BOISE – Idaho’s state Board of Tax Appeals has rejected state Rep. Phil Hart’s appeal of 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 than others.
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.
But even if that argument were correct, the board found, Hart still missed the appeal deadlines.
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 decision of the Board of Tax Appeals.
Hart couldn’t immediately be reached for comment Wednesday; the office of his Coeur d’Alene lawyer, Starr Kelso, said it had not yet received the decision, which was issued Tuesday in Boise and mailed. Hart could appeal the decision to district court, though a win there would simply bounce the case back to the same board for a hearing.
“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 (for the sake of argument), we find the appeal untimely.”
That’s because Hart didn’t file his appeal until March 31. His 91-day appeal period – from the time he was ordered to pay on Oct. 2 – ran out on Jan. 1. The legislative session started on Jan. 11, and ended on March 29. 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 – two weeks later. He paid part upfront on March 31, 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.”
State Rep. Tom Loertscher, R-Iona, chairman of the House Ethics Committee, said, “I think the Ethics Committee would want to know why the thing hadn’t been done in a more timely fashion.”
Asked in June by The Spokesman-Review why he didn’t file his appeal in October, November or December, Hart said, “I don’t know. We were putting our game plan together.”
Loertscher said the committee delayed considering the abuse of privilege charge “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.”
He said, “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.
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. Public records show he owes nearly $700,000 in state and federal taxes, penalties and interest. In his state appeal, Hart also argued unsuccessfully that the state income tax is unconstitutional.
Hart was unopposed for re-election to a fourth term in November until Howard Griffiths, a Hayden businessman, filed against him as a write-in candidate this summer, saying he was prompted to run against the fellow conservative Republican because of Hart’s tax woes. “We all pay our taxes, and my feeling is what he did was wrong,” Griffiths said.