Hugh Spitzer’s Op-Ed “Whatever your opinion about a state capital-gains tax, it’s constitutional” [March 30, Opinion] on the constitutionality of the proposed capital-gains tax is accurate, temperate, balanced and well-informed. Spitzer has published extensively about the historic state Supreme Court cases in the 1930s which laid the foundation for all of our thinking about this matter today.
His distinction between taxes “on” property and taxes “on” voluntary actions with respect to that property, (e.g., buying and selling the property) is a distinction familiar to tax experts though elusive to some. If the state Supreme Court follows the usual professional analysis, Spitzer is clearly correct that the proposed capital-gains tax is constitutional. It is simply not a tax on property within the meaning of the constitution’s uniformity clause. Opponents of the tax will no doubt exploit the subtlety of the distinction, but we are safest following objective and professionally established analysis.
William R. Andersen, Seattle, Judson Falknor Professor of Law, Emeritus, University of Washington Law School