Graduated income tax amendment proposed

By JASON MERCIER  | 
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Jan 26, 2016

No legislative session would be complete without a proposed constitutional amendment to impose a graduated income tax in Washington. Today SJR 8214 was introduced to amend "the Constitution to allow an income tax." Judging from the response of voters since 1934 to income tax proposals, SJR 8214 may not get that far: 

  • 1934 – HJR 12: Yes 43%; No 57%
     
  • 1936 – SJR 7: Yes 22%; No 78%
     
  • 1938 – SJR 5: Yes 33% ; No 67%
     
  • 1942 – Constitutional Amendment Article VII, Sec. 2: Yes 34%; No 66%
     
  • 1944 – I-158: Yes 30%; No 70%
     
  • 1973 – HJR 37: Yes 23%; No 77%
     
  • 1975 – I-314: Yes 33%; No 67%
     
  • 1982 – I-435: Yes 34%; No 66%
     
  • 2010 – I-1098: Yes 36%; No 64%

That said, it is still instructive that SJR 8214 was introduced. That action demonstrates that some lawmakers still acknowledge the fact that numerous court rulings since 1930 have interpreted Article 7, Sections 1 and 2 of the state's constitution to require taxation of property, including income, to be uniform and limited to 1%. While there is no ban on enactment of a uniform income tax limited to 1%, under eight decades of legal precedents, a progressive or targeted income tax in Washington is unconstitutional. 

While the state Department of Revenue (DOR) says that description of Washington's income tax ban is accurate, it provided this qualifier in an email: 

Revenue as an agency doesn't take a position on whether the current court would follow the old precedents and hold a graduated or targeted income tax unconstitutional.

It is very concerning that state's tax agency isn't sure "whether the current court" feels bound to follow eight decades of case law. We do know the court recently gave deference to a 106 year old ruling in the charter school case but there are many who believe (as warned by DOR) that this court would break from past precedent on income taxes. 

One individual in this camp is Seattle City Councilwoman Kshama Sawant. Sawant made imposing a "millionaires' tax" in Seattle a centerpiece of her recent re-election campaign. When asked about the 80 plus years of legal precedent against a graduated income tax in Washington, a Sawant ally, David Goldstein said

There are a lot of lawyers here who believe that if the underlying constitutional issue got before the state supreme court, they would overturn a ruling from 1933 that needs to be overturned. Passing an income tax locally is so important to the long-term strategy.

So the question left for taxpayers, do you feel lucky or should steps be taken to be sure that no doubt is left in the mind of five justices on whether graduated income taxes are permitted in Washington? 

Consider the example of what voters in Tennessee recently did make that state's income tax ban crystal clear. Like Washington, Tennessee doesn't tax income but prior to 2014 the lack of an income tax was a policy decision, not prohibited. Wanting to make sure citizens and businesses could have the peace of mind an income tax wasn't just a legislative session away lawmakers asked voters to approve a constitutional amendment banning income taxes. 

Sponsor of the Tennessee income tax ban constitutional amendment Sen. Brian Kelsey told Business Week:

This is going to help us bring in jobs to Tennessee. We can say not only do we not have an income tax, but we'll never have an income tax.

66% of Tennessee voters agreed in 2014 approving the constitutional ban on income taxes. 

Unless we want to leave it up to a mere five votes on the state Supreme Court in hopes they'll follow eight decades of precedent, Washingtonians should encourage lawmakers to let the people act on a constitutional amendment making the state's ban on income taxes crystal clear and immune from judicial tinkering. 

Additional Information
Attorney General Opinion No. 105 (1974): Constitutionality of income tax
Attorney General Opinion No. 79 (1972 - informal): Constitutionality of single rate income tax
Legal Analysis by Former State Supreme Court Justice says I-1098 Income Tax is Unconstitutional
Proposed capital gains tax is likely an unconstitutional income tax and would be an unreliable revenue source
"Choose Washington" - no capital gains taxes