Judges: MARK PRYOR, Attorney General
Filed Date: 12/16/1999
Status: Precedential
Modified Date: 7/5/2016
Mr. Oscar Stilley Attorney at Law Central Mall Plaza Suite 516 5111 Rogers Avenue Fort Smith, AR 72903-2041
Dear Mr. Stilley:
You have requested certification, pursuant to A.C.A. §
AN AMENDMENT TO ABOLISH THE STATE AND LOCAL SALES AND USE TAX ON USED GOODS, TO PROHIBIT THE INCREASE OF TAXES WITHOUT VOTER APPROVAL AT A GENERAL ELECTION, TO PROVIDE FOR A THREE YEAR STATUTE OF LIMITATIONS FOR ACTIONS TO RECOVER TAXES, BY THE TAXING AUTHORITY OR BY AN AGGRIEVED TAXPAYER, TO PROVIDE PROCEDURAL SAFEGUARDS FOR TAXPAYERS, AND FOR OTHER PURPOSES
AN AMENDMENT TO THE ARKANSAS CONSTITUTION ABOLISHING THE STATE AND LOCAL SALES AND USE TAX ON USED GOODS; AUTHORIZING THE COLLECTION OF SALES AND USE TAX ON GOODS USED TO MAKE REMANUFACTURED GOODS, BUT NOT ON THE FULL PRICE OF THE REMANUFACTURED GOODS; PROHIBITING THE IMPOSITION OR INCREASE OF ANY TAX, OR THE DIVERSION OF ANY FUEL TAXES OR OTHER REVENUE SOURCES PRESENTLY USED FOR ROAD OR BRIDGE CONSTRUCTION OR MAINTENANCE TO OTHER PURPOSES, WITHOUT THE APPROVAL OF A MAJORITY OF THE QUALIFIED ELECTORS, OF THE STATE OR THE AFFECTED LOCAL GOVERNMENTAL ENTITY, FREELY VOTING AT THEIR ABSOLUTE UNFETTERED DISCRETION UPON THE ISSUE AT A REGULARLY SCHEDULED STATEWIDE ELECTION; PROVIDING THAT THE REDUCTION OR ELIMINATION OF EXEMPTIONS OR CREDITS, OR THE CHANGING OF ANY LAW OR RULE WHICH RESULTS IN THE COLLECTION OF ADDITIONAL REVENUE FROM SOME OR ALL TAXPAYERS, SHALL BE DEEMED A TAX INCREASE TO THE EXTENT THAT SAID LAW RESULTS IN INCREASED TAX OR EXACTION; PROVIDING THAT THE TERM "MAJORITY OF THE QUALIFIED ELECTORS" MEANS A MAJORITY OF THE QUALIFIED ELECTORS WHO ACTUALLY APPEAR AND VOTE UPON THE PERTINENT QUESTION; ABOLISHING THE RULE AGAINST RECOVERY BACK OF VOLUNTARY PAYMENTS, AS APPLIED TO ILLEGAL EXACTIONS; PROVIDING FOR A THREE (3) YEAR STATUTE OF LIMITATIONS FOR THE CITIZENS' RECOVERY BACK OF ILLEGAL EXACTIONS, AND FOR A THREE (3) YEAR STATUTE OF LIMITATIONS ON ALL CIVIL, CRIMINAL, OR OTHER ACTIONS BY ANY STATE OR LOCAL GOVERNMENT TO COLLECT DELINQUENT TAXES; PROVIDING THAT IN ANY ILLEGAL EXACTION LAWSUIT, ALL PERSONS SIMILARLY SITUATED TO THE NAMED PLAINTIFF SHALL BE ENTITLED TO RECOVER BACK ANY SUMS FOUND TO HAVE BEEN ILLEGALLY EXACTED, LESS COSTS AND REASONABLE ATTORNEY'S FEES; PROSCRIBING THE PUNISHMENT OF TAXPAYERS FOR THE REFUSAL TO PAY ANY TAX DECLARED BY ANY COURT OF RECORD OF THIS [SIC] TO BE VOLUNTARY, UNLESS THE ARKANSAS SUPREME COURT SUBSEQUENTLY RULES THAT THE PAYMENT OF ALL SUCH TAX IS AS A MATTER OF LAW INVOLUNTARY, PRIOR TO THE DUE DATE FOR THE TAX; DEFINING THE TERM "PUNISH" TO INCLUDE ANY GOVERNMENT ACTION TAKEN FOR TO [SIC] PURPOSE OF COERCING THE PAYMENT OF THE TAX; DEFINING ILLEGAL EXACTION TO INCLUDE ILLEGAL, ERRONEOUS, OR EXCESSIVE IMPOSITION, LEVYING, ASSESSMENT, OR COLLECTION OF TAX OR ENFORCED GOVERNMENTAL OR QUASI GOVERNMENTAL EXACTIONS OF ANY KIND WHATSOEVER, PROVIDED, HOWEVER, THAT SUCH SHALL NOT INCLUDE ANY LEGAL TAX IF THE TAXING AUTHORITY REASONABLY ATTEMPTED TO COMPLY WITH ALL LAWS, REGULATIONS, AND REQUIREMENTS FOR THE ASSESSMENT OR COLLECTION OF TAX, AND THE CIRCUMSTANCES ARE SUCH THAT THE TAXPAYERS IN FAIRNESS AND EQUITY OUGHT NOT TO ESCAPE LIABILITY FOR THE TAX; PROVIDING THAT SOVEREIGN IMMUNITY, FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES, FAILURE TO APPROPRIATE MONEY FOR REPAYMENT, OR PAYMENT OVER TO ANOTHER ENTITY, CONSTITUTE NO DEFENSES TO AN ACTION FOR ILLEGAL EXACTION; PROVIDING FOR LIBERAL CONSTRUCTION IN FAVOR OF THE TAXPAYER, SEVERABILITY, AND GENERAL REPEALER OF CONFLICTING PROVISIONS; PROVIDING THAT THE AMENDMENT IS SELF-EXECUTING AND SHALL TAKE EFFECT IMMEDIATELY, EXCEPT AS OTHERWISE PROVIDED; PROVIDING THAT ALL PROTECTIONS FOR THE TAXPAYER, RELATED TO LITIGATION, SHALL APPLY TO ALL ACTIONS BROUGHT TO JUDGMENT AFTER THE DATE OF PASSAGE OF THIS AMENDMENT, AND FOR OTHER PURPOSES.
You previously submitted a popular name and ballot title for a similar proposed measure, which I rejected on the grounds of certain ambiguities in the text of the proposed measure. See Op. Att'y Gen. No.
The Attorney General is required, pursuant to A.C.A. §
A.C.A. §
The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment. See Arkansas Women's Political Caucusv. Riviere,
The popular name is primarily a useful legislative device. Pafford v.Hall,
The ballot title must include an impartial summary of the proposed amendment that will give the voter a fair understanding of the issues presented. Hoban v. Hall,
Having analyzed your proposed measure, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject both your proposed popular name and ballot title due to the presence of a remaining unresolved ambiguity in the text of your proposed measure. I cannot fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of this ambiguity. I am therefore unable at this time to substitute and certify a more suitable and correct ballot title under A.C.A. §
The following ambiguity was noted in both Opinion No.
Section 3(e) of your proposed measure prohibits punishment for the nonpayment of taxes that have been declared" voluntary" by a court, unless payment of the tax is declared by the Arkansas Supreme Court to have been made "involuntarily." It is unclear from the language of this provision whether it is designed to address the issue of voluntary/involuntary taxes or voluntary/involuntary payment of taxes. The confusion arises out of your reference both to voluntary taxes and to a declaration by the Supreme Court that payment of the tax was involuntary. When the issue in a given case is whether the payment of the tax (as opposed to the tax itself) is voluntary or involuntary, the matter will normally be governed by the principles of law surrounding the "voluntariness doctrine" under Arkansas law. That doctrine of course is inapplicable to the issue that arises when taxes themselves (as opposed to the payment of taxes) are alleged or held to be either voluntary or involuntary. This lack of clarity in the language of this section of your proposed measure gives rise to confusion as to its intended effect. Moreover, if enacted, the measure would have the effect of bringing about a substantial change in the jurisdictional effect of the rulings of lower courts. This change must be brought to the attention of the voters.
Unless the foregoing ambiguity is resolved, I will be unable to summarize your proposed amendment effectively. I reiterate that I do not purport to have set out an exhaustive discussion of possible problems with the proposed measure.
My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures. I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. §
My statutory duty, under these circumstances, is to reject your proposed popular name and ballot title, stating my reasons therefor, and to instruct you to "redesign" the proposed measure and ballot title. See
A.C.A. §
Sincerely,
MARK PRYOR Attorney General
Enclosure
Pafford v. Hall , 217 Ark. 734 ( 1950 )
Gaines v. McCuen , 296 Ark. 513 ( 1988 )
Hoban v. Hall , 229 Ark. 416 ( 1958 )
Moore v. Hall , 229 Ark. 411 ( 1958 )
Chaney v. Bryant , 259 Ark. 294 ( 1976 )
Bailey v. McCuen , 318 Ark. 277 ( 1994 )
Christian Civic Action Committee v. McCuen , 318 Ark. 241 ( 1994 )
Becker v. Riviere , 270 Ark. 219 ( 1980 )
Leigh v. Hall , 232 Ark. 558 ( 1960 )
Plugge Ex Rel. Arkansas for Representative Democracy v. ... , 310 Ark. 654 ( 1992 )
Becker v. McCuen , 303 Ark. 482 ( 1990 )
Finn v. McCuen , 303 Ark. 418 ( 1990 )
Arkansas Women's Political Caucus v. Riviere , 283 Ark. 463 ( 1984 )