BOISE - Idaho’s state Board of Tax Appeals has rejected Rep. Phil Hart’s bid to appeal an order to pay $53,000 in back state income taxes, penalties and interest, saying his appeal wasn’t timely, despite his argument that his status as a state lawmaker should give him more time.
Hart argued that he should have months extra to file his appeal because of the state Constitution’s provision granting freedom from arrest or civil process to state legislators during legislative sessions or 10 days before they begin; the appeal period ran out 10 days before the start of this year’s legislative session.
“The courts have not had occasion to opine on the application of legislative immunity to the type of circumstances presented here,” the board wrote in its unanimous decision. “Likewise, this board will not make a finding regarding the validity of the argument. Even if Appellant’s position is accepted arguendo, we find the appeal untimely.”
That’s because Hart didn’t file his appeal until March 31, 2010. His 91-day appeal period ran out on Jan. 1, 2010, and the legislative session started on Jan. 11, 2010 and ended on March 29, 2010. So even if he was entitled to put off his deadline during the entire legislative session, he’d only have had one day to file once it ended - and he took two.
There’s more: The board found that Hart failed to pay the required 20 percent prepayment to file an appeal until April 14, 2010 - two weeks later. He paid part up-front, and then paid part later, marking a second missed deadline.
“On its face, it appears Appellant’s appeal was untimely filed on both counts,” the board wrote in its decision. “The board is without jurisdiction to hear this appeal. … The statute contains no waiver or exception to the filing standards.”
The board’s decision is especially significant because Hart faces a pending ethics charge of abuse of legislative privilege for repeatedly citing the constitutional privilege to win delays in his state and federal income tax fights. A special House Ethics Committee, which earlier voted 4-3 along party lines to clear Hart of a conflict-of-interest charge, delayed considering the abuse of privilege charge to await the pending decision of the Board of Tax Appeals.
Rep. Tom Loertscher, R-Iona, chairman of the Ethics Committee, said, “The reason why we decided not to move forward was because we just didn’t want to muddy the water for that appeal. So as soon as I get word about that and everything’s put together, then we’ll probably convene the committee again.”
Said Loertscher, “We’ll have to make the determination now as to whether or not he’s abused this constitutional privilege or not. Quite frankly, this is probably the more serious of the two charges in the complaint.”
The ethics complaint against Hart, filed by House Minority Leader John Rusche, D-Lewiston, charged Hart with possible abuse of the privilege; and with conflicts of interest for voting on and sponsoring tax legislation while pressing his own personal fight against the state Tax Commission over back income taxes. Last month, the committee voted 4-3, along party lines, to clear Hart on the conflict of interest charge.
Hart is a third-term Republican from Athol with a history of tax protesting; he stopped filing both state and federal income tax returns in 1996 while he pressed an unsuccessful lawsuit claiming the federal income tax was unconstitutional. He’s since been wrangling with both federal and state authorities over back payments. In his state appeal, Hart also alleged that the state income tax is unconstitutional.