(The Center Square) – A capital gains tax passed by Washington lawmakers last weekend is facing its first lawsuit in its battle to undo generations of tax law precedents. One scholar believes the tax might win.
Profits from the sale of stocks, bonds, and other assets over $ 250,000 would be under-taxed at a tax rate of 7% an invoice that was clarified by the state parliament on Sunday. Real estate, pension accounts and forest areas are excluded from the proposal. A legislative analysis found that this would apply to around 16,000 households. Governor Jay Inslee has been pushing for a capital gains tax since 2014, two years after pledging to veto new taxes in 2012.
Even without the governor’s signature, the bill drew its first legal action less than 72 hours after its crossing. The Freedom Foundation, a conservative free market think tank, and Washington law firm Lane Powell PC filed a lawsuit in Douglas County Superior Court on Wednesday. They claim that the tax is unconstitutional for several reasons. The lawsuit alleges that the tax proposal violates the privileges, immunities, privacy and unity clauses of the state constitution by targeting a specific class of taxpayers and requiring personal financial information. Plaintiffs also allege that a capital gains tax violates the constitution’s trade clause by enforcing discriminatory international trade.
The lawsuit cites seven residents of Washington as plaintiffs, all of whom claim they are subject to written capital gains tax. She names the state, the Treasury Department and Vikki Smith in her official functions as a department head as defendants. Plaintiffs in the lawsuit are demanding that the courts consider capital gains tax unconstitutional and deny the state the ability to collect or enforce it in addition to paying their legal fees.
Another group, the Opportunity for All Coalition, also announced its intention to file a future lawsuit against state capital gains tax on Wednesday.
Maxford Nelsen, director of labor policy at the Freedom Foundation, told The Center Square that he believed the lawsuit was not premature and gave no indication that the case should have any problems going to court.
“Inslee has announced its intention to sign it, and its government has even officially submitted the legislation to state lawmakers,” said Maxford Nelsen, director of labor policy at the Freedom Foundation. “Our lawsuit was ready and there was simply no need to wait for Inslee’s signature to challenge this unconstitutional tax.”
Washington Democrats argue that a capital gains tax would rebalance the tax system and raise money for much-needed public programs. According to a legislative analysis, the tax should collect $ 455 million on public schools by 2023.
Republicans have argued that they would be accounted for at the state level because the IRS treats capital gains as income tax. New taxes are unnecessary if there are state coffers flush with cashand the state will extend it to more taxpayers. Inslee said this week that it has no plans to propose such expansions.
Washington is one of nine states with no income tax. It treats income as property – a view that sets it apart from any other state in the nation. Under Article VII According to the state constitution, property taxes “must be uniform for the same asset class”. This provision has postponed the capital gains tax proposals for the past century and a half. This section was changed 16 times between 1900 and 2011 regarding school taxes and other exemptions.
Washington voters last passed a graduated income tax in 1932, during the Great Depression, with 70% of the vote. The Supreme Federal Court overturned it the following year and found it unconstitutional.
Washington voters have rejected income taxes at the ballot box 11 times since the 1933 ruling. After numerous failed attempts to pass the state parliament in recent years, a proposal on capital gains tax never made it to the vote. Polls show mixed support among Washington residents, but state courts have not yet issued an opinion on capital gains.
1960 became the Supreme Court ruled Taxes on rental income were property taxes.
“Under these rulings, a rental income tax is a property tax, not an excise tax,” the court wrote. “In addition, a tax on renting real estate is a tax on the real estate itself and thus a second tax on real estate.”
Professor Hugh Spitzer, who teaches constitutional law at the University of Washington, says the capital gains tax is an excise tax.
“The upcoming laws are carefully written to levy the tax” on the sale or exchange “of assets such as stocks and bonds – not on the stocks and bonds themselves,” said Spitzer wrote in an editorial in the Seattle Times. “Unless you choose to sell a stock and take advantage of the profits, there is no tax on the asset itself.”
Spitzer refers to the year 1933 of the Supreme State Court decision Maintaining the gross commercial income tax, which affirmed inheritance tax – or the transfer of assets – as an excise tax on a voluntary act rather than a property tax on what he calls a “stationary asset”.
Washington voters will not have the opportunity to abolish capital gains tax anytime soon. As written, the bill is protected from a voter referendum and leaves voters little chance of initiative to repeal it before 2022.
“Democrats insulted the violation further by including language intended to block a citizens’ referendum,” Washington state GOP chairman Caleb Heimlich said in a statement. “Washington taxpayers deserve to have a say in how much taxes they pay.”
Should a capital gains tax soon reach the Supreme Court, Spitzer warns opponents of the capital gains tax to prepare for surprises.
“Washington’s High Court recently demonstrated a robust ability Big changes In longstanding legal theories, “wrote Spitzer.” Hence, enemies of the state capital gains tax may find it advisable to crouch down and pay it instead of initiating a legal challenge. ”
The Freedom Foundation’s lawsuit is now awaiting its first hearing in a higher court.