Judges: MARK PRYOR, Attorney General
Filed Date: 12/8/1999
Status: Precedential
Modified Date: 7/5/2016
Mr. Barry Emigh 1720 Arrowhead, Apt. O North Little Rock, AR 72118
Dear Mr. Emigh:
This is in response to your request, pursuant to A.C.A. §
ACT TO EXEMPT FOOD ITEMS AND THOSE FOOD ITEMS EXEMPTED FROM THE `ARKANSAS SODA TAX ACT' FROM THE STATE, COUNTY, AND MUNICIPAL GROSS RECEIPTS SALES TAX: PROVIDE FOR THE EXCLUSIONS OF THE `ARKANSAS SODA TAX ACT,' PREPARED RESTAURANT FOOD AND ALCOHOLIC BEVERAGES FROM THIS ACT:
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 act. See Arkansas Women's Political Caucus v.Riviere,
The popular name is primarily a useful legislative device. Pafford v.Hall,
The ballot title must include an impartial summary of the proposed act that will give the voter a fair understanding of the issues presented.Hoban v. Hall,
Having analyzed your proposed act, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must again reject both your proposed popular name and ballot title due to several ambiguities in the text of your proposed measure. There are a number of additions or changes to your popular name and ballot title which in my view are necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of these ambiguities. I am therefore unable to substitute and certify a more suitable and correct ballot title under A.C.A. §
The following ambiguities must be clarified in your measure before I can perform my statutory duty:
1. Ambiguities exist in Sections 1 and 2, in which you refer to the "Arkansas Soda Tax Act." The proper name of that act is set out at A.C.A. §
26-57-901 as the "Arkansas Soft Drink Tax Act." The text of your proposal erroneously refers to it as the" Arkansas Soda Tax Act." This point must be clarified in your text.2. Section 1 of your proposal states that "[a]ll food items defined as any item that is edible, and maybe packaged, canned and contained in any manner for shipping and handling . . . shall hereby be exempted from the gross receipts sales tax. . . ." The use of the words "maybe packaged, canned and contained in any manner" is unclear in this sentence. I surmise that your intention is to exempt, as "edible," food items although or even though they may be packaged, canned or contained in some manner. The existing language is too unclear on its face, however, to admit of this interpretation.
3. Section 1 of your proposal exempts all food items (defined as any item that is edible) from the gross receipts tax and also exempts those items exempted from the "Arkansas Soda Tax Act" as listed in A.C.A. §
26-57-905 . The latter exemption causes ambiguities in several respects. The "Arkansas Soft Drink Tax Act" levies a tax on distributors, manufacturers and wholesalers. A.C.A. §26-57-904 . It is not a retail tax. The exemptions from this tax are likewise geared to the manufacture, distribution and wholesaling of the products listed. The "gross receipts sales tax" which is the subject of your amendment, on the other hand, is a retail tax. It does not apply to "sales for resale." See A.C.A. §26-52-401 (12)(A). The portion of your proposed act that exempts those items exempt from the "Arkansas Soft Drink Tax Act" (which refers, among other things to certain syrups, simple syrups, powders or base products) thus causes some problems in construction and implementation. In addition, in my judgment, the separate exemption of those items exempted under A.C.A. §26-57-905 causes an ambiguity as to your intention as to the meaning of the term "edible" as used in your proposed act. That very broad term is not defined in your proposal. A question arises, in my judgment, under the new language of your proposal, as to whether the term "edible" generally includes items that are "drinkable." There may be drinkable food items that are neither taxed under the Arkansas Soft Drink Tax Act nor exempted therefrom. A question arises as to whether such items are included as "edible" and therefore exempt from gross receipts sales taxes, or excluded as not being "edible" (and not being exempted under A.C.A. §26-57-905 ) and therefore taxable.4. As noted in Opinion
99-322 , questions may arise as to whether the language of Section 1, exempting "food items" from "any tax by whatever name used to tax food" exempts such things as the inventories of grocery stores or food distribution companies from personal property taxation. Again, this must be clarified you measure may be properly summarized in a popular name and ballot title.5. Section 2 of your proposal states that it shall not affect gross receipts sales taxes or any other tax levied on certain soft drinks, prepared restaurant foods and alcoholic beverages and such taxes "shall stand." An ambiguity exists, in my judgment, as to whether the emphasized language has the effect of granting initiated status to those special taxes noted. This issue is important because if these special taxes "shall stand" under an initiated act, a question arises as to whether a two-thirds vote of the legislature would be required to amend or repeal them. See Amendment 7, ("General Provisions") ("Amendment and Repeal). The "shall stand" language creates an ambiguity in this regard.
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. §
At the same time, however, the Arkansas Supreme Court, through its decisions, has placed a practical duty on the Attorney General, in exercising his statutory duty, to include language in a ballot title about the effects of a proposed measure on current law. See, e.g., Finnv. McCuen,
My statutory duty, under these circumstances, is to reject your proposed 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
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 )