The Seattle City Council’s intention to create a high-earners income tax will run afoul of state law and court rulings.
MORE than 30 years ago, our state Legislature clarified whether cities may tax our income — they may not. State law is clear: “A county, city, or city-county shall not levy a tax on net income.”
Almost 75 years ago, our highest court rejected the idea that the state itself can levy a nonuniform tax on property — taxes applied at different rates to the same class of property, like real estate or income. It cannot.
Since 1933, the state Supreme Court has maintained that income is property under our state constitution. Eighteen years later, the Court drove the point home: “It is no longer subject to question in this court that income is property.” More recent court decisions reinforce the same conclusion.
Because our income is our property in Washington, a progressive tax on any class of income (where the tax rate increases with the level of income) violates Article VII, Section 1, of our state constitution: “All taxes shall be uniform upon the same class of property … The word ‘property’ as used herein shall mean and include everything, whether tangible or intangible, subject to ownership.”
Our Supreme Court has also addressed legislative efforts to impose income taxes under other names, such as an “excise tax.” The Court has rejected such efforts, ruling that a legislative body “cannot change the real nature and purpose of an act by giving it a different title or by declaring its nature and purpose to be otherwise . … The character of a tax is determined by its incidents, not by its name.”
The Legislature cannot impose a progressive or other nonuniform tax on income, either directly or indirectly.
Now, Seattle City Council wants to pass an illegal income tax, mincing no words in a May Day resolution that it intends to adopt a citywide income tax by midsummer. This proposed measure ultimately will fail.
First, according to Seattle’s May 1 resolution, the City Council intends to adopt a “progressive income tax.” Perhaps council members hope to stir progressive passions by contrasting its approach to existing, “regressive” taxes. But if the council passes a progressive income tax, it will be adopting an illegal, nonuniform income tax.
Second, the council’s resolution states that it intends to search high and low for “what types of income can and will be taxed.” However, if council members intend to craft creative tax labels to camouflage a nonuniform income tax, they still will have passed an illegal, nonuniform tax on income. A tax’s practical effect, not its label, determines whether it is a tax on income. And such a strategy ignores the statutory bar to local income taxes that the city cannot clear.
Legal issues aside, several practical issues loom. For example, if the city eventually recognizes that its income tax must be uniform (and, again, ignores the statutory bar to local income taxes), then it will have levied a regressive, flat income tax. And a regressive income tax will, in turn, harm the lower-income residents whom the council members say they want to help by passing an income tax.
Further, the city has not yet seriously addressed the extraordinary expense associated with creating a taxation regulatory structure and then using that regulatory structure to enforce, fairly and effectively, income-tax collection. In any city adopting an income tax, the city will have created an environment where companies and wealthy individuals who can afford sophisticated tax advice will avoid as much local income tax as possible.
Meanwhile, residents with incomes at or near the taxable threshold will bear most of the new city income tax burden. Given the city’s proposed $250,000 threshold income level, those most likely to pay a citywide income tax will be small business owners, managers and professionals, given the typical demographic of those whose income hovers around that level.
As we have seen time and again with income taxes at any level of government, the initial threshold — set to tax “the wealthy” and attract votes — inevitably is lowered while the tax rate is increased. Before long it becomes just another tax on the middle class.
Despite all these legal and practical hurdles, Seattle plans to move forward to craft an income tax ordinance in under six weeks, “with the goal of Full Council passage by July 10, 2017.”
The City Council should abandon its effort to rush forward with its illegal and ill-considered ordinance.