Lawmakers wanted an income tax lawsuit

Public records show lawmakers plan to use the capital gains income tax to set up a lawsuit to try to impose a broad-based graduated income tax. They're going to get not one, but two.

It could be years, however, before we know if the state Supreme Court decides to uphold its numerous rulings saying that you own your income or if they'll instead reverse course.

Just days after the Legislature approved Senate Bill 5096, which institutes an income tax on capital gains, the Freedom Foundation filed a lawsuit in Douglas County. A separate group, The Opportunity for All Coalition, announced an upcoming lawsuit.

"The Opportunity for All Coalition plans to file a lawsuit against the recently passed statewide capital gains tax, which looks a lot like a state income tax. Washingtonians have rejected income tax measures 10 times before. The state's constitution clearly prohibits this type of tax, something that its supporters know. On top of that, it is totally unnecessary given current state budget surpluses, and will only serve to inhibit job creation and economic prosperity," stated OFAC President Collin Hathaway.

The state Supreme Court has consistently ruled that income is property, meaning you own it. That is why a graduated income tax has been prohibited without a constitutional amendment.

As for those who unequivocally say a capital gains tax is an income tax, I'm in good company. Every state in the country and the federal Internal Revenue Service agree.

"This is in response to your inquiry regarding the tax treatment of capital gains. You ask whether tax on capital gains is considered an excise tax or an income tax? It is an income tax. More specifically, capital gains are treated as income under the tax code and taxed as such," wrote the IRS to Rep. Dan Newhouse.

Whether the advocates of this tax proposal care that it is an income tax, this fact is not in dispute anywhere outside of our state.

Despite these facts, these emails from Sen. Jamie Pedersen, D-Puyallup, discuss the goal for the capital gains income tax:

• April 30, 2018 - "But the more important benefit of passing a capital gains tax is on the legal side, from my perspective. The other side will challenge it as an unconstitutional property tax. This will give the Supreme Court the opportunity to revisit its bad decisions from 1934 and 1951 that income is property and will make it possible, if we succeed, to enact a progressive income tax with a simple majority vote."

• Dec. 15, 2018: "I personally believe that adopting a capital gains tax is one of the best things we could do to help advance the possibility of an income tax in our state, because it could help resolve the legal uncertainty about whether an income tax is a 'property tax' subject to constitutional limitations. Until that happens, it would take 2/3 majorities in the legislature (and a vote of the people) to adopt an income tax, which makes it very unlikely to happen."

About that legal "uncertainty," here is what the state Supreme Court said in 1960:

"The argument is again pressed upon us that these cases were wrongly decided. The court is unwilling, however, to recede from the position announced in its repeated decisions. Among other things, the attorney general urges that the result should now be different because the state is confronted with a financial crisis. If so, the constitution may be amended by vote of the people. Such a constitutional amendment was rejected by popular vote in 1934."

Not liking the consistent message from the courts does not make the legal facts uncertain.

Remember, voters have already rejected six constitutional amendments to allow a graduated income tax. The state Supreme Court last year also refused to hear the Seattle income tax case that was trying to challenge these prior court rulings.

With these new lawsuits we'll see if the courts stay consistent or instead re-write the rules of the game concerning income taxes here.

Jason Mercier is the Washington Policy Center's Center for Government Reform director. Email him a jmercier@washingtonpolicy.org.