cost savings from the Sellwood Bridge.

I thought it was paid for by the new "TriMet Bus Shelter" fee.

The mascot for this measure opening the door for a new taxing idea should be a dog named Tax. Open the door, in come Tax.

By the judge's reasoning, a tax of $35 per person, levied only on persons who live in dwelling units valued at more than $1.98, would not be a poll tax because it would be levied only on persons who live indoors.


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